导图社区 Consumer Laws
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Consumer Laws
法律原理 复习使用。包括：Sale of Goods Ordinance (soGo)、Supply of Services Ord (Implied Terms)、Control of Exemption Clauses Ordinance、Trade Descriptions Ordinance。
编辑于2023-02-12 15:06:48 广东- 法律原理
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Consumer Laws
Sale of Goods Ordinance (SOGO)
: governs all sale contracts in business
Classification of Property
Real Property (Immovables)不动产: includes land, buildings, and things attached to buildings (fixtures). e.g.Land&Buildings upon land
Fixture (定着物): 永久固定在不动产(通常是土地)上的任何physical property。附着物被视为不动产的一部分。
Personal Property (Movables, Chattels)动产: is movable, as opposed to real property. e.g.Goods
Goods means 'all personal chattels, other than things in action and money'. (s 2(1), SOGO)
Tangible personal property (有形体): any type of property that can generally be moved, touched or felt, e.g. furniture, clothing, jewelry, art, writings, or household goods.
Goods includes all items of tangible personal property, but not money (currency), cheques, shares, trade marks, or other similar intangible assets.除了money和things in action都是goods
Intangible personal property : personal property that cannot actually be moved, touched or felt, but instead represents something of value e.g. negotiable instruments (可转让票据), securities, service (economics), and things in action (无体所有权).
Consumer Sale is a business/private person sale (B-C). The seller makes the contract in the course of a business.
Implied conditions from SOGO
Right to sell the goods (s 14)
It is concerned with circumstances where the seller is not the owner of the goods & is not given the authority to sell them.
Goods correspond with description (s 15)
Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
to an outline of the identity of the goods, rather than their quality.
In some cases, all descriptive words have been treated as though they create liability. e.g.酒
Goods of merchantable quality (s 16(2))
Merchantable quality->
a) as fit for the purpose for which goods of that kind are commonly bought;
b) of such standard of appearance and finish是否完成且符合标准;
c) as free from defects; 是不是有缺点
d) as safe;
e) as durable.是否耐用
正常来说是reasonably expect商品有达到了5个标准
Manufacturers are liable in negligence for injury caused to the ultimate consumer by latent defects（潜在的缺陷） in their products （Grant v Australian Knitting Mills）
Goods are fit for purpose (s 16(3))
Where the buyer expressly or by implication makes known any particular purpose for which the goods are being bought, there is an implied condition that the goods are reasonably fit for that purpose
Unless the buyer did not rely on the seller's skill and judgement or it would be unreasonable to expect the buyer to rely on the seller's skill & judgement.
Where the seller's skill and judgement is involved, the buyer must prove reliance on it. （Asbington Piggeries Ltd v Christopher Hill Ltd）
Goods correspond with quality of sample (s 17)
3 conditions
The bulk of the goods（大部分的货） will correspond in quality with the sample;
The buyer will have a reasonable opportunity of comparing the bulk with the sample; and
The goods are free from any defect which would not appear on reasonable examination of the sample & which renders the goods unmerchantable. （正常验货无法发现defect就ok）
Supply of Services Ord (Implied Terms)
Supply of Services Contracts
A Supply of Service Agreement is a contract between a customer and a supplier, that sets out the terms by which services will be provided by the supplier to the customer.
电工、水管工或牙医的服务合同通常被描述为work & materials (技能型)
Independent Contractor v Employee
An independent contractor is a self-employed person or entity contracted to perform work for—or provide services to—another entity as a nonemployee.
Examples: Taxi driver, lawyers, accountants, etc.
Anyone who performs services for you is your employee if you can control what will be done and how it will be done.
3 implied terms
(1)the supplier will carry out the service with reasonable care & skill (s 5, SSO)
use an acceptable level of skill or technical knowledge when providing the services, and
take all necessary care to avoid loss or damage when providing the services.
(2) the service will be carried out within a reasonable time. (s 6)
(3) the party contracting with the supplier will pay a reasonable charge. (s 7)
Exemption & Limitation Clauses
Exemption clause – “ABC Courier would not be responsible for the loss of any package in the course of delivery for whatever reason.”
a contractual term that forms part of a contract which attempts to either limit or exclude a party's liability to the other. <--当一方试图缩小其合同义务的范围或规定另一方对可能违约的补救权利时，就会发生这种情况。
有效性
1. It must have been incorporated into the contract.必须写进合同
写进合同的方式（Incorporation）
(1) by Signature 如果合同已经签订，签字人将受所有条款的约束，包括合同中包含的任何免责条款。
(2) by Reasonable Notice 如果写在unsigned written document，必须证明受约束的一方知道这个条款；给出免责条款的一方必须证明has taken reasonable steps to bring the notice to受约束方
Notice of the exemption clause must be given before or at the time the contract was made. An attempt to give notice after the contract has been concluded will be ineffective. (Incorporation Issue)
(3) by Previous Course of Dealing
In some situations a consistent previous course of dealings between the parties is sufficient to constitute reasonable notice.
