Question:
1. Magda is a highly acclaimed professional photographer focussing on celebrities in the fashion, entertainment and sports industries.
Magda advertises and sells prints of her works via her website: www.madgaportraits.com.au, but she also sells directly to the public from her home studio.
The website sets out various categories of works including one entitled ‘Elite Sports’ where she has thumbnail photos of limited edition, framed, photographic portraits that she has taken, showing prices (including postage and handling).
There is also a notice on the website indicating that these portraits are numbered and signed by Magda, and are printed on archive quality, acid-free paper.
Avinash visits her website and admires a photographic portrait of an Australian Olympic champion, Paris Stilton. The advertised sale price is $2,000 and it is described as ‘a limited edition of only 3 prints’. According to the website only one of these portraits remains unsold.
As described below, a number of exchanges take place between Magda and Avinash.
Sunday 19 February:
1. Using the supplied email address from the website, Avinash emails Magda saying, ‘l’ll buy the Paris Stilton portrait for $1,600’.
2. Within minutes, Magda emails him back saying that she ‘cannot accept less than $1,800’.
3. An hour later, Avinash replies, indicating that $1,800 sounds like a fair price but asks her to ‘hold the portrait so he and his wife can discuss the matter’. Avinash points out that as his wife is overseas, the earliest his wife could do so would be the following Tuesday, 21 February.
4. Magda responds immediately by email agreeing to this and attaches the following scanned document:
I, Magda Kingsbury, hereby offer to sell Avinash Kapoor one framed print of Olympian champion, Paris Stilton, for $1,800 cash. This offer shall remain open until 11.59 pm on Tuesday 21 February. Signed: Magda Kingsbury
Monday 20 February:
5. Avinash emails Magda at 9 am stating he had been able to consult with his wife earlier than expected and he was willing to pay $1,800 for the portrait on the condition that she provided a certificate of authenticity that verified the portrait’s origin and status as a limited edition work.
6. Magda emails him back at 9.30 am saying that she could do so. She adds, “If you want to go ahead you must confirm with me by 4 pm today”. Avinash hesitates and decides to think it over and does not reply that day believing he has until Tuesday 21 February to decide.
7. At 11 am, Elton, a sports enthusiast, who had visited Magda’s website and seen the portrait of Paris Stilton, decides to pay a visit to her studio to see it on display. Without haggling over the price he purchases the painting for $2,000 cash and takes it away with him.
8. At 11.30 am, Magda emails Avinash informing him that the portrait had been sold.
The next day, Tuesday 21 February:
9. At 9.45 am, without having actually read Magda’s most recent email ( in 8 above), Avinash telephones her informing her that he will buy the painting for $1,800. Magda informs him he has missed out.
REQUIRED
a. Advise Magda and Avinash whether they had formed a binding contract with one another.
- You will need to address all the essential elements of a contract as well as analyse the legal status (if any) of each step or event that occurred, including information on the website. Refer to relevant case law and provide definitions of legal terms. In this part, do not discuss the impact, if any, of consumer protection laws.
- You may, but are not obliged to use the IRAC format for this part, given that each step or event needs to be analysed separately.
- Recommended maximum: 600 words
(b) Assume Elton discovered that the portrait he had purchased had only been printed on low quality photographic paper and was therefore susceptible to colour degradation (already occurring) which would not happen had high quality archive quality paper been used. Furthermore, he has discovered that recently, Magda had sold ten of the so-called limited edition prints of Paris Stilton to other buyers.
Advise Elton of his rights under the Australian Consumer Law (‘ACL’).
- By reference to the ACL, explain whether
- Elton qualifies as a consumer
- Magda has breached any terms
- Magda has made any misstatements
- Refer to specific sections of the ACL and any relevant cases
- For your information, ‘limited edition’ most commonly refers to the publication of an edition of a book, or reproduction of a print or object, limited to a specific number of copies.
- Use IRAC format. Recommended maximum:
2. ‘ In contrast to express terms found in a contract, implied terms can arise in a variety of ways and are beneficial to at least one of the parties to the contract. Some contracts may contain both express and implied terms, but the ways in which these two types of terms operate are significantly different from one another’.
Required
Discuss this statement by reference to cases and legislation, providing examples of each.
- In addition, include as an example in your discussion, references to the types of terms indicated in the facts of question 1.
