2003 Exam, Question 8 - Finally resolved! (1 Viewer)

[Lazarus]

There was a great deal of controversy regarding this question after the exam last year.

<blockquote>Chris bought a packet of cereal from a corner shop. She opened it and discovered pieces
of metal mixed with the cereal. Chris wishes to take legal action against the manufacturer
of the cereal.

Which type of law will she use?

(A) Contract law
(B) Tort law
(C) Criminal law
(D) Property law</blockquote>The official, correct answer is: (A) Contract law

I am of the opinion that tort law was incorrect because no damage was actually sustained. It is not possible to have "negligence in the air" - i.e. to bring an action for negligence without damage.

<a href="http://www.boardofstudies.nsw.edu.au/hsc_exams/hsc2003exams/pdf_doc/legal_studies_er_03.pdf" target="_blank">Notes from the Marking Centre</a>
<a href="http://www.boardofstudies.nsw.edu.au/hsc_exams/hsc2003exams/pdf_doc/legal_studies_03.pdf" target="_blank">Examination Paper</a>

 

[santaslayer]

contract law?.....y would it be a breach of contract?...like u mean a contract for duty of care that was violated coz the manufacturer didnt make the neccessary procedures to ensure the product was of a safe quality? coz i cant see where the "contract" lies?

 

[santaslayer]

and crap, i think i put tort...cant remember

 

[Ziff]

When you buy something you enter into a contract with the supplier for the product and that it will be free of defect etc etc.

Chris didn't ingest the item like in Donoguhe v. Stevenson and in turn become ill from that, merely, the item was tainted and that's why the contract was broken?

Am I right in my interpretation?

 

[suz]

Damn I had tort so that was the sucker that made me get 89 lol

 

[Gemstone]

Yeah Ziff that is how I would have explained it. Torts have to have damages. Contract is just that you didn't get what you expected. When you buy something you expect to get it free of defects as Ziff said, so therefore the metal mixed in was a breach of this contract.

 

[Tenille]

Oh good i can finally sleep again.

 

[Eeko]

crap got that one wrong

 

[adamj]

I still believe it was a tort, there are no contractual obligations between manufacturer and consumer. The question is silly and if the BOS can't get it right, then they should ask such questions.

 

[meh]

godamn hippies

 

[adamj]

After checking with many law students, I am still convinced that it was not Contract Law. If Chris took the cereal back and the supplier said that they would not refund, then that would be contract law as the supplier has not met all the elements of a contract, but seeing its the manufacturer, it can't be a contract - none exists.

 

[Belinda]

Gah that stupid question! I too, put torts, and got it wrong. Agreed that no damage was sustained, but by having the piece of metal there, isn't it still negligent? Like, you know how people open cans of food and there are insects in it or something, they can still sue, through torts right? Even if no damage has been sustained (unless you include "emotional distress" etc).

And from what we learnt in legal studies, I clearly remember that because of the privity of contract, that the buyer can't sue the manufacturer. Perhaps there are exceptions or whatever, dealt with at Uni level law, but at year 12 level, I would think it's reasonable to assume that privity of contract exists and the question examines the student's knowledge of it.

 

[= Jennifer =]

remember is a form of receipt is a contract

 

[~*HSC 4 life*~]

Originally posted by adamj
After checking with many law students, I am still convinced that it was not Contract Law. If Chris took the cereal back and the supplier said that they would not refund, then that would be contract law as the supplier has not met all the elements of a contract, but seeing its the manufacturer, it can't be a contract - none exists.

no its definately contract law, a contract doesn't have to be in writing all the time. When a customer purchases an item, that is a contract, because they are exhcanign money for goods. If Chris actually ate the cereal, it world be tort as damage would have been caused, but since he didn't, its just contract law

 

[adamj]

Originally posted by Belinda
Gah that stupid question! I too, put torts, and got it wrong. Agreed that no damage was sustained, but by having the piece of metal there, isn't it still negligent? Like, you know how people open cans of food and there are insects in it or something, they can still sue, through torts right? Even if no damage has been sustained (unless you include "emotional distress" etc).

And from what we learnt in legal studies, I clearly remember that because of the privity of contract, that the buyer can't sue the manufacturer. Perhaps there are exceptions or whatever, dealt with at Uni level law, but at year 12 level, I would think it's reasonable to assume that privity of contract exists and the question examines the student's knowledge of it.

Firstly let me confirm. Torts is where we remedy civil wrongs, we need to litigate for damages, if no damage has been caused it is a little hard to sue. But one could argue that Chris suffered mental trauma from seeing the metal in her cereal, there ismore possibilty of that than suing on a contract that didn't exist.

 

[adamj]

SHOULD WE ENQUIRE WITH THE BOARD OF STUDIES?

 

[adamj]

Originally posted by ~*HSC 4 life*~
no its definately contract law, a contract doesn't have to be in writing all the time. When a customer purchases an item, that is a contract, because they are exhcanign money for goods. If Chris actually ate the cereal, it world be tort as damage would have been caused, but since he didn't, its just contract law

WRONG!

I know that contracts under the Sales of Goods Act and TPA don't have to be written, I never made that claim. I stated, that there is no verbal or written contract under law between the manufacturer and the consumer.

If your claim is true, then Chris would have gone back to the vendor and asked for a refund, if she was refused or decided to sue the vendor, the vendor has the oppurtunity to sue the manufacturer for a breach of their contract.

 

[~*HSC 4 life*~]

Originally posted by adamj
WRONG!

thats a bit harsh

Originally posted by adamj


I know that contracts under the Sales of Goods Act and TPA don't have to be written, I never made that claim. I stated, that there is no verbal or written contract under law between the manufacturer and the consumer.

i dont really get what you just said...but it sounded a bit contradicting, maybe i'm wrong..i dunno

Originally posted by adamj

If your claim is true, then Chris would have gone back to the vendor and asked for a refund, if she was refused or decided to sue the vendor, the vendor has the oppurtunity to sue the manufacturer for a breach of their contract.

I think you're reading a bit too much into it, its a multiple choice question. You only interpret the information given in the question, and not other things, which may be related, but arn't mentioned in the question

 

[adamj]

thats a bit harsh

No harm intended, pardon me

dont really get what you just said...but it sounded a bit contradicting, maybe i'm wrong..i dunno

I have said, that I have not gone against your justification that not all contracts are verbal. But your justification is irrelevant to the argument. The issue is not whether a contract is written or verbal, but whether a contract exists.

I think you're reading a bit too much into it, its a multiple choice question. You only interpret the information given in the question, and not other things, which may be related, but arn't mentioned in the question

Its a question that was meant to make one think, if people don't do that in the HSC, then how is it meant to be reflective? In conlcusion to this, I agree with everything you said before, but the only thing I disagree with, is how you have come to the conclusion that Torts is incorrect.

 

[Lazarus]

The logic behind the answer must inevitably revolve around the fact that contract law provides a feasible remedy whereas tort law does not.

Division 2A of Part V of the Trade Practices Act 1974 (specifically, s 74H) creates a statutory form of action against the manufacturer or importer of goods without the need for a contract directly between the consumer and the manufacturer. Rights which Division 2 give to the consumer against a manufacturer include:

1. A right of action for goods which are not fit for their purpose: s 74B;

2. A right of action in respect of goods not complying with description: s 74C;

3. A right of action for goods which are not of merchantable quality: s 74D;

4. A right of action where goods do not correspond with samples: s 74E;

5. A right of action where manufacturers fail to provide reasonable repair facilities or spare parts: s 75F;

6. A right of action where manufacturers do not comply with express warranties: s 74G.