NOT simply occasional contracts.(Hollier v Rambler Motors (AMC) Ltd)
Any clause considered to be ambiguous should be interpreted against the interests of the party that created, introduced, or requested that a clause be included. (Ambiguity Doctrine模糊原则-免责有效性降低)
Contra Proferentem Rule (interpretation against the drafter) The basic rule is that liability can only be exempted if the words that were used are unequivocal (clear).
Example: KKV shall not be responsible for any loss or damage to personal properties whatsoever caused. · Not apply to personal injury ·Not apply to damage to property by FIRE.
2. Its wording must be clear and wide enough to protect the party relying on it;
3. It must not in contravention of any provisions of the Control of Exemption Clauses Ordinance (CECO).不得违反《豁免管制条款条例》的任何条文。
Limitation clause – “ABC Courier would compensate a maximum of US$1,000 for the loss of a package before it is delivered to the recipient.”
Control of Exemption Clauses Ordinance
it provides both consumers & business people with a greater degree of protection from exemption clauses.
(1)Negligence Liability 免责
S 7(1) – No contract term can be used to exclude liability for death or personal injuries resulting from negligence 使人受伤/死亡的过失，不可免责
Effect: 免责条款no effect
生效于both contractual & tortious negligence.
Unreasonable term: not enforceable. S(7)2
Reasonableness Test s 3,CECO （财物损失是否免责）
(2) Contract Liability
Liability for Breach of Contract (s 8)
Where a party tries to exclude or restrict liability for non-negligent breaches of contract (i.e. breaches of “strict” contractual obligations)
Control:
That protecting party cannot rely on such term to:
(1) exclude or restrict any liability for breach; or
(2) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him or no performance at all, unless the term is reasonable. 靠着免责条款声称有权履行和原合同有实质性的不同的义务，除非条款reasonable
Application: Where the other party (a) deals as consumer (B-C) or (b) a party deals on the businessperson’s written standard form contract (B-C & B-B).
Trade Descriptions Ordinance
Trade Descriptions Ordinance (Cap 362) (TDO)旨在禁止商号对消费者采取特定的不公平贸易做法，包括:
False trade descriptions of services,
an offence for a trader to apply a false trade description to any goods/ service supplied to a consumer; or supply to a consumer any goods/service to which a false trade description is applied.
A trade description includes anything that tell of the goods or services or any part of them, in whatever forms (e.g. statements, advertisements or display notices, etc.), and communicated through whatever means (e.g. through any form of the media）
Misleading omissions(遗漏),
Traders run the risk of misleading omissions if they fail to give consumers sufficient material information about the product that is necessary for them to make an informed transactional decision
(a) it omits or hides material information;
(b) it provides material information in a manner that is unclear, unintelligible, ambiguous or untimely; or
(c) it fails to identify its commercial intent unless this is already apparent from the context,
Result：causes or is likely to cause average consumer to make a transactional decision that he would not have made otherwise.（做出本来不会做的决定）
Aggressive commercial practices（激进的广告）
Traders must not use harassment, coercion（强迫）, and undue influence（不适当的影响） to restrict or impair the freedom of choice or conduct of consumers, which will cause or likely cause consumers to make a transactional decision that would not have been made otherwise.
Bait advertising（诱导性的广告）,
prohibits a trader from advertising goods or services at a specified price if there are no reasonable grounds for believing that the trader will be able to offer for supply reasonable quantities of the goods or services at that price for a reasonable period.
Bait-and-switch and (偷梁换柱)
Traders must not make an invitation to purchase a product at a specified price and then refuse to show or demonstrate the product, refuse to take orders for the product, or demonstrate a defective sample of the product, with the intention of promoting a different product.
Wrongly accepting payment（收错钱）.
A trader must not accept payments for a product if at the time of accepting the payments, he does not intend to supply it or intends to supply another materially different product, or if there are no reasonable grounds for believing that he will be able to supply the product at the agreed time or within a reasonable time. (s 13I)
A person deals as a consumer if:
1)the buyer does not make the contract in the course of a business (C) (业务过程中); &
2)the seller does make the contract in the course of business (B).