- Answer in essay format. Recommended maximum:
Answer
1. Part A
The facts
The advertisement which Magda has made to sell a portrait of Paris Stilton states that it has the value of $2000. It is a limited edition portrait and has only three prints. Only one portrait is unsold.
This is an invitation to offer in relation to the law of contract. The case of Partridge v Crittenden [1968] 1 WLR 1204 made a ruling when a person makes an advertisement it should be considered as invitation to offer. An invitation to offer cannot be accepted unlike a normal offer rather an offer can be made where there is an invitation to offer.
Sunday 19 February
- Avinash had made an offer to purchase the portrait at a price of $1,600 by using the email address which had been provided through the website. This is an offer because as per the case of Smith v Hughes (1871) LR 6 QB 597 an offer requires intention of binding a party who accept it to its terms. The intention is derived objectively. In addition an offer has to be complete and here the offer made by Avinash is complete. In commercial agreements intention is deemed as stated in Edwards v Skyways Ltd [1964] 1 WLR 349 and as this is a commercial agreement to purchase the portrait intention will be deemed on the part of Avinash.
- Magda has immediately replied stating that she can only sell the portrait for no less than $1800. This statement is a counter offer. The case of Hyde v Wrench [1840] EWHC Ch J90 best deals with a counter offer. The case states that a counter offer is made when the original offer is not accepted unequivocally. The term of the original offer has to be matched exactly by the acceptance or else it becomes a counter offer. A counter offer when made defeats or terminates the original offer. The termination makes the offer to come to an end and as a result it is no longer available to be accepted.
- Inquires are different to a counter offer and asking or giving information does not terminate the original offer. In addition the statement ‘hold the portrait so he and his wife can discuss the matter’ does not create any obligation for Magda.
- The offer had been restated by Magda again with an additional term that it is open till Tuesday 21 February. So this is a fresh offer.
Monday 20 February
- A counter offer is made by Avinash in this situation as he has demanded a “certificate of authenticity” which was not a part of the original offer. He states that he is willing to pay $18000
- Magda although signifies that she is willing to follow the terms of his offer, she asks him to reconfirm by 4 pm on 20th This mail had been sent at 9:30 by Magda. This is a new offer altogether as the time of acceptance has been altered. However Avinash believing he has until Tuesday 21 February did not reply.
- Elton made an offer at 11am to buy the portrait at $2000. This is also an offer as it is a commercial transaction.
- At 11:30 Magda informs Avinash that the portrait is sold. She has the legal right to do so under the principles of revocation of an offer as provided through the case of Dickinson v Dodds (1876) 2 Ch. D. 463 where it was stated that the offer can be revoked before it has been accepted. Revocation means the withdrawal of an offer.
Tuesday 21 February
At 9.45 am, Avinash tries to accept the offer to purchase the painting at $1800. He did not receive the revocation. In Byrne & Co v Leon Van Tien Hoven & Co [1880] 5 CPD 344 the court stated that revocation cannot be effective if it’s not received and postal or electronic rule of communication is not applied in revocation. However the offer had already elapsed by time as discussed in para 6 and thus cannot be accepted according to the principles of Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109.
- Finding
There is no meeting of minds (Offer and Acceptance) between Magda and Avinash and thus no contract is formed
Part B
Identified Issue
The Australian Consumer Law provides certain rights to people who fall within the means of consumer. The following issues have been identified in this case
- Whether Elton is a consumer under the ACL
- Whether Magda has breached any consumer guarantees
- If the guarantees have been breached what rights does Elton have in the situation
Relevant Law
MEANING OF CONSUMER
A person is to be regarded as a consumer under section 3 of the ACL if such person has purchase a product which has a value of $40000 or less and/or the goods have not been purchased form household and domestic use or he goods involve a vehicle purchased for transport purpose. However, even if such criteria are met and the goods are procured for resupply or production then section 3 will not apply.
MISLEADING AND DECEPTIVE CONDUCT
Under section 18 of the ACL in the course of trade and commerce a person is prohibited from acting in a way which is “misleading and deceptive or is likely to mislead or deceive”. False advertisement is a misleading conduct as per ACCC v TPG Internet Pty Ltd [2013] HCA 54
CONSUMER GUARANTEES
Consumer guarantees are those which have been provided under section 51-59 of the ACL. Section 56 deals which a provision which is related to description of goods. This means that when goods have been supplied in the course of trade and commerce to a person who is a consumer by the use of description of the goods than such goods have to have the exact features which had been mentioned in the description. If the provisions of this section have not been complied with and there is discrepancy between the description and the actual goods received that it would lead to the breach of consumer guarantees.
