Commercial and Consumer contracts

Insurance - Duties of the insured, non disclosure, misrepresentation and fraud - misrepresentation

Traditionally, misrepresentation played a lesser role due to 'basis of the contract clauses'. (Abolished by CIDRA for consumers then IA for business.) --people upgrade statements • Although misrepresentation had a role as regards inducement. Pan Atlantic case (1994). -- utmost good faith: OLD LAW • S. 17 MIA, headed "Insurance is uberrimae fidei" • "a contract of marine insurance is a contract based upon utmost good faith..." • then (for pre August 2016 contracts) it went on to say how avoidance could follow. • S.18(1) MIA. • Imposed a duty of disclosure on the policyholder to disclose, "every material circumstance" which it knows or ought to know "in the ordinary course of business".

Insurance - insurable interest for liability insurance

Any legal liability capable of enforcement against the Insured will confer an insurable interest on that insured sufficient to allow him to cover the potential liability with an insurance policy: • Delictual Liability - insure to the extent of that, cover off potential liability with i policy - this contingency may not arise • Contractual liability ---Consider a purchaser with no property in goods but who DOES have the RISK in the goods • Liability for breach of statutory duty (etc.)

life insurance vs non-life insurance

The difference is the quality of the uncertainty: WE ARE ALL GOING TO DIE! but we don't know when. • Whole Life Policy - pays on your death; cf • Endowment Policy - pays you if you reach a given age. • Contrast with Indemnity insurance: though I insure my car against losses there may never be a claim on that indemnity policy.

Characteristic Elements of a Sale of Goods Contract (+ General rules of Contract Law)

1. The contract itself; 2. Seller [trader] and buyer [consumer]; 3. Conveyance of property [which may coincide with 1]; 4. Goods; 5. Price. --- General rules of Contract Law For sale, no particularly special rules apply for: • contractual capacity; •formalities (though some for CRA governed contracts); • consensus.

Insurance - three regimes can be identified

1. The old law, for consumer contracts pre-April 2013 and nonconsumer pre-August 2016. 2. The new consumer law for consumer contracts post-April 2013. 3. The new non-consumer law, for non-consumer contracts post-August 2016.

Consumer credit - regulated activities - new regulated activities - regulated consumer hire agreement

2. 'New' regulated activities e. Regulated consumer hire agreement **Art. 60NRAO • A consumer hire agreement that is not a hire-purchase agreement • See also s. 15 CCA 1974 Exclusions Art. 60R - information society services, local authorities Exemptions Art. 60O - nature of agreement Art. 60P - supply of essential services (i.e. water, electricity, gas) Art. 60Q - nature of hirer

Insurance - the conduct of insurance business

2008 Insurance Conduct of Business Sourcebook (ICOBS) -worth a look, various standards in terms of any business - insurance properly discolure --not follow for loss to person can be sued • FSMA 2000 makes non-compliance with these rules by an authorised person that then causes loss to private persons actionable as a breach of statutory duty.

Supply and sale of goods - Consumer + trader def

A "consumer" is: "an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession." Trader A "trader" is: a person acting in connection with a "business, craft or profession". (If have a consumer, 2015 act not SOGA)

Insurance - legal regulation of insurance

All the law requires of the insured is that he have an insurable interest (see below). • The insurer however must comply with various statutes designed to keep it solvent and able to pay out on its policies if needs be. • Financial Services & Markets Act 2000 (+ Treasury Rules) as amended by Financial Services Act 2012 = the main UK legislation. Two regulators: PRA + FCA. R v Wilson - case where business model to try and recover payment in relation to creditors owed - chasing people on their behalf = seen as a reg activity Look where the business is then the risk - not carry in the UK then can escape reg

Consumer credit - licensing under FSMA - exemptions s38

An exemption order may be sought: s. 38 FSMA (1) The Treasury may by order ("an exemption order") provide for- (a) specified persons, or (b) persons falling within a specified class, to be exempt from the general prohibition. (2) But a person cannot be an exempt person as a result of an exemption order if he has a Part 4A permission Seek not all activities, but in relation to specific function/activity+activities subject to certain conditions

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness -s14(2) satisfactory quality - BUT NO LIABILITY

BUT no liability under s 14(2) for: a) patent defects drawn to the buyer's attention before the contract is made; b) defects which **ought to be revealed by any examination made by the buyer; (bit harder, objective?) c) defects ascertainable from a sample (if relevant). S 14(2C).

Consumer credit - diagram

Before agreement --> Course of agreement ---> Default and termination --> Judicial control e.g. unfair relationships Policy context and FCA authorisation - regulation of activities - protection of consumer + rights

Insurance - caution - termination by cautioner?

Buchanan v Main (1900) 8 SLT 297 by operation of law ◦ operation of express term of the guarantee; death of the cautioner; change in constitution of firm; prescription of the cautionary obligation.

Consumer credit - regulatory framework - statute

CCA 1974 • CCA 2006 • Financial Services and Markets Act 2000 And various orders including: FSMA 2000 (Regulated Activities) Order 2001/544 See also: • FCA Consumer Credit Sourcebook (e.g. rule 5A.5.2 on Contravention of cost caps and unenforceability of agreements and obligations) --know this is here And: Directive 2008/48 on credit agreements for consumers Changes 1974 - 2006 - new category of ancillary business (debit administration) --intro of unfair relationships

Consumer credit - regulated activities - types of credit + agreements

CCA 1974 s. 10 - running-account credit and fixed-sum credit s. 11 - restricted-use credit and unrestricted-use credit s. 12 - debtor-creditor supplier agreements s. 13 - debtor-creditor agreements

Consumer credit - regulatory framework

CCA 1974 - example of Woodchester lease Management services v Swain & Co case - point of CCA --hire of a photocopier under CCA - default notice sent when party stopped paying, problem the default notice sent had a greater amount than they owned under contract Court - they need to know what they owe "This [CCA 1974] was plainly enacted to **protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. **The lender has the ability and the resources to give that information with precision."

Supply and sale of goods - unascertained goods - rule 5(1) - unconditional appropriation

Carlos Federspeil and Co v Charles Twigg and Co Ltd 1957 1 Lloyd's Rep 240; • At 255, Pearson J stated 'A mere setting apart or selection of the seller of the goods which he expects to use in performance of the contract is NOT enough. If that is all, he can change his mind...' Intention to attach the contract irrevocably to the goods - and no others Usually the last act the seller is bound to perform Carlos Federspeil 'To constitute an APPROPRIATION of the goods... The parties must have had, or be reasonably supposed to have had, an INTENTION TO ATTACH THE CONTRACT IRREVOCABLY TO THE GOODS.' case: Hendy Lennox (Industrial Engines) Ltd v Grahame Puttick Ltd 1984 1 WLR 485 Appropriation did not happen when the generators were set aside and the names of the customers were added. Instead, appropriation happened when invoices were sent and delivery notes/invoices were sent to the customers.

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - More case law

Clegg v Andersson In this case a new yacht was bought for £250,000. The Court held that the yacht was not safe as there was a fault - the keel was heavier than the manufacturer's specification. This made the rigging unsafe. Also, in Clegg Lady Hale noted 'A reasonable person is not an expert. -- Jewson Ltd v Boyhan A property developer bought from Jewson Ltd a number of electric central heating boilers for some flats. The boilers had poor energy ratings (and as such flats were less marketable), but the court held that they were satisfactory quality. No claim under s 14(3)? (Interaction with 14(3) to follow below

Consumer credit - policy context

Concern to make a transparent system and beneficial to the economy (as seen in the report of the committee) --complexity before the CCA was the complexity of the law, not sure what the law was Note - EU dimension - Directive 2008/48/EC on credit agreements for consumers, extract from recitals (directives of relevance) Recital - useful summary of what CC trying to do, echo UK position - *focus transparent and efficient credit market

Regulation of contracts for supply of goods... to consumers by traders

Consumer Rights Act 2015. •CRA regulates consumer contracts relating to goods from 1 October 2015.

Consumer credit - types of agreement in CCA 1974 - s14

Credit-token agreements -- two parties credit card example - not clear credit card falls under this. e.g card, voucher, cheque, coupon

Insurance - caution - 4. Cautioner's right to an assignation from the creditor

Creditor ----xxxPrincipal debtor ---step 1. Creditor sues cautioner for the whole debt Step 2. Cautioner pays but obtains an assignation from the creditor so then- Step 3: Cautioner proceeds against the principal debtor as if he were the creditor

Insurance - caution - 2. cautioner's right of relief against principal debtor

Creditor ---xxxxPrincipal debtor --->>>Step 1. Creditor sues the cautioner for the whole debt Step 2 - Having paid the creditor, the cautioner pursues the principal debtor for relief Principal debtor may be unreliable. It is the cautioner problem not creditor

CC - Default and termination

DUE TO STRIKES, NOT INCLUDED IN EXAM - BUT IN TUTORIAL 2

Supply and sale of goods - Non‐consumer sales - buyer's remedies MORE

Damages for non‐delivery: s 51, measured per s 51(2). Specific performance for non‐delivery of specific/ascertained goods: s 52. Damages for breach other than non‐delivery: s 53A(1). Damages based on 'the estimated loss directly and naturally resulting, in the ordinary course of events'. Late delivery remedies? Depends on contract (and see s 29(3),compare s 28 CRA for consumers).

Consumer credit - types of agreement in CCA 1974 - s13

Debtor-creditor agreements --Anything that isn't debtor-creditor-supplier e.g. restricted use credit agreement

Consumer credit - types of agreement in CCA 1974 - s12

Debtor-creditor-supplier agreements e.g. hire purchase where the seller sells to finance company goods, they then sell to consumer - about financing transactions between debtor/creditor

Consumer credit - regulated activities - relating to size/linked to other agreements (form contracts can take) - small agreements

Defined in s. 17(1) CCA 1974 (a) a regulated consumer credit agreement for credit not exceeding £50, other than a hire-purchase or conditional sale agreement; or (b) a regulated consumer hire agreement which does not require the hirer to make payments exceeding £50, being an agreement which is either unsecured or secured by a guarantee or indemnity only (whether or not the guarantee or indemnity is itself secured). Small could be excluded. balance of consumer protection and health of sector

Some types of insurance

Distinction evident between • First Party Insurance - I insure my life / my property **for my own benefit against loss I bear. • Third Party Insurance - I insure my life / my property (etc.) **for another's benefit against losses they would bear e.g. if I were held liable for injuring them. No second party

Insurance - historic, not to learn in detail

Duty of disclosure on the insured / proposer. Lambert v Co-operative Insurance Society Ltd [1975] • L insured her family jewellery, but didn't mention that her husband had previous convictions: the insurer didn't ask her about this issue. • When she claimed £311 for stolen jewellery, the insurer avoided the policy on the basis that the husband's convictions were a 'material circumstance' that would have influenced the judgment of a prudent insurer in deciding to offer cover and which L was therefore obliged (by s.18 MIA 1906) to disclose when making the contract. As she had not done so, the insurance company could AVOID. • Mrs Lambert didn't know that she was under this duty. • The Insurance company could keep the premiums she paid. • Mr L was in prison at the time of the theft. Material circumstances / inducement. The test was objective. Insurer had burden of proof. • The non-disclosure of the material fact must have induced the insurer into the contract (i.e. caused them to enter it and that they would not have done so on the same terms if they had known it). Drake Insurance Plc v Provident Insurance Plc [2003]. • Determination of 'materiality' is a Q of fact concerning physical hazard and moral hazard.

Consumer credit - credit definitions

Examples: Dimond v Lovell [2002] 1 AC 384 "All the provisions [in the contract] about the pursuit of the claim were express or implied conditions that deferred the right to recover the hire and therefore constituted a granting of credit." --aka provide to a particular individual but s9 individual may include body Case was hiring a car - about right to recover cost of a hire, deferred - because it was deferred, court this is a consumer credit agreement --highlight on concept of deferral - pointing to credit Cf. e.g. insurance policy: not credit Tilby v Perfect Pizza [2002] All ER (D) 72 (Mar)

Consumer credit - regulated activities - new regulated activities - debt related activities - exclusions to debt rules

Exclusionsto debt rules Art. 39H - activities where person has a connection to the agreement Art. 39I - activities carried on by certain energy suppliers Art. 39J - activities carried on in relation to a relevant agreement in relation to land Art. 39K -activities carried on by members of the legal profession etc. Art. 39KA -activities carried on by reason of providing pensions guidance under Part 20A of the Act Art. 39L - other exclusions

Non-marine insurance law origins

Fire insurance • Great Fire of London --property damage • Life insurance (or Life Assurance) • Accident insurance - industrial revolution.

Types of insurance (example from practice)

From a PFI/PPP project agreement for the design, build, finance and operation of a number of schools. In Construction Phase • 'All Risks' insurance (i.e. for physical loss or damage to insured property) • Delay in Start Up Insurance • Construction Third Party Liability Insurance In Operational Phase • Property Damage • Business Interruption • Third Party Public and Products Liability

Consumer credit - licensing under FSMA - specialist regimes

General prohibition s. 19(1) FSMA No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is- (a) an authorised person; or (b) an exempt person. But note esp. that mortgage credit is (usually) regulated separately

Supply and sale of goods - capacity + parties

General rules about incapacity, <16 and 16‐18 apply. •SGA s. 3(1), capacity determined by the general law of contract • CRA - silent on capacity -- Parties • S 61(1) SGA •Person who [sells/buys] or agrees to [sell/buy] goods

Insurance - caution - termination by actions of creditor

Giving time. - to the debtor as a creditor. To allow more flexibility, can discharge the cautioner. Relation change, can say Cautioner not sign up to that Prejudicial change to contract - can terminate Discharge of co-cautioner. e.g. two cautioners - credior say not agaisnt c1, but c2 argue against. Unless agree, can say increase liability so I am out Voluntary discharge of a security.

Supply and sale of goods - Consumer Rights Act 2015 - What else is analogous to SGA?

Goods to be fit for a particular purpose: s.10 (to be contrasted with SGA, s.14(3)). Goods to be as described: s.11 (to be contrasted with SGA, s.13). Goods to match a sample: s.13 (to be contrasted with SGA, s.15). Trader to have right to supply the goods etc: s.17. (cf s 12 SGA).

Supply and sale of goods - Consumer Rights Act 2015 - other statutory rights?

Goods to conform to certain pre‐contract information: s.11(4) and section 12(2). These sections provide that where information must be provided by the trader to the consumer before the contract, such information is to be treated as included as a term of the contract. Nature of the information depends on nature of the transaction (e.g. in a shop or by electronic means) and (in relation to s.12) refers to pre‐ contract information such as price, delivery and complaints handling.

Insurance - Insurance 2015 Act, non-consumer - Duty of fair presentation

How are you ought to know if you don't know? --encourage people to need to know other parts --*improvement by statute on common law it does give safety valve of 'failing that' AS OF 12 AUGUST 2016 this must be disclosed by a non-consumer (under s.3 IA 2015) A non consumer must disclose: a) Every material circumstance which the insured **knows or **ought to know, or b) failing that, disclosure which gives the insurer sufficient information to put a prudent insurer on notice that it needs to make further enquiries for the purpose of revealing those material circumstances. Told enough to the insurer to chew on, and for them to take steps --not reactive duty but PROactive compared to KIDRA - to tell insurer -- When insurer not asked, these things no need to disclose: BUT In the absence of enquiry, no requirement on the insured to disclose a circumstance if: a) it diminishes the risk (- clearly not a material circumstance), b) the insurer knows it, (-do have knowledge) c) the insurer ought to know it, d) the insurer is presumed to know it , or e) it is something as to which the insurer waives information. • What the insurer "knows" (etc.) is explained in the legislation. s5 --things that people will generally know in that field of activity - s5(3) - should reasonably know for the product being offered (?) Knowledge generally analysed - s6

Insurance - claim - Waiver & Estoppel: when the insurer cannot rely on the insured's breach

If the Insured breaches a term in the insurance contract classified as a *'condition' AND this breach is either *waived by the Insurer OR the Insurer has acted in such a way as to be *estopped from relying on that breach of condition, **the breach cannot be used against the Insured. • Waiver = a choice by Insurer between two outcomes is made with knowledge of the facts (express or implied). • Personal Bar/Estoppel = representation by words or conduct by Insurer that it will not rely on a breach + detrimental reliance on this representation by the Insured. No personal bar q in exam

Insurance - qualifying misrep?

Is it something that matters/counts? --case if insurer would not have entered contract at all or on different terms (s.4(2)). Would the insurer have: a) entered at all, or b) entered on different terms?

Consumer credit - Consumer credit and land

Limited applicability of CCA 1974 to land mortgages following Directive 2014/17/EU (Mortgage Directive) Relevant rules: FSMA 2000 FCA, FCA Handbook - Mortgage: Conduct of Business Sourcebook ("MCOB") Mortgage Credit Directive Order 2015 (SI 2015/910) At the moment if land related by credit - unsecured Credit covered by CCA, secured will mostly likely by FSMA 2000

Consumer insurance law?

Just as other areas of contract law have been adapted to offer some protection to consumers, some aspects of insurance law been adapted to similar effect. BUT For many years the Insurance sector was allowed to self-regulate and so some statutes do not apply to it: e.g. UCTA 1977: in return the Insurance sector agreed on binding codes of conduct. More recent statutes and EU law have however been applied to the Insurance sector (instead of self-regulation) concerning consumers, e.g. UTCCR... and now CRA 2015.

Consumer credit - licensing under FSMA - authorisation under Part IVA

Key aspect of FSMA is authorisation of relevant firms s. 19(A) FSMA No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is- (a) an authorised person; or (b) an exempt person. s. 20(1) FSMA If an authorised person other than a PRA-authorised person carries on a regulated activity in the United Kingdom, or purports to do so, otherwise than in accordance with permission [...] he is to be taken to have contravened a requirement imposed on him by the FCA under this Act Contravention is a criminal offence: s. 23 FSMA Agreements that are made by an unauthorised firm are unenforceable: ss. 26, 27, and 29 FSMA Consumer credit-specific provision: s. 26A(1) FSMA An agreement that is made by an authorised person in contravention of section 20 is unenforceable against the other party if the agreement is entered into in the course of carrying on a credit-related regulated activity involving matters falling within section 23(1C)(a).

Consumer credit - matters arising during the course of agreements - connected lender liability - Section 75A CCA linked

Linked credit agreements (but not land); not the same as a linked transaction under s. 19 CCA 1974 s. 75A Consumer Credit Act 1974 Added under Consumer Credit (EU Directive) Regulations 2010 (SI 2010/1010) reg.25 (1) If the debtor under a linked credit agreement has a claim ... (2) The conditionsin subsection (1) are— (a) that the supplier cannot be traced, (b) that the debtor has contacted the supplier but the supplier has not responded, (c) that the supplier isinsolvent, or (d) that the debtor has taken reasonable steps to pursue his claim against the supplier but has not obtained satisfaction for his claim. [...]

Supply and sale of goods - transfer of property and risk - s18 rules - rule 3

Necessary weighing etc. by the seller 'Where there is a contract of SPECIFIC goods but the SELLER is bound to weigh, measure, test [etc.]...for the purpose of ascertaining the PRICE, the property does not pass until the thing is done and the BUYER HAS NOTICE it has been done.' Only applicable if the duty is **on the seller: see Kennedy's Tr. v Hamilton & Manson (1897) 25 R. 252. • See also Nanka Bruce v Commonwealth Trust [1926] A.C. 77 - The sub‐ buyer had to weigh the goods. The Court held that Rule 3 did NOT apply: weighing not a condition precedent and it was the SUB‐BUYER weighed the goods and NOT THE SELLER.

Financial ombudsman service and legal regulation of insurance

Ombud The Insurance industry set up a free of charge ombudsman service for consumer complaints in 1981 allowing awards of up to £100K. • The current statutory scheme is set up under Part XVI of FSMA 2000 ◦ • See compensation over £150K FAQ. • Clark v In Focus Asset Management & Tax Solutions Ltd [2014] EWCA Civ 118 - if you want to get more than 150 thousand, can't get first judgement from Obudsman and get top up in court - if more then look to litigate, not top up -- Legal regulation of insurance As insured party, need insurable interest in contract --insurer has to comply with wider reg and insolvency All the law requires of the insured is that he have an insurable interest (next lecture). • The insurer however must comply with various statutes designed to keep it solvent and able to pay out on its policies if needs be. • Financial Services & Markets Act 2000 (+ Treasury Rules) as amended by Financial Services Act 2012 = the main UK legislation. Two regulators: PRA + FCA. Regulators: • Prudential Regulation Authority • Financial Conduct Authority

Insurance - conditions

Other contract terms that may but need not relate directly to the risk, or material facts. • Breach of condition = breach of contract but does not discharge insurer from performance. • The label 'condition' is not always decisive:- • HIH Casualty & General Insurance Ltd v Axa Corporate Solutions [2002] courts found a warranty. • Conditions often govern claim procedure or give the insurer rights to pursue a claim in the name of the insured after payment (Subrogation).

Supply and sale of goods - agreement on price + time

Price is clearly necessary. •This may be agreed by the parties or perhaps fixed by the contract. •Course of dealings? (SGA s. 8 (2), CRA silent) -- Time If of the essence, the condition of that contract, can terminate if breach --Not implied - have to say of the essence, such as delivery Not "of the essence". --Only raised to a material term • S 10 SGA.

