European Court Of Justice Answers Assessment Answer

Answer:

1. The names of the judges were Thorpe, Mance LJJ and Neuberger J.

2. The claimant in this case was ...

Medivance Instruments Ltd. On the other hand, the names of the respondents in this case were Gaslane Pipework Services Ltd and Vulcana Gas Appliances Ltd.

3. According to section 14, terms can be implied in the contract related with quality and title and it needs to be noted that these terms are relevant only when the seller is acting in the course of business. At the same time, this section does not prescribe any requirements related with the status of the buyer. There is a difference present between the test of merchantable quality as prescribed by section 14(2) and the test of fitness that has been prescribed by section 14(3). Therefore, section 14(2) requires that the goods sold by the seller should be of merchantable quality which means that the goods should be satisfactory. In this regard, the Sale of Goods Act has provided an objective test under section 14(2) for the purpose of deciding satisfactory quality. In this case the standard of a reasonable person has to be used regarding the goods being satisfactory, keeping in mind the price, description and any other fact that may be relevant for this purpose. There are certain factors that have been identified by the courts that can increase or decrease the expectation of satisfaction. For example, in Bernstein v. Pamson Motors Ltd, the court stated that in case of secondhand goods, the expectation regarding satisfaction can be lower. However when it comes to the goods of a very well-known brand, the expectation regarding satisfaction can be quite higher. Some of the other factors that are being considered as being relevant for the purpose of this test may include advertising.

On the other hand, in case of section 14(3) the test of witness for purpose has been used. In this case, if the buyer has informed the seller regarding the purpose behind the purchase of the goods expressly or impliedly, an obligation is imposed on the seller to ensure that the goods that are being sold to the buyer are fit for the purpose disclosed by the buyer. In this case, it needs to be seen if under the circumstances, it will be reasonable for the buyer to rely on the expertise of the seller in this regard. This issue has been discussed in detail by the court in Godley v Perry which provides an example of the application of this test. In this way, there is a significant difference present between the test of merchantable quality as prescribed by section 14(2) and the test related with fitness for purpose that has to be used in case of section 14(3).

In this way, the tests related with merchantable quality is comparatively general because in this case, merchantability needs to be evaluated, keeping into the type of the goods and also the likely use of the goods. On the other hand, the test related with fitness for purpose deals with the specific purpose for which the goods have been acquired by the purchaser.

4. It was alleged by the claimant that Valcuna was required to supply a device that should be of merchantable quality and at the same time it should also be fit for purpose as prescribed by s14, Sale of Goods Act.

However the court of appeal did not consider that the provisions of section 14 were applicable to Vulcana. The reasons that were given by the court in this regard included the warning mentioned on the heater due to which the installers of the heater can be reasonably expected to take reasonable precautions against such known risk. As a result, the court concluded that the respondent had properly warned against the risk and it was also well known to the appellant. Although, it was acknowledged by the court that it depends on the circumstances of each case if such bonding can be considered as being sufficient for discharging the duty that has been prescribed for the seller but in the present case, it was stated that under the circumstances, it can be said that the duties prescribed by section 14 have been discharged by the respondents than they gave the warning. In the same way, regarding the applicability of the provisions of section 14(3), the court stated that in any case the heater can be considered as being fit for purpose for which it has been supplied. In this regard, the court also consider the fact that the buyer had specifically asked the seller to purchase that particular heater and it also noted the fact that the buyer had been using the heaters of the same type for nearly 8 years in their factory. As a result, it can be said that accident was also aware of the risk. Another reason given by the court in favor of its conclusion that section 14 was not applicable to Vulcana was that the trial Judge also used expert evidence who stated that the heater supplied to the appellant was not only of merchantable quality but it was also fit for the purpose.

In this regard, the court also consider the fact that heater complied with the British standards.