CONSUMER REMEDIES
The provisions related to consumer remedies have been provided under section 260 and 261 of the ACL. Where there is a major breach which means the breach in relation to section 54-56 of the ACL it will allow the consumer to breach reject the goods and claim a refund under section 260 of the ACL.
Application
Elton will be regarded as a consumer under section 3 of the ACL if he has purchase a product which has a value of $40000 or less and/or the goods have not been purchased form household and the goods are not procured for resupply or production. Here he has purchased a painting for $2000 and it is not for a resupply or production use thus he is to be regarded as consumer.
It was stated in the advertisement that the portrait of Paris Stilton has the value of $2000. It is a limited edition portrait and has only three prints. Only one portrait is unsold. It is made on archive quality paper and it is a limited edition where only the copies have been made. However in reality it turned out that the paper is of a very low quality and is losing colour and more than 10 paintings gave been sold. Here the portrait is sold by a description and it does not match the description so the provisions of section 56 have been breached.
Under section 260 it is stated that where there is a major breach which means the breach in relation to section 54-56 of the ACL it will allow the consumer to breach reject the goods and claim a refund. Thus as section 56 have been breached Elton can reject the goods and claim a refund.
Section 18 prohibits misleading and deceptive conduct and as per the case of ACCC v TPG Internet Pty Ltd false advertisement is a misleading and deceptive conduct. The portrait was actually not limited edition and thus it is a misleading and deceptive conduct.
Conclusion
Elton can claim for breach of consumer guarantees and Magda can be liable for breaching section 18
2. At common law courts are reluctant to imply terms into a contract as stated in the case of Shell UK v Lostock Garage Limited [1976] 1 WLR 1187. It is the role of the parties to ensure that they have properly agreed to the terms of the agreement which they enter into. The court does not have the role to rewrite the agreement for the parties. However there are certain limited situations where the court can imply terms into a contract. These are by the following ways
- Terms implied at Law
- Terms implied in Fact
- Terms implied via custom
Implied terms at law
Implied terms may be added by the courts in relation to the contract when such terms are of defined kind such as retailer/customer where general protection is provided to the weaker party as discussed by the court in the case of Liverpool City Council v Irwin [1977] AC 239. Even if the contract is of a defined kind between the parties the terms would only be added when it is reasonable according to Wilson v Best Travel [1993] 1 All ER 353. In Shell UK v Lostock Garage Limited [1976] 1 WLR 1187 the court stated that implied terms has to be sufficiently certain for the purpose of being added. Thus where the there is a contract between two parties and one is a consumer than the court may add any term to the contract to provide the consumer the protection which has been provide to them by law. These terms can be considerably beneficial for the consumers. A few example of such protection is provided via the implied consumer guarantees which have been provided under the provisions of section 51-59 of the ACL.
Terms implied via customs
In case a term is prevalent through customs in a particular trade the court may imply that the term is present in the contract relating to such trade as stated by the court in the case of Hutton v Warren [1836] EWHC Exch J61. Thus if in the shipping industry it is a custom to provide the bill of lading it would be considered as an implied term. This would help the party make a claim even if the presentation of the bill of lading had not been expressly dealt with in the written contract.
Terms implied in fact
There are two types of test which are present in the situation namely the business efficacy test and the officious bystander test. The business efficacy test had been discussed in the case The Moorcock (1889) 14 PD 64. The court in this case stated when the term is needed to give “business efficacy” to the agreement it’s implied by the courts. Thus when person is going to a parking to keep his car it will be implied that the car would be kept safe. Thus it can be stated that here also the party who parked the car will benefit from the implied term. The officious bystander test on the other hand operates to add terms which have been suggested by an officious bystander when the contract had been formed between the parties. The court however only adds an implied term when it is necessary and obvious to carry out the contract rather than when it is just and reasonable. The breach of an implied term is also a breach of a contract.
Express terms are the terms which have been agreed by the parties to be added to the contract. They must be terms rather than representations.
In relation to the facts form question one it can be stated that it is an express term that the quality of the paper is acid free and archive quality. It is an implied term in the contract that if such is not the case than the purchase can take a refund.