3)the goods are of a type ordinarily supplied for private use or consumption.
Consumer Laws
Sale of Goods Ordinance (SOGO)
: governs all sale contracts in business
Classification of Property
Real Property (Immovables)不动产: includes land, buildings, and things attached to buildings (fixtures). e.g.Land&Buildings upon land
Fixture (定着物): 永久固定在不动产(通常是土地)上的任何physical property。附着物被视为不动产的一部分。
Personal Property (Movables, Chattels)动产: is movable, as opposed to real property. e.g.Goods
Goods means 'all personal chattels, other than things in action and money'. (s 2(1), SOGO)
Tangible personal property (有形体): any type of property that can generally be moved, touched or felt, e.g. furniture, clothing, jewelry, art, writings, or household goods.
Goods includes all items of tangible personal property, but not money (currency), cheques, shares, trade marks, or other similar intangible assets.除了money和things in action都是goods
Intangible personal property : personal property that cannot actually be moved, touched or felt, but instead represents something of value e.g. negotiable instruments (可转让票据), securities, service (economics), and things in action (无体所有权).
Consumer Sale is a business/private person sale (B-C). The seller makes the contract in the course of a business.
Implied conditions from SOGO
Right to sell the goods (s 14)
It is concerned with circumstances where the seller is not the owner of the goods & is not given the authority to sell them.
Goods correspond with description (s 15)
Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
to an outline of the identity of the goods, rather than their quality.
In some cases, all descriptive words have been treated as though they create liability. e.g.酒
Goods of merchantable quality (s 16(2))
Merchantable quality->
a) as fit for the purpose for which goods of that kind are commonly bought;
b) of such standard of appearance and finish是否完成且符合标准;
c) as free from defects; 是不是有缺点
d) as safe;
e) as durable.是否耐用
正常来说是reasonably expect商品有达到了5个标准
Manufacturers are liable in negligence for injury caused to the ultimate consumer by latent defects（潜在的缺陷） in their products （Grant v Australian Knitting Mills）
Goods are fit for purpose (s 16(3))
Where the buyer expressly or by implication makes known any particular purpose for which the goods are being bought, there is an implied condition that the goods are reasonably fit for that purpose
Unless the buyer did not rely on the seller's skill and judgement or it would be unreasonable to expect the buyer to rely on the seller's skill & judgement.
Where the seller's skill and judgement is involved, the buyer must prove reliance on it. （Asbington Piggeries Ltd v Christopher Hill Ltd）
Goods correspond with quality of sample (s 17)
3 conditions
The bulk of the goods（大部分的货） will correspond in quality with the sample;
The buyer will have a reasonable opportunity of comparing the bulk with the sample; and
The goods are free from any defect which would not appear on reasonable examination of the sample & which renders the goods unmerchantable. （正常验货无法发现defect就ok）
Supply of Services Ord (Implied Terms)
Supply of Services Contracts
A Supply of Service Agreement is a contract between a customer and a supplier, that sets out the terms by which services will be provided by the supplier to the customer.
电工、水管工或牙医的服务合同通常被描述为work & materials (技能型)
Independent Contractor v Employee
An independent contractor is a self-employed person or entity contracted to perform work for—or provide services to—another entity as a nonemployee.
Examples: Taxi driver, lawyers, accountants, etc.
Anyone who performs services for you is your employee if you can control what will be done and how it will be done.
3 implied terms
(1)the supplier will carry out the service with reasonable care & skill (s 5, SSO)
use an acceptable level of skill or technical knowledge when providing the services, and
take all necessary care to avoid loss or damage when providing the services.
(2) the service will be carried out within a reasonable time. (s 6)
(3) the party contracting with the supplier will pay a reasonable charge. (s 7)
Exemption & Limitation Clauses
Exemption clause – “ABC Courier would not be responsible for the loss of any package in the course of delivery for whatever reason.”
a contractual term that forms part of a contract which attempts to either limit or exclude a party's liability to the other. <--当一方试图缩小其合同义务的范围或规定另一方对可能违约的补救权利时，就会发生这种情况。
有效性
1. It must have been incorporated into the contract.必须写进合同
写进合同的方式（Incorporation）
(1) by Signature 如果合同已经签订，签字人将受所有条款的约束，包括合同中包含的任何免责条款。
(2) by Reasonable Notice 如果写在unsigned written document，必须证明受约束的一方知道这个条款；给出免责条款的一方必须证明has taken reasonable steps to bring the notice to受约束方
Notice of the exemption clause must be given before or at the time the contract was made. An attempt to give notice after the contract has been concluded will be ineffective. (Incorporation Issue)
(3) by Previous Course of Dealing
In some situations a consistent previous course of dealings between the parties is sufficient to constitute reasonable notice.