Supply and sale of goods - retention of title - price only

Recognised at common law - • Situation in Archivent. Clause provided until PAYMENT OF THE PRICE in full is received by the company...the property in the goods supplied by the company shall not pass to the customer

Insurance - CI(D&R) Act 2012 Remedies ("deliberate / reckless" or "careless")

Remedies are found in ss 4-5 & Schedule 1 • Even if the consumer does not take reasonable care he only faces a remedy if this led to a 'qualifying misrepresentation'. • Remedies then depend on whether a QM is a) deliberate or reckless, OR b) careless

Consumer credit - types of agreement in CCA 1974 - s11

Restricted-use credit and unrestricted-use credit Restricted use credit - e.g. grant of a mortgage - grant of credit to buy a specific thing Unrestricted - grant the loan, pay back - but not have to spend on a specific thing

Supply and sale of goods - Non‐consumer sales - buyer's remedies

Right to damages - s 15B(1)(a). Right to rescind and reject all of the goods if the breach is material - s 15B(1)(b). (In Clegg v Andersson, it was ruled that a buyer has a free choice to seek damages or rejection as s/he pleases.) Right to accept some of the goods and reject some of the goods if some of the goods are not in conformity with the contract of sale - s 35A(1). Right to an order of specific implement where the seller has breached his obligation to deliver specific or ascertained goods - s 52(1) [Specific Implement = Scotland only]

Consumer credit - types of agreement in CCA 1974 -s10

Running-account and fixed-sum credit s 10(1) CCA Running - debtor is able to recieve cash/services from time/time to a certain value ongoing Fixed sum - any sort of facility where debtor is enabled to receive credit Distinction - only matters where some agreements exempt from reg

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - s19

S 19(1), remedies for non‐conformity: a) are not of satisfactory quality (s 9), fit for a particular purpose (s.10), or do not match a description (s.11), sample (s.13) or model (s.14), b) are not installed properly (where that was part of the contract) (s.15) or "digital content" is included and is not in conformity with the contract (s.16) [this will not be analysed here], or c) fail to meet the requirements that are stated in the contract.

Sale of Goods Act 1979 - background of act

SGA regulated both the property law and certain contractual aspects of all sales of goods prior to 1 October 2015, whether consumer or non‐consumer (where "non‐consumer" means B2B or private sale). • SGA continues to regulate non‐consumer sale contracts for goods after that date. •AND the 1979 Act still has a property law (i.e. title) role after 1 October 2015.

Supply and sale of goods - classification of goods

SGA s 5, CRA s 5(2), existing vs. future goods • Existing goods‐ goods owned or possessed by seller at the time of sale • Future goods - goods to be manufactured [or acquired] by the seller AFTER the contract is made Specific goods ‐ this is a defined term in the SGA (s 61(1)), which means goods identified and agreed upon AT THE TIME A CONTRACT OF SALE IS MADE. • Unascertained goods - goods not identified by buyer but are available for sale • SGA s16: a property provision -which covers ALL sales (consumer and non‐ consumer). •No property until goods ascertained. (One special rule in s.20A, about goods in a bulk, which we will come back to.) (Property useful - transfer of risk issue, issue on who owns goods in position to transfer property)

Supply and sale of goods - what is a contract for sale?

Sale of Goods Act 1979, s 2(1) • 'A contract of sale of goods is a CONTRACT by which SELLER transfers or agrees to transfer PROPERTY in goods to the BUYER for a money consideration, called the PRICE' • CRA, s. 5, similar but different. CRA S.5 [NO NEED TO COPY THIS] (1) A contract is a sales contract if under it— • (a) the trader transfers or agrees to transfer ownership of goods to the consumer, and (b) the consumer pays or agrees to pay the price. (2) A contract is a sales contract (whether or not it would be one under subsection (1)) if under the contract— (a) goods are to be manufactured or produced and the trader agrees to supply them to the consumer, (b) on being supplied, the goods will be owned by the consumer, and (c) the consumer pays or agrees to pay the price

Supply and sale of goods - retention of title clauses

Section 17 - General position is property passes when it is intended to pass. • Section 19 - RESERVATION OF THE RIGHT OF DISPOSAL. The seller can retain ownership of the goods until some condition satisfied. • Clauses of 2 types. 1. 'Price only' reservation of title - ownership does not pass until the price is paid in full. 2. 'all sums due' reservation of title ‐ ownership does not pass until the price AND other debts from the buyer to the seller are paid in full.

Supply and sale of goods - Non‐consumer sales - seller's remedies 2 types

Self‐help; Personal. Explanatory Notes to CRA makes clear these rules continue to apply to trader‐to‐consumer contracts.

Supply and sale of goods - seller's title - exceptions to nemo dat - 3

Seller continues to possess after sale - s 24. Such a "seller in possession" can pass a good title to second buyer. A (seller) sells goods to buyer number 1 but keeps possession of the goods; A sells the same goods to buyer number 2; Buyer number 2 becomes the owner provided he bought in good faith and there is no notice of a prior sale. SELLER MUST BE IN POSSESSION AT THE TIME OF SALE TO BUYER NUMBER 2.

Supply and sale of goods - Non‐consumer sales

Split into: Not about Consumer Rights Act 2015. • "Commercial sale of goods". • Implied duties, relating to: • description; • satisfactory quality; •fitness for a particular (stated) purpose; and • conform to a sample. (1 or more may apply to a problem) • NB - not all contracts will have all these implications. Circumstantial Remember we have already met one implied term, relating to passing good title etc. (s 12). Also provisions about delivering the wrong quantity (s 30).

Supply and sale of goods - Non‐consumer sales - seller's remedies - personal remedies

Sue for price: s 49 Claim damages for non‐acceptance: s 50

Insurance - what is insurable interest? (important concept in the UK) Main important point - if no insurable interest, won't get an insurance payout - insured must have to make a legally enforceable claim

The Insured must have an insurable interest under the contract of insurance if he wishes to be able to make a legally enforceable claim. • Without this insurable interest the contract is either void / illegal / unenforceable depending on the circumstances. • Scots cases still cite English authority despite some differences in E&W law and Scots law. • Different rules for indemnity + life insurance. • The insurable interest is being considered for reform - not abolition by both Law Commissions.

Insurance - new law - consumer and non - reform

The Law Commission needed to reform the law in this area but had to be careful with what they proposed: • The insurer cannot be liable if it has been deceived into offering cover or been misinformed by the insured as to the nature of the risk at issue (consider Car Insurance premiums and bogus "whiplash" claims) • Equally there is no point in keeping legal rules that are too strict to routinely apply without breaching industry good practice codes. • The Reform focussed on consumers first. • ***The Reforms are not retrospective!

Insurance - claims and payment under the policy + why might a claim be unsuccessful - No claims that indirectly infringe public policy - the general rule

The general rule = payment would be contrary to PP. • Haseldine v Hosken [1933] --a solicitor ended up in an arrangement with a financing another legal action. Shamperty offence in eng. So disagreement meant no pay out. • Gray v Barr [1971] --Love triangle. Guy 1 goes to house of ex partner, guy 2 there. Hence Guy 1 took shotgun with him, guy 2 shot. Not murder conviction, could guy 1 make a claim on his insurance policy for the action this death caused? Nooo The motor car / compulsory insurance **exceptions to this rule. - allowed pay out, though driving • Tinline v White Cross Insurance [1921] • James v British General Insurance [1927] • Gardner v Moore [1984] HoL agreed with Hardy v MIB [1964]

Insurance - recap - composition of the insurance contract

The insurance contract will generally consist of: • Policy document • Completed proposal form • Renewal notices The contract also has three relevant categories of terms: • Warranties, • Conditions, and • Clauses descriptive of the risk

Insurance - warranty - Creating warranties

The warranty must be incorporated as a term of the insurance contract. • The policy may include terms labelled as 'Warranties' - NB Construction by court (not insurer's label) is conclusive. --no always labelled as warranty, that is okay • The policy may state, 'That the insured warrants...' and then list warranty provisions.

Insurance - caution - the nature of cautionary obligations

They are a form of security -can have humans or companies personal, not real - giving personal right to creditor accessory nature of cautionary obligations - proper c obligations are accessive, parasitic on a debt. No debt then no worry for accessory distinction between cautionary obligations and other obligations - c not stand alone, need other obligations to be called upon. Need issues with principal debt before guarantee can be called upon

Insurance - warranty - basis of contract?

This turned what could have been seemingly insignificant words into warranties: • Dawsons v Bonnin 1922 SC (HL) 156 (a warranty about a vehicle being garaged in Glasgow); --it did not happen. Allowed insurance pay out not to happen • Unipac (Scotland) Ltd v Aegon Insurance Co (UK) Ltd 1996 SLT 1195 (two incorrect answers, about length of time in business and sole occupancy at premises, prevented payout after a fire). --Weren't entitled to pay out, as converted to warranties and were breached - you agreed to this • **NOW no basis of the consumer contract clauses in cases covered by s.6 of the CI(D&R) Act 2012 or s.9 of IA 2015. --can't do automatic upgrading - not make into warranties. Can have warranties, have to say it is a warranty.

Supply and sale of goods - unascertained goods - rule 5(1) - two prereq

Two prerequisites for transfer of ownership under Rule 5(1):‐ a) Unconditional appropriation (taking THAT one) b) Assent of non‐appropriating party (agree that to be done) (Assent can be express or implied, and pre‐ or post‐appropriation)

Insurance - caution - termination relating to debt

Underlying debt paid. - nothing else to worry about securing Novation. - contract repealed and replaced aka new debt - old debt caution no longer apply Compensation - that debtor was in credit with the creditor, can set that off - can compensate that The rule in Clayton's case (earliest credit put against earliest debit); prescription. - debt can prescribe, 5 years

Insurance -warranty - What types of promises are warranties?

Warranty of past or present fact: it has been done or is being done / has not been done or will not be done. Usually found in policy application (basis of the contract? Use to be important in warranties - statement in contract that all in contract is to its basis, transforming many things into warranties that may not be thought of as warranties) • Warranty to the future: it will be done / it will not be done or will continue to be done / not done in the future. NB will be strictly construed by the courts. • Warranty of opinion: a fact is or will be true to the best of the insured's knowledge or belief. Only breached by dishonest or reckless answer. (Considered in ICOBS 8.1.2.)

Insurance - what do you need to know?

a) The current law (including the Insurance Act 2015); and b) That further reform is threatened (insurable interest - bill, potential reform)

Insurance - caution - a cautionary relationship

creditor -->Principal debtor --> Cautioner (i.e. a secondary debtor guaranteeing the principal debtor's debt) - mostly monetary obligation, aka financial debt Multiple cautioners can happen: Creditor --> Principal debtor --> Cautioner 1 --> Cautioner 2 (work together - q how cs interact with each other)

Insurance - caution - 1. creditor's right to payment from cautioner(s)

creditor ---XXXPrincipal debtor defaulted --->>>> Cautioner ( here the creditor sues the cautioner because the principal debtor cannot pay) Normally what is looked at

Supply and sale of goods - seller's title - exceptions to nemo dat - 5

• Accretion. Technical property law doctrine. B sells to C, even though A is the owner. • A later sells to B. •Earlier sale is retrospectively validated. e.g. Macleod v Kerr • A sold a car to B. B paid for the car with a stolen cheque. • B sold the car to C. • Multiple‐poinding action (i.e. who gets what). •Car belonged to C, voidable contract not attacked in time.

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - goods fit for a particular purpose

• S14(3). 'Where the seller sells goods IN THE COURSE OF A BUSINESS and the buyer, expressly or by implication, makes known...to the seller...any particular purpose for which the goods are being bought then there is an implied term that the goods are reasonably fit for that purpose.' Clarke LJ in Jewson - What has been held to be unsatisfactory about them is their impact on the SAP ratings for the flats, which depends upon a number of factors which relate to the particular characteristics of the flats as well as the boilers. In these circumstances, it seems to me that it would be a startling result if Jewsons were liable for breach of the implied terms in section 14(2) and not of the implied terms in section 14(3). para 47 Jewson Ltd v Boyhan - no breach s 14(3) as did not make his purpose known. Nothing actually wrong with the boilers they just had a low energy rating. -- • Griffiths v Peter Conway Mrs Griffiths contracted dermatitis by wearing a tweed coat. Her skin was unusually sensitive. The coat was ok for normal skin. She could not claim under s 14(3) as she had not informed the seller of her sensitive skin.

Insurance - caution - what rights might exist here?

Creditor's rights against cautioners (e.g. to payment in the event of the principal debtor's default). Cautioners' rights might have rights against principal debtor (e.g. to relief) Cautioners' rights against each other (e.g. to pro rata relief, such one get claim more). Cautioners' rights against the creditor (e.g. to an assignation of the creditor's right against the principal debtor).

Insurance - caution - creditor/cautioner(s) - what used to happen

Discussion. --implied in all claims of caution ◦ Previously the creditor could not pursue the cautioner until he/she had pursued the principal debtor. Implication ***abolished by s 8 of the Mercantile Law Amendment (Scotland) Act 1856. Can put it in, just not automatic into contract

Insurance - caution - cautioner's rights

Right of Relief - cautioner vs. principal debtor. - they pay, then claim from principal. More than one cautioner- Division - cautioner vs. cautioner - allowing for pro rata between cautioners. Creditor - can claim Assignation - cautioner vs. creditor. Also, rights to share in security and to rank in the principal debtor's insolvency

Insurance - 2012 - remedies - Deliberate or reckless misrepresentation

"Deliberate or reckless" where consumer either knew or did not care that statement untrue or misleading AND knew the info was relevant to the insurer (or did not care if it was so relevant). • If a 'D' or 'R' QM = insurer can: **avoid contract, **refuse claim (in all circumstances), and **keep premiums (unless premium retention is deemed unfair to the consumer). Tesco Underwriting v Achunche • Referred to in Gloag and Henderson at 20.05 (fn 51), otherwise unreported. • Case given in authority for proposition insurer can avoid a policy when insured recklessly/deliberately fails to disclose a motoring conviction when making an application for insurance.

Consumer credit - why authorise?

"[I]n principle it seems to make sense to have the same regulator undertaking the authorisation/licensing process, imposing conduct of business requirements and then monitoring and investigating compliance, and ultimately disciplining financial sector firms that transgress the regime" --E Lomnicka Want to regulate CC agreements - it is a big task 55,000 firms authorised --protecting consumers, holding firms to standards Single authoring system, easier to ensure protection, since different rules governing types of credit = complex Current account in credit, subject to FSME rules In overdraft, gov by *CCA Authorise matter - FCA - you should comply to rules and will discipline you if you don't

Supply and sale of goods - Rule 5(3): goods forming part of bulk

"appropriation by exhaustion" • Where there is a sale of a specific quantity of UNASCERTAINED GOODS in a deliverable state, forming part of an IDENTIFIED BULK and that bulk is reduced by that quantity. Then if the buyer is the ONLY BUYER to whom goods are due from that bulk - the GOODS REMAINING ARE APPROPRIATED TO THE CONTRACT • Rule 5(4) is similar. -- Co‐ownership of bulk goods • Ss 20A and 20B. • Where there is: • an identified bulk; • a specified quantity; and some or all of the price has been paid. =Automatic co‐ownership ( SO CAN MAKE PROPERTY RELATED CLAIMS)

Supply and sale of goods - Non‐consumer sales - buyer's remedies - deemed acceptance

'After the lapse of a reasonable time' without intimating rejection: s.35(4) Seller entitled to assume buyer accept goods after period of time [Note there is now a "short term right to reject" and a "final right to reject" for consumers, discussed below.]

Insurance - recap - examples of specific words/descriptions

'All risks' DOES indicate prima facie that all accidental losses concerning the property are covered (except 'wear & tear' and 'inherent vice'). • 'Fire': no technical meaning but requires ignition: • Austin v Drewe (1816): Sugar Refinery - heat damage? • Harris v Poland [1941] 1 KB 462: non-accidental fire? • Everett v London Assurance (1865): Lightning damage itself is not fire damage BUT if the lightning causes a fire this MAY be treated as covered fire damage. • 'Accident'? Are unintentional acts covered?

Supply and sale of goods - unascertained goods - rule 5(1) - future/unascertained goods

'Where there is a contract for the sale of UNASCERTAINED OR FUTURE GOODS and goods of that description and in a deliverable state are UNCONDITIONALLY APPROPRIATED to the contract either by the seller with the ASSENT OF THE BUYER or by the buyer with the ASSENT OF THE SELLER, the property in the goods then passes to the buyer; and the assent may be express or implied, and may be given either before or after the appropriation is made' What are future or unascertained goods? S 61(1) • FUTURE goods - 'goods to be manufactured by the seller AFTER THE MAKING OF THE CONTRACT.' • UNASCERTAINED - goods that have not been identified and agreed on AT THE TIME OF THE CONTRACT.

Supply and sale of goods - unascertained goods - rule 5(2)

'Where...the SELLER DELIVERS the goods to the buyer or to a carrier...for the purposes of transmission to the buyer AND DOES NOT RESERVE THE RIGHT OF DISPOSAL, s/he the seller is to be taken to have UNCONDITIONALLY APPROPRIATED THE GOODS TO THE CONTRACT.' Seller not without other remedies after ownership has passed: consider lien (s 41) and stoppage in transit (s 44). Interaction with retention of title crucial.

Insurance - Three elements for insured? (From G&H.)

1) Clear and accessible disclosure; 2) Disclosing all material circumstances she knows or ought to know (or give enough for a prudent insurer); and 3) Ensuring every material circumstances is substantially correct (for facts) or made in good faith (for expectations or beliefs).

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness -aspects of quality s14(2)

'appearance and finish' Rogers v Parish - The buyer bought a brand new Range Rover which cost £16,000. It had some minor problems. There was a scratch on the paintwork and defects in the oil seals. The court held that it was not merchantable* quality -- Bernstein v Palmson Motors • Rougier J ‐ buyer of Rolls Royce would not 'tolerate the slightest blemish on its exterior paintwork; the purchaser of a motor car very much at the humbler end of the range might be less fastidious.' [Note also that 'appearance and finish' of the goods is now among the things to consider for satisfactory quality.]

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness -s14(2) satisfactory quality safety + durability

'safety' (interaction with product liability/delict) Wilson v Rickett, Cockerell & Co Ltd [1954] 1 QB 598 (explosive in a coalite delivery), but cf Duke v Jackson 1921 sc 362. -- 'durability' Thain v Anniesland Trade Centre - Thain paid £2,995 for a second hand Renault 19. There was 80,000 miles on the clock and it was 6 years old After 2 weeks there was a noise in the gear box and then after several weeks the car could not be used. The Court held that the car was satisfactory.

Consumer credit - regulated activities - new regulated activities - debt related activities, debt administration

(1) Subject to paragraph (3), taking steps— (a) to perform duties under a credit agreement or relevant article 36H agreement on behalf of the lender, or (b) to exercise or enforce rights under such an agreement on behalf of the lender, is a specified kind of activity --performing the duties under CA - or to exercise/enforce rights on behalf of the lender (help to perform duties)

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - RIGHT TO REPAIR OR REPLACEMENT - duties on the trader(seller)

(s 23(2)) Repair or replace within a ******reasonable time [see s.23(5) - this depends on e.g. the nature of the goods] and without **significant inconvenience to the consumer; and Bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage). (aka contentious issues, what words people could argue about) What does repair mean? S 23(8). - to make them conform

Supply of goods - what it means and the development of sale of goods

--Sale • Barter • Gift • Works and Material supplied • Vouchers • Hire‐Purchase etc. Development: Scots common law (principles) • 1893 SOG Act (1st SOGA attempt in UK) • 1979 SOG Act • CPA 2015 (in part) - changes to SOGA but also intro of another act - to change approach of law - person/person transaction

Insurance - warranty - Law Commission's Reform Proposals

1) Breach of a warranty should suspend the insurer's liability for the duration of the breach but a remedy of the breach before the loss would restore its liability. 2) A term designed to reduce a particular type of risk can only suspend liability in relation to that type of risk: (mandatory for consumer insurance but subject to freedom to contract for business insurance) (see s.11 below). 3) Abolition of basis of the contract clauses for business insurance as well as for consumer insurance .

Consumer credit - matters arising during the course of agreements -implied terms (CRA 2015 - not focus implied cc topic)

--but need to know can be implied to quality of goods. Be overlap if also cc agreement Paragon Finance Plc v Nash and Staunton [2002] 1 WLR 685 at [33] and [42] "Of course I accept as a general proposition that a lender must have an eye to the market when it sets its rates of interest. [....] But commercial considerations of that kind will not necessarily deter a lender from acting improperly in all situations." "[T]here was an implied term of both agreements that the claimant would not set rates of interest unreasonably in the limited sense that I have described. Such an implied term is necessary in order to give effect to the reasonable expectations of the parties. --contract give lender setting interest - implied they would not set ridiculously

Insurance - claims and payment under the policy + why might a claim be unsuccessful - No claims that indirectly infringe public policy

A 3rd party insured also cannot usually claim or benefit from a loss that he deliberately caused. • Public policy raises an important point for 3rd party claims. • Assume that an insured wrongfully causes loss to another person: does a payment to the victim of the insured person by the Insured's insurance company confer a benefit upon the Insured by removing / reducing his legal liability to compensate his victim? If the answer is YES, then such a payment by the insurance company is itself contrary to public policy as it assists a wrongdoer to benefit from his own wrongdoing. Can you guess what the early insurance cases on this point saw the insurers argue? - fortunately not the situation now

An insurance contract is

A binding contract between 2 parties. • If marine insurance, in writing (s.22 Marine Insurance Act 1906). Otherwise, oral insurance contract possible. • One party is authorised to take the other's risk concerning an uncertain event + promises to 'pay' OR provide something of value if it occurs. • The claiming party has an insurable interest in the subject matter of the insurance contract • The uncertain event must be outside the control of the party who agrees to bear the other party's risk. --- Prudential Insurance Co v Inland Revenue Commissioners (1904) 1. Consideration must pass from the insured to the insurer (which is a periodical payment called the premium); 2. The insured must secure a benefit, usually the payment of a sum of money; 3. Upon the happening of some event; 4. Which involves an element of uncertainty as to (a) whether the event will happen or not, or (b) the time at which it will happen. Furthermore, the event referred to in (3) must be adverse to the interests of the insured (Department of Trade and Industry v St Christopher's Motorists Association (1974)).