5. Neuberger J stated in this regard that the provisions prescribed by s14, Sale of Goods Act can be considered as being applicable between the appellant and Gaslane due to the reason that the contract was present between them and according to this contract, "the buyer" was the appellant and the seller was Gaslane and the heater had been supplied by the seller to the buyer under this contract. But it needs to be included in this regard that no contract is present between appellant and Vulcana and as a result, there is no relationship of buyer and seller. Under these circumstances, any liability that Vulcana may have towards the appellant will be present under tort and not under the law of contract. As a result, the basis for the claim of the appellant against Vulcana is very different juridically as compared to the claim of the appellant against Gaslane. But on the basis of the facts of this case, it has been contended by appellant that Vulcana had obligations towards the appellant under tort which included the duties that were same as the contractual duties of Gaslane as prescribed by the provisions of s14, Sale of Goods Act. In this regard, it has been claimed by the appellant that in case the heater can be considered as not being fit for the purpose it was supplied or if it can be considered as being not of merchantable quality, as the manufacturer and supplier of the heater, Vulcana can be considered as being negligent. However the appellant had presented its case against the respondents in several other ways, apart from those prescribed by section 14(2) and 14(3). But at the same time, the court also acknowledged that if the claims made by the appellant on the ground that the heater supplied with was not of merchantable quality audit was not fit for purpose fail, the other claims made by the appellant against the respondents cannot succeed. As a result, the Court decided to limit the consideration of the appeal only to the claims under section 14 that have been made by the appellant against Gaslene and in case of Vulcana, the court decided to limit its consideration to their equivalent under tort.

6. The appellant stated that the heater was not of merchantable quality or fit for purpose as it would have been safer if the heater would have been provided with a guard or a thermostat. However, this contention of the appellant was rejected by the court that only on this ground it cannot be said that the heater was not fit for purpose or it was not of merchantable quality. In this regard, the court stated that the requirements prescribed by s14, Sale of Goods Act do not require that such a high standard should be imposed. At the same time, doing so will result in the imposition of a very high burden on the suppliers and as a result, it may also cause interference in the normal trade and commerce. The court further stated that the claim of the appellant regarding the heater not being fit for purpose of merchantable quality needs to be rejected on the grounds that the tests related with fitness for purpose or merchantable quality is not satisfied in all cases by referring to the test of reasonablene necessity. In this regard, the court also referred to the judgment given in Rogers v Parish by Mustill LJ


7. The court stated that if a claim that has been initiated in the s14, Sale of Goods Act is successful each time when the claimant is successful in establishing that the good supplied by the seller would have been safer, more fit for the purpose or more merchantable, there will be an intolerable burden placed on the supply of goods and in this way, it will also result in a very serious interference by the courts with normal trade and commerce.

8. The court did not consider that any other heaters needed to be supplied to the appellant. The reason behind this belief of the court was that although some convection heaters were present in the market which had a device that had been described by the terms on which the appellant had relied upon, the court also noted that there were also available many other convection heaters in the market which did not have such a device as was the case with the heater supplied to the appellant. At the same time, the court also stated that there was no evidence presented to suggest that the heaters that included such a device were more reliable on effective in preventing accidents.

9. Neuberger J relied on this case because it was mentioned by Court of Appeal that indeed it is the duty of the manufacturer to terminate the supply of the product if the manufacturer comes to know that the product is unsafe. However, there can be certain circumstances where this duty of the manufacturer can be fulfilled by taking less drastic action. For example, this unity can also be fulfilled by giving proper warning regarding the relevant facts to the buyers of such a product that are known or suspected to result in a real or any potential risk.

10. Mr. Brown stated that it will be dangerous to allow the manufacturers or the sellers of the goods to avoid their liability if they gave a warning regarding the risk to the buyers because in such a case, the sellers will be defining the scope of their contractual duty regardless of the circumstances.

11.  The facts of Holmes v Ashford was somewhat similar to this case. The court held that the manufacture of hair dye was not responsible because the client of a hairdresser had contracted dermatitis after being treated with that hair dye. The reason given by the court was that there was a clear warning given with the hair dye regarding the possibility of such a risk and also a recommendation that the effects of the dye should be tested first. This decision has been based on the judgment of the Court given in Hodge & Sons -v- Anglo-American Oil Co. where it was stated that the required proportions can be fulfilled if the barge had been given to a competent person along with a reasonable warning regarding the dangerous character of the barge, if such danger is not obvious. Due to these reasons, Neuberger J refers to these two judgments.

12. The court stated that the fact that the heater complied with British Standard was a material fact. This fact was mainly relevant when it comes to the test of merchantable quality. Apart from it, the court also considered as a material fact that a warning was present in the instructions in which it has been clearly mentioned that the front part of the heater should not be obstructed as there was a risk of causing fire.

On the other hand, the fact that the respondents had been told by the appellant that the heater is going to be used in baking area and also the fact that heaters were available in the market with thermostat devices were not considered as material facts while deciding the case. In the same way, it was not considered as material that it has been mentioned in the brochure of Vulcana that the heater has an overheat switch.