NOT simply occasional contracts.(Hollier v Rambler Motors (AMC) Ltd)
Any clause considered to be ambiguous should be interpreted against the interests of the party that created, introduced, or requested that a clause be included. (Ambiguity Doctrine模糊原则-免责有效性降低)
Contra Proferentem Rule (interpretation against the drafter) The basic rule is that liability can only be exempted if the words that were used are unequivocal (clear).
Example: KKV shall not be responsible for any loss or damage to personal properties whatsoever caused. · Not apply to personal injury ·Not apply to damage to property by FIRE.
2. Its wording must be clear and wide enough to protect the party relying on it;
3. It must not in contravention of any provisions of the Control of Exemption Clauses Ordinance (CECO).不得违反《豁免管制条款条例》的任何条文。
Limitation clause – “ABC Courier would compensate a maximum of US$1,000 for the loss of a package before it is delivered to the recipient.”
Control of Exemption Clauses Ordinance
it provides both consumers & business people with a greater degree of protection from exemption clauses.
(1)Negligence Liability 免责
S 7(1) – No contract term can be used to exclude liability for death or personal injuries resulting from negligence 使人受伤/死亡的过失，不可免责
Effect: 免责条款no effect
生效于both contractual & tortious negligence.
Unreasonable term: not enforceable. S(7)2
Reasonableness Test s 3,CECO （财物损失是否免责）
(2) Contract Liability
Liability for Breach of Contract (s 8)
Where a party tries to exclude or restrict liability for non-negligent breaches of contract (i.e. breaches of “strict” contractual obligations)
Control:
That protecting party cannot rely on such term to:
(1) exclude or restrict any liability for breach; or
(2) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him or no performance at all, unless the term is reasonable. 靠着免责条款声称有权履行和原合同有实质性的不同的义务，除非条款reasonable
Application: Where the other party (a) deals as consumer (B-C) or (b) a party deals on the businessperson’s written standard form contract (B-C & B-B).
Trade Descriptions Ordinance
Trade Descriptions Ordinance (Cap 362) (TDO)旨在禁止商号对消费者采取特定的不公平贸易做法，包括:
False trade descriptions of services,
an offence for a trader to apply a false trade description to any goods/ service supplied to a consumer; or supply to a consumer any goods/service to which a false trade description is applied.
A trade description includes anything that tell of the goods or services or any part of them, in whatever forms (e.g. statements, advertisements or display notices, etc.), and communicated through whatever means (e.g. through any form of the media）
Misleading omissions(遗漏),
Traders run the risk of misleading omissions if they fail to give consumers sufficient material information about the product that is necessary for them to make an informed transactional decision
(a) it omits or hides material information;
(b) it provides material information in a manner that is unclear, unintelligible, ambiguous or untimely; or
(c) it fails to identify its commercial intent unless this is already apparent from the context,
Result：causes or is likely to cause average consumer to make a transactional decision that he would not have made otherwise.（做出本来不会做的决定）
Aggressive commercial practices（激进的广告）
Traders must not use harassment, coercion（强迫）, and undue influence（不适当的影响） to restrict or impair the freedom of choice or conduct of consumers, which will cause or likely cause consumers to make a transactional decision that would not have been made otherwise.
Bait advertising（诱导性的广告）,
prohibits a trader from advertising goods or services at a specified price if there are no reasonable grounds for believing that the trader will be able to offer for supply reasonable quantities of the goods or services at that price for a reasonable period.
Bait-and-switch and (偷梁换柱)
Traders must not make an invitation to purchase a product at a specified price and then refuse to show or demonstrate the product, refuse to take orders for the product, or demonstrate a defective sample of the product, with the intention of promoting a different product.
Wrongly accepting payment（收错钱）.
A trader must not accept payments for a product if at the time of accepting the payments, he does not intend to supply it or intends to supply another materially different product, or if there are no reasonable grounds for believing that he will be able to supply the product at the agreed time or within a reasonable time. (s 13I)
A person deals as a consumer if:
1)the buyer does not make the contract in the course of a business (C) (业务过程中); &
2)the seller does make the contract in the course of business (B).
3)the goods are of a type ordinarily supplied for private use or consumption.