Insurance - Insurance 2015 Act, non-consumer - What is a "material circumstance" - s.7

A circumstance or representation is material if it **would influence the judgement of a prudent insurer in determining **whether to take the risk at all and, if so, on what terms. • Examples of things which may be material circumstances are— a) special or unusual facts relating to the risk, b) any particular concerns which led the insured to seek insurance cover for the risk, (e.g. fire arms club, special type of rifle need to get new insurance about this. This is why I am getting this policy) c) anything which those concerned with the class of insurance and field of activity in question would generally understand as being something that should be dealt with in a fair presentation of risks of the type in question. (e.g. fire insurance - kind of thing that why you have smoke alarms, sprinklers. Flood insurance - how near what are you?)

Insurance - Insurance policy - voidable?

A contract may be voidable by the insurer if the insured: • Makes a qualifying misrepresentation (for consumer insurance) (can render the policy voidable in instance of insurer) or • Fails to comply with duty of fair presentation (applies to all non-consumer contracts post-12 August 2016) Under the old law - Previously obligation was of "utmost good faith" ---A material misrepresentation would also have been relevant in the old law. Such a misrepresentation is still relevant but would, as we shall see, be unlikely to be missed by the new statutes. Consumer Insurance (Disclosure and Representations) Act 2012 AND Insurance Act 2015

Consumer credit - matters arising during the course of agreements - connected lender liability - Section 75 CCA - exceptions

A debit card is not an arrangement between creditor and supplier: s. 187(3A) Consumer Credit Act 1974 s. 75(3) CCA 1974 Subsection (1) does not apply to a claim— (a) under a non-commercial agreement, (b) so far as the claim relates to any single item to which the supplier has attached a cash price not exceeding £100 or more than £30,000, or (c) under a debtor-creditor-supplier agreement for running-account credit [where creditor is also supplying the goods] --not apply top debit card + not certain types of agreements like non-commercial or udner 100

What is insurance?

A mechanism whereby risk can be transferred to an insurer. • BUT you will not find a neat definition of an insurance contract in any UK (or Scots) statute. Risk transfer

Insurance - no insurable interest for:

A parent's children (without some other supporting reason). • Mere Co-habitees? Unclear at present but possible. • Discussed in a summary to the responses to Chapter 3 of the Law Commissions' second consultation paper in the joint insurance law project (February 2013) /And in a current Bill, but unlikely to pass. • Mere Boyfriends / girlfriends? Unlikely • Mere possessors of property without rights or enjoyment or liabilities for losses. • Tenant of a property in respect of parts of the building not occupied by him under the lease. • An unsecured creditor does NOT have an II in the property (as opposed to the life) of his debtor. If the debt was secured, the creditor has an II to that extent. --standard security over specific property or a pledge (corp mov) - was a secure creditor would have in that extent • A shareholder (or partner) does not have an II in the property of the company (or partnership)

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - short term right to reject

A powerful, clean and effective remedy for the consumer. No extension to 30 day period available, *unless trader agrees. (Can't agree shorter: s 22(2). BUT shorter period will apply if nature of the goods requires it: s 22(4).) -- 30 days from when? Clock starts ticking when ALL these events have happened: • ownership transfer; • delivery; and • (if relevant) installation.

Insurance - claim - fraudulent claims

A problem for us all! • Fraudulent claims are not permitted: • They violate the insured's duty to act with utmost good faith in s17 MIA 1906. -still there • They violate public policy, civil and even the criminal law. • They violate the express terms of the policy • Consequences? Consider the The Sea Star [2001] also in Fargnoli v GA Bonus 1997, --scot case, useful. Embodies what the law is now. Insurer which allowed rejection of fraudulent claim + termination of the policy from the date of the fraud but with no right to recover an earlier non-fraudulent payment. • Reform paper 7 + responses to paper 7. - okay in scot, but issues with fraudulent claims. Now have: • Part 4 of Insurance Act 2015!

Warranty in insurance law

A warranty in insurance law is like a promise made by the insured to the insurer. • Must be strictly complied with. • OLD LAW consequences were severe. If broken the insurer was automatically discharged from liability at that point. • De Hahn v Hartley (1786) '50 hands (people on board) or upwards' when sailing from Liverpool to Africa but only 46 on board on sailing = breach of warranty and no cover for later loss in African waters • Even though 6 other crew had joined the ship in Anglesey (North Wales, leave UK 52 people)

Insurance - Warranties - why?

A warranty is intended to define and thereby limit the risk that the insurer must face for the duration of the insurance policy.

Consumer credit - types of credit

Agreementsrelating to these types of credit defined in s. 189 CCA 1974 • Hire purchase - to have goods but option to purchase when you complete payments or other payments - option to buy) Conditional sale - Similar to hire, sale contract, buyer own the goods - but in CS you own the goods in the end with final installation - pay in instalments, last one = yours) --agreement for the sale of goods or land under which the purchase price or part of it is payable by instalments, and the property in the goods or land is to remain in the seller (notwithstanding that the buyer is to be in possession of the goods or land) until such conditions as to the payment of instalments or otherwise as may be specified in the agreement are fulfilled Credit sale - similar to CS - credit you own the goods immediately and then you pay --means an agreement for the sale of goods, under which the purchase price or part of it is payable by instalments, but which is not a conditional sale agreement DIFFERENCE OF THE THREE - when the goods pass to the vendor

Insurance - construction of contract terms DO NOT NEED TO KNOW ALL CASES, NOT MEMORISING

Aim is to establish the intention of the parties as evidenced by the contract. • Traditional approach was to consider the literal meaning of the written contract subject to earlier judicial determinations of the meanings of certain terms / forms of words. • Oral evidence not normally allowed. • Commercial contracts were construed to make commercial sense. • Lord Hoffmann's new approach? • Investors Compensation Scheme v. West Bromwich Building Society [1998] --Discover the meaning that the document would convey to a *reasonable person with the background knowledge reasonably available to the contracting parties at the time of the contract. • Ignore previous negotiations and subjective declarations of intent. (Entire agreement clauses?) • Rainy Sky and Arnold v Britton cases? Pitch Business common sense vs literal interpretation What all it means interp overall? --tricky in modern era Britton - someone held to bargain that seemed to be harsh - hodge majority not too much

Consumer credit - types of agreement in CCA 1974 - s145

Ancillary credit business --ancillary credit b is any b so far as it comprises/relates to (a) credit brokerage, (b) debt-adjusting, (c) debt-counselling, (d) debt-collecting, (da) debt administration, (db) the provision of credit information services, or (e) the operation of a credit reference agency.

Consumer credit - regulated activities - new regulated activities - credit broking exclusions

Art. 36A exclusions in Arts, 36B - 36GRAO • Art. 36B Introducing by individuals in the course of canvassing off trade premises • Art. 36C Activities for which no fee is paid • Art. 36D Transaction to which the broker is a party • Art. 36E Activities in relation to certain agreements relating to land • Art. 36F Activities carried on by members of the legal profession etc • Art. 36G Other exclusions RAO - NOT IN STATUTE

Consumer credit - regulated activities - new regulated activities - operating P2P lending system + exclusions

Art. 36HRAO (1) Where the conditions in paragraphs (2), (2A) and (2C) are 2 satisfied, operating an electronic system which enables the operator ("A") to facilitate persons ("B" and "C") becoming the lender and borrower under an article 36H agreement is a specified kind of activity. --about facilitation for cc agreements on the online system --P2P system is an online platform, matches those seeking credit with those willing to give - so they lend/borrow not you yourself - you op system Art. 36H exclusions • Art. 36I - information society services; see also Art. 72A • Art. 36IA- debentures and bonds

Consumer credit - regulated activities - new regulated activities - debt related activities

Art. 39D(1) RAO - debt-adjusting When carried on in relation to debts due under a credit agreement— (a) negotiating with the lender, on behalf of the borrower, terms for the discharge of a debt, (b) taking over, in return for payments by the borrower, that person's obligation to discharge a debt, or (c) any similar activity concerned with the liquidation of a debt, is a specified kind of activity. --debts under credit agreements

Consumer credit - regulated activities - new regulated activities - debt related activities, debt collecting

Art. 39F RAO - debt-collecting (1) Taking steps to procure the payment of a debt due under a credit agreement or a relevant article 36H agreement is a specified kind of activity. (2) Taking steps to procure the payment of a debt due under a consumer hire agreement is a specified kind of activity --considered a high risk activity by FCA - steps to have a debt due

Consumer credit - regulated activities - new regulated activities - regulated credit agreement + exclusions

Art. 60B RAO (1) Entering into a regulated credit agreement as lender is a specified kind of activity. (2) It is a specified kind of activity for the lender or another person to exercise, or to have the right to exercise, the lender's rights and duties under a regulated credit agreement. [...] Exempt agreements: Arts. 60C-60HA RAO Exclusions to regulated agreements in Art. 60B Art. 60I - arranging administration by authorised person Art. 60J - administration pursuant to agreement with authorised person Art. 60JA - payment institutions Art. 60JB - e-money institutions Art. 60K - other exclusions (information society services, local authorities, registered consumer buy-to-let mortgage firms)

Consumer credit - regulated activities - new regulated activities - debt related activities, debt counselling

Art.39E RAO - debt-counselling (1) Giving advice to a borrower about the liquidation of a debt due under a credit agreement is a specified kind of activity. (2) Giving advice to a hirer about the liquidation of a debt due under a consumer hire agreement is a specified kind of activity. "[A] neutral and balanced explanation of the implications of entering into different debt solutions need not, itself, involve debt counselling. In the FCA's opinion, however, such information is likely take on the nature of advice if the circumstances in which it is provided give it, expressly or by implication, the force of a recommendation." (FCA Handbook,section 17.5 'The Meaning of Advice') --not so much facility - more about provision of advice to people who are in debt

Insurance - Loss of Insurer's Right to Repudiate

As well as possible interruption by the CRA, the insurer will lose its right of repudiation if:- • It waives a breach • It affirms a breach • It becomes personally barred (estopped) from asserting a breach. • An indisputabilty clause may be put in a life policy so as to make certain specified defences not be available to the insurer after a period of time has passed: this will have the same effect. --say to insurer - not quivel about things and allowing time to pass

Consumer credit - licensing under FSMA - authorisation under Part IVA - approach of FCA example

Asset Land Investment Plc v FCA [2016] UKSC 17 --do when s19 general prohib, not CC related - separate regulatory activity. Q here - whether land banking was a collective investing scheme? Was here - need authorisation to carry an activity at [88] (emphasis added) "[I]t is important when construing a regulatory statute of this kind not to allow technical distinctions to frustrate the purpose of the legislation..[There is] a tension between the need to provide certainty for practitioners, customers and investors, and the need to cast the net wide enough to ensure consistency.."

Supply and sale of goods - risk - What about consumer/trader situations - auction

Auction (s 2) 5) For the purposes of Chapter 2, except to the extent mentioned in subsection (6), a person is not a consumer in relation to a sales contract if— (a) the goods are second hand goods sold at public auction, and (b) individuals have the opportunity of attending the sale in person. 6) A person is a consumer in relation to such a contract for the purposes of— (a) sections 11(4) and (5), 12, [pre‐contract info about goods] 28 [delivery] and 29 [risk], and (b) the other provisions of Chapter 2 as they apply in relation to those sections. --- Relevance of auction to a consumer to risk? None. Risk is treated in the same way, whether a private bargain or an auction sale to a consumer. Risk lies with the trader until the consumer has physical possession of the goods • See also Directive 2011/83/EU on consumer rights, Article 20.

Supply and sale of goods - seller's title - exceptions to nemo dat - 4

Buyer in possession after sale - s 25. Here the BUYER is in possession of the goods after the transaction, but ownership is still with the seller Non‐owner buyer is in possession. Seller may have a retention under s.19, and it will be recalled ownership transfers when parties intend it to pass under s.17 (discussed further later). The "buyer in possession" can give good title to a third party. The third party must act in good faith and with no notice of the seller's rights. -- Archivent Sales: s 25. Buyer in possession after sale - ownership still with seller. • Sub‐buyers protected if they buy goods in good faith. • Archivent Sales & Development Ltd. v. Strathclyde Regional Council --Seller delivered goods on credit to a contractor, who was building a school. --Contractor sold goods to school. Ownership passed to school as acquired goods in good faith.

Insurance - insurer has to be clear about before the insurable pay out - The insured must show that the covered loss was proximately CAUSED by an insured peril.

By something that was insured against. Look for a: Proximate Cause = the main or dominant cause. It need not also be the last cause. But the main thing that contributed to the situation • Symington v Union Insurance of Canton (1928) --on the boat when there was a fire, they pushed some cork overboard to later chance to save item. Get off boat so not burn. What was the cause = not the act of it being pushed, but the fire • Causation is a matter of fact to be established for *each case - can be tricky Not remote but the proximate one. --- Proximate cause: What if there are TWO causes of a loss? The proximate cause must be identified and covered by the policy. • Leyland Shipping v Norwich Union (1919) torpedo or perils of sea? --time of WW1 - boat that had been torpedoed to reach france. They owed to the weather and potential damage to the harbour so put outside - after days total loss. What caused it? The torpedo was the proximate cause, not the perils of the sea • What if there are TWO proximate causes of a loss BUT only one cause is covered by the policy? • See discussion by Birds of Wayne Tank and Pump Co Ltd v Employer's Liability Insurance [1974]. --it related to a plastacene explosive material was an exclusion, to be used was covered. Which caused the risk to materialise? They said not cover this, but interesting comments. Can be difficult. --two proximate causes and one is excluded, with the tank case seems that might not get pay out. --not mentioned then fine, excluded is another matter- birds Note however that we depend on the findings of fact by the court. Judges are not philosophers!

Consumer credit - pre 2014 system and reform - CONC rule

CONC rule 1.2.2 A firm must: (1) ensure that its employees and agents comply with CONC; and (2) take reasonable steps to ensure that other persons acting on its behalf comply with CONC See also FCA's Principles for Businesses (PRIN) e.g. to conduct business with integrity, due skill and diligence Have to apply for authorisation, but also variation for changes. Exemptions can be made to firm with low risk activities

Supply and sale of goods - risk - What about consumer/trader situations?

CRA 2015 Section 29: 1. A sales contract is to be treated as including the following provisions as terms. 2. The goods remain at the trader's risk until they come into the physical possession of— a) the consumer, or b) a person identified by the consumer to take possession of the goods. 3. Subsection (2) does not apply if the goods are delivered to a carrier who— a) is commissioned by the consumer to deliver the goods, and b) is not a carrier the trader named as an option for the consumer. 4. In that case the goods are at the consumer's risk on and after delivery to the carrier. 5. Subsection (4) does not affect any liability of the carrier to the consumer in respect of the goods. 6. See section 2(5) and (6) for the application of this section where goods are sold at public auction Position cannot be changed by agreement (s 31(1)(k)).

Insurance - 2012 Act - careless misrep

Catch all - not delib or reckless If the consumer's failure to take reasonable care leads to a 'qualifying misrepresentation' but it was only a product of *carelessness by the consumer, then: • if the careless QM *still induced the insurer to enter the contract the insurer can *avoid the contract and *reject the claim (but return premiums - minor concession). • if the careless QM did *not induce the formation of the contract but: • *this led to different terms from normal being applied (other than amount of premium), the remedy is that the normal terms will be deemed to apply to the insurance; and • the premium would have been higher, the cover provided is pro-rata the lower premium actually paid. ---different situation - terms normal will flow in instead then the ones due to careless misrep. Also any payout/cover is mitigated to reflect how much you did paid compared to what it should have been AND the Insurer is also allowed to prospectively terminate (not avoid) the contract (unless it is a life insurance) on giving reasonable notice. -- Professor Birds' Comment (at 7.4.6) • Page 130 "It is thought that the 2012 Act produces a generally clear and balanced solution to the problems under the previous law so far as consumers are concerned. There appear to be very few difficulties in its interpretation, something that arguably contrasts quite strongly with the 2015 Act..."

Insurance - warranty - Judicial Interpretation of Warranties

Construe Strict and, if possible, contra proferentem (interp not someone being shafted) e.g. Provincial Insurance Co v Morgan [1933] HoL • Lorry of Coal Merchant insured under a motor policy • A basis of the contract clause required that the merchant state purposes for which the vehicle was to be used and the nature of the goods to be carried. He answered 'Delivery of coal' and 'coal'. • On day of loss the lorry had also carried some wood as well as coal although by the time of the accident the wood had already all been unloaded: was this a breach of warranty? • NO. The coal merchant had NOT said 'Only delivery of coal' nor 'Only coal'.

Insurance - contracting out of IA?

Consumer - can't amend mandatory rules of warranties, terms not relevant to loss. Anything to make them worse off Bus - can amend provisions of the IA 2015 not relation to contract clauses (dead), but other situations - where transparency comply with s17 reintroduce aspects of old law by contracting out of the changes of 2015 Act A non-consumer is absolutely protected from an amendment to the operation of s.9, regarding basis of the contract clauses. • For other amendments, there are transparency requirements, per s 17 of IA 2015. • For consumer insurance contracts, an insurer will generally not be able to put a consumer in a worse position than they would be in under the terms of the legislation (including in relation to warranties).

Insurance - 2012 Act

Consumer Insurance (Disclosure & Representations) Act 2012 See Comment by Lowry & Rawlings [2012] MLR 1099. • Act applies from 6 April 2013 but only to insurance contracts entered into or renewed after that date. • 'Consumer' = an individual contracting, "wholly or mainly for purposes unrelated to the individual's trade, business or profession". • What if the policy covers more than one form of use? • The Consumer is under a duty to take reasonable care not to make a misrepresentation to the insurer (ss.18 &20 of MIA 1906 are thus replaced as far as qualifying 'consumers' are concerned).

Insurance - new law - 2012 Act + when is reasonable care not shown?

Consumer Insurance (Disclosure & Representations) Act 2012 Act applies from 6 April 2013 but only to insurance contracts entered into or renewed after that date. Consumer is under a duty to take reasonable care not to make a misrepresentation to the insurer. --Section 2(2) CIDRA 2012 -- when is reasonable care not shown? This DOES include a failure by the consumer to confirm or amend earlier information when requested to do so by the insurer should that amount to a misrepresentation (s.2(3)). • The standard of 'reasonable care' on the insured is an objective one: what would a reasonable consumer say to the insurer in view of all 'relevant circumstances' (s.3(3) and 3(1)). • The insurer must also take into account any particular characteristics or circumstances of the customer that it knows or ought to know (s.3(4)). • Dishonest = lack of reasonable care (s.3(5)) Statute say - consumer dishonest statement, not be reasonable case

Consumer credit - licensing under FSMA - exemptions - Part XIVA RAO

Consumer credit regulated activities and exemptions in Part XIVA RAO: Art. 60B - regulated activities "exempt agreement" means a credit agreement which is an exempt agreement under articles 60C to 60H, but where only part of a credit agreement falls within a provision of articles 60C to 60H, only that part is an exempt agreement under those articles Consumer credit regulated activities and exemptions in Part XIVA RAO: Arts 60B - regulated activities Arts. 60C-60HA - exemptions relating to: • nature of the agreement • purchase of land for non-residential purposes • nature of the lender • number of repayments to be made • total charge for credit • nature of the borrower • and, exemptions not permitted under the mortgages directive

Consumer credit - types of agreement in CCA 1974 - s15

Consumer hire agreements --agreement made to hire particular goods - C-H agreement -A consumer hire agreement is an agreement made by a person with an individual (the "hirer") for the bailment or (in Scotland) the hiring of goods to the hirer, being an agreement which— (a) is not a hire-purchase agreement, and (b) is capable of subsisting for more than three months

Supply and sale of goods - Consumer Rights Act 2015 (since oct 2015)

Consumer rights and remedies Note our focus is consumer sales, but CRA covers hire etc. too. • Note also the CRA contains: >similar but slightly different rules for supplies of "digital content" (in Chapter 3, Part 1) (i.e. data in "digital form" like software, music or apps); and >rules relating to service

Insurance - continuing requirements for insurers

Continuing requirements in insurance is robust and reputably sound - how much solvency they have to maintain Handbook - points about integrity, financial prudence etc Solvency margins. • Non-insurance activities. • Location of the assets. • Periodical statements.

Another rough def of an insurance contract

Contract where: The insured party has an **insurable interest ; and The insurer is **authorised.

Insurance - sources of law and reform

Contract, with a twist. Insurance law is similar - but not identical - on either side of the Anglo-Scottish border. Insurance Law has just enjoyed a long-awaited reform, after the Law Commission and SLC worked on the matter. Two major statutory reforms: CIDRA 2012 and IA 2015. Holyrood not regulating - NB Scotland Act 1998, Schedule 5, Part II SPECIFIC RESERVATIONS - Head A-Financial and Economic Matters A3 Financial services reserves: 'Financial services, including investment business, banking and deposit-taking, collective investment schemes and insurance. -- Future work of law commissions Key eye on (but most important reforms have gone through): Para 1.15 Law Com No 353 / Scot Law Com No 238 • Three areas which we have considered during this project are not covered by this report. These areas are: insurable interest; the broker's liability for premiums; and the requirement for a formal marine policy

Insurance - terms which may be regarded as unfair

Could bring into play - S 63 and Schedule 2.