13. The ratio decidendi included the statement that the heater was of merchantable quality and was also fit for the purpose. This statement was made by the court in view of the four factors that have been identified by the trial court.

On the other hand, the statement that it will be unsuitable for the court to enforce an obligation on the seller, through tort or by an implied term, that imposes a higher duty as compared to the duty that has been imposed on the parties by the terms of the contract or by statute is not the ratio decidendi of this case. In the same way, the statement that the commercial purchaser having earlier knowledge of buying same product and also being aware of the risks involved in using such a product, then it can be considered that the goods are fit for the purpose as provided by section 14, was also not the ratio decidendi of this case.

In this way, the ratio decidendi of the court can be described as the warning given by the respondents which was considered by the court as an important factor that goes in the favor of respondents. It was noted by the court that while installing the heater, it can be reasonably expected that the ordinary precautions will be taken by the installers to protect against the risks that are known. At the same time, the court also found that the respondent has given a warning regarding the presence of such a risk and in any case, the appellant was well known to the presence of such a risk.

14. On the basis of the decision given by the court in Medivance Instruments Ltd v Gaslane Pipework Services Ltd, it can be said that in the present case, JTL had given sufficient warning regarding the presence of a risk of causing fire if anything is placed within a meter radius of the heater. While it is true that in this case, Mr. Matthews had no experience in purchasing the heaters and as a result, he had relied on the advice given by JTL but at the same time, it also needs to be noted that in this case, sufficient warning has been given by JTL that if anything is placed near the heater, there are chances that it may result in a fire. Moreover, Mr. Matthews and also signed a document in which it has been mentioned that he clearly understood the risk. Another very significant factor in this regard is that the heater conforms to the British Safety Standards. On the other hand, Mr. Matthew had claimed that the heater installed by JTL was not of merchantable quality because it did not have a thermostat or a safety guard. Moreover, Mr. Matthew had shown the representatives of JTL that the heater is going to be installed in the stock room where hundreds of cardboard boxes were present. After visiting the stock room, the representatives recommended the standard heater for Mr. Matthews which did not have a thermostat or a safety guard.

However only due to this fact, it cannot be said that it was not of merchantable quality, particularly in view of the fact that the heater fulfills the British safety standards. Similarly in view of the decision given in Medivance Instruments Ltd v Gaslane Pipework Services Ltd, it also needs to be noted that sufficient warning has been given by JTL to Mr. Matthews that a fire may be caused if anything is placed near the heater. In this way, JTL can successfully avoid the claim of Mr. Matthews regarding merchantable quality of the heater.

1. The short title of the statute is Trade Union and Labour Relations (Consolidation) Act 1992

2. The long title of the Act is Trade Union and Labour Relations (Consolidation) Act 1992

3.  The Act came into force on 16 July, 1992.

4.  The Act provides that that it can be presumed that the section 137(5) that a person has been refused employment if the person from whom such person seeks employment has refused to entertain or due process the inquiry or application or if makes that person to withdraw or not to follow his inquiry on application or if such person has deliberately omitted or refused to give employment of that description to such a person. In the same way, a similar presumption can also be made under section 137(5)(d) of the Act if the employer offers the employment to the applicant but on such terms that will not be offered by any reasonable employer who wants to appoint an employee for the post and which are not accepted. In the same way, a presumption can also be made if an offer has been made regarding such employment but later on the offer is withdrawn or if the applicant is made to refuse the offer.

5. The meaning of the advertisement will be decided by the court under section 137(3) of the Act by considering that the employment offered in the advertisement is available only to the persons who are the members of trade union or not the member of trade union or if the condition prescribed by subsection (1)(b) of s137 will be enforced regarding the employment that has been offered in the advertisement and the person who does not fulfills the condition or if such person is not willing to accept the requirement mentioned in the advertisement and has been refused employment, shall be determined by the court that such person has been refused employment on account of such reason.

6. In the present case, the provisions of Trade Union and Labor Relations Act, 1992 have been contravened because it has been clearly provided by this legislation that will be unlawful to refuse an applicant employment only due to the reason that such person is a member of one is not a member of a trade union. In the present case, Sophie had not been called for an interview as she has not joined Teach Excel Union.

