If a purchase between a retailer and a consumer (a new car) is found seriously defective, is this considered a fundamental breach therefore contrary to the requirement of reasonableness?
The defect is in breach of s14 of the Sales of Goods Act 1979, but the retailer has included a limitation clause which limits payouts to £500. If this is considered a fundamental breach, am I correct to say the consumer is therefore entitled to a remedy even though it is not provided for in the contract, because the breach is so fundamental to the contract it voids the limitation clause?
The limitation clause is included in standard terms of business, and the car is considered as 'only incidental to a business', so the party is definitely participating as a consumer. The cost of repair to the 'new car' would be £5000, the car itself was bought at £20'000.
Does it matter that the car company offered insurance?
Thanks in advance for any help!
Is this a fundamental breach? Watch
- Thread Starter
- 22-03-2011 05:22
- 22-03-2011 17:16
What authority do you have for your assertions re: reasonableness and fundamental breach. What is the requirement of reasonableness and why would a breach be so fundamental as to void a limitation clause. You need to be more specific about the legal principles you are applying, these are not general principles.
"'only incidental to a business', so the party is definitely participating as a consumer" <-- I think you are a bit hasty here. Does using something partly for business mean you are no longer buying as a consumer? Definitely needs to be checked.
Probably doesn't matter that the car company offered insurance, but this might suggest that the counterparty voluntarily took the risk of defects becoming apparent in the car