Insurance - old law - disclosure

Could have huge impact Disclosure: Marine Insurance Act 1906 s.18 OLD LAW • S. 18(2) defined 'a material circumstance' as "every circumstance which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk". • Pan Atlantic Insurance v Pine Top Insurance [1994] HoL held that the material circumstance that influences the judgment of the prudent insurer refers to info the insurer would have wished to know when deciding whether or not to enter the contract. The HoL then said that the non-disclosed material fact must have induced the insurer to enter the contract for s.18 MIA 1906 to allow it to avoid the policy. • The Act did not require the insurer to ask questions nor even to indicate what it wished to know. The policyholder had to guess / work out what a hypothetical and prudent underwriter would consider to be relevant. Implications of s.18 MIA 1906 (pre-repeal) If the policy holder got this wrong the result could be dramatic. • The consequence of failing to disclose was avoidance. • Insurer may treat the policy as if it never existed and refuse all claims (unless with knowledge he affirms the contract). • The insurer might also recover ANY claims previously paid to the insured under the avoided policy. • A policyholder who didn't mention even a minor issue - e.g. 165 ml tyres on a car that should have 155 ml tyres - could still lose all benefits from the policy, even if the insurer would only have added a small amount to the premium had it known the true full facts. -- Is this fair? No Law Commissions thought this rule: • overprotected any insurer who would still have taken out the policy had the correct information been supplied; and • failed to encourage insurers to ask pertinent questions.

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - delivery and seller remedies

Delivery - s 28 **Unless a separate agreement is reached between the consumer and trader, the trader must deliver the goods to the consumer and must do so without undue delay and, in any event, within 30 days after the contract is made. • Consequences of breach? >If time of the essence or in certain circumstances, s 28(6) allows consumer to treat contract as at an end. >Otherwise, consumer stipulates a time period for trader to get it right. Failure to do so, consumer can treat contract as at an end. S 28(9), trader must reimburse all payments without delay. --- Seller remedies? NOT FOUND IN CRA (about consumer rights)

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - other remedies

Delivery of the wrong quantity, consumer's option to reject or retain what is delivered at the contract rate (s.25(1) (too little) and s.25(2) (too much)). Delivery: much clearer rules in s 28 CRA than in SGA (see next slide). Note also that nothing in the CRA prevents a consumer, for example, seeking a specific implement (see section 19(9)‐(11)).

Insurance - caution - extent of cautioner's liability

Depends what the instrument says: cautionary obligations construed contra preferentem (against the interest of the person relying on it): so strict Aitken's Trs v Bank of Scotland 1945 SLT 84 principal debt get back plus interest and expenses: Jackson v McIver (1875) 2 R 882 creditor's costs of enforcement can be done Struthers v Dykes (1847) 9 D 1437 Whether stand alone fixed or continuing caution: continuing then further advances can be caught whether limit on caution case - clayton's case - where limit on caution, can normally be sure that a debtor's first payment will be set against the earliest debt (?) - important caution - means that can chip away liability of cautioner where limited amount Where comes into play is it guarnatee: ◦ part of debt only ◦ whole debt up to the specified limit Can have implications of insolvency

Supply and sale of goods - retention of title - all sums

Deutz Engines v Terex - not initially accepted by Scottish court. Why not? - courts saw as attempt to create security over corp moveables not in the possession of the goods • Armour v Thyssen - 'All goods delivered by us REMAIN OUR PROPERTY... UNTIL ALL DEBTS owed to us... are settled. Debts owed to companies, being members of our combined group, are deemed to be such debts.' Eventually, the House of Lords held this was a valid 'all sums' clause.

Supply and sale of goods - Consumer Rights Act 2015 - digital content + why does a trader get the chance of unlimited repairs?

Digital Content • Chapter 3 of Part 2. • A similar but different regime. •One key difference for remedies: NO LIMIT on the number of attempts at repair. See CRA explanatory notes para 204 (see next slide). •Also, in s 46, a remedy for damage to other digital content. -- Why does a trader get the chance of unlimited digital repairs? • 'for goods there are strict limits on the numbers of repairs or replacements a trader can provide (section 24(5)(a) sets out that after one repair or one replacement the trader must offer the consumer some money back)'. 'Restricting the number of [digital] repairs could create an incentive for some consumers to report minor problems with the digital content in order to accumulate a target number of "repairs" and thus proceed to a price reduction. A strict limit on the number of repairs allowable could therefore have the effect of restricting the availability of this type of product or raising its cost to consumers' Installation = of a service, not self installation

Another classification of insurance

Distinction evident between • Indemnity insurance - insurance for the risk that a **specified liability **may arise. • Non-indemnity (or contingency) insurance - insurance against an event that **WILL arise. NB Birds makes it even easier - "life" vs "other" insurance.

Supply and sale of goods - seller's title - exceptions to nemo dat

Doctrine of personal bar s 21(1). Buyer's title is unchallengeable where '...the owner of the goods is by his conduct precluded from denying the seller's authority to sell.' 21 - sale by person not the owner nemo unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell Eastern Distributors v Goldring: original owner acted as thoughthe seller had the right to sell.

Consumer credit - entering into agreements - cancellation - effect

Effect of cancellation notice s. 69(1) Consumer Credit Act 1974 [Serving] [...] a notice (a "notice of cancellation") which, however expressed and whether or not conforming to the notice given under section 64(1), indicates the intention of the debtor or hirer to withdraw from the agreement, the notice shall operate— (i) to cancelthe agreement, and any linkedtransaction, and ii) to withdraw any offer by the debtor or hirer, or his relative, to enter into a linked transaction. Cf. debtor-creditor-supplier agreements, restricted-use credit: s. 69(2) CCA 1974 Effect of cancellation notice • s. 70 CCA 1974 - recovery of money paid by creditor or hirer • s. 71 CCA 1974 - repayment of credit • s. 72 CCA 1974 - return of goods • s. 73 CCA 1974 - goods given in part-exchange

Consumer credit - entering into agreements - withdrawal 1. notice effect

Effect of withdrawal s. 66A(7) Consumer Credit Act 1974 - as if agreement not entered into s. 66A(9) CCA 1974 Where the debtor withdraws from an agreement under this section— (a) the debtor must repay to the creditor any credit provided and the interest accrued on it (at the rate provided for under the agreement), but (b) the debtor is not liable to pay to the creditor any compensation, fees or charges except any non-returnable charges paid by the creditor to a public administrative body. Payment deadline: s. 66A(10) Consumer Credit Act 1974 An amount payable under subsection (9) must be paid without undue delay... s. 66A(11) CCA 1974 Where a regulated consumer credit agreement is a conditional sale, hire-purchase or credit-sale agreement and— (a) the debtor withdraws from the agreement ..., and (b) the sum payable under subsection (9)(a) is paid in fullby the debtor, title to the goods purchased or supplied under the agreement is to pass to the debtor...

Insurance - formalities and contracts at Lloyd's

Extensive requirements concerning Life and Motor insurance as a consequence of EU and UK law - Life insurance: see Birds concerning the information requirements. - Motor Insurance: see Birds concerning the compulsory nature of this insurance, the persons who may claim and the *extra requirement that a certificate of insurance be issued by the insurer. • If you insure via Lloyds you do so via a Broker who acts for you with Underwriters to insure against the risk you have disclosed (to voyage to x extent): - Q. When is the contract concluded and the underwriter bound? - A. As soon as the underwriter indicates he accepts the risk (i.e. signs the slip). What if he accepts only part of the risk? Accepts on other terms?

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - s19 - what remedies?

Failures in relation to limb a) or c) gives (in terms of s.19(3)): a) the short‐term right to reject (sections 20 and 22); b) the right to repair or replacement (section 23); and c)the right to a price reduction or the final right to reject (sections 20 and 24) -- Two rights to reject via s 20 Ss 20(1) and 22. • Within 30 days. SHORT TERM RIGHT TO REJECT Ss 20(2) and 24. For a chance of a full refund (of anything other than a motor vehicle), within 6 months. FINAL RIGHT TO REJECT (READ 20-24 IN THE EXAM, ALSO IN NOTES)

Development of scots insurance law

Genoese (amongst others) and English practices took a while to reach Scotland. • Forte gives the earliest reference to insurance of a Scottish vessel as 1621. • Possible claim in 1626, but cf historian T C Smout who puts the earliest date as 1686. • BUT further cf Styles in the Forte Festschrift. • Only one reported Scots insurance case from 1700-1750. • Stair briefly refers to insurance (when discussing contracts of exchange), Bankton looks at insurance as a species of sale and also a kind of wager. • Bankton (in 1751) begins to look at goods, houses and "merchandise transported by land", i.e. not just ships. • Text in 1787 from John Millar Jr., a Scots advocate, on Elements of the Law Relating to Insurance. Forte describes that John Millar Jr. text as "an attempt to construct order from chaos." • The text "passed into almost immediate obsolescence", as the Court of Session tended to prefer English sources, and the views of English counsel were sometimes actively sought. • Some Roman-Dutch influence at times, but English influence prevailed. • That said, some areas of doctrinal disparity (Forte suggests in the (old) duty of disclosure and in connection with the requirement of insurable interest).

Insurance - caution - other considerations

Good faith by creditor. ◦ Smith v Bank of Scotland (1997) SC (HL) 111. UCTA 1977? Consumer Rights Act 2015 --doesn't really apply - normally in caution situation, person seen as consumer is the one providing the service

Supply and sale of goods - transfer of property and risk - s18 rules - rule 4

Goods delivered on approval etc. 'Where goods are delivered to the buyer on APPROVAL or ON SALE OR RETURN... property... passes to the buyer... a) when s/he SIGNIFIES HER/HIS APPROVAL or acceptance to the seller or does any other act ADOPTING THE TRANSACTION b) if s/he does not signify his approval or acceptance, but RETAINS THE GOODS WITHOUT GIVING NOTICE OF REJECTION, then if a time has been fixed for return of the goods on expiration of that time and, if no time has been fixed, on the EXPIRATION OF A REASONABLE TIME. (contentious issue - r of seller, r of buyer) Adopting the transaction - sell goods, lands = property passed Brown v Marr (1880) 7 R. 988 - 'any act adopting the transaction' e.g. he sells the goods, lends/hires goods. • After an on‐sale, buyer‐on‐approval is no longer able to exercise right to return goods. Kirkham v Attenborough [1897] 1 Q.B. 201. A manufacturer of jewellery sold goods on sale or return to Winter. They were then pawned to Attenborough. Ownership passed to Winter when he pawned jewellery. • Inconsistent act: pledge

Insurance - caution - constitution and form

How make cautionary obligation? in the same way as any other contract general offer - can be enough to make you a cautioner - not make broad offers because you could be caught Fortune v Young 1918 SC 1 co-cautioners - can be more than one cautioner. Might think to put down in writing no requirement for writing, normally...

Insurance - what about legitimate claims? - when do I get it - IA + what happens next

IA 2015 has already been amended to deal with late payment! • Section 13A: "reasonable time". -- What happens next? After pay outs happen... 3 remarks to make - important for commercial circles • Subrogation. - insurance co steps into shoes of person who was insured to chase after claims • Contribution? - happens when maybe got more than one insurer, can end up insurance co rights against each others • Over-insurance? - can cause headaches. Over shoot the valuation, these are things are not going to assess them.

Insurance - statutory disclosure requirements

ICOBS 3 imposes general disclosure duties on the Insurers (from various EU Directives). • Distance contracts made over internet, 'phone, or post must have **relevant and **clear info given to the customer in a **durable form in good time **before any contract is concluded • (unless the contract is concluded at the request of the customer and via a medium [voice telephony] that prevents provision see ICOBS 3 Annex 3). Disclosure applies to, inter alia: • Name & Address of Insurer (and any Agent), • Insurer's connection with Regulator, • Description of services to be provided, • Minimum duration of the contract, • Total price + costs + Taxes payable, • Info as to duration of offer, • Payment requirements, • Full details of any cancellation / termination rights, • applicable law inside the EEA, • language, • complaints procedures and FSO service, compensation details (etc). • Annex 3 - less info for voice telephony. • ICOBS 6 deals with Product Information for different types of policy

Insurance law

IT IS ABOUT RISK Insurance policies attempt to deal with the *risk associated with different forms of event which are attended by some sort of *uncertainty. • In essence I try to spread a big risk which I currently face alone amongst others who I pay to share it: I thereby spread and reduce my own risk. Insurance law is a part of contract law. An insurance contract sets out the terms on which the risk is spread and also when the insurers ***must make a payment. NB sometimes payments will still be made by insurers even if no strict legal entitlement. --most won't but there may be situations encouraged to

Insurance - IA remedies - deliberate or reckless breach simplified + neither nor breach

If a 'D' or 'R' breach = insurer can: • avoid contract; • refuse claim; and • keep premiums. All 3 neither nor breach (neither of above, but induced) If the other breach still induced the insurer to enter the contract the insurer can avoid the contract and reject the claim (but return premiums). • if the other breach did not induce the formation of the contract but: • this led to different terms from normal being applied (other than amount of premium), the contract is to be treated as (different to CIDRA) if it had been entered into on those different terms if the insurer so requires; and • the premium would have been higher, the cover provided is pro-rata the lower premium actually paid. For both CIDRA and IA, insurer may "reduce proportionately". x = premium actually charged/higher premium x 100

Insurance - technical meaning/context?

If a word used in the policy has a technical meaning, e.g. 'theft', the technical meaning will *often prevail over the ordinary one: • Canelhas Comercio Inportacao E Exportacao v Wooldridge [2004] EWCA Civ 984 English policy covering risks in Brazil; how should a reference to 'Robbery' be understood/construed? --kidnapping case, rather than jewellery people subject to robbery it was a kidnapping. Understanding the insurance said not pay out, held not to be covered. Robbery had strict meaning in eng law. • The context in which a word occurs may be relevant. • Young v Sun Alliance [1977] 1 WLR 104: cover against, 'storm, tempest or flood'. Qualified the type of 'flood': no cover for mere seepage. • Rohan Investments v Cunningham [1999] Lloyd's Rep. I.R. 190: same words but different outcome! Will turn on the situation, or maybe judge

Insurance recap - Technical meaning / context?

If a word used in the policy has a technical meaning, e.g. 'theft', the technical meaning will often prevail over the ordinary one: • Canelhas Comercio Inportacao E Exportacao v Wooldridge [2004] EWCA Civ 984 English policy covering risks in Brazil; 'Robbery' limit.

Insurance - condition precedent or 'mere' condition?

If breached, a *Condition Precedent (suspension condition) to the insurer's liability may function to prevent any claim: * the liability to pay never arises. --stop the liability from arising - *breach mere condition only allow an insurer to claim damage for any loss that the breach causes it to suffer • Cox v Orion Insurance [1982] • A breach of 'mere' condition in insurance law usually only allows the insurer to claim damages for any loss the breach causes it to suffer. • Friends Provident Life & Pensions v Sirius Int'l Insurance [2005] C of A strict on this point: no general right to repudiate for a breach of a mere condition. • Insurer has burden of proof. - whether condition breached

Insurance (new topic) what risks are covered in insurance contract - is the loss one covered by the policy?

If there is no covered loss caused by a covered risk the insurer need not pay any claim. If there is a dispute on this point we resolve it by considering: • What the contractual terms of the policy *say • What the contractual terms of the policy *mean • Was the covered loss mainly *caused by a covered risk? -- In a dispute, consider: What the contractual terms of the policy say • Incorporation of terms • Construction of the terms • What the contractual terms of the policy mean • Definition of given technical and non-technical words and any case law on these definitions. • Legislative intervention? • Was the covered loss mainly caused by a covered risk? • It may be necessary for the claimant to show that the loss was caused (or mainly caused) by an insured against risk

Insurance - what about legitimate claims? - what do I get - general principles

If you have a 1st party contingency policy i.e. a life policy or an accident policy (not an indemnity policy), you get the amount specified in and subject to the contract. • If you have a 3rd party liability policy the victim gets the available amounts as specified by the contract. • BUT for Indemnity Insurance on goods, property (etc) you may only, subject to contract, receive that which is required to remedy your *actual losses by **indemnifying you. e.g. indemnify for your building being fixed • The parties may choose to contract out of the indemnity principle by **clearly agreeing instead on an **express value for the policy: such a *valued policy is enforceable even if in excess of indemnity that would be due but only if the sum set is not too excessive. • Total Loss (item gone) = claim for whole value of policy regardless of actual loss (and see MIA s.56). • Partial Loss? Be pro rated see formula in Elcock v Thomson [1949], discussed in Birds.

Consumer credit - matters arising during the course of agreements - rights to information a. fixed sum credit agreement - info to be provided when + effect of non-compliance

Information to be provided within 12 working days: reg. 2 Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983/1569 See generally: Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983/1570 Effect of non-compliance --No enforcement of agreement by debtor while non-compliance continues: s. 77(4) Consumer Credit Act 1974 But a breach does not make the credit relationship 'unfair' under s. 140A CCA 1974: McGuffick v The Royal Bank of Scotland Plc [2010] ECC 11 a. Fixed-sum credit agreement McGuffick v The Royal Bank of Scotland Plc [2010] ECC 11 at [60] "[O]ne can confine the analysis to cases concerned with what might be described as "consumer protection" statutes. In a number of such cases, the courts have recognised that, although the statute may render the agreement unenforceable, the agreement remains a valid and subsisting contract and rights and obligations under it continue to exist, even if unenforceable by the creditor."

Insurance - what about legitimate claims? - what do I get - indemnity principle

If you have an *indemnity policy, you may recover ONLY the amount required to indemnify you against the loss you have suffered ***at the point in time when the loss materialised. • If the policy describes the **'sum insured' this sets an upper limit on recovery that prevents higher recovery even if the insured object was worth more at the time when it was totally lost / destroyed. • Glasgow Provident Investment Soc v Westminster Fire Office (1887) • If the loss is partial the Insured receives the difference between the value at the time of loss and the value after the loss: e.g. House suffers fire damage: value at time of loss is £220K, value after loss is £180K a theoretical claim of £40K is possible. there may be some adjustments for **policy excess (the amount you as the insured party have to front up - swallowing more money yourself, get cheaper premiums but batter to take claim (?)) , under insurance and also if rebuilding would also confer an improvement on the insured! Reynolds v Phoenix Assurance [1978]. -- If you have a policy that gives the Insurer the *option of paying either the market value or opting for reinstatement , this poses problems for the insured if there is a big gap between the current market value and the cost of reinstatement. • Reynolds v Phoenix Assurance [1978] • Keystone Properties Ltd v Sun Alliance 1993 S.C. 494. • See McNeil at 7.75-7.76. • "Excess" or "Franchise" (insured bears losses of a percentage for the latter) • "Average" (for "under insurance") (implied for marine)

Supply and sale of goods - seller's title

Implied term - features even if not expressly mentioned in the contract. •The seller represents that she has the right to sell the goods. Goods have to be done in way where title cannot be challenged not just able to sell but ALSO free from charge or encumbrance over the goods --can though if disclosed to the buyer that there is charge A sale must provide the buyer a good (unchallengeable) title to the goods sold in exchange for the price. •Seller under an implied duty to supply goods which she has the right to sell: SGA, s.12(1); CRA, s.17(1)(b). •(NB This does not mean the seller must be owner, rather the seller must have a right to sell.) • Under SGA section 12(2) and CRA s 17(2) the seller promises that the goods are free (and will remain free until ownership passes) from any ' CHARGE or encumbrance' not disclosed or known to the buyer BEFORE the contract was made •Also the buyer can enjoy 'QUIET POSSESSION OF THE GOODS'

Insurance - warranty - warranty problems: law commissions

In June 2012 a Law Commission consultation paper set out 4 key problems: 1) The insurer may refuse a claim for a trivial mistake which has no bearing on the risk. 2) The insured cannot use the defence that the breach has been remedied. 3) The breach of warranty discharges the insurer from all liability, not just liability for the type of loss in question. 4) Something that appears to be an innocuous statement can be converted into a full warranty using obscure words that most policyholders do not understand. (without notice) The prime example is 'basis of the contract' clauses, which state that all statements by the insured form the 'basis of the contract'.

Insurance - what about legitimate claims? - what do I get for my claim?

In Scots law the insured's valid claim is for a sum of money representing his loss: NOT a claim for 'Damages'. --get a contractual payment • The Insurance Co must pay a valid claim within a reasonable time or be in breach of an **implied term in the contract that payment will be forthcoming in connection with a valid claim: it **may be sued by the Insured for Damages for breach of this implied term.(now covered in s13(A)) • The Insurer may take a *reasonable time to investigate the claim: is it both genuine and valid? --some issues in eng law with this • NB may be issues under E&W law, as a payment on a claim under an insurance policy is already classified as a payment of Damages - this means that the Insured cannot sue in E&W for late payment as there can be no award of Damages on Damages! - led to reform

Insurance - Insurance 2015 Act, non-consumer - In what manner is that disclosure made?

In a manner which would be reasonably clear and accessible to a prudent insurer, and • In which every material representation as to a **matter of fact is **substantially correct, and every material representation as to a **matter of expectation or belief is made in **good faith.

