A warranty is a promise, either expressed or implied, about the nature, quality, or performance of the goods. A statement about the value of goods or the seller’s opinion or commendation of the goods does not create a warranty. A buyer cannot hold a seller liable for sales talk. The proprietor stating that the cigars are “just like the great Cuban cigars’ could be decided by the courts that it is simply sales talk. When the contract is based in part on the understanding that the seller will supply goods according to a particular description or that the goods will be the same as the sample or a model, the seller is bound by an express warranty that the goods conform to the description, sample or model. The cigars Arthur bought for his father
The four elements of a contract are the agreement, the consideration, contractual capacity, and a legal object. The oral agreement between Sam and the chain store satisfies the agreement element of a contract definition because when the chain store offered to sell Sam 's invention at their stores, Sam accepted by agreeing to ship 1000 units in exchange. The second element of a contract, the “consideration of each party,” is satisfied because Sam and the chain store have something to give the other (1000 units of the invention in exchange for the exclusive sales of the product at their stores). The third element is “contractual capacity,” which may or may not be fulfilled since we do not know Sam 's age or whether
v Consolidated Edison Company of New York, Inc., Joc Oil is suing for the right to cure. This right happens between merchants when there has been an issue with items purchased, shipped, or received incorrectly. In this case Joc Oil has contracted to purchase low-sulfur oil from one refinery and to sell that oil to Edison. The oil arrives at Edison and is offloaded into Edison’s storage facility, only to find that the oil exceeds the low-sulfur requirements set in the contract. In past transactions Joc Oil has delivered nonconforming goods, or goods that do not meet the requirements under the contract. Edison has previously allowed Joc Oil to cure by allowing them to deliver conforming goods within the contracted time frame. “A cure may be attempted if the time for performance has not expired and the seller or lessor notifies the buyer or lessee of his or her intention to make a conforming delivery within the contract time” (Cheeseman, 2013). In this case we assume that the testing by Edison that reported the goods as nonconforming is accurate. There are some questions that would need to be answered in order to fully and accurately deliver a verdict on this case. The largest question is: Joc Oil has a cure for the shipment expected to arrive within two weeks, is this within the contract timeframe? If this question is a yes then Joc Oil has the rights to cure the issue at hand. If the answer is no, then a breach of contract may be in the works. Due to the fact that Joc Oil has been allowed to cure the issue in the past, there is a pattern of behavior by Edison, to allow Joc Oil the ability to cure. This would put Joc Oil in a position where there is no breach of contract. Joc Oil in this case has the ability and rights to cure for two reasons. The first being the past history, and the second being the right to cure as guaranteed under the
When Marvin Shanken, founder of M. Shanken Communications, launched Cigar Aficionado in 1992, people thought he had lost his mind. Cigarettes were the most popular form of smoking and tolerance for tobacco was at its lowest point ever. Since then, the single-interest niche publication about cigars has turned into a men’s luxury lifestyle magazine with almost 300,000 subscribers and a total audience of over 1.8 million readers per issue. The magazine is given much credit to sparking a great resurgence in cigar popularity throughout the 1990s. Its motto? “The Goodlife Magazine for Men.”
However prior to the modern understanding of Consumer Rights there was a understanding of Caveat Emptor – Buyer Beware –this has been a fundamental premise of consumer wellbeing prior to World War ‖ , relation to transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract . This common law rule assumes that buyers and sellers are in an equal bargaining position. However there has been evident change in consumer rights which have contributed to the precedence of using Caveat Emptor is no longer acceptable, apparent in the case ACCC v Hewlett Packard Australia (HP), illustrated that no longer can a company ...
The ingredients depend on the product that is being made; flavoring and other types of tobacco are some of the ingredients used. Computers in the factory keep track of the types of tobacco and the blends. Moreover, technology and machinery make the cigarettes and other various products. For example, when making cigarettes, the cutting of the tobacco, cigarette paper, and filters are fed continuously through a cigarette making machine (Van Willigin, Eastwood, 1998). Finally, the tobacco is packaged using packing machines. The machines put the products into brand packs, wrap the packs, and then put them into cartons and cases. The manufacturing sites distribute the tobacco to different companies to be sold, in the forms of cigarettes, snuff, cigars, and
The movie The Insider literally provides a seeing glass perspective into the summation of ethical issues in businesses that directly affects the consumers physical and psychological health and the alleged methods that the tobacco company would resort to in order to safe guard itself from litigation and from disclosing information that will adversely affect the sale of its sole money making product yet is ultimately crucial to its customers understanding of the contents of the product that they are purchasing and its implications on their personal health.
