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COMMERCIAL AND CONSUMER LAW CONSUMER AND COMMERCIAL Are Scottish bank notes legal tender in the UK? Find out on page 310 If you worked in a restaurant, would you be entitled to customer tips processed on a credit card? Find out on page 323 If you brought something on eBay could you claim your money back from your credit card company if you didn’t receive it? Find out on page 524 If you booked a package holiday and your hotel wasn’t booked when you arrived, could you take any action against the tour operator? Find out on page 418 In Commercial and Consumer Law, a team of specialists draw upon their extensive expertise in this fi eld to provide you with this essential guide to the key legislation and case law relating to both domestic and international commercial transactions. Recognising that commercial and consumer law does not operate in isolation, the book offers not only a scholarly, yet highly readable, account of commercial and consumer law principles, but also highlights the commercial and socio-economic context of the law. To help you get the most from the book, a range of features designed to support you during your study are used throughout including: • Summaries of the essential cases and extracts from key legislative provisions that you will need to draw upon when answering problem or essay questions • Debate and issues boxes to highlight particularly contentious areas of the law and help you refi ne your critical analysis skills necessary for gaining those top marks in exams • Real life examples to illustrate how the law in this area operates in practice • Further reading lists at the end of all chapters point you to relevant academic articles enabling you to delve deeper into the academic debates surrounding the subject COMMERCIAL AND Commercial and Consumer Law is particularly suitable for both undergraduate and postgraduate law students. For the undergraduate student, the text is clear and accessible, and provides a thorough coverage of the law syllabus. For the postgraduate student, there are numerous references provided to guide a deeper research of the subject. ABOUT THE EDITORS ABOUT THE CONTRIBUTORS CONSUMER LAW Michael Furmston is Dean and Professor Chris Willett, Professor of Consumer Law, De Montfort University of Law at Singapore Management David Oughton, Professor of Commercial Law, De Montfort University’s School of Law, and an University Emeritus Professor at the University EDITED BY MICHAEL FURMSTON AND JASON CHUAH Howard Johnson, Senior Lecturer, University of Wales Bangor of Bristol. James Devenney, Senior Lecturer, University of Durham Jason Chuah is Professor of International Jo Reddy, Adjunct Lecturer, University of Hong Kong Commercial Law at the University of Louise Merrett, Fellow and Lecturer in Law, University of Cambridge Westminster and has held visiting appointments in the UK and elsewhere. Susan Hawker, Principal Lecturer, London Metropolitan University FURMSTON AND CHUAH (EDS) Further your understanding through mylawchamber Visit www.mylawchamber.co.uk/furmston to access regular updates to help you keep up to date with important legal developments in commercial and consumer law. www.pearson-books.com Cover © Bennett Dean; Eye Ubiquitous/CORBIS CVR_CHUA3673_01_SE_CVR.indd 1 29/4/10 13:03:40 Commercial and Consumer Law We work with leading authors to develop the strongest educational materials in law, bringing cutting-edge thinking and best learning practice to a global market. Under a range of well-known imprints, including Longman, we craft high quality print and electronic publications which help readers to understand and apply their content, whether studying or at work. To find out more about the complete range of our publishing, please visit us on the World Wide Web at: www.pearsoned.co.uk Commercial and Consumer Law Edited by: Michael Furmston Dean and Professor of Law, Singapore Management University and Emeritus Professor, University of Bristol Jason Chuah Professor of International Commercial Law, University of Westminster With contributions from: Chris Willett, Professor of Consumer Law, De Montfort University David Oughton, Professor of Commercial Law, De Montfort University Howard Johnson, Senior Lecturer, University of Wales Bangor James Devenney, Senior Lecturer, University of