7. Section 137(1)(b) clearly provides the kids will be unlawful if a person has been refused employment due to the reason that such person does not want to accept a requirement according to which a person has to take steps to become or cease to become a member of a trade union. It also applies to a requirement according to which a person has to remain a member of a trade union or is required not to become a member of the trade union. At the same time, clause 5 (d) of section 137 also provides that it will be considered that a person has been refused employment in case the person has been offered the employment on such terms that would not have been offered by any other reasonable employer who wants to fill the post. In this way, it is clear that in the present case Marlon had been refused employment in contravention of the provisions of Act and therefore, Marlon can make a complaint to the employment tribunal and seek compensation.

8. Section 188 of the Act provides for the duty of the employers to consult when the employer is suggesting dismissing 20 or more employees as redundant within 90 days or less. In this regard, the Act provides that the consultations should start within “good time” but it has been specifically provided that in case a proposal has been made by the employer to dismiss 100 or more employees of the organization, the conservation has to start at least 90 days before the notice of dismissal is going to expire. After the decision given by the European Court in Junk v Kehnel, it is now clear that the employers are required to complete the statutory process of consultation before any dismissal notice has been issued by them.

At the same time, it is also the duty of IT World to consult with the appropriate representatives of the employees regarding the dismissals, who were going to be affected by the dismissals proposed by the employer. In this way, the duty to consult prescribed by section 188 for the employers has been breached by IT World in the present case.

9. It has been clearly mentioned the section 188(1) of this legislation that in case any employee is going to dismiss 20 or more employees as redundant, such an employer is required start consultations regarding these dismissals with all the persons who can be considered as the appropriate representatives of the affected employees. Therefore, according to the literal rule of statutory interpretation, a catering company is required to initiate the process of consultation as prescribed by section 188(1).

10. Section 170 of this legislation provides for the time of that can be taken by the employees for engaging in trade union activities. In this regard, section 170(1) provides that the employers are required to allow their employees who are the members of any trade union recognized by the employers to take time off during their working hours of the employee to take part in the activities of the union and also in any activities in which the employees are acting as the representatives of the Union. In this way, clear duty has been prescribed by section 170 for Marketing Solutions to allow time off to their employee Simon because he is the member of a trade union that is recognized by the company. In this way, Marketing Solutions has to allow time off the Simon during their working hours because he is going to represent his trade union at the conference of trade unions. In this regard, it has also been provided by 170(3) that the amount of time off that will be allowed to the employees and also the purpose for which such time off has been allowed needs to be reasonable. As in the present case, Simon has asked for a time off in order to represent his trade union at the conference of trade unions, it appears to be a reasonable cause therefore Marketing Solutions is required to allow time off to Simon so that he can represent his trade union at the conference.

Bibliography

Bernstein v. Pamson Motors Ltd [1987] 2 All ER 220

Godley v Perry [1960] 1 WLR 9

Hodge & Sons -v- Anglo-American Oil Co. (1922) LC.L.Rep 183

Holmes -v- Ashford [1950] 2 All ER 76

Junk v Kuhnel, European Court of Justice January 2005

Medivance Instruments Ltd v Gaslane Pipework Services Ltd and another [2002] EWCA Civ 500

Rogers v Parish [1987] 1 QB 933

Sale of Goods Act, 1979

Trade Union and Labor Relations Act, 1992

Trade Union and Labor Relations Act, 1992

Wright v Dunlop (1973) 7 KIR 255

Medivance Instruments Ltd v Gaslane Pipework Services Ltd and another [2002] EWCA Civ 500

Section 14, Sale of Goods Act, 1979

Ibid

14(3) Sale of Goods Act, 1979

Bernstein v. Pamson Motors Ltd [1987] 2 All ER 220

Godley v Perry [1960] 1 WLR 9

Sale of Goods Act

ibid

Sale of Goods Act, 1979

Rogers -v- Parish [1987] 1 QB 933

Wright v Dunlop (1973) 7 KIR 255

Holmes -v- Ashford [1950] 2 All ER 76

Hodge & Sons -v- Anglo-American Oil Co. (1922) LC.L.Rep 183

Medivance Instruments Ltd v Gaslane Pipework Services Ltd and another [2002] EWCA Civ 500

ibid

Trade Union and Labour Relations (Consolidation) Act 1992

ibid

ibid

Trade Union and Labor Relations Act, 1992

Junk v Kuhnel, European Court of Justice January 2005

Trade Union and Labor Relations Act, 1992

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