A) Monteverdi could seek the following damages for the scenario in question 2: compensatory damages, so that Monteverdi can be reimbursed for the amount she spent on the cheese. In addition, Monteverdi could sue for monetary loss. Monteverdi ran a catering business and a gourmet shop, her business ran on selling only organic food. The purchase of the cheese which was not high quality, would have gone to waste. Previously, Monteverdi gave Malvezzi specific instructions about the grade of cheese that she wanted. Monteverdi may argue that the same implied terms applied to the purchase of the Parmigiano cheese. If this was the case, Monteverdi would also be able to sue for liquidated damages due to Malvezzi breaching the contract they had in place. Finally, Monteverdi has the option of seeking damages for fraudulent misrepresentation. The elements of fraudulent misrepresentations were, 1) a representation was made, 2) it was false, 3), the person who made the representation knew it was false, 4) the plaintiff (Monteverdi) relied on the statements, 5) the plaintiff sued for damages. Malvezzi knew that the cheese he sold to Monteverdi was not the quality she expected, yet he sold it to her in order to keep Monteverdi’s
For the case against Sears, the plaintiff had to prove that there was a breach of implied warranty of merchantability. While the evidence is a little ambiguous in this case it does support a breach of implied warranty against Sears. First the plaintiff determined that the fire was caused by the dryer by bringing in two expert witnesses. A fire expert testified that the fire started directly behind the dryer. In addition, an electrical systems expert testified that the electrical system of the dryer was the cause of the fire based on two reasons. First, two electrical wires were found within the dryer to be brittle and hard, which shows that the wires were subject to heat up to 2,000 degrees.
The tobacco industry seems like a beneficial addition to our economy. It has basically been a socially acceptable business in the past because it brings jobs to our people and tax money to the government to redistribute; but consider the cost of tobacco related treatment, mortality and disability- it exceeds the benefit to the producer by two hundred billion dollars US. (4) Tobacco is a very profitable industry determined to grow despite government loss or public health. Its history has demonstrated how money can blind morals like an addiction that is never satisfied. Past lawsuits were mostly unsuccessful because the juries blamed the smoker even though the definition of criminal negligence fits the industry’s acts perfectly. Some may argue for the industry in the name of free enterprise but since they have had such a clear understanding of the dangers of their product it changes the understanding of their business tactics and motives. The success of the industry has merely been a reflection of its immoral practices. These practices have been observed through its use of the media in regards to children, the tests that used underage smokers, the use of revenue to avoid the law, the use of nicotine manipulation and the suppression of research.
Smoking has been a major part of American culture since the end of the nineteenth century. While it made its most public debut while prohibition of alcohol was going on, it was seen as a negative thing just the same as drinking. With people beginning to feel negatively against smoking, as the same as drinking alcohol, it almost made the activity more popular. At this time there was a “rise in popularity in tobacco, especially in its new and most devious form, the cigarette” (Brandt, p.45).What brand a person smoked was all on preference, but the popularity of them was all on how it was advertised. It was known that a person “buys brands rather than cigarettes and it is the advertising that has built up this prestige in the consumers’ eyes for a particular product (Brandt, p. 78)”. One of the first main brands that became popular was Camel under the company of RJ Reynolds. Camel cigarettes were very successful and their advertisements are more than half the reason for it.
2. In this hypothetical, it seems unlikely that Alston could maintain a standing to sue against anyone of the cigarette manufacturers, individually or collectively. In order to do so, she would have to prove first that she suffered an injury in fact, and even then she would have to prove that the suffered harm is direct, concrete and individualized.
...by consumers. The human race needs to stop viewing the term “ethical” as a black-and-white fact and accept that often ethics is a reflection of opinion. From the business point of view, the production and distribution of tobacco products is ethical. Tobacco is a legal product and a desired one at that. If adults are legally allowed to consume a product and are eager to do so, then companies are going to provide it. From a humane perspective, the marketing and production of tobacco may be unethical; it knowingly harms its consumers and produces a product that purposefully addicts consumers. By asking the question “Are companies in the tobacco industry ethical or unethical?” we are being encouraged to view the topic as a black-and-white argument. The truth of the matter is that no matter which side people choose to argue; in the real world ethics has shades of gray.
The plaintiff firm of surveyors bought a second-hand Rolls Royce from the defendants which developed serious defects after 2,000. It was held that the firm was acting as a consumer and that to buy in the course of a business 'the buying of cars must form at the very least an integral part of the buyer's business or a necessary incidental thereto'. It was emphasised that only in those circumstances could the buyer be said to be on equal footing with his seller in terms of bargaining strength.
For example if a buyer wants to purchase a drilling machine to drill holes in wood and seller is providing him the equipment. Here buyer is relying on the expertise and judgement of seller. But is later the machine is not able to perform them rule of caveat emptor will not apply.
The rationale behind this argument is that the assumption of risk, which derives from the law of tort, indicates the individual should not benefit from his or her own acts that result in harm (Noel, 95). Conversely, one could argue that the manufacturers are selling tobacco for smoking, which means the inference of danger that amounts to an assumption of risk is questionable (i.e. the goods are legal, so there should not be a health punishment for smoking) (Dubois, 25). Nevertheless, whether an activity is legal or not, insurance will not cover all activities. For example, extreme sports are not co...