Q1
Issue
Whether
Srgt. Frank Meyers, as a police officer, can rely on his promise to diligently
patrol Ms. Brunt’s neighborhood as a good consideration in exchange for $100?
Rule
Generally, the law does not enforce an
agreement unless there is something given or received for the promise (Twomey
& Jennings, 2011, p.333). It is that something that constitutes
consideration. In the case of Brooksbank
v Anderson, it was held that consideration
exists only when something of value has been given in return for the
performance or promise of performance of the other. Nevertheless, a promise to
perform an existing obligation will not constitute a valid consideration. Thus,
a firefighter cannot give his promise to perform his existing obligation of
fighting fire as consideration. Indeed, the case of Gardiner, Kamya & Associates v Jackson ruled in favor of the principle that promising do
preexisting duties do not constitute valid contracts.
Beyond the general rule, the law is also
reluctant in enforcing agreements that are contrary to public policy (Twomey
& Jennings, 211, p.356). The definition of public policy is not a clear one
but it is recognized that there are some interests that are so important to the
public welfare that agreements that tends to interfere with them cannot be
enforced. Thus in Anonymous v Anonymous, an agreement in which a man
offered to provide financial assistance for a woman in exchange for illicit
sexual relations was held to be contrary to public policy.
Application
Srgt. Frank Meyer’s promise to exercise more
diligence in patrolling Ms. Brunt’s neighborhood apparently appears to be a
valid consideration for the $ 100 promised. After all, the law simply requires
that there be a bargained for exchange between the parties. On a closer analysis,
however, Srgt. Meyers is already under a duty as a police officer to provide
the service for which he is contracting to provide. There was, therefore, no
consideration on his part. Besides, it
would be contrary to public policy if police officers would be expected to
enforce such agreements.
Conclusion
No, he may not.
Q2
Issue
Does the statement by the clerk at the Piggly
Wiggly Hardware Store that he has never heard a complaint on ‘Tough Tie’ for
over 10 years in response to an enquiry from Bob requiring him to recommend a
brand constitute a warranty-express or implied-for fitness for purpose?
Rules
A warranty is express if it is a statement
from the defendant relating to the good. Under UCC § 2-313, the statement
should form part of the basis of the bargain. The courts have upheld this
position in a number of cases including Miles
v Raymond Corp. A distinction should,
however, be made between an express warranty and a mere statement of opinion or
value. Thus under UCC § 2-313(1) (b), such statements of value or opinion are
excluded from what may amount to an express warranty. Courts have also held the
same view as was in Giles v Wyeth, Inc. It is also when the buyer is relying on
the opinion of the seller as an expert when this exception may not apply. Thus
in Rogath v Siebenmann, it has been held that a statement by an owner of an art
gallery to regarding the authenticity of a piece of art was an express
warranty.
A warranty does not have to be express as
they are often implied in any sale of good unless expressly excluded. Of
particular importance is the implied warranty of fitness for particular purpose
under UCC § 2-312. It mostly applies to merchant sellers and only in
circumstances where the seller is made aware of the particular purpose for
which the buyer was to use the good and the buyer must have relied on the
seller’s skill in selecting the good.
Application
The clerk at the store actually made a
statement as to the quality of the suggested brand. That statement, however,
falls more closely to the category of his opinion and not as an express
warranty. Besides, an implied warranty as to any particular purpose cannot apply
given that Bob did not inform the clerk of what he was going to use the rope
for. The rope may have been strong yet still unsuitable for the particular
purpose of dragging a load of 500kg.
Conclusion
No, the
statement did not constitute any warranty. It follows from this that the clerk
is correct.
Reference
Twomey,D.P. & Jennings,M.M.(2011).Anderson’s Business Law and the Legal Environment,21st Edition. Mason, OH: South-Western Cengage.
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