Consumer Protection

Feb. 27

Monday, February 27th, 2012

CONSUMER PROTECTION
INTRODUCTION
There is no single Act of Parliament that deals with Consumer Protection, only Common Law and Statutory Law are applicable. The most important texts to consider for the course are: 1. Christine Mpaka, Consumer Protection (Oxford University Press) 2. Ben Sihanya, Consumer Protection 3. Oketch Owiti and Okello 4. Brian Harvey and Deborah Perry, Consumer Protection and Fair Trading 5. Robert Law and Woodroggle, Consumer Law and Practice 6. R Crestan, Consumer Law and Practice 7. David and John, Textbook on Consumer Law Consumer Laws are private law measures as well as public law measures The Law of Contract is important in Consumer Protection. The relevant areas from the Law of Contract that are relevant to Consumer Protection include: i. Misrepresentation. This relates to false presentation or false statements. This is remedied by voidability of the contract. ii. Mistake. Where a consumer enters into a contract due to some type of mistake. It can either be a unilateral mistake or a bilateral mistake (also called common mistake) or a mutual mistake. A contract concluded due to mistake is void iii. Terms of the contract. These may be express or implied terms. Express terms are terms expressly agreed upon by the parties. Implied terms are by customs or uses, or by courts in order to give business efficacy, or by statutes. iv. Exemption or exclusion clauses { completely excluded; limitation of liability} v. Standard form contracts The Law of Tort is also important in Consumer Protection. The relevant areas include: i. Negligent misstatement. Under such, a liability arises. Liability arises when there is: Physical injury to person or property Economic loss (Hedley Byne vs. Hells Perk LTD) ii. Tort of deceit. Arises where a person makes a wrong statement intentionally or carelessly and recklessly.
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iii.

Product liability. (Donoghue vs. Steveson) If goods supplied are defective, there is liability

PRIVATE LAW MEASURES (STATUTORY LAW) 1. Sale of Goods Act

It deals with the specific types of contract that relates to goods only. It protects the consumer buyer; it is between individuals, thus a private law measure It has several provisions that are important. The terms implied under the Sale of Goods Act are; Conditions (term vital to the contract) it is of essence or which goes to the root of the contract. The remedy for breach is to repudiate the contract and also to claim damages. Warranties. Terms not that vital. The remedy for breach is damages only Samuel vs. Davies Husband went to a dentist and asked the dentist to prepare dentures for his wife. The dentist prepared them but it was found that the dentist did not fix the wifes jaws. The dentist argued that the agreement was whether the dentist to fix the jaws and therefore not liable. The husband refused to pay. The dentist went to court to recover the price. There were two issues before the court: What type of contract was this? Was it for services or for goods? (The test to be applied is what the main purpose of the contract is?) The judge did not decide this issue but said if the contract of service, then it is the implied term of general supply of services that the services must be fit for the purpose they were acquired. In this context the dentist was in breach. In this case, the court implied terms. If a contract is one for sale of goods, such goods must also be fit for the purpose they are bought for. Under the Kenyan Sale of Goods, the implied terms are:

A.

a) Terms as to title
There is an implied condition as to right of sale. This means that a seller has a right to sell the goods, if he has no right, then he is in breach of this condition. (Rowland vs.Divals)

Mutua Mugambi Titus

Prof. Yash Vyas

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There are also implied warranties; the goods must be free from any charge or encumbrances. The buyer shall enjoy quiet possession of the goods. The remedy for breach of such a warranty is damages.

b)Condition as to description
The goods must correspond to the description, if not; the seller is in breach of the condition. Grant vs. Australian Knightgate LTD Beale vs. Tayler

c) Condition as to merchantable quantity

This relates to quality. The goods sold must be of quality. Liability arises if they are not. Merchantable quality means that goods must be fit for the purpose(s) for which they are usually bought. Wilson vs. Robert, Cockrell and Company An old lady bought coal sold by the brand name (coalitey). The coal contained some explosives and it was also contaminated. When she put the coal on the fire place, it exploded and she suffered injury. She sued the seller. It was held that the seller was in breach of the condition as to merchantable quality. These conditions apply under the Sale of Goods Act, if: The seller sells the goods in the course of his business. The seller shall not be liable for the defects which have been specifically brought to the buyers attention before the contract was made. If the buyer has examined the goods, then this condition shall not apply if the examination was/is to reveal defects.

d)Condition as to fitness for the purpose

It is an implied term that the goods must be fit for the purpose for which they are bought. This condition applies only if the seller sales in the course of the business but can also apply if under a contract of private sale. Ashington piggeries LTD vs. Christopher Hills & Co LTD Person (Z) was a breeder of Mink coats; he went to Y who was a breeder of animal feed. Z told Y he wanted feed for his minks. Y went to X who were manufacturers of animal feed and told them that he wanted Herring Meals supply plus preservatives. Herring Meals and the preservatives became poisonous after chemical reactions and the minks died of poisoning. Z sued
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Y for breach of the fitness of the purpose for the feeding of the minks. The feed supplied by Y was not fit, therefore he was in breach. Z could sue for damages. As y had told X that he wanted Herring meals, the goods supplied were Herring meals and therefore was in breach of merchantable quality.

Mutua Mugambi Titus

Prof. Yash Vyas

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