Consumer Law

There are three problems that John has come across on his trip to Bildit Stores. The first problem is that John parked his car in the stores car park only to find on his return that the "park here at your own risk" sign had fallen and damaged his car. The next is that he bought a drill from another customer instead of in the store and it set fire when first used which resulted in losing valuable information on his PC and also damaging his ceiling at the cost of over Ð'Ј1000. The final problem is that John bought 10 boxes of sky blue tiles and had 20 more boxes ordered for delivery the next day, however, two weeks later only 15 boxes were delivered and only 5 of those were sky blue tiles and the rest were midnight blue.

The first thing to consider with regards to the car damage is whether or not there was a contract between John and Bildit Stores. Young gives the definition of a contract as an agreement (usually between two persons) giving rise to obligations on part of both persons which are enforced or recognised by law. (Young, 1997: 1). By this definition it shows there was a contract because John parked his car and paid the parking charge which meant that he entered into the contract and agreed to the terms willingly. This means therefore John is bound by this contract however, the exemption clause Ð''park at own risk' will only be effective if it was incorporated into the contract with reasonable notice and before the contract was made and if it was, John will accept liability for damage to his property.

Exemption clauses are where one party inserts into the contract a term excluding or limiting his liability for any breach of contract by him (Young, 1997: 246). It also has to be incorporated into the contract otherwise it will not form part of the agreement and cannot bind them. It can be incorporated in the contract by signature, by notice or by course of dealing (Trietel, 1999: 197).

The store in John's case had inserted their exemption clause in the form of a notice displayed in the car park "park here at your own risk Ð'- we do not accept liability to damage of property". When an exemption clause is given in a notice, in order for it to be incorporated there needs to be reasonable notice of its existence given to the party.

In Thornton v. Shoe Lane Parking Ltd (1971) the consumer parked in the defendant's automatic car-park where the machine gave a ticket as they drove in. The ticket which the stated that the terms and conditions were shown inside the premises. One of the conditions was excluding liability to damage to property and injury howsoever caused. The customer was injured, partly due to defendant's negligence. Lord Denning held the exempting condition ineffective because the defendants had not sufficiently drawn the customer's attention to it (Leder et al, 1996: 52). This case law illustrates how Bildit Store was not like the Shoe Lane Parking Ltd and did give reasonable notice by putting up the sign in the car-park for all to see therefore this exemption clause would be upheld in court. There is another point to consider as to whether the exclusion clause is incorporated which is that steps needs to be taken to bring it to attention before the contract is made.

This was shown in the case of Olley v. Marlborough Court (1949) where the consumer had her furs stolen from the hotel bedroom which was locked. There was a sign on one of the bedroom walls which excluded the hotel of responsibility for any articles lost or stolen. It was held that the contract concluded before the consumer was shown to the room and therefore the notice was not incorporated into the contract (Trietel, 1999: 200). With this in mind John's contract with Bildit Stores would have concluded when he paid the parking charge therefore as John parked his car under the exemption clause sign, it is reasonable to say that he would have seen it before he bought a parking ticket, consequently John agreed to that clause.

However, John may still be able to bring a claim against Bildit Store because under the Unfair Contact Terms Act 1977 s. 2 it states that in the case of loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness (Young, 1997: 290). Therefore as it was the Bildit Stores sign that fell and damaged John's car due to it not being fixed down properly or maintained, this is negligence and in court the exemption clause would be subject to the reasonableness test.

The contra proferentem rule which is where an exemption clause will be construed against the person putting it forward if there is any ambiguity of the clause (Lowe et al, 1999: 122). In Hollier v. Rambler Motors Ltd (1972) a car was damaged in a garage fire caused by negligence of the defendant and it was held that the clause was not widely enough drafted to exclude damage arising from negligence (Court of Appeal). Leder notes that "as a matter of construction the words Ð''howsoever caused' added to an exclusion clause, then all liability will be excluded even where the cause of damage or loss is negligence." (Leder et al, 1996: 53). So if on the Bildit Stores sign if included the words Ð''howsoever caused' then they would be exempt of liability for damage or loss caused by negligence but as it was not present, the court would apply the contra proferentem rule meaning that they can still be held liable.

After considering all of these points it seems as though John has a good case against Bildit stores. There was a contract made between the two parties which incorporated an exemption clause effectively. The sign was the property and responsibility of the store and it seems that the incident occurred due to negligence on their part. The exclusion clause exempt Bildit stores from liability except due to the wordings ambiguity it did not exempt cause by negligence, therefore John can hold them liable for the damage to his car.

The problem that John faces with regards to the damage that the drill has caused to him is a difficult one because he bought the drill from a private seller rather than a Ð''business'. This problem is covered in the Sale of Goods Act 1979 in the areas of s.13 (description) and s.14 (quality and fit for purpose).

Section 13 applies to contracts for sale of goods of all kinds and is not limited to goods sold in the course of business. So, even a private seller is bound by this section (Furmston, 2000: 115). The Sale of Goods Act 1979 s.13 (1) says that where there is a contract for the sale of goods by description, there is an implied term that the goods correspond with the description.

John was told by the private seller, that the drill was similar in all