Durham Jo Reddy, Adjunct Lecturer, University of Hong Kong Louise Merrett, Fellow and Lecturer in Law, University of Cambridge Susan Hawker, Principal Lecturer, London Metropolitan University Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 2010 © Pearson Education Limited 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. All trademarks used herein are the property of their respective owners. The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of the Click-Use Licence. ISBN: 978-1-4058-7367-3 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Furmston, M. P. Commercial and consumer law / Michael Furmston and Jason Chuah. p. cm. Includes bibliographical references and index. ISBN 978-1-4058-7367-3 (pbk. : alk. paper) 1. Commercial law–Great Britain. 2. Consumer protection–Law and legislation–Great Britain. 3. Dispute resolution (Law)–Great Britain. I. Chuah, Jason. II. Title. KD1629.F87 2010 346.4107–dc22 2010009903 10987654321 14 13 12 11 10 Typeset in 9/12.5pt Giovanni by 35 Printed by Ashford Colour Press Ltd., Gosport Brief contents Guided tour xii Preface xv Contributors xvi Table of cases xvii Table of statutes xlii 1 What is commercial law? 1 by Michael Furmston 2 Aspects of property, security and guarantees 5 by James Devenney 3 Agency 50 by Jo Reddy 4 Sale of goods 91 by Michael Furmston 5 International sale of goods 234 by Susan Hawker 6 Payment and payment instruments 301 by Jason Chuah 7 Consumer protection 376 by Chris Willett and David Oughton 8 Consumer credit law and regulation 473 by Howard Johnson 9 Commercial mediation, conciliation and arbitration 541 by Jason Chuah 10 Commercial conflict of laws 558 by Louise Merrett 11 Insurance 628 by Michael Furmston References 637 Index 645 v Contents Guided tour xii Preface xv Contributors xvi Table of cases xvii Table of statutes xlii 1 What is commercial law? 1 by Michael Furmston Chapter outline 1 1.1 What is commercial law? 1 2 Aspects of property, security and guarantees 5 by James Devenney Chapter outline 5 2.1 Aspects of property 5 2.2 Possessory security 9 2.3 Non-possessory security 12 2.4 Contracts of guarantee 24 Further reading 48 3 Agency 50 by Jo Reddy Chapter outline 50 3.1 Introduction 50 3.2 Types of authority 52 3.3 Agency without actual agreement 56 3.4 Ratification 63 3.5 Agency relationships 66 3.6 Limitations 68 3.7 Election 74 3.8 Merger 75 3.9 Agent and the third party 75 3.10 The principal and the agent – duties of an agent 78 3.11 Rights of the agent 83 3.12 Termination of agency 85 3.13 Commercial Agents (Council Directive) Regulations 1993 86 Further reading 90 vii CONTENTS 4 Sale of goods 91 by Michael Furmston Chapter outline 91 4.1 Introduction 91 4.2 Types of transaction 95 4.3 Meaning and types of goods 104 4.4 Price 108 4.5 Delivery and payment 114 4.6 Ownership 133 4.7 Non-existent goods, risk and frustration 162 4.8 Defective goods 174 4.9 Exemption and limitation clauses 203 4.10 Remedies 213 Further reading 232 5 International sale of goods 234 by Susan Hawker Chapter outline 234 5.1 Introduction 234 5.2 The matrix of contracts in international trade 242 5.3 The international sale contract 254 5.4 Standard form contracts and shipment terms 260 5.5 CIF contracts 269 5.6 FOB contracts 278 5.7 Remedies 284 5.8 Conclusion 298 Further reading 300 6 Payment and payment instruments 301 by Jason Chuah Chapter outline 301 6.1 Introduction 301 6.2 Money 309 6.3 Payment cards 315 6.4 Funds transfers 324 6.5 Regulation of payment services 328 6.6 Negotiable instruments 334 6.7 Bills of exchange 338 6.8 Cheques 360 6.9 Banker’s draft, counter cheques and travellers’ cheques 366 6.10 Trade finance 367 Further reading 375 7 Consumer protection 376 by Chris Willett and David Oughton Chapter outline 376 7.1 How and why the law protects consumers 376 viii CONTENTS 7.2 Information and cancellation rights 386 7.3 Performance Standards (1) – Implied terms as to goods 393 7.4 Performance Standards (2) – Implied terms as to services 413 7.5 Performance Standards (3) – Liability in tort for defective products 424 7.6 Performance Standards (4) – General product safety and food safety in public law 430 7.7 Unfair terms 436 7.8 Preventive and criminal law regulation of unfair practices 453 Further reading 470 8 Consumer credit law and regulation
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