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Contracting by raised eyebrow

Contracting by raised eyebrow

Marketing Brief

One of the things visitors often notice about Aucklanders is that we raise our eyebrows in greeting when we meet each other. I always put it down to the Polynesian influence – this is a standard greeting technique, and it’s catching. I’ve been doing it all my life, and maybe people do it elsewhere in New Zealand, but I’m not qualified to comment on that.

The other day I walked into the excellent café across the road – best coffee around by 2 points out of 10. Ruth, a fairly recently arrived immigrant who takes the orders, was serving a customer who was fiddling around trying to get his credit card to talk to the reader. Ruth raised her eyebrows. I raised mine.

A contract for the sale of future goods for a price was thus formed. True. Would I lie to you?

Ruth wrote down my usual order – takeaway latté – and (pursuant to the Sale of Goods Act 1908) I had an obligation to pay for the coffee once it was made, and the café had an obligation to deliver the goods into my hands. As the good Act says, a contract of sale may be made in writing or by word of mouth, or may be implied from the conduct of the parties. I think anyone watching us would have agreed that the contract was concluded.

That meant that I was entitled to have the correct quantity of coffee supplied to me (a large takeaway cup) at the time implied into the contract by usage – when David-the-superbarista had made it. Not a small cup, or even a real china cup, not tomorrow. Property passed to me when the lid was put on. I had an obligation to accept the goods, but a right to examine them. All these terms and more are implied into your basic, ordinary everyday contracts of sale of goods, and all can be modified by agreement between the parties or by course of dealings or common usage. You can see why we have the Sale of Goods Act – it fills in all the gaps, and this can be really important when there are no written terms of trade (or even gaps in your terms of trade).

But what haven’t I mentioned? You knew it was coming. Where we have consumer-type goods, the Consumer Guarantees Act guarantees apply instead of the conditions and warranties of the Sale of Goods Act, as long as you are the “consumer” – effectively, the end-user of the product. Not someone who acquires it for resupply in trade or use in manufacture. Yes, businesses can be “consumers” if they are the end-users of consumer goods and services. So I had all the Consumer Guarantees Act guarantees of acceptable quality, fitness for purpose, reasonable correspondence with description, etc and the remedies arising from them, the café being both supplier and manufacturer. But it was a great cup of coffee, so … heck, you have to think of something while you’re waiting for your first coffee of the day. That’s my excuse for being so pathetically legalistic. I clearly need a break.

As this is my last column for 2012, have a great holiday, everyone, and stay safe!

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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