S.49 S.58(2) states the Court may make an

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S.49 covers a breach of
contract on the grounds of satisfactory quality. S.49(1) imposes a contractual
duty to exercise reasonable care and skill on the trader when providing a
service. To determine ‘reasonable care and skill’, the question is whether
standard business practices were followed such as following better procedures
and carrying out more thorough checks. If they are not, then it is clearly a
breach. However, in the event that they are followed but still problems arose,
and if it is too costly to go beyond that then there is no breach.  The principle in Latimer1 and
Bolam2apply here where respondent
must what the reasonable person would do in the circumstances.

would be easy to establish fault if the supplier has a great deal of control
over the task. For example, if a hotel room is not cleaned properly, it can be
easily established that the unsatisfactory outcome is due to the negligence of
the hotel’s housekeeping staff. The degree of control the staff has over the
process is great, thus it easier to draw inferences to establish negligence. However,
services involving machinery and other technical stuff might be harder. For
instance, the supplier may argue that technical issues with the machinery is
causing the unsatisfactory outcome.

Once breach is established, following
S.53(3), consumer can require the supplier to provide free repeat performance. It
has to be repeated to the extent necessary to complete its performance in conformity
with the contract3
and is given free of charge and within a reasonable time without significant
S.55(4) provides certain issues to be assessed including the nature of the
service and the purpose it was performed. The supplier need not provide repeat
performance if it is impossible.5

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It is clear that the law
confers a legal right to consumers the right to free repeat performance. In
reality, however, this may be difficult to enforce against a trader or
supplier. The consumer then can apply to the court to issue an order of
specific performance. The power to issue a specific performance is
discretionary i.e. S.58(2) states the Court may make an order. This order is issued
in rare cases or when repeat performance would be extremely expensive hence most
of the time Courts are of the view that price reduction or damages are
adequate. This poses a problem if the Courts view this as to allow them to
hardly make the order as the main aim of the CRA is to protect consumers. The
consumers should not be expected to accept the unsatisfactorily done work with
some compensation on the side. The discretion to refuse specific performance
should only be used where the breach does not actually cause significant
economic loss or physical injury to the consumer.

Alternatively, the consumer
can demand a price reduction by an ‘appropriate amount’, as set out in S.56(1).
Following S56(3), a consumer is only entitled to a price reduction where: (a)
because of s.55(3) repeat performance is impossible; or (b) as per S55(2)(a) it
is not done within a reasonable time or without causing significant
inconvenience to the consumer. The reduction may amount to the full amount as
stated in S.56(2). S.56(4) states the partial or full refund must be given
without undue delay and within 14 days, beginning from the day trader agrees to
give the refund. As per S.56(5) and S.56(6) respectively, the trader must
provide refund using the same means of payment and cannot impose any other fee.

1 Latimer v AEC 1953 AC

2 Bolam v Friern Hospital Management Committee 1957
2 All ER 118

S.55(1) CRA 2015

4 S.55(2) CRA 2015

5 S.55(3) CRA

Categories: Management


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