M3001

THE UNIVERSITY OF SUSSEX

BA AND LLB FINAL YEAR EXAMINATION 2008

COMMERCIAL LAW
Friday 16 May 2008

9.30 am 12.30 pm

Candidates must attempt THREE questions, at least ONE from each Section
Where candidates have chosen their own assessed essay topic, they are not
permitted to answer a question that overlaps significantly with the topic of
their assessed essay
Candidates may use their own unannotated copies of any edition of
Butterworths Commercial Law Statutes (Richard Hooley (ed)) and/or
Blackstones Statutes on Commercial and Consumer Law (Francis Rose
(ed)) and/or Sweet and Maxwells Commercial Law Statutes
(Ewan McKendrick (ed)) or equivalent
Time allowed: 3 hours

1.

Should computer software should be classified as goods for the purposes of the
Sale of Goods Act 1979 (SGA)?

2.

In the development of our law, two principles have striven for mastery. The first
is for protection of property: no one can give a better title than he himself
possesses. The second is for the protection of commercial transactions: the
person who takes in good faith and for value without notice should get a good
title. The first principle has held sway for a long time, but it has been modified
by the common law itself and by statute so as to meet the needs of our times.
Denning LJ in Bishopsgate Motor Finance Corpn Ltd v Transport Brakes Ltd
[1949] 1 KB 322 (CA) at 336-7.
[The Sale of Goods Act 1893] expressly maintained the fundamental principle
nemo dat quod non habet, in section 21(1) of the Act (now section 21(1) of the
1979 Act). The succeeding sections enact what appear to be minor exceptions
to that fundamental principle. Lord Goff in National Employers Mutual General
Insurance Association Ltd v Jones [1990] 1 AC 24 (HL) at 62.
Discuss. Is Lord Dennings view of the relationship between the two principles
correct or is Lord Goffs view to be preferred?

/Turn over

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3.

Commercial Law

Alpha Ltd have supplied blank video cassette tapes, at a price of 2 each, to
Beta Ltd under three separate contracts of sale, each for 1000 tapes, which
provide:
(i)

that the property in goods will remain with Alpha until the price of the
goods has been paid in full;

(ii)

that the goods supplied under the contract are to be held by Beta as
bailee and that they are to be kept separate from other goods;

(iii)

that if the goods are subjected to any recording, manufacturing or

similar process, the product of such process shall be and be deemed at
all times to have been the property of Alpha;

(iv)

that Beta shall be at liberty to sell the goods (or their product) in the
course of its business but, if it does so, it will sell as Alphas agent and
the price paid or payable by the buyer under such a sale shall be held
by Beta on trust, first to pay Alpha all or any part of the price of the
goods under the original contract of sale that may still be outstanding,
and secondly to pay any balance remaining to Beta.

Beta Ltd is now in receivership. Advise the receiver in relation to:

(a)

a cheque for 2,500 payable to Beta Ltd, received from Delta plc, being
the price of the 1000 tapes supplied under the first contract which Beta
had resold, unprocessed, to Delta at 2.50 each.

(b)

1000 tapes, identifiable as those supplied under the second contract,

which are still in the possession of Beta and on which a Take That
concert has been recorded by Beta, making them now worth 10 each;
and

(c)

2500 unprocessed tapes, still in the possession of Beta, 1000 of which

are those which were supplied by Alpha under the third contract and
the remainder of which are identical tapes that have come from another
supplier, Gamma Ltd. The two consignments have not been kept
separate.

How, if at all, would your answer to (c) differ if Gammas contract of sale was on
the same terms as Alphas.
4.

In England, the implied terms as to quality and fitness in ss.13-15 of the 1893
Act represented an important step in the abandonment of the original common
law rule of caveat emptor. . Indeed, it is unrealistic to treat the basic principle
of the law as caveat emptor rather than caveat venditor. (Atiyah et al The Sale
of Goods 11th ed (Pearson, 2005) 145-6.
Discuss.

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Commercial Law

5.

Discuss the significance of the passing of property in sales contracts with

specific reference to the Sale of Goods (Amendment) Act 1995.

6.

Critically analyse the impact of The Sale and Supply of Goods to Consumers
Regulations 2002 (SI 2002/3045) on the Sale of Goods Act 1979.

7.

Either: (a) Explain the difference between difference in value and cost of
cure. In what circumstances will difference in value be preferred
to cost of cure in order to measure the claimants damages?
Or:

8.

(b) In what circumstances will a court order specific performance in an

action for breach of contract governed by the Sale of Goods Act
1979?

Does English commercial law embody any identifiable concepts or does

commercial law merely consist of the different rules governing particular forms
of commercial contract with no linking themes of any kind?