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Paragraph structure

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Study the first part of the sample assignment. (Print it out if you like - the paragraphs have been numbered in bold to help you with the exercises following the sample.)

Question 1

What is your overall impression of the size of the paragraphs in this piece?

Paragraphs are too short

Paragraphs are too long

Paragraphs are just right

Check your answer

The ideas are expressed clearly at the sentence level. However, perhaps the continuity of the discussion could be enhanced by joining up some of the smaller paragraphs to make longer, more complicated paragraphs.


Question 2

Which paragraphs do you think could be combined to produce a more flowing piece of writing?

Paragraphs 1 and 2 should be combined

Paragraphs 3, 4, 5, and 6 should be combined

Paragraphs 8 and 9 should be combined

Paragraphs 10 and 11 should be combined

Paragraphs 12 and 13 should be combined

Paragraphs 14, 15, and 16 should be combined

Paragraphs 17 and 18 should be combined

Paragraphs 20, 21, and 22 should be combined

Check your answer

Answer:

Paragraphs 3, 4, 5 and 6 could be combined into one paragraph. This is because all of these paragraphs contain information that relates to the end of Paragraph 2 (that is, the four steps for proving if the Trade Practices Act applies).

Paragraphs 8 and 9 could be combined. This is because they both contain information on breaching of the implied term of merchantable quality.

Paragraphs 10 and 11 could be combined. Both contain information and argument about fitness for purpose.

Paragraphs 14, 15, and 16 could be combined as they all deal with rescinding the contract.

Paragraphs 17 and 18 could be combined as both are concerned with damages.

Part 1

1. Clearly a contract exists here. The issue is what, if any, legal rights Patricia Wu might have against Bob's Warehouse Pty Ltd after having purchased the photocopier for $35,000.

2. Patricia's best course of action would be under the Trade Practices Act (Cth) 1974 or the Goods Act (Vic). However as there is an exclusion clause in this contract the Goods Act will not apply as under section 61 of the act exclusion clauses are permitted. The Trade Practices Act however does not permit exclusion clauses under section 68. She would look toward section 4 to see if the Trade Practices Act does apply in these circumstances. There are four steps in testing whether the Trade Practices Act applies.

3. Step one is to check whether the seller is a corporation, Patricia purchased the photocopier from Bob's Warehouse Pty Ltd who are clearly a corporation as they have proprietorship limited attached after their name.

4. Step two is whether the contract is a consumer contract. A consumer contract is when the price of goods is less than $40,000 or the goods are normally used in a domestic or household situation. As the photocopier was $35,000 it is a consumer contract as it is less than the prescribed amount.

5. Step three is whether the sale was in the course of business. This means that the sale was done by a licensed seller and bought by a consumer, not just a sale between two people. Patricia bought the photocopier from Bob's Warehouse Pty Ltd so it is clearly in the course of business.

6. The final step is that the sale was not at an auction. As the photocopier was bought from Bob's and not at an auction the Trade Practices Act obviously applies.

7. However Patricia must prove that the contract has been breached. The first way to see if it has is by seeing if any of the express terms have been breached, as the contract was a contract of purchase it would only contain terms relating to purchase, sale, warranties and the exclusion clause. As none of the express terms have been breached the next step would be to see if any of the implied terms have been breached.

8. The first implied term that has been breached is the term of merchantable quality under section 71(1) of the Trade Practices Act. Merchantable quality is when a good is fit for the purpose it is reasonable to expect the good will be used for. The photocopier that Patricia bought is not of merchantable quality as the goods are not fit for the purpose that it is reasonable to expect having regard to price and other circumstances (H Beecham and Co Pty Ltd v Francis Howard and Co Pty Ltd [1921] VLR 428).

9. Also Patricia was not aware of the defect prior to sale and any inspection made by Patricia would not have revealed the defect. The term of merchantable quality has clearly been breached.

10. The next implied term that has been breached is fitness for purpose under section 71(2) of the Trade Practices Act. Second-hand goods such as the photocopier are generally expected to not be as fit as new goods (Atkinson v Hastings Deering (Qld) Pty Ltd [1985] ATPR 40-625). Also under this term the buyer must rely on seller's skill and judgement.