Insurance - Duties of the insured, non disclosure, misrepresentation and fraud - [utmost] good faith? [] - duty of upmost is gone - good faith req in insurance but not in your face like utmost used to be

Insurance is based on risk. Risk determines: 1. Whether an insurer will offer cover *at all 2. What the terms of the cover / policy offered will be 3. The cost of the cover / premiums paid by the insured. utmost good faith - why? The insurer relies on the information supplied by the proposer to assess the risk: the proposer has traditionally been under a duty of utmost good faith as concerns the information that he must provide to the insurer. Carter v Boehm (1766) --Lord Mansfield jugement - eng law - classic case. Involved fort in Sumatra - defended against natives but not other power. Risk was presented, secure but telling insurance not say attack from France perhaps. Insurer able to use lack of full disclosure also s.17 MIA 1906. • Two possible aspects: • A duty on the proposer to be truthful and honest in relation to any statements made or answers to questions asked by the insurer. • A positive duty of disclosure on the proposer concerning any material matter which is known to him even if not asked by the insurer. -- Traditionally, ANY failure by the proposer to comply with any part of the duty of utmost good faith allowed the insurer to avoid the policy. • But who cares about tradition? - need to know the context -- How do you know where you are, if you don't know where you started? 1. Cannot understand new law without understanding the mischiefs it sought to overcome. 2. Although traditional law will have little relevance to consumer indemnity contracts, it will still have some relevance to consumer life policies. 3. For non-consumer contracts: • pre-12 August 2016 contracts could still be disputed/litigated for some time (new law only applies on entry, renewal or variation); • might exclude some of the 2015 Act; • not as profoundly affected, so "most of the traditional law still relevant".

Insurance - the insurer rights - your obligations (focus on the insured)

Insurer (and the onerous regime) the focus thus far, now we look at the insured. Insurable interest ("II").

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - duty to supply goods conform to sample

Interaction with sale by description. S13(2) 'if the sale is by sample as well as by description it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.' S 15 • Sale by sample - implied term that: >**the bulk will correspond with the sample in quality. >**goods will be free from any defect making their quality unsatisfactory, which would **not be apparenton reasonable examination of the sample. Godley v Perry Child struck in the eye after using a toy catapult which broke. Seller had bought the catapult from a wholesaler. Defect was not apparent on reasonable examination of the sample. The seller could sue the wholesaler under s 15 - sale by sample. (s 15(2)(c))

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - short term right to reject - how is the right exercised?

Intimate rejection clearly (s.20(5)‐(6)). Refund must be forthcoming without undue delay and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund (s.20(15)). Partial rejection is covered in s.21.

Supply and sale of goods - Non‐consumer sales - buyer's remedies - right of rejection interaction with repair

J&H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9; 2007 S.C. (H.L.) 89. >Seller took defective property (combination of a seed drill and a power harrow) back to inspect it. Q - whether absent info what was repair, the buyer still entitled to reject even if fixed? - absence of info buyer entitled to reject equipment "A complex piece of power operated agricultural machinery." Buyer was entitled to demand to know what was discovered (even though s 35(6) silent). In the absence of that information, buyer entitled to reject the equipment even though it had in fact been repaired to "factory gate" standard. "Appellants were deprived of the information that they needed to make a properly informed choice."

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness -freedom from minor defects s14(2)

Lamarra v Capital Bank. Remember it's about satisfactory quality - not perfection. Range Rover - several defects. When driving the Range Rover the vehicle pulled to the left. This caused tyre wear. There were some other 'minor defects' (see Combe, p.11). Altogether the Court held that the car was not of satisfactory quality. NB this case is actually about the Supply of Goods (Implied Terms) Act 1973 s.10, but mirrors wording in SGA - so analogous reasoning can be used. -- Careful with older case law Millars of Falkirk v Turpie Oil leak in power steering system in new car. It would cost £25 to repair. Court held in this older case that there was no breach s 14(2). If this case was decided today then the car would probably not be of satisfactory quality.

Consumer credit - types of credit 2 - loans/credit cards

Loans - lend to another individual with return of payment Credit cards - buyer to buy goods, insuring the credit card company pay for goods and you pay the credit card company elements in Re Charge Card Services (No 2) [1989] Ch 497: 1. Contract between retailer and credit card company that the latter will pay and the payment will be accepted 2. Contract between company and the card holder that the latter will pay the price of the good 3. Contract between retailer and card holder, former to accept credit card payment instead of cash Trade credit - regular fixed payments in the context of an account Revolving credit - borrow varying degrees of credit depending when you need it but you have an upper limit

Insurance - caution - personal security

Long history (Roman law/institutional writers). Still relevant today. ◦ Amigo loans? - advert tv - offer less rates but you get amigo - get someone who can guarantee you ◦ Directors' personal guarantees may be asked for co debts ◦ Smith v Bank of Scotland? -spouse guarantee debts - scots law circumstances person who loaned money to another, who influenced another to guarnatee debt may be vulnerable to reduction Parties Formation Limitation on caution? Cautioners' rights Termination

Insurance - What is [not] insurance?

MacNeil cautions that insurance contracts should not be confused with: 1. manufacturers' guarantees • generally a sale/supply of goods point BUT • Can be situations where it has the character of an insurance contract cf the extended warranty in Re Digital Satellite Warranty Cover Ltd [2013] UKSC 7 2. cautionary obligations (cashion) --personal guarantee - where someone guarantee the debt or obligation of performance of another • these are **accessory obligation, meaning they can only be enforced following the default of the debtor in the principal obligation. --not what happens in insurance Is there a def of insurance? Legislation tends to avoid definition Consumer Insurance (Disclosure and Representations ) Act 2012 does define 'consumer' but NOT 'contract of insurance'. Scottish Amicable Heritable Securities Ltd v Northern Assurance Co (1883) 11 R 287 • See also Prudential case. I

Insurance - formalities

Marine policies (MIA 1906 s.22) must be in writing. • **No other legally required formality for general insurance. • In practice Insurers tend to want to have all but temporary cover issued in writing.

Consumer credit - regulated activities

Matter to ascertain the activity - old or new, have certain protections Art. 60B(3)(A)(a) RAO - regulated activities "credit agreement"—(a) in relation to an agreement other than a green deal plan, means an agreement between an individual or relevant recipient of credit ("A") and any other person ("B") under which B provides A with credit of any amount ---looking for agreement between an individual and another under B provides A with credit of any amount Also s22 FSMA Matters - carrying on business of a specific kind - FCA interested in you and appropriately regulated Particularly activity of kind carried on way of business relates to info about a person's financial standing --s22 not just cc, but other activities like types of bus of property

Insurance policy is void/voidable or discharged

May not pay out Insurance policy is void/voidable or discharged: • A contract may be VOID for • 'illegality'/public policy, • 'Error'. • Unlawful use of property (e.g. an illegal voyage)

Insurance - Canning case more case law

Mentioned a case called Canning, regarding a situation where the risk changed. • A better case for today is Sickness and Accident Assurance Association Ltd v General Accident Assurance Corpn Ltd (1892) 19 R 977. • Where the insurer expressly provides that cover does not commence until payment of the first premium is received, then commencement of cover is conditional upon this happening. --- unrelated to above: stopped in class at: Supersession of a cover note by a contract? See Contract (Scotland) Act 1997. • Duration: • Of cover notes • expire after a stipulated time, • by agreement (on replacement with a new policy), • exercise of cancellation right (normally by the insurer). • Of insurance generally.

Insurance - caution - 3. cautioner's right of relief inter se

More than one guarantor: Creditor ---xxxxPrincipal debtor ---Step 1: Creditor sues cautioner 2 for the whole debt Step 2. Cautioner 2 is entitled to 50% relief from cautioner 1, i.e. they can recover half of what they paid. --- if 50/50 situation

Insurance - Premiums

Must the premium be paid for there to be an insurance policy? Theoretically NO, but practically YES! • The means of payment is prima facie cash but other forms of payment the insurer indicates as acceptable are also be permitted What happens when: • Bouncing cheques? Overdrawn accounts? Failure to correctly implement a direct debit by insurer? • Payment by instalments? Consumer Credit Act 1974 may apply All depends if someones fault --paying by installments different --- Situations to get premiums back Return of Premiums: insured can recover a premium if: • there is no 'illegality'; • if the policy is cancelled or void ab initio; • if the insurer has not been 'at risk'; • if the policy so provides; or • ex gratia the insurer. (Birds + Law Commissions quite optimistic on repayment, my predecessor was far more cynical.) NOW though see CIDRA and IA, which make provision for non-return of premiums for disclosure issues and amend, for example, section 84 of the Marine Insurance Act on the point. --bus - 2015 may be waving premiums goodbye (Forfeiture clauses? Might be enforceable at common law, but CRA.) - attempt at contractual level return of premiums where the statue not specifically say not a disclosure issue, whether or not clause okay

Consumer credit - matters arising during the course of agreements - rights to information - e. early and partial payments

NOW IN V11 of CCA s. 97(1) Consumer Credit Act 1974 ... [on request creditor] shall give the debtor a statement in the prescribed form indicating, according to the information to which it is practicable for him to refer, the amount of the payment required to discharge the debtor's indebtedness under the agreement, together with the prescribed particulars showing how the amount is arrived at. The amount of the payment will be as agreed: Home Insulation v Wadsley [1988] CLY 419 s. 97A(1) Consumer Credit Act 1974 Where a debtor under a regulated consumer credit agreement— (a) makes a payment by virtue of which part of his indebtedness is discharged undersection 94, and (b) at the same time or subsequently requests the creditor to give him a statement concerning the effect of the payment on the debtor's indebtedness, the creditor must give the statement to the debtor before the end of the period of seven working days beginning with the day following that on which the creditor receives the request. --request that they want to make an early payment most likely. May be provision of issues on rebate

Insurance policy - discharged

Need for an insurer to pay out is discharged - immediately in breach of warranty TRADITIONALLY a contract is immediately DISCHARGED if: • The insured is in breach of warranty. • Breach of a fundamental term discharges the contractual obligation (see s33 MIA 1906). • NB the word 'Warranty' indicates very important contract term in insurance law - unlike in general (Scots) contract law. • BUT 2015 Act changes... --some just for business provisions, other for all insurance

Supply and sale of goods - seller's title - what is meant + quiet possession

Niblett: labelling of tins infringed a well known trademark. Under the 1893 Act, buyers sued sellers for breach of 'right to sell' and 'quiet possession'. All 3 judges said a breach of right to sell, Lord Atkin also said a breach of quiet possession (others reserved judgment). -- Quiet possession Microbeads: buyer bought road marking machines early 1970, meanwhile a patent process was ongoing which neither buyer or seller knew about, patent published then granted after contract made •3rd party sued buyer for breach of patent •Buyer sued seller breach s12(1) and 12(2) (in equivalent 1893 Act). •Court held no breach s12(1), but breach of s 12(2)

Insurance - protecting against insurer insolvency

Part XV of FSMA 2000 offers protection to holders of authorised insurance policies not issued by Lloyd's. (In event insurer has issues, the financial service comp scheme can come in if cover can be continued) S.212 FSMA requires a body, Financial Services Compensation Scheme Ltd (FSCS), to act if Insurers are unlikely or incapable of paying claims (see ss.213- 7). Compensation is payable if the cover cannot be continued. If the insurer is or may become insolvent then FSCS acts to protect insureds: there may be some compensation for consumer / small businesses if they suffer losses: Birds pp. 34-6.

Insurance - warranty - what happend - Policies AFTER 12 August 2016 - s9 + 10

No longer basis of the contract clauses, automatic upgrade • Section 9 of Insurance Act 2015: (1) This section applies to representations made by the insured in connection with— a) a proposed non-consumer insurance contract, or b) a proposed variation to a non-consumer insurance contract. (2) Such a representation is not capable of being converted into a warranty by means of any provision of the non-consumer insurance contract (or of the terms of the variation), or of any other contract (and whether by declaring the representation to form the basis of the contract or otherwise). -- Section 10 of Insurance Act 2015: 1) Any rule of law that breach of a warranty (express or implied) in a contract of insurance results in the discharge of the insurer's liability under the contract is abolished. 2) An insurer has *no liability under a contract of insurance in respect of any loss occurring, or attributable to something happening, *after a warranty (express or implied) in the contract has been breached but before the breach has been remedied. 3) But subsection (2) does not apply if— a) because of a change of circumstances, the warranty ceases to be applicable to the circumstances of the contract, b) compliance with the warranty is rendered unlawful by any subsequent law, or c) the insurer waives the breach of warranty. 4) Subsection (2) *does not affect the liability of the insurer in respect of losses occurring, or attributable to something happening— a) *before the breach of warranty, or b) if the breach can be remedied, *after it has been remedied

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - can the consumer always choose freely? Change their mind?

No: s 23(3). Trader cannot be forced to repair or replace where one of those is impossible or the consumer's choice is disproportionate (considering the terms of s.23(4) compared to the alternative of those remedies). Will consider relative costs, taking into account: • value of goods; •significance of lack of conformity; and •whether other remedy could be effected without significant inconvenience. -- Can the consumer change her mind? • Maybe. •Only if the trader has had a reasonable time to act according to her first choice (s 23(7) and 23(8)).

What is insurance? Def?

Nope - why try to define insurance? Do we want or need a legal definition? • DTI v St Christopher Motorists' Association [1974] --At issue, gov department and motor co. What it regulated? Important because someone engaged in activity kind of thing bring down reg on someone, need to know if that is actually insurance. DTI arguing can't off er service without insurance type. --motor sum of money, nto capable to drive = would get a chauffeur to drive around. Argue not paying in money to this peril arise, not something to concern with --NO this was insurance. Not call premiums but that is fine. C caught by insurance • We need to know if we have an insurance contract because such contracts are subject to different legislation & extra common law rules as compared to ordinary contracts. Is there a def? Legislation tends to avoid definition Consumer Insurance (Disclosure and Representations ) Act 2012 does define 'consumer' but NOT 'contract of insurance'. One of the key leg not def, as you will be bound to it - not flexible What might be thought as insurance - e.g. Scottish Amicable Heritable Securities Ltd v Northern Assurance Co (1883) 11 R 287 ◦ 'The insurer undertakes, in consideration of the payment of an estimated equivalent beforehand, to make up the assured any loss he may sustain by the occurrence of an uncertain contingency.' • See also Prudential case (below).

Supply and sale of goods - seller's title - exceptions to nemo dat - voidable title?

Not actually a nemo dat situation, as the holder of a voidable title IS THE OWNER. But the person entitled to challenge that voidable title might be barred from challenging a buyer's title if s/he has not taken sufficient steps to reduce the original contract. Buyer acting in good faith and without notice of the seller's defective title will get a good (i.e. unchallengeable) title (s.23).

Insurance - the current law - life

Not just apply to life policy - but policy that are non-marine Implications of non-insuranble interest of person life covered - is that the contract is illegal IF no insurable interest at the time of inception (created) • Life Assurance Act 1774 applies to: Life policies; policies paying fixed sums for personal injury & non-marine indemnity policies other than those covering 'goods' • s.1 (and later case law Harse v Pearl Life Assurance Co [1904] 1 KB 558) - clarifies some of this in the case --- makes the policy null and void AND illegal if no II at time of inception. If no insurable interest can you get your premiums back? England - tends to say no since illegal Scotland - maybe more friendlier with person in situation inadvertently - not simple, most circumstances decent case to get back CL - scot should have II anyway? • s.2 requires the names of all interested parties be stated in the policy. s3 No greater sum than value of the interest (for life or event) - this section deals with value not existence s4 - does not extend to ships, goods or merchandises

Insurance - Insurance 2015 Act, non-consumer - How will this be applied?

Not really case law - some textbook analysis Read IA 2015, the Explanatory Notes and the Commissions' work... • ...and wait and see.

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - price reduction - how will a deduction be calculated?

Not stated. Comparison to now repealed sections 48A‐48F of the SGA? - they are instructive, dealt with this area when SGA was applicable

Supply and sale of goods - consensus + agreement on subject matter

Parties must have agreed: • Subject matter; and •Price (or a method of fixing the price). --and that subject matter must be "goods". • SGA s 61(1) - "goods" ...in Scotland all corporeal moveables except money; and in particular "goods" includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; [F4and includes an undivided share in goods;] and CRA s 2(8) - Goods" means any tangible moveable items, but that includes water, gas and electricity if and only if they are put up for supply in a limited volume or set quantity. • Both wide definitions. BUT when could money be a corporeal moveable nonetheless? (currency exchange?)

Consumer credit - matters arising during the course of agreements - connected lender liability - Section 75 CCA Key example of debtor-creditor-supplier agreement: credit card

OFT v Lloyds TBS Bank [2007] UKHL 48 at [13]-[14], Lord Hope "[I] do not think that it can be said that Parliament did not envisage the possibility of transactions being entered into abroad, linked to the relationship between the issuer of the card and the cardholder, of the kind that is now commonplace. [...] The simple and unqualified statement of the right that is expressed in section 75(1) is consistent with the policy that lies behind the Act, informed by recommendations by the Crowther Committee. Its long title states that the new system which it lays down is "for the protection of consumers [...] Transactions of that kind are to the commercial advantage of the supplier and the creditor. The creditor is in a better position than the debtor, in a question with a foreign supplier, to obtain redress." --to apply to a credit card, c-s. Key point protections will kick in even if a foreign supplier. But must have a uk cc agreement then can make claim

Insurance - 2015 Act, non-consumer - old law - Does the duty of utmost good faith last past the point of formation?

OLD LAW reminder for PRE AUGUST 2016 CONTRACTS S.17 of the MIA 1906 regarded as imposing a continuing duty of utmost good faith beyond the point of the conclusion of the contract (but not past the time of starting litigation). Clear at the outset, and ongoing activities - seen in case Ansari • For the insured the point was most likely to be relevant if:- a. an express term requiring that information be provided by the insured to the insurer is breached by the insured. An increase of risk clause is common during the operation of certain insurances (e.g. Fire insurance) if the increase is permanent and habitual. Ansari v New India Assurance [2009] --change of risk profile, switch off sprinklers. Breach of duty ;change was material and not temporary so there was a breach entitling avoidance. b. a fraudulent claim is made. (now IA 2015 caught) • Avoidance for breach was the usual result.

Supply and sale of goods - Transfer of Risk + exceptions

One can separate ownership/ risk For example, can require the buyer to insure the goods as soon as the contract is made and before ownership has passed. --- where risk NOT transferred with ownership • S20(2) - If there has been a DELAY in the delivery of the goods and the delay is the fault of one of the parties. • Demby Hamilton - apple juice destroyed and there was a delay in the buyer taking delivery of the juice. The seller could claim for the price of the apple juice which went off.

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - price reduction or final right to reject

One, not both: s 24(5) -- In what circumstances? S 24(5) after one repair or one replacement, the goods do not conform to the contract; because of section 23(3) [repair/replacement impossible] the consumer can require neither repair nor replacement of the goods; or the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.

Insurance - claims - Remedies for fraudulent claims

Part 4 of Insurance Act 2015 s12 (1) If the insured makes a fraudulent claim under a contract of insurance— (a) the insurer is **not liable to pay the claim, (b) the insurer may recover from the insured **any sums paid by the insurer to the insured in respect of the claim, and (c) in addition, the insurer may by notice to the insured **treat the contract as having been terminated with effect from the time of the fraudulent act. (2) If the insurer does treat the contract as having been terminated— (a) it may refuse all liability to the insured under the contract in respect of a relevant event occurring after the time of the fraudulent act, and (b) it need not return any of the premiums paid under the contract. (3) Treating a contract as having been terminated under this section **does not affect the rights and obligations of the parties to the contract with respect to a relevant event occurring **before the time of the fraudulent act. (4) In subsections (2)(a) and (3), "relevant event" refers to whatever gives rise to the insurer's liability under the contract (and includes, for example, the occurrence of a loss, the making of a claim, or the notification of a potential claim, depending on how the contract is written).

Consumer credit - regulated activities - new regulated activities - credit broking

Part IV, FSMA 2000 (Regulated Activities) Order 2001/544 ("RAO") Art. 36A includes activities such as: effecting an introduction of an individual or relevant recipient of credit who wishes to enter into a credit agreement to a person ("P") with a view to P entering into by way of business as lender a regulated credit agreement (or an agreement which would be a regulated credit agreement but for any of the relevant provisions) [Art 36A(1)(a) RAO] (a)-(c) correspond to old s. 145 CCA 1974 (d)-(f) are new (CCA 1974 - overlap RAO old seller case will still be useful when overlap?) --acting as an intermediary, not providing a person with credit - place person with another willing to give credit Discussion of def in cases Black Horse Ltd v Langford [2007] EWHC 907 (QB) --car dealer, with a q if a car dealer was a credit broker - court here, in terms of introduction a person qualify as one at [26] "In the case of North Riding, they qualify as credit-brokers because their business is just that: they effect the introduction of individuals desiring to obtain credit to consumer credit businesses."

Insurance - warranty - Policies AFTER 12 August 2016 - Terms not relevant to the actual loss - s.11 (reproduced verbatim)

Point of issue of statement, not relevant to claim made. --got breach to this, not rely on that breach to limit something completely different 1) This section applies to a term (express or implied) of a contract of insurance, other than a term defining the risk as a whole, if compliance with it would tend to reduce the risk of one or more of the following— a) loss of a particular kind, b) loss at a particular location, c) loss at a particular time. 2) If a loss occurs, and the term has not been complied with, the insurer may not rely on the non-compliance to exclude, limit or discharge its liability under the contract for the loss if the insured satisfies subsection (3). 3) The insured satisfies this subsection if it shows that the non-compliance with the term could not have increased the risk of the loss which actually occurred in the circumstances in which it occurred. 4) This section may apply in addition to section 10. Example? Terms about certain window locks, which would have no relevance to flood risk

Insurance - reform

Prof Birds and some - but not all - others would like to abolish the concept of an insurable interest altogether. • The Law Commissions each initially seemed likely to follow the route advocated by Prof Birds BUT since 2011 it has become clear that abolition of II is NOT a real prospect. Instead some clarification of II might happen.

