Consumer and Commercial Law Review Flashcards

Essential vocabulary terms and definitions from Consumer and Commercial Law lecture notes, covering contract terms, sale of goods, consumer credit, distance selling, and agency law.

Expectation loss

Damages that aim to fulfil a contract by placing a party in the position they would have been in were the contract carried out, which may include loss of expected profits.

Reliance loss

Damages to put a party back into a pre-contractual position in order to compensate for out-of-pocket losses.

Repudiate

A person shows by words or conduct that they do not see themselves as being bound by a contractual obligation.

Express terms

Terms that are written or spoken.

Implied terms

Terms that are not written or spoken, but implied in a variety of ways.

Exclusion or exemption clause

A term or notice that attempts to exclude or restrict liability for one’s acts or omissions.

Contra proferentem

In cases where a court determines a term to be ambiguous, a contractual interpretation will be construed against the interests of the party who insisted on its inclusion in the agreement.

Void

Has no legal effect.

Business liability

Liability incurred by a person acting within the course of a business as per the Unfair Contract Terms Act 1977, s. 1(3).

Core terms

Terms that either define the subject matter of a contract, or are concerned with the adequacy of the contract price.

Consumer notices

Both contractual and non-contractual consumer notices that include an announcement or other communication reasonably assumed to be intended to be read by a consumer.

Consideration

What each party gives to another in an agreement: usually the price for which a promise is bought.

Legal intent

Where both parties intend the agreement to have legal effect.

Caveat emptor

Let the buyer beware.

Hire purchase

A person, otherwise known as a bailee, agrees to hire goods on credit terms for a fixed period of time, with an option to buy (for a nominal fee) at the end of the agreed period.

Force majeure clause

A clause which allocates risk in the event of something that might happen.

Title or a right of ownership

Exclusive rights and control over property, where the property in the goods is an example of such a right.

Unascertained goods

Any goods that have not been identified and agreed upon at the time of the contract, including those chosen from an identified bulk.

Ascertained goods

Goods identified and agreed upon after the contract of sale has been made.

Nemo dat quod non habet

No one can sell what he does not have.

Severable contract

A contract that can be divided individually with each part being treated separately.

Personal remedies

Remedies sought personally against the buyer for compensation of loss.

Real remedies

Remedies sought against the goods themselves, in order that they may be retained by the seller.

Bill of exchange

A negotiable instrument similar to a cheque where a person orders their bank to pay the bearer a fixed sum of money on a specific date.

Lien

The right to hold onto the property of another and keep it as security until an obligation has been performed.

Rescission

Sets the contract aside and restores parties to a pre-contractual position.

Unsolicited goods

Unrequested goods sent to the offeree without their consent.

Distance contract

A contract between a trader and a consumer conducted under an organised distance sales or service scheme run by the trader without simultaneous physical presence.

Inertia selling

When a business tries to sell a product by sending unsolicited goods or services to a consumer without their prior agreement.

Service provider

Any service normally provided for remuneration at a distance by means of electronic equipment for processing and storage of data at the request of a recipient.

Producer

The manufacturer, abstractor, or processor who by means of an industrial process changes the essential characteristics of a product.

Damage (under CPA 1987 s. 5)

Includes death or personal injury; damage to non-business property worth more than $275; but not the damaged product itself.

Safe (product safety)

Such that there is no risk, or a minimum reduced risk, that the goods or their assembly will cause death or personal injury.

Regulated agreement

A consumer credit agreement or consumer hire agreement other than an exempt agreement under the Consumer Credit Act 1974.

Consumer credit agreement

An agreement between an individual (the debtor) and any other person (the creditor) by which the creditor provides the debtor with credit of any amount.

Consumer hire agreement

An agreement made for the bailment of goods to a hirer that is not a hire purchase agreement and is capable of subsisting for more than three months.

Non-commercial agreement

A consumer credit or hire agreement not made by a creditor or owner in the course of a business carried out by him.

Cancellable agreement

An agreement signed by a debtor away from the trade premises of the creditor or supplier, which may be cancelled if not secured on land.

Credit token

A card, cheque, voucher, or other document given to an individual by a consumer credit business for the supply of cash, goods, or services on credit.

Agent

An appointee of a principal mostly used to negotiate contractual relations between the principal and a third party.

Disclosed principal

A principal who is named or whom the agent indicates they are acting on behalf of.

Undisclosed principal

A principal whose existence is not revealed by the agent when entering into a contract.

Maximum harmonisation

A common standard set for all Member States of the EU to ensure complete equality of legal provision.

Professional diligence

The standard of special skill and care a trader is reasonably expected to exercise towards consumers, commensurate with honest market practice or good faith.

Material distortion of economic behaviour

Impairing the average consumer's ability to make an informed decision, causing him to take a transactional decision he would not have otherwise taken.