11. Patricia described to the salesperson that she needed the photocopier for her business of copying theses, and asked whether it could do a number of specialised tasks. The salesperson said that it could do all this and more, Patricia relied on the salesperson knowledge and therefore signed the contact (David Jones Ltd v Willis [1934] 52 CLR 110). However the photocopier was not fit for the purpose that Patricia described to the salesperson and she had to replace the lens and hire the photocopier for 14 days.

12. The final implied term that has been breached is the term of correspondence with description under section 70 of the Trade Practices Act. This term is concerned with those matters that serve to identify the goods sold. The salesperson identified the photocopier as having only done 1000 copies and she thought it was last year's model, she also said that they had no complaints about that particular model. However the lens had to be replaced, and that usually only occurs after 200,000 copies, also Joe from Joe's Office Rentals told her that the photocopier was 5 years old and there had been numerous complaints about that model (Beale v Taylor [1967] 1 WLR 1193). As Patricia relied on what Shirley said and it convinced her to sign the contract to purchase the photocopier, the term of correspondence with description has been breached.

13. The Trade Practices Act does not allow terms to be excluded under section 68. If any term of the contract that purports to exclude, restrict or modify or has the effect of excluding restricting or modifying sections of the Trade Practices Act is void

14. Patricia will not be able to terminate the contract as the contact is already complete, she has the photocopier and Bob's Warehouse Pty Ltd has the $35,000. Also if she terminated the contract she would still have the decrepit photocopier and Bob's would still have the money.

15. However she may try to rescind the contract for misrepresentation, as Shirley misrepresented the facts by stating that the photocopier had only done 1000 copies, she thought it was last year's model and that there had not been any complaints about that model. These misrepresented statements induced Patricia into buying the photocopier; therefore she may rescind the contract.

16. Rescinding a contract means that the parties involved are returned to the position they were in before the contract was formed. So Patricia would return the photocopier to Bob's Warehouse Pty Ltd and Bob would return Patricia's $35,000 as well as the $10,000 for the new lens and the $1400 for the hire of the other photocopier from Joe's Office Supplies. However, since section 52 of the Trade Practices Act was enacted, rescission has become less important and the courts may be reluctant to grant it as a remedy.

17. The other option that Patricia has is to sue for damages, which is the most common remedy granted. The losses must be caused by the breach of the contract and the plaintiff has a duty to mitigate losses. Also the losses must not be too remote, which means that the losses must either flow from the breach according to the usual course of things or be losses that D was aware of prior to the contract (Hadley v Baxendale [1854] 156 ER 145)

18. The damages that Patricia could sue for in this case is the $10,000 for the new lens as she bought the photocopier under the misconception that it had only done 1000 copies. She should not have had to buy a new lens and therefore Bob's Warehouse should cover those damages as they are caused by the breach of the contract and they flow from the breach in the usual course of things.

19. The hiring of the photocopier from Joe's Office Supplies for 14 days at $100 a day amounted to $1400 worth of damages. Patricia could sue for these damages as the hiring of the new photocopier was caused by the breach in the contract. Patricia told the salesperson of her business in copying theses and the requirements that she needed in a photocopier so Bob's Warehouse was aware of the losses that would be caused by the faulty photocopier.

20. Finally Patricia may with extreme difficulty be able to sue for damages for disappointment and distress (Jarvis v Swan Tours Ltd [1973] 1 QB 233). Courts have generally been reluctant to grant damages for disappointment and distress in commercial cases.

21. Patricia may attempt to prove that she was extremely distressed when she received a $50,000 contract from the university's business faculty and had to find other means to be able to honour that contract. Also she may have been distressed when she found out she had to pay $10,000 for the lens, also that the photocopier was actually only approximately worth $15,000. The most difficult thing in granting damages for distress is the amount of damages to be awarded. In this case I would believe that only $20,000 could be granted as that is the difference between the estimated price of the photocopier and the price Patricia paid.

22. The best step for Patricia would be to rescind the contract, however as I said earlier that is sometimes not granted. The next step would be damages however Patricia would be unlikely to receive damages for her distress so she would receive $11,400 for the lens and the hiring of the other photocopier.

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