Insurance - how do you know where you are, if you don't know where you started in the past? + reform

Professor Birds: 1. Cannot understand new law without understanding the mischiefs it sought to overcome. 2. Although traditional law will have little relevance to consumer indemnity contracts, it will still have some relevance to consumer life policies. 3. For non-consumer contracts: • pre-12 August 2016 contracts could still be disputed/litigated for some time (new law only applies on entry, renewal or variation); • might exclude some of the 2015 Act; • not as profoundly affected, so "most of the traditional law still relevant". -- The Law Commissions needed to reform the law in this area but had to be careful with what they proposed: • The insurer cannot be liable if it has been deceived into offering cover or been misinformed by the insured as to the nature of the risk at issue • Equally there is no point in keeping legal rules that are too strict to routinely apply without breaching industry good practice codes. • The Reforms are not retrospective!

Insurance - caution - Proper and improper caution

Proper caution Improper caution Distinction relevant? Mostly historical, two rights used to prevail only for proper caution: "discussion" (no longer case) and "division"

Supply and sale of goods - transfer of property and risk

Property in SGA 1979 means ownership. Under SGA (and indeed in Scots law generally) there is a clear distinction between transfer of possession and the transfer of ownership. -- Transfer of ownership • The main aim of the sale of goods contract is to transfer ownership of the goods from seller to buyer. The basic rule on transfer of ownership - s17(1) - ownership in goods passes when the parties intend for it to pass - **specific or ascertained goods Section 17(2) - ' For the purposes of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.' If the actual intention of the buyer and seller cannot be determined by the court from the contract, the intention of the parties will be inferred by applying the various 'intention rules' set out in s18.

Insurance - what is meant by loss of goods are stolen?

Property that is destroyed is clearly lost but what if the property is missing, is it also lost? Holmes v Payne [1930] 2 K.B. 301 --Lady made claim in relation to necklace of pearls - insurance said look first, she could not find. Claim, payments made to offset loss. It turned up (not fraud). Held - pay out was properly made as it had been lost even though not really lost - lost at the time of the claim. • What if the goods are known to exist but cannot be recovered? • Moore v Evans [1918] ---Strings of pearls sent to the continent, Belgium and Germany. War kicked off. Goods policy, courts said no pay out allowed in relation to loss, no indication actually lost. The jewellery looked after. It is a goods policy and they are not lost = no claim Contrast with: • Webster v General Accident [1953] --someone unable to get car back, car in existence but what had happend was through fraudulent activity, ended up sold in a way that it was an exception to nemo dat hence owner not able to get car back. Came to light after sale to good title. Claim succeded - the insurance co could have made a claim against fraudulent auction. With car, not lost or stolen Situations loss of opportunity to sell goods and make profit? • Loss of proceeds of sale concerning the insured goods are NOT recoverable under same policy unless the policy applies to the proceeds of sale too.

Insurance - claims and payment under the policy + why might a claim be unsuccessful - no claims that infringe public policy

Public policy prevents any payment of life insurance money to a beneficiary who murdered the deceased. • What if the criminal act occurred while the claimant was insane or was otherwise an unintentional act? • Beresford v Royal Insurance [1938] --situation where suicide and claim not paid out where suicide was a crime at the time. Lot of money, arrange extend area of cover. Q - whether sane rational act? Insanity then no issue of public policy as much. But facts who knew what they were doing, insurance cover about to end. So estate not able to claim. --criminal or short of crime may come into play • Strict liability offences? • A recurring problem in these cases is that public policy is ill defined and thus difficult to rationally discuss aka If murder deceased, claim life policy is not going to happen. Other cases where things short of murder, culpable homicide, can avoid a pay out in many circumstances.

Insurance - claims and payment under the policy + why might a claim be unsuccessful - No claims that infringe public policy will be paid / pacta illicita

Public policy will not allow the payment of a claim which allows an insured to benefit from his own (illegal) and or wrongful act. • Ex turpi causa non oritur actio - won't get benefits from your own wrong actions • Specific provisions in the policy will reinforce this. Illegal contracts not claimable --someone try to make claim for benefit of his illegal act, not will happen • A 1st party insured cannot *usually claim for a loss that he *deliberately caused or will so cause:- • W H Smith v Clinton (1908). --someone who had caused defamation, need pay out for it. Loss had been deliberately caused but the person publication. Evidence taken advice for statement they had made. Not tone down enough though, enough to say deliberately caused situation. Not allow encouragement of defamation and get pay out. --no claim allowed • Nor may he claim for his own illegal or delictual acts:- • Geismar v Sun Alliance [1977] --smuggled jewels. That was a close to wind case where some kind of sale, return settlement in relation to jewllery. Understated the value but got away with it - in the claim they made, not need to plea own illegality in their documentation. Made proper claim. --got away with it. Where done deliberately yourself own mire then Geismar no help but may be able to work around it. Able to not raise point of wider transaction so got away with it. • Euro-Diam Ltd v Bathurst [1988]

Supply and sale of goods - Interaction with s 25

Remember s 25 - buyer in possession after sale. This protects third parties buying goods and not aware of retention of title clauses. • The sub‐buyer has to act in good faith. Buyer activity might also operate to defeat the seller's title, e.g. accession. 25 - enable to take property

Supply and sale of goods - Non‐consumer sales - buyer's remedies - right of rejection (where material)

Right of rejection can be **lost where the buyer has 'accepted the goods' • Clegg v Andersson >A yacht was bought for £250,000. The buyer did not reject the yacht immediately (three weeks). He also insured it. >The court held that he was entitled to reject it and that he had not accepted it. - not accept just from agreeing repair ('Buyer does not accept the goods simply because he asks for or agrees to their repair: s 35(6). It follows that if a buyer is seeking information which the seller has agreed to supply which will enable the buyer to make a properly informed choice between acceptance, rejection or cure, and if cure in what way, he cannot have lost his right to reject.') • Douglas v Glenvarigill Co Ltd 2010 S.L.T. 634 >The court held that 15 weeks was not a reasonable time to reject a car that was faulty. >BUT damages remained available, even if "drastic" remedy of rejection not available. Damages may be available, even if "drastic" remedy of rejection not.

Supply and sale of goods - Risk - who bears it?

Risk - if something goes wrong in the transaction, and someone is going to suffer loss/damage. Buyer or seller? • Section 20(1) - risk follows ownership **unless the parties agree to something different. • (Cf common law: Carey Miller with Irvine, para 8.14) - could pass risk before or after, relevant to price Different rules for consumer contracts in the CRA 2015, which s 20(4) SGA kindly steers you to.

Supply and sale of goods - seller's title + 21(1) - consequences of a simple nemo dat sale

Rowland v Divall [1923] 2 K.B. 500. Buyer purchased a car from the seller - paid £334 - the buyer and seller dealt in good faith - later on it was revealed that the car was stolen - buyer had to return it to the true owner - buyer sued seller recover price. • Court held that buyer - was entitled to claim £334 from the seller - recover WHOLE PRICE - breach 12(1). •(No need to remember this case, but it serves as a nice, clean example.)

Supply and sale of goods - transfer of property and risk - s18 rules - rule 1

Rule 1 - sale of specific item ready for delivery 'Where there is an unconditional contract for the sale of specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made' Delay of delivery and/or payment *irrelevant. "Specific goods" - defined in s 61(1). When are goods in a 'deliverable state'? • S61(5) 'deliverable state' - 'when they are in such a state that the buyer would under the contract be bound to take delivery of them' 'deliverable state' • Munro v Balnagown Estates - buyer enters seller's land to cut down/remove timber. Seller then tries to stop collection, buyer says "we own this timber." Court agreed: ownership passed to buyer as goods were in a 'deliverable state' (See also Morison v A & D F Lockhart 1912 SC 1017 - timber not in a deliverable state pre‐severance.)

Supply and sale of goods - Non‐consumer sales - description and quality of goods

S13 - sale by description, only applies when there has been a description. S14(2) satisfactory quality, only applies where seller is acting in the course of business. S14(3) fit for a particular (stated) purpose, only applies when such fitness is asserted. S15 sale by sample, only applies when there has been a sample.

Supply and sale of goods - Non‐consumer sales - description of goods + cases

S 13 SGA. • Seller's duty. Where there is a contract for the sale of goods BY DESCRIPTION, there is an implied term that the goodswill correspond to the description. Note the friendly steer to the CRA in s 13(5). When does s13 apply? Beale v Taylor. >Taylor put an advert for a car in a newspaper. The car was described as 'Herald convertible, White, 1961There was a metallic disc on the back of the car ‐ '1200'. Actually a "cut and shut". The court held as 2 cars welded together‐ 2 different models so did not conform to description. -- Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd >Sale of a painting described as being by the famous German artist, Münter. The painting was not by the famous artist, but was actually a fake. The buyer was a dealer in German art - an expert. There was no breach of s 13 as there was no reliance on the seller. (Separate argument based on "merchantable" quality also failed.) -- Ashington Piggeries >Feedstuff (herring meal) was sold to a mink breeder and the feedstuff killed many of his mink as it contained a substance toxic to them. Whilst there might have been a breach of other duties (e.g. quality), there was no breach of s 13 as herring meal is still herring meal even though it had the effect it did. Lord Diplock [1972] AC 441 at 503‐504 - " But ultimately the test is whether the buyer could fairly and reasonably refuse to accept the physical goods proffered to him on the ground that their failure to correspond with that part of what was said about themin the contract makes them goods of a different kind from those he had agreed to buy. The key to section 13 is identification.'"

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness

S 14 - starting point is there is no duty, except as provided by the SGA. • S 14(2) - PRIOR to 3 January 1995 the term was 'merchantable quality'. Now 'satisfactory quality'. This section only applies when **BOTH these conditions are met: 1.where the seller sells goods in the course of a business; 2. in a non‐consumer situation. • MacDonald v Pollock. -- Do implied rules about satisfactory quality apply? • Business to business - yes - s 14(2). • Business to consumer - yes - see later. Private individual to private individual - No.

Supply and sale of goods - unascertained goods - who own the goods while they are unascertained?

S 16 - no ownership is transferred unless and until the goods are ascertained.

Supply and sale of goods - Consumer Rights Act 2015 - interaction with digital content

S 16: Goods not conforming to contract if digital content does not conform Applies where goods and digital content are supplied together in one product. If the digital content rights are not met then this will mean the goods are substandard and the consumer has the right to the full suite of goods remedies (discussed below). Can these terms be contracted out of? •No: s 31 for CRA, provisions will apply

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - price reduction - how much reduction?

S 24(2). • 100%? • Explanatory notes, para 139: It is intended that the reduction in price should reflect the difference in value between what the consumer paid for and the value of what they actually receive, and could be as much as a full refund or the full amount already paid. -- Deduction? See s 24(8), and... • 24(10)‐(13) provide that if the final right to reject is exercised within 6 months of delivery of the goods (or, if later, transfer of ownership or the trader having completed and notified the consumer of any required action), the trader must generally give the consumer a full refund. After the first 6 months, the trader may apply a deduction to the refund to account for the use that the consumer has had. There is an exception if the goods consist of a motor vehicle (as defined in subsections (12) and (13)). In this case a deduction for use may be made in the first 6 months. Regulations can be made for other products.

Supply and sale of goods - Consumer Rights Act 2015 - satisfactory quality

S 9 CRA (and compare s 14 SGA). What's different? Public statements. 'quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of— >any description of the goods, >the price or other consideration for the goods (if relevant), and >all the other relevant circumstances (see subsection (5)). -- Public statement - s 9 (5) The relevant circumstances mentioned in subsection (2)(c) include any public statement about the specific characteristics of the goods made by the trader, the producer or any representative of the trader or the producer. (6) That includes, in particular, any public statement made in advertising or labelling. (7) But a public statement is not a relevant circumstance for the purposes of subsection (2)(c) if the trader shows that— • (a) when the contract was made, the trader was not, and could not reasonably have been, aware of the statement, • (b) before the contract was made, the statement had been publicly withdrawn or, to the extent that it contained anything which was incorrect or misleading, it had been publicly corrected, or • (c) the consumer's decision to contract for the goods could not have been influenced by the statement. (7 - hold trader to what they say about the product)

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - s19 - non-conformity when?

S.19 operates to measure lack of conformity: • **at the date of delivery AND •**within six months in certain circumstances • See s.19(14) and (15). (intrigued by the way s.19(14) is drafted? Any thoughts on why it is the way it is?) - get past rules of risk - protect them and not change other principles of law •(15) - (14) not apply if Perishable goods don't need to still conform six months after delivery.

The Warranty in the MIA

S.33(3) MIA: warranty 'must be exactly complied with **whether material to the risk or not'. • OLD LAW: S.34(2) MIA used to prevent insured from remedying the breach before any loss arises.

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - when are goods satisfactory quality?

S14(2) When are goods 'satisfactory quality'? 14(2A) Must take into account if the goods are a standard that a **REASONABLE PERSON would regard as satisfactory (objective) In deciding that, any description of the goods, the price and other relevant circumstances will be considered. -- Aspects of quality of goods S 14(2B) lists (non‐exhaustively) what factors/aspects of quality includes. First listed is 'fitness for ALL the purposes for which goods of the kind in question are COMMONLY supplied'. Grant v Australian Knitting Mills - sale of woollen underpants - caused a rash ‐ implied purpose.

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - effect of seller's disclaimer?

S20(1A) UCTA 1977 - implied terms under s 13‐15 can only be excluded in respect of a non‐consumer sale if they meet the **test of fairness and reasonableness CRA? S 31. - implied, not contract out? (s14 2D-F repealed - old law on public statements)

Supply and sale of goods - Non‐consumer sales - implied terms about quality or fitness - duty to supply goods conform to sample - effect of seller's disclaimer?

S20(1A) UCTA 1977. • Implied terms under s 13‐15 can only be excluded in respect of a non‐ consumer sale if they meet the test of fairness and reasonableness.

Supply and sale of goods - Non‐consumer sales - buyer's remedies - rejection of the wrong quantity

S30(1) - If the seller delivers goods which are LESS than the agreed amount then the buyer can REJECT* them or *KEEP them and pay for them at the contracted rate. S30(2),(3) - If the seller delivers **MORE than the agreed amount then the buyer can REJECT THEM ALL* or REJECT THE EXCESS or KEEP THEM ALL and pay for them at the contracted rate. (Can only reject the entire delivery if shortfall or excess is **material.) e.g. 150 widgets contract £150 - deliver 145 - I will keep them, reduce to pay £145 - if 165 widgets then reject the extra or pay more when accept

Supply and sale of goods - other risk considerations

SOGA Section 6. Where there is a contract for the sale of SPECIFIC GOODS and the goods WITHOUT THE SELLER KNOWING HAVE PERISHED at the time the contract is made then the contract is VOID. AKA the buyer has no contractual rights, can't sue

Insurance - authorise Insurance business sch 1 Accident. • Sickness. • Land vehicles. • Railway rolling stock. • Aircraft. • Ships. • Goods in transit. • Fire and natural forces. • Damage to property. • Motor vehicle liability. • Aircraft liability. • Liability of ships. • General liability. • Credit. • Suretyship . • Miscellaneous financial loss. • Legal expenses. • Assistance. • AND contracts of long term insurance (Life, Permanent health, etc...)

Sch 1 of Financial Services and Markets Act 2000 (Regulated Activities) Order (SI 2001/544) defines the classes of general and long-term insurance business that must be carried out by authorised persons. • A Part IVA FSMA permission is required unless the person is: • A Trade Union acting on its members' behalf OR • Certain types of Lloyd's underwriter. • To carry out a Sch1 activity without prior authorisation = criminal offence + civil sanctions. R v. Wilson [1997]. • (If the contract of insurance is neither 'effected' nor 'carried out' in the UK the insurer does not require UK authorisation just because the 'risk' is located in the UK.)

Insurance - 2015 Act - Policies AFTER 12 August 2016

Section 10 of Insurance Act 2015: 1) Any rule of law that breach of a warranty (express or implied) in a contract of insurance results in the discharge of the insurer's liability under the contract is **abolished. 2) An insurer has *no liability under a contract of insurance in respect of any loss occurring, or attributable to something happening, *after a warranty (express or implied) in the contract has been breached but before the breach has been remedied. 3) But subsection (2) *does not apply if— a) because of a change of circumstances, the warranty ceases to be applicable to the circumstances of the contract, b) compliance with the warranty is rendered unlawful by any subsequent law, or c) the insurer waives the breach of warranty. 4) Subsection (2) does not affect the liability of the insurer in respect of losses occurring, or attributable to something happening— a) *before the breach of warranty, or b) if the breach can be remedied, *after it has been remedied aka no liability when a loss has arisen after a warranty has been breached and before it has been fixed

Supply and sale of goods - seller's title - what happens if the seller did not have the right to sell?

Section 21(1) '...THE BUYER ACQUIRES NO BETTER TITLE THAN THE SELLER UNLESS... Exceptions to the Nemo dat rule The general rule of nemo dat is subject to a number of EXCEPTIONS to protect the innocent buyer's title from being challenged by the [original] owner. This may occur because the owner has contributed to the situation, or because circumstances are such the law does protect a certain transaction.

Supply and sale of goods - risk Perish before sale but after "agreement to sell"

Section 7. Where there is an AGREEMENT TO SELL SPECIFIC GOODS and the goods without the fault of the seller or the buyer perish before the risk passes to the buyer then the contract is avoided. (so did exist, the contract) Buyer could not sue, contract has come to an end Agreement to sell vs contract of sale - s2 def difference

Insurance - statutory cancellation rights

See ICOBS 6.2.5. (1) A firm must provide a consumer with information on the right to cancel a policy. (2) The information to be provided on the right to cancel is: (a) its existence; (b) its duration; (c) the conditions for exercising it; (d) information on the amount which the consumer may be required to pay if he exercises it; (e) the consequences of not exercising it; and (f) the practical instructions for exercising it. (3) The information must be provided in good time before conclusion of the contract and in writing or another durable medium. • ICOBS 7 gives a general insurance customer, who has been told of his right to cancel, **14 days from the date of the conclusion / renewal of the contract to do so. Notice is effective **on day it is sent. • Insurer must repay premium within 30 days of notice (less cost of any services provided)

Supply and sale of goods - transfer of property and risk - s18 rules - rule 2

Seller under duty to put goods in a deliverable state. • 'Where there is a contract for the sale of SPECIFIC goods and the SELLER is bound to do something to the goods for the purposes of putting them in a deliverable state, THE PROPERTY DOES NOT PASS UNTIL THE THING IS DONE AND THE BUYER HAS NOTICE THAT IT HAS BEEN DONE.' 'deliverable state' • Gowans (Cockburn's Tr) v Bowe and Sons 1910 2 S.L.T. 17. • A sale of potatoes. •When potatoes were ready the farmer would dig them up and put them in pits on the farm. "I sell you my entire potato crop growing this season at the price of [...]. For this I agree to lift, pit, and drive them to the station or harbour, and supply all straw necessary..." Were goods in a deliverable state? "In these circumstances I am unable to regard such carting as something to be done to put the goods into a deliverable state. I think that, in the ordinary working out of such a contract, the potatoes would be delivered to the buyers when lifted by them from the pits and put into their own bags. According to the intention of the parties here, the carting was, I think, only a facility for removal after delivery." -- Rule 2 What kind of duty on the seller is envisaged? • Brown Bros v Carron Co. (1898) 6 S.L.T. 231- Carron contracted to buy a crane from Brown, but it was agreed that it would be modified by the seller. Carron then decided not to buy the crane. Alterations had not yet been made. Ownership had NOT passed to buyer. (Separate issue of breach of contract, but this analysis stands for the ownership question.) Underwood v Burgh Castle Brick & Cement Syndicate [1922] 1 K.B. 343. February: a 30 ton condensing machine was sold. Contract stated that the SELLER had to disengage the engine from its concrete bed and put it on the train. August: The engine was damaged when it was loaded on to the train. Ownership did not pass to the buyer. Lord Atkin noted: "the vendors were bound to do something to the engine for the purpose of putting it into a deliverable state ‐ namely, to detach it and take it to pieces in order to put it on rail."

Insurance - what risks are covered in insurance contract - basic points re losses relating to covered risks

Situation negligence excluded or attempt: It is *normally irrelevant that the loss arose because the claimant insured acted negligently. • BUT If the claimant insured *deliberately causes the loss it is *usually NOT covered and may not even be claimable for breach of public policy. • Suicide may be an exception to this in some life policies. -Assisted dying - life insurance be interested in it If the loss was **deliberately caused by a person other than the insured this loss **is usually claimable. • Patrick v Royal London Mutual Insurance Society [2006] --fire and there was a pay out, eng arsen. Insurer pay fire in mill, started insured son. Tried act of son not liable, but this was act accidental. Pay out • Policy terms may require the insured to exercise 'reasonable care': Sofi v Prudential Assurance Co [1993] 2 Lloyd's Rep. 559. --people on holiday, decide take all jewellery with them, kept with them. Saw castle with parked car, left it in car. Came back to find all stolen. They hadn't taken all reasonable steps so no payout Each case will turn out on its own facts • Predictable 'wear & tear' or 'inherent vice' in the goods/property are NEVER covered by **indemnity insurance: no uncertain risk!

Insurance - caution - requirement of good faith

Smith v Bank of Scotland 1997 SLT 1061 Creditor must show good faith - Principle of good faith relationship between the debtor and the proposed cautioner - what it is...relations no list ◦ Smith v Bank of Scotland 1997 SLT 1061 ◦ Wright v Cotias Investments Inc 2000 SCLR 324 --parent and child Case limited by other cases. Extent of duty enough to say: requirement to warn/advise proposed cautioner to take separate legal advice: Forsyth v Royal Bank of Scotland 2000 SCLR 61 need for actionable wrong by the debtor gratuitous obligations: Wilson v Bank of Scotland 2004 SC 153 -- suggests that only applicable in gratuitous situation. Then duty of good faith will apply Smith big deal - but shifted

Consumer credit - pre-2014 licensing system and reform

The FCA now regulates consumer credit Either as a • Small payment institution, or • Authorised payment institution Process of application different in relation to above Consumer credit institutions now authorised under Part IVA of the Financial Services and Markets Act 2000 • Two further (but not only!) sources of rules: • FSMA 2000 (Regulated Activities) Order 2001/544 ("RAO") • FCA Consumer Credit Sourcebook ("CONC"), February 2018 edition: IVA - 1st q is this reg agreement, Q2 exempt agreement - identify where covered! Related Q, is this an exempt agreement When authorised, subject to terms - CONC sourcebook + FSMA 2000

Insurance - insurable interest for life insurance

The assured has an II in his own life: Wainright v Bland (1835). --clean definite insurance in your life • You have an II in the life of your spouse / civil partner (and possibly fiancé(e) - argument betrothed to you, unsure in how work in court): • Griffiths v Fleming [1909] 1 K.B. 805. --assumed in the case of spouses --murder spouse then is not going to happen Normally **no II for other relatives e.g. a child (see below) / a parent: • Worthington v Curtis (1875); --father and son ---Halford v Kymer (1830); -Shilling v Accidental Death Insurance (1858); --son no insurable interest in father, father was pauper -Harse v Pearl Life Assurance [1904] --son no interest in mother (remember point not all cases) (child into parent may have it financial interest for obligation of aliment, but no extra interest beyond that) Might lead to interest (legal claim not sentiment) • Unless a pecuniary interest, a legal right or an obligation confers an II on you: e.g. a creditor may insure the life of a debtor for the amount he is owed • Dalby v India and London Life Assurance (1854); --what happens when PI at one stage, when it goes. Case complicated here Godsall v Boldero (1807); and Simcock v Scottish Imperial (1902) SLT (employer) --butcher for insurance for foreman - f died, butcher paid first not second - sued - court said could not have paid first - was no II • Child has an alimentary right in terms of Family Law (Scotland) Act 1985 People in job or close relation - might be able to have ii monetary at issue

Insurance - formalities formation and repudiation - formation of an insurance contract

The contract requires an **Offer + an **Acceptance and consensus as per ordinary contract law. • If you take out a standard policy from an insurer you deal on and are deemed to agree with the standard terms of that policy G.A. Insurance v Cronk (1901) 17 TLR 233. • If an 'offer' does not receive 'acceptance' there may be a counter offer. --Situation of a counter offer from an insurer is a bit quirky (in English law), as discussed in Birds. --What is clear is if the risk changes, revocation of a counter-offer by the insurer is definitely possible (e.g. remote health issue does not become remote) Canning v Farquhar (1886). --policy wasn't going to start until the first payment had been made. It had not been made, and the health prospects fell somewhat and the insurance co was able to revoke the offer • Acceptance of the offer must usually be communicated to the offeree. - no proper meeting of minds otherwise

Insurance - duration/renewal of the policy

The duration of the insurance policy is determined by its contract terms, **including the right of the insurer to cancel the policy. There need not be any right for the insured to renew the policy. • Cancellation by insurer: policy may require notice or may allow immediate cancellation: --Sun Fire Office v Hart (1889) PC and -Caribbean - couple of fires on sugar cane plantations - vial lightning - insurance to uncut sugar cane - fire, paid out. Another fire, paid out. --insurance after cancel policy. 3rd fire - was it correctly terminated. Look at contract, was legit for cancellation in terms of that contract (if done after fire, would have been too later) --General Accident Assurance v Chandermull Jain (1966). --property insurance flooding near the ganges. Insurance co had got wind of a flood risk and cancelled policy. Flood happend - legit? Yes --not cancel when risk arisen but depending how contract works, then the contract may be arranged for this cancellation • Risk must not yet have occurred + cancellation then insurer must return premiums pro rata --- For life insurance: the practice is different as a right to renew the policy **is assumed if premiums are properly paid as the policy is assumed to be continued not replaced: the insurer may still terminate the policy, 'surrender it early' by paying the surrender value of the policy, refuse to accept premiums and 'close' it early. --but generally life policy allow to keep rolling at least if premiums properly paid • ICOBS 5 specifies good practice re renewal notification or intended termination. Most insurers allow some 'days of grace' post expiry to allow renewal.

Insurance - so think you have an insurance contract, will the insurer pay out?

The insurer refuses to pay.. Insurer need not pay if: • The matter / loss is not covered by the policy • Insurer has no insurable interest • Payment would be contrary to public policy • Policy is void / voidable / repudiated / discharged • Claim is repudiated --- Consumer rights for such non-payment episodes: UCTA? - did not apply to insurance • Now in terms of Consumer rights - CRA not help non-natural persons - to follow natural persons Not much in case law - unlikely to help. New statute not know how it will pan out S 62 - unfair term is not binding on consumer. See 62(4) on what is unfair: significant imbalance to the detriment of the consumer. • Under the CRA, terms relating to the main subject matter of the contract or the price that are prominent to the average customer and transparent (i.e. *plain and intelligible language) will avoid an assessment for fairness

Insurance - how is an insurable interest raised?

The lack of an Insurable Interest is only raised if the **insurer objects to payment under the policy on that basis. • If the insurer **does not object and pays there are no likely sanctions against the insured. • Technically there are some criminal sanctions for breach of statute but they are not pursued in practice.

Consumer credit - entering into agreements - Part V

The rules in Part V 'Entry into credit or hire agreements', Consumer Credit Act 1974 apply to relevant consumer credit and consumer hire agreements: ss. 55; 55C-59 - preliminary matters ss. 60-66 - making the agreement s. 66A- withdrawal from certain agreements ss. 67-73 - cancellation of certain agreements within cooling-off period s. 74 CCA 1974 - exclusions See also: Consumer Credit (Disclosure of Information) Regulations 2010/1013 Consumer Credit (Agreements) Regulations 2010/1014 What point do you provide info before agreement? Disclose before you enter Brophy v HFC Bank [2011] Bus LR 1004 at "By signing the application form and returning it to the bank Mr Brophy applied for credit and offered to be bound by the terms and conditions set out in the form." --court found was a credit agreement here, sign term + sent to bank - decided to be bound by terms (customer application form sent by bank for credit card, info on pack given to customer - wanted to argue debt not enforceable since no agreement + agree not contain terms it needed)

Consumer credit - matters arising during the course of agreements - start Part IV CCA

The rules in Part VI 'Matters arising during currency of credit or hire agreements', Consumer Credit Act 1974 apply to relevant consumer credit and consumer hire agreements: ss. 75 and 75A - connected lender liability ss. 77, 77A, and 77B - fixed-sum credit agreement information, statements, statement of account to be provided on request s. 78 - running-account credit agreement information s. 78A - interest rate change information s. 79 - hirer information s. 84 - misuse of credit (see also s. 66) ss. 97 and 97A - early payment and partial payments information --when actually in the agreement/accepted before

Supply and sale of goods - Non‐consumer sales - seller's remedies - self help remedies (DOUGLAS CASE - NOT IN REASONABLE TIME)

The seller can take steps relating to the goods if, in terms of s 38, the seller of the goods is 'unpaid'. Described as 'against the goods'. Unpaid when **'the whole of the price has not been paid'. -- • Lien, available when IN POSSESSION: s 41 (Note the rules about stipulations as to credit.) Stoppage in transit, available when possession parted with by seller but before the buyer takes delivery where the buyer becomes insolvent (as defined in s 61(4)). [Neither of these rights affected by a sub‐sale by buyer - s 47.] Rescission/re‐sale (note provisions about perishable goods) - s 48.

Insurance - examples of specific words to insurance industry/descriptions Can't insure against the nature of the produce - wear and tear will happen --e.g. not be able to insure against a steak from going off - it will have an inherent vice --insurance of life stock should be okay

Though a description of cover such as 'Comprehensive' is deemed to be marketing, the wording 'All risks' DOES indicate prima facie that all accidental losses concerning the property are covered (except 'wear & tear' and 'inherent vice'). • 'Fire': no technical meaning but requires ignition: • Austin v Drewe (1816): Sugar Refinery - heat damage? --vent to open to keep off heat, open sometimes and not others. It melted sugar, covered by fire but no heat - no claim allowed • Harris v Poland [1941] 1 KB 462: non-accidental fire? --someone hidden valuables in the grate under a coal fire and forgot. Lit fire but was able to claim • Everett v London Assurance (1865): Lightning damage itself is not fire damage BUT if the lightning causes a fire this MAY be treated as covered fire damage. --gunpowder explosion, atmospheric disturbance not covered by fire • 'Accident'? Are unintentional acts covered? (Note **different contexts of 1st and 3rd party cover.) --- 'Accident' in 1st party cover = an injury that arose unnaturally from an unexpected event regardless of any negligence by the insured. • Cornish v Accident Insurance Co (1889) --accident when he was hit by train when crossing main line? No pay out • De Souza v Home and Overseas Insurance Co [1995] --someone who got heat stroke and died - not classed as an accidental bodily injury • MacLeod v New Hampshire Insurance Co 1998 SLT 1191 --threw a tyre on the back of truck, and in doing so put back out. Situation of payout? Normal, it was an accident • 'Accident' in 3rd party cover - we look at this issue from the insured's P.O.V. as for the victim of the accident nearly all such injury will be accidental. • If the loss arises from natural causes (which will be expressly excluded anyway) it will NOT be accidental. • Dhak v Insurance Co of North America [1996] 1 W.L.R. 936 death was a natural and direct consequence of excessive alcohol. --alcoholism to relieve pain after back injury, died in sleep. Death by acute alcoholism, insurance from 3rd party accident of work was not covered

Supply and sale of goods - What law governs the contract?

Two parts to this question One part of the question relates to attaching a jurisdiction to the contract. •(We are not worried about that is in this course - mentioned here only for completeness) Second part of the question concerns "threshold issues". •Laws typically define the type of transaction they govern. • Lex specialis •Sale of Goods law has the transfer of "goods" as a threshold requirement. • What are goods? - corp moveables, digital no

Insurance - new law - Insurance 2015 Act, non-consumer - Business insureds?

Unsurprisingly, less generous than the insurance provisions concerning consumers. • New duty is to provide a "fair presentation of the risk". • SLT (News) article (by me), and blog post and associated article by an alumna of this course, on the overlooked(?) category of micro-businesses

Insurance - purpose

Very important commercial sphere of activity, regulated by a mixture of: common law; and statutory regulation (contracts between insurer and insured person) Purpose • Insured party seeks to protect herself against the occurrence of a particular misfortune or particular risks. • The nature of that protection is regulated by the terms of the insurance contract*. • The crucial point is that the insured will be safeguarded in the event that the perils or risks described in the insurance contract occur

Supply and sale of goods - unascertained goods, scots law

Why was there not an issue about ascertainment in Scots common law? (What was needed in Scots common law that meant the issue simply could never arise?) > To pass property needed physical delivery. Not till 1893 Act idea transfer of property but part delayed. *Needed the physical transfer for ownership to pass - so had to identify goods, so ascertainment never came up

Insurance - part 2 of II -insurable interest for property insurance

Without an **ownership interest in the property you **may have no insurable interest in Scots law: • Macaura v Northern Assurance Co [1925] AC 619 --Classic case - separate legal personality of companies - individual transfer of timber to co, took out insurance policy co and did not change details. Insurance policy to his timber not company timber --no insurable interest in timber when burnt down • Arif v Excess insurance Group 1987 SLT 473 --same principle • Cowan v Jeffrey Associates 1998 SC 469 --same principle May not be refused: • A possessory interest in immoveable property can suffice **IF the possessor has rights of enjoyment in that property **OR if he may be liable for losses / damage to it... (insurance about risk - can transfer risk) • but only to the value of possessory rights: • Fehilly v GA 1982 SC 163. --the extent of loss could be insured for • Aberdeen Harbour Board v Heating Enterprises 1990 SLT 416 --fire case -nothing toward, duriety.

Insurance - insurable interest - the problem

Without an insurable interest the policyholder and the Insurer are effectively gambling (possibly in very bad taste): • should courts be required or allowed to enforce such agreements? aka a policyholder would be able to take out a contract in relation to a risk nothing to do with them - something like wagering, might be in very bad taste -- More on the problem Scots law used to refuse to enforce wager contracts: Bruce v Ross (1787) Mor 9523. • Despite rule about wagers in E & W, authority that insurance contract enforceable if the Insured could prove his financial "loss": Sadler's Co v Badcock (1743). --to do with a fire policy + propriety interest - clear case for insurable interest • Statute intervened: • Marine Insurance Act 1745 & Life Assurance Act 1774 - 75 superseded so focus 74 ---74 - see insurable interest there • S.18 Gambling Act 1845 made wager contracts null and void in E&W (Gambling Act 2005, s 335 abolished the nullification). --gambling reg fro and back over the years - 2005 change a little over wager - focus on insurance side here • 1906 MIA s 4 & s.5(2), s.6. --explains how insurable interest works - has had a wider influence besides marine --look to see what it says Insurable broker - not the mischief targeted • NB Agents may act for Principals + it is lawful to assign the benefits of an insurance policy to a person with no II. More examples: Consider Accident insurance: Can I insure your legs so that I am paid if you suffer an injury to them? ---imagine insurer x player for football not injured legs - that kind of interest? Insure celebrities? Can insure yourself, but others? • Consider life insurance: Can I insure your life and collect when you die? --if yes, what policy problems here? Walk by cliff - the MISCHIEF being targeted • What if the answer is "No"? • What might a positive answer provoke? Can have insurable interest with other

Insurance - give the words their ordinary meaning

Words will usually be given their *ordinary meaning: • Thompson v Equity Fire Insurance Co [1910] A.C. 592 --Fire policy exempted liability if petrol 'stored or kept in building insured'. --there the use of gasoline for cooking, not enough to trigger this exemption, risk still covered. • Leo Rapp Ltd v McClure [1955] 1 Lloyd's Rep. 292 --quantity of metal insured against theft 'whilst in warehouse' was not covered on a lorry parked inside a locked compound lacking a roof. - • Motor insurers exempt liability if vehicle is 'unattended'. • Langford v Legal and General [1986] 2 Lloyd's Rep. 103 --car parked in drive that was visible from kitchen window. Left attention - not on facts • Gordon Leslie Ltd v General Accident 1998 SLT 391 --car with keys in vehicle, fleet of vehicles kept in locked compound. Left keys in to allow quick movement in the event of the fire. Policy to leave keys in when building locked for the night. Here the vehicles were insured --if left in highway with keys, it would have been problematic • Hayward v Norwich Union Insurance [2001] EWCA Civ 243 --attempt to stop putting silly claims. Person parked porche, go to pay the fuel. It was not covered, could have activated immobilizer

Insurance - caution - formation

Writing? Maybe, if... ◦ ROW(S)A s 1(2)(a)(ii). ◦ Regulated Agreement under the CCA 1974, s 105(1). --Gratuitous unilateral obligation not made in course of business, should put in writing due to ROW says. --Need it where matter CCA 1974 of regulated activity been guaranteed then need in writing, if not then not enforceable Acceptance? Accessory nature, so there must be something to guarantee. How much liability? That can be attached to be guaranteed, that will depend on the arrangement Proper or improper caution? --proper - does not give you a standalone need to pay in money, improper how it is constituted is such that it is not excessive on the debt and so can compel payment from cautioner 2 differences - 1 main one is set up improper then will not get benefit of division ◦ Improper if a standalone, independent obligation.

Insurance - making a claim: what does the policy say?

You *must give the insurer notice of the *fact of the loss (or of any 'event' if the policy is for 3rd party cover - not you suffer loss) by the **method specified in the policy and within any time limit specified by the policy. Failure to do so *might lead to the claim being rejected by the insurer. • You must also provide **particulars of the circumstances of the loss or 'event' in accordance with the claim form provided by the insurer. • This may include data required by the insurer to assess the claim or loss e.g. For fire insurance over business premises and stock-intrade, the accounts and / or business bank statements: • Welch v Royal Exchange Assurance [1939] initial refusal = claim lost. --tardiness in terms of providing info, loss claim because of it. • Is there a need for any further cooperation by the insured? • London Guarantee v Fearnley (1880) refusal to prosecute embezzler = claim lost.

Insurance - cover notes/temporary cover

You may receive temporary cover from an **Agent of the insurer when you make your proposal - this cover note **IS a contract / insurance policy albeit of limited duration - it is unlikely that the Agent's cover notes will fail to bind the insurer as against the insured. • A 'cover note' may be oral. Disclosure rules by the insurer *do apply to cover notes. What if the temporary cover is for a period after the end of an existing policy? Taylor v Allon [1966] --Policy expired but gave 15 days cover if insured renewed with same insurer: was he covered by this 15 days when he switched insurer with effect from the end of the 15th day? --example of what not to do in period when can renew. On 15 day grace period to renew insurance, he was arrested without insurance - not have insurance Gaps in cover - be careful, temp cover at end of a policy year has to be carefully checked • Insurer must take care that its standard terms are properly incorporated into the cover note: this will NOT be assumed. • If the cover note is oral do terms in a later paper version supersede it? --depend on term of contract • Cover notes end by: • expiry of temp period, • replacement with a new policy, or • the operation of an express terms allowing such cancellation by the insurer when excercised

Supply and sale of goods - unascertained goods - rule 5(1) - assent

a) Unconditional appropriation b) Assent of non‐appropriating party can be express or implied, and pre‐ or post‐appropriation

Consumer credit - matters arising during the course of agreements - misuse of credit cards

a. Acceptance of credit-tokens s. 66 Consumer Credit Act 1974 (1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him. (2) The debtor accepts a credit-token when— (a) it is signed, or (b) a receipt for it is signed, or (c) it is first used, either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it. --q when debtor liable use cred token? Is debtor liable in particular uses? b. Misuse of credit-tokens s. 84 Consumer Credit Act 1974 (1) Section 83 does not prevent the debtor under a credit-token agreement from being made liable to the extent of £50 (or the credit limit if lower) for loss to the creditor arising from use of the credit-token by other persons during a period beginning when the credit-token ceases to be in the possession of any authorised person and ending when the credit-token is once more in the possession of an authorised person. (2) Section 83 does not prevent the debtor under a credit-token agreement from being made liable to any extent for loss to the creditor from use of the credit-token by a person who acquired possession of it with the debtor's consent. --difficult when c misused - c not liable for loss by person authorised, e.g. credit card stolen. Debtor liable for loss to creditor where cred token used with debtor permission

Consumer credit - entering into agreements - cancellation - 1. cancellable agreements and notice

a. Cancellable agreements and notice s. 67(1) Consumer Credit Act 1974 ...a regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator... Duty to give notice of cancellation right: s. 64(1) CCA 1974 Moorgate Services Ltd v Humayun Kabir 1995 WL 1082221 "One of the objectives of the Crowther Report and the Consumer Credit Act was to reduce that stark contrast between exact compliance with the Act and any non-compliance. In general, where the Act has not been complied with, the court has the power to order that the agreement may nevertheless be enforced. But as I have said, that power does not exist where the noncompliance consists of failure to give notice that an agreement is cancellable."

Consumer credit - matters arising during the course of agreements - connected lender liability

a. Section 75 CCA --looking at d-c-s agreement. Don't get money back from person sold to you (since liquidated) --you have a claim against card issuer as IF they were the seller The cred + sup made joint and severably liable for say faulty/seller misrep of nature of goods --creditor not left without a remedy under sub 2, entitle to be indemnified by supplier s. 75 Consumer Credit Act 1974 If the debtor under a debtor-creditor-supplier agreement falling within section 12(b) or (c) has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor. (2) Subject to any agreement between them, the creditor shall be entitled to be indemnified by the supplier for loss suffered by the creditor in satisfying his liability under subsection (1), including costs reasonably incurred by him in defending proceedings instituted by the debtor. [...] (4) This section applies notwithstanding that the debtor, in entering into the transaction, exceeded the creditlimit or otherwise contravened any termof the agreement. Claim against creditormust be a 'like claim' : s. 75(1) CCA 1974 Durkin v DSG Retail Limited and another (Scotland) [2014] UKSC 21 at [19]-[21], Lord Hodge "[I]t is consistent with the ordinary meaning of the words of )section 75(1) : they give the debtor who has a claim against a supplier a "like claim" against the creditor. Thus a debtor, who has a right of action against the supplier for misrepresentation or breach of the contract of supply, can sue the creditor for that misrepresentation or breach of the supply contract. In other words, the creditor is concurrently liable for the supplier's breach. Secondly, it is consistent with that concurrent primary liability that the creditor and the supplier should be jointly and severally liable to the debtor. [...] Thirdly, the creditor's entitlement to indemnity from the supplier under subsection (2) is consistent with his incurring of concurrent liability for matters which he cannot control. Fourthly, my view matches the relevant recommendation of the Report of the Committee on Consumer Credit chaired by Lord Crowther in 1971 (Cmnd 4596), ...(paras 6.6.24-6.6.31)... Fifthly, section 75 also applies to an unrestricted-use credit agreement..." --good example claim against creditor must be a LIKE claim --Mr D in 1998 of Aerdeen purchase a laptop to purchase enter d-c-s agreement. Takes it have, day after reject computer since not conform to contract. Computer co reject his attempt to rescind in meantime HSC bank treat him default of loan = credit agencies told damage to his credit ratings. -court to sue for damages. Entitle to rescind contract? YES but by time UK supreme court won - 5 points

Insurance - caution - effect of misrep etc

by the creditor ◦ material misrepresentation by creditor inducing contract of caution --can be VOID Smith v Bank of Scotland (1829) 7 S 244 --Tells us that Royal Bank of Scotland v Ranken (1844) 6 D 1418 Young v Clydesdale Bank (1889) 17 R 231 Does not traditional extent to a positive obligation of disclosure of creditor - but later case Smith v Bank of Scotland 1997 SLT 1061 --important what the creditor needs to do before cautioner obligations constituted --CAN BE AN ISSUE ◦ standard vices can come into play - undue influence; force and fear; facility and circumvention; error --might kick in with caution obligation - by the debtor ◦ traditional approach - usual rules of contract apply - debtor not normally that involved ◦ Smith v Bank of Scotland 1997 SLT 1061 - situations of principal debtor lean on cautioner, something court take into account --Big case - someone party to a marriage who had been asked to guarantee the business debts of the other partner. Developments eng + wales was offered to less bus savy part of couple, took a while to get through to scots law --when did HOL said we are going to say that there is a duty of good faith on creditor to ensure that the weaker of the parties, more influence, have been treated properly by creditor

Insurance -Denying a Contract / Claim

other reasons why insurer may pay out, stipulations in contract give insurer chance not pay out in event claim these conditions not complied with Insurance terms called 'conditions' will offer a potential to the insurer to repudiate the contract if they are so drafted as to be suspensive conditions (or conditions precedent) to the insurer's liabilty to any claim, and are then breached by the insured, • but only if there is a causal connection between the breach of condition and the loss. [NB consumer protection rules could apply.] A condition may also be used to delimit the risk • Such a condition will only subject the insurer to liability on the risk if the suspensive condition is (or continues to be) complied with by the insured. e.g. To maintain / regularly service a boiler.

Consumer credit - matters arising during the course of agreements - rights to information - b. running account credit agreement

s. 78(1) Consumer Credit Act 1974 ...after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,— (a) the state of the account, and (b) the amount, if any currently payable under the agreement by the debtor to the creditor, and (c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

Supply and sale of goods - Consumer Rights Act 2015 - satisfactory quality - how do you measure quality? and digital content quality?

quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods— •fitness for all the purposes for which goods of that kind are usually supplied; • appearance and finish; • freedom from minor defects; • safety; • durability. (FOR EXAM - state if apply analogously SGA + CRA similar here, state which!) -- How do you measure quality of digital content? >quality of digital content includes its state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of digital content— •fitness for all the purposes for which digital content of that kind is usually supplied; • freedom from minor defects; • safety; • durability (NOT appearance and finish)

Insurance - warranties recap

recap warranties: A warranty in insurance law is effectively a promise made by the insured to the insurer. • Must be strictly complied with: De Hahn v Hartley (1786) • AND section 10: • Any rule of law that breach of a warranty (express or implied) in a contract of insurance results in the discharge of the insurer's liability under the contract is abolished. • De Hahn would be decided differently post 2016 -- Warranties and other terms: A warranty can still be created in an insurance contract. But stop them automatically • (But not via a basis of contract clause, abolished by CIDRA (for consumers) and IA.) • Incidentally, that cannot be contracted out of...

Supply and sale of goods - seller's title - exceptions to nemo dat - 2

s 2(1) Factors Act 1889 (as applied to Scotland by Factors (Scotland) Act 1890) - mercantile agent. • A mercantile agent (defined in s 1) can pass a good title to the buyer. • 'where a mercantile agent is, with consent of the owner, in possession of the goods... any sale... made by him when acting in the ordinary course of business of a mercantile agent... be valid as if it were expressly authorised by the owner of the goods.' If have your goods title passes if they sell them

Consumer credit - regulated activities - relating to size/linked to other agreements (form contracts can take) - multiple agreements

s. 18 CCA 1974 (1) This section applies to an agreement (a "multiple agreement") if its terms are such as— (a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned [subs. (2) applies: SEPARATE AGREEMENT], or (b)to place it, or a part of it, within two or more categories of agreement so mentioned. [subs. (3) applies: AGREEMENT IN EACH OF THE CATEGORIES] Agreements where parts of it may or may not be regulated by CCA. Elements of different categories. --if agreement can be divided into two parts, each be regulated as consumer agreement - if not divisible.. Heath v Southern Pacific Mortgage Ltd [2010] 2 WLR 1081 at [41] --loan of money by lender, existing loan then additional loan. Agreement into two parts, possession order. 2 loans - one restricted, another not. Courts refused defendant - need for disparate categories - this was one of agreement. Single agreement, not reg so get no protection "The starting point is that it is from the terms of the agreement that one must find out whether the agreement is one under which there are two or more parts, in different categories, or whether it, or part of it, falls into two or more categories. It is not correct to start from the proposition that more than one disparate category is concerned, and to conclude from this that the agreement must fall into two or more parts."

Consumer credit - regulated activities - relating to size/linked to other agreements - linked transactions

s. 19(1) CCA 1974 A transaction entered into by the debtor or hirer, or a relative of his, with any other person ("the other party"), except one for the provision of security, is a linked transaction in relation to an actual or prospective regulated agreement (the "principal agreement") of which it does not form part if— (a) the transaction is entered into in compliance with a term of the principal agreement; or (b) the principal agreement is a debtor-creditor-supplier agreement and the transactionisfinanced, orto be financed, by the principal agreement,or (c) ...suggesting it to the debtor or hirer, or his relative... (i) to induce the creditor or ownerto enterinto the principal agreement, [...] Concerned particular activities to a regulated activity --to ensure CCA rules evaded, that no CC agreement so no rules. Not every agreement not linked. Linked - insurance agreement. --Only be a linked agreement if enter in compliance with a term of principal agreement or a principal is d-c-s and transaction financed? --When all happen? Principal agreement first enter, then linked transaction e.g. Citibank International v Schleider 1999 WL 249853 --Q agreement was linked? No mortgage not linked transaction. Loan agreement not unless enter in compliance --courts say why we have rules "The purpose of the linked transaction provision in s. 113(8) is to catch a case where, in the main credit transaction, the creditor would have liked to include some element, to the disadvantage of the debtor, but could not include it because of the restrictions in the Act. So he puts it in a linked transaction instead, hopingin thatway to getroundthe Act.[...] Second, the use in s. 19 (the definition of "linked transaction") of the term "principal agreement" implies that, in the contemplation of the draftsman, the linked transaction would be subordinate or ancillary to the principal agreement.

Consumer credit - entering into agreements - disclosure of information

s. 55 Consumer Credit Act 1974; r. 3(4) Consumer Credit (Disclosure of Information) Regulations 2010/1013 ("DIR") Credit information includes: • Type of credit • Identity and geographical address of the creditor • Total amount of credit to be provided under the agreement and conditions governing draw down • Duration of agreement • Rate of interest charged • Any obligation to enter into ancillary agreement (e.g. insurance) Template of reg 8 shown on slide Circumstances not do info in this extent - selling by phone reg. 4(1) DIR Exclusions e.g. land exclusionsin r. 2 DIR Effect of breach Creditor will need court order to enforce agreement: s. 55(2) CCA 1974

Consumer credit - licensing under FSMA - authorisation under Part IVA - must the activity be authorised? or is it exempt?

s. 55E(2) FSMA The FCA may give permission for the applicant to carry on the regulated activity or activities to which the application relates or such of them as may be specified in the permission. Need to satisfy the Threshold Conditions - s. 55B FSMA See Sch. 6 paras 2A-2G FSMA, includes: • Being a 'fit and proper person' • Having a suitable business model for the regulated activities • Having appropriate resources to undertake the regulated activities Can firm not + abide by reg activities? Not just about individual firm but integrity of financial system e.g.Koksal v FCA [2016] UKUT 192 (TCC) at [71] --Dr Kokosal someone carrying debt admin/counselling activities, covered by regulations. Refusal to extend authorisation of these activities. Upheld suspension - refer to supervised of *firm and regulator =supervision model "[T]he supervision model applying to a firm relies on the firm being open and cooperative with its regulator, there will be serious concerns as to whether such a firm can be authorised where it has demonstrated a lack of cooperation during the authorisation process."

Consumer credit - entering into agreements antecedent negotiations

s. 56(1)Consumer Credit Act 1974 ...any negotiations with the debtor or hirer— (a) conducted by the creditor or owner in relation to the making of any regulated agreement... s. 56(4) Consumer Credit Act 1974 ...antecedent negotiations shall be taken to begin when the negotiator and the debtor or hirer first enter into communication (including communication by advertisement), and to include any representations made by the negotiator to the debtor or hirer and any other dealings between them. --what happen if negotiations prior to enter agreements - conducted by creditor - makes creditor **liable for the actions of their AGENT. --Matter if misrep by negotiator that you enter on. Issue when negotiations start - when negotiation of debtor and neg first contact. Who holds liability rep breach?

Consumer credit - entering into agreements - antecedent negotiations (when void)

s. 56(3)Consumer Credit Act 1974 An agreement is void if, and to the extent that, it purports in relation to an actual or prospective regulated agreement— (a) to provide that a person acting as, or on behalf of, a negotiator is to be treated as the agent of the debtor or hirer, or (b) to relieve a person from liability for acts or omissions of any person acting as, or on behalf of, a negotiator. --consequences of non-compliance make on agreement VOID --Debtor may may be able to recover damages caused by misrep UDT v Whitfield [1987] CCLR 60 --lots of parties - purchase of car to trade with another, organising + financing too. Garage provide take 1 car for another finance purchase of car. Also offer to pay off Mr W debt on first car. --Garage liquidation + not pay UDT. Sue no garage but Mr W instead. But all one transaction, not anything with him. Promise you did, for finance to deal. Reps continued, finance to indemnify Mr W. See also: Forthright Finance Ltd v Ingate 1997 WL 1105506, --was one transaction of 1 car for another- Henry LJ "[T]he law is plain enough: one simply has to enquire whether all the negotiations form part of the one transaction as a matter of fact."

Consumer credit - entering into agreements - withdrawal 1. notice

s. 57(2) Consumer Credit Act 1974 The giving to a party of a written or oral notice which, however expressed, indicates the intention of the other party to withdraw from a prospective regulated agreement operates as a withdrawal from it. Applies under s. 57(3) CCA 1974 to: • Creditor (consumer credit) or owner (consumer hire) • Agent e.g. credit broker who negotiated in antecedent negotiations • Negotiator in the course of business s. 66A(1) and (2) Consumer Credit Act 1974 (1) The debtor under a regulated consumer credit agreement, other than an excluded agreement, may withdraw from the agreement, without giving any reason, in accordance with this section. (2) To withdraw from an agreement under this section the debtor must give oral or written notice of the withdrawal to the creditor before the end of the period of 14 days beginning with the day after the relevantday. Relevant day defined: s. 66A(3) --withdraw from perspective agreement - all info but choose not to go ahead --s57 allow withdraw BEFORE execution --Withdraw of any point as long as you give notice, written or oral --66A - may withdraw from actual agreement offer enter into it, don't have to give any reason for it. Not apply to excluded reasons/land/credit exceed an amount/ As long as notice after 14 days oral/written with day after relevant day --effect of withdraw - like it was NEVER ENTERED into - s66A, not need to pay compensation just because withdraw but if money due --Money due - within 30 days of notice?

Consumer credit - entering into agreements - form and content of agreements

s. 60(1) Consumer Credit Act 1974 [Treasury to make rules...] (a) the rights and duties conferred or imposed on him by the agreement, (b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement), (c) the protection and remedies available to him under this Act, and (d) any other matters which, in the opinion of the Treasury, it is desirable for him to know about in connection with the agreement. --Moving from preliminary matters to how agreements made/look like --regulations are highly prescriptive for form. Refers to treasury rules but also FCA. --rules about rate, total charge of credit, remedies/protection available under CCA Set out in sch. 1, Consumer Credit (Agreements) Regulations 2010/1014 • Parties • Duration • Credit amount • Credit limit • Interest rate • Total amount payable (33 items of info)

Consumer credit - entering into agreements - form and content of agreements (when not properly executed) In margin of paper: (agreement just ancillary - specifically a CCA of kind of cc, relevant rules apply to each particular part if severable - credit card exception can't put amount since not like that)

s. 61(1) Consumer Credit Act 1974 A regulated agreement is not properly executed unless— (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signedin the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied terms, and (c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. --appropriate singing, have all relevant terms, needs to be legible when signed - 1. prescribed form, 2. Be signed, 3. Embody all terms 4. Needs to be legible --if are missing, inappropriately executed, need to go to court to get order Effect of improper execution Creditor will need court order to enforce agreement: s. 65(1) Consumer Credit Act 1974

Consumer credit - entering into agreements - copies of the agreement

s. 61A Consumer Credit Act 1974 (1) ...the creditor must give a copy of the executed agreement, and any other document (2) [unless] (a) a copy of the unexecuted agreement (and of any other document referred to in it) has already been given to the debtor, and (b)the unexecuted agreement is in identical terms to the executed agreement. --creditor must give copy of executed agreement + or doc referred to in agreement to debtor. --copies of overdraft agreement on execution/before made to debtor --not comply then go to court for order to enforce agreement --FCA can use disciplinary powers - breaches may lead entire agreement to be an unfair relationship Effect of failure to provide copies Agreement will not be properly executed: s. 61A(5) Consumer Credit Act 1974 Excluded agreements ss. 62 and 63 CCA 1974

Consumer credit - entering into agreements - cancellation - 2. cooling off period

s. 68 Consumer Credit Act 1974 - cooling off period The debtor or hirer may serve notice of cancellation of a cancellable agreement between his signing of the unexecuted agreement and— (a) the end of the fifth day following the day on which he received a copy under section 63(2) or a notice under section 64(1)(b), or (b) if (by virtue of regulations made under section 64(4)) section 64(1)(b) does not apply, the end of the fourteenth day following the day on which he signed the unexecuted agreement --provided here, debtor may sue notice of cancellation at end of 5th day --effect of cancel - cancel agreement and any linked transaction and ti withdraw any offer to enter into a linked transaction

Consumer credit - entering into agreements - exclusions

s. 74(1) Consumer Credit Act 1974 Except as provided in subsections (1A)-(2), this Part [ie Part V] does not apply to: (a) a non-commercial agreement; (b) a debtor-creditor agreement enabling the debtor to overdraw on a current account; (c) a debtor-creditor agreement to finance the making of such payments arising on, or connected with, the death of a person as may be prescribed; or (d) a small debtor-creditor-supplier agreement for restricted-use credit.

Consumer credit - matters arising during the course of agreements - rights to information a. fixed sum credit agreement

s. 77(1) Consumer Credit Act 1974 ... [upon receiving] a request in writing ... from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,— (a) the total sum paid under the agreement by the debtor; (b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and (c) the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. --what info consumer can expect, info lender duty to provide - need a request in writing to get info. The can get particular info such as total amount payable but not yet paid + when due --Not always straightforward - debtor may argue extent given and nature challenge Carey v HSBC Bank [2010] Bus LR 1142 at [114] --focus on carrey part. Sought copy of execution agreement and then argue bank not give true copy of that agreement - alleged problem provided info but not in prescribed form. --sought injunction from bank to enforce, bank had made negative reports of credit rating about her and she thought not right --Key point - is what any info contained subject to controversial point to form it takes should not subject the debtor if agreed --COURT REJECT - higher than not just providing info, not itself "[T]he creditor may decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. I do not intend here to prescribe the precise form of the reconstituted agreement, nor should I seek to do so. The key point is what information it should contain, subject of course to the uncontroversial point that its format should not be such as to mislead the debtor as to what he agreed to. "

Consumer credit - matters arising during the course of agreements - rights to information a. fixed sum credit agreement - provide statement

s. 77A Consumer Credit Act 1974 (1) The creditor under a regulated agreement for fixed-sum credit must give the debtor statements under this section. (1A) The statements must relate to consecutive periods. [...] (1C) No such periodmay exceed a year. [...] (1E) Each statement under this section must be given to the debtor before the end of the period of thirty days beginning with the day after the end of the period to which the statement relates. [...] Note - must also be provided on request: s. 77B CCA 1974 --relates t creditor duty to provide statement - have to provide statements to your debtors over course of agreement -- --not comply to small/non-commercial agreements. Not current bank accounts withdrawn but if overdraft it applies See form of words in sch.1 Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007/1167 Effect of non-compliance: s. 77A(6) CCA 1974 JP Morgan Chase Bank v Northern Rock [2014] 1 WLR 2197 at [48] --issue period of non-comp, bank not complying. Period of non-comp is the last day that you could have possibly been compliant

Consumer credit - matters arising during the course of agreements - rights to information - c. interest rates

s. 78A(1) Consumer Credit Act 1974 Where the rate of interest charged under a regulated consumer credit agreement, other than an excluded agreement, is to be varied, the creditor must inform the debtor in writing of the matters mentioned in subsection (3) before the variation can take effect. [...] (3) The matters referred to in subsections (1) and (2)(a) are— (a) the variation in the rate of interest, (b) the amount of any payments that are to be made after the variation has effect, if different, expressed as a sum of money where practicable, and (c) if the number or frequency of payments changes as a result of the variation, the new number or frequency. --q to charges of interest rate. Consumer should know interest + when pay has changed Basic rule - creditor must inform the debtor of variation in writing unless cc agreement already provides for variation

Consumer credit - matters arising during the course of agreements - rights to information - d. hirer information

s. 79 Consumer Credit Act 1974 The owner under a regulated consumer hire agreement, within the prescribed period after receiving a request in writing to that effect from the hirer and payment of a fee of £1, shall give to the hirer a copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the owner showing, according to the information to which it is practicable for him to refer, the total sum which has become payable under the agreement by the hirer but remains unpaid and the various amounts comprised in that total sum, with the date when each became due.

Consumer credit - consumer credit agreement

s. 8 CCA 1974 (1) A consumer credit agreement is 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. [(2) repealed] (3) A consumer credit agreement is a regulated credit agreement within the meaning of this Act... An example: Gym membership payment: not credit Cash - money in form Financial accommodation - not clear in addition to cash loan in s9

Consumer credit - what is credit?

s. 9(1) Consumer Credit Act 1974 In this Act "credit" includes a cash loan, and any other form of financial accommodation. Main categories: • Vendor credit (purchase of goods related) --e.g. hire purchase, credit sale • Lender credit (money lent by bank to individual not linked to any good or service, who repays) --e.g. bank overdraft

Supply and sale of goods - Consumer Rights Act 2015 - Goods to match a model seen or examined

s.14 (This is slightly different to a sample, covered in s 13 CRA and s 15 SGA). Specific item which customer saw on trial or had a demonstration of in a shop might not be the one supplied. Implied term that goods will match the model, unless any difference is flagged. model vs sample transaction - when model, trader keep it. If sample, be destroyed or part of what the consumer takes away

Supply and sale of goods - Consumer Rights Act 2015 - consumer remedies (s19-28) - RIGHT TO REPAIR OR REPLACEMENT

s23 When might the buyer use this? Buyer may opt for either a repair or replacement, or Buyer may have her hand forced because 30 days have expired and she no longer has the comparatively clean short‐term right to reject available to her.

Supply and sale of goods - Consumer Rights Act 2015 - On‐premises info includes...

the main characteristics of the [goods, services or digital content], to the extent appropriate to the medium of communication and to the [goods...]; the identity of the trader (such as the trader's trading name), the geographical address at which the trader is established and the trader's telephone number; the total price of the [goods...] inclusive of taxes, or where the nature of the [goods...] is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;... Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134).

Insurance - Caution (also known as Guarantee/Surety) - outline

the nature of cautionary obligations parties constitution and form proper and improper caution effect of misrepresentation etc requirement of good faith extent of cautioner's liability rights of cautioners termination unfair contracts legislation

Insurance - the current law - non-life

• For a marine policy, see s.4 MIA 1906: if no II **at time of loss policy **void (not illegal). --at time of loss no interest NOT inception 2nd key difference - policy is void rather than illegal (old statute - **ignored in insurance industry - repeal has been recommended by the law commissions - not on westlaw) - marine aspects carved out • Policies on goods: Marine Insurance Act 1788 requires that every [marine or] land policy on goods contain the *names of the persons interested therein: the insured must have an II at the *time of loss. • (In theory: in 2013, Law Commissions quoted a Geoffrey Lloyd, who noted that "practice reveals that this legislation has been consistently honoured more in the breach than the observance".) • Policies on Land: Scots law requires the insured has a property interest at *time of loss: • Arif v EIG 1986 SC 317; --fire insurance situation - again no insurable interest in a separate legal personality property - court said go away not care • Cowan v Jeffrey Associates 1998 SC 496. --same issue here Mccora case key here spoken later?

Supply and sale of goods - seller's title + 21(1)

• Implied term - features even if not expressly mentioned in the contract. •The seller represents that she has the right to sell the goods AND no securities/quiet possession. • SGA, s.12; CRA, s.17 S21(1) •'where the goods are sold by a person who is NOT their owner...the BUYER ACQUIRES NO BETTER TITLE THAN THE SELLER HAD...'. •NEMO DAT QUOD NON HABET • No-one can give a better title than the one he has himself.

Practical origins of insurance law

• Insurance law developed in line with risk arising from commercial activities and wagering on the lives of others. • Earliest references via Italianate merchants. • Marine insurance - earliest UK sector. (ships were dangerous endeavours) --Ships, Cargoes, Commercial Ventures --Lloyd's of London - sign bottom of paper, sum of money to pay if something wrong on voyage --All brought together in Marine Insurance Act 1906 1906 act huge influence in other sectors besides marine