nazarova_nb_korobova_ev_practice_in_legal_english
.pdfexcept when the written contract is unclear or one party was tricked into entering the contract.
Illegal Contracts
Some contracts are unenforceable in court because they are illegal or against public policy. For example, an agreement between two persons to sell illegal drugs could never be enforced in court.
In addition, courts sometimes find that a contract is so unfair, harsh, and oppressive that it should not be enforced. Such a contract is considered to be unconscionable.
Courts will usually not refuse to enforce a contract simply because it requires someone to pay a very high price for something. As noted earlier, the law allows for freedom of contract, and consumers are allowed to make bad deals as well as good ones. On rare occasions, though, a court may not enforce an extremely unfair contract (or the unfair clause in a contract).
A court is more likely to find a contract unconscionable when (1) the consumer is presented with a contract on a take–it–or–leave–it basis and (2) there is very uneven bargaining power between the parties (as when an experienced seller is dealing with an uneducated consumer).
Find the equivalents of the following words and expressions in the text.
Устный контракт; обеспеченный правовой санкцией; закон поддерживает; заставить заключить контракт обманным путем; контракт, претензии по которому не могут быть заявлены в суде; незаконный контракт; несправедливый контракт; пункт контракта.
Answer the questions:
1.What are the main two types of contracts?
2.What kinds of contracts must be in writing to be enforceable?
3.Should courts enforce an oral agreement to buy a car? Give reasons.
4.Why does the law favors written contracts?
6.Why are some contracts are unenforceable in court? Give your examples.
7.What can the courts do if they find that a contract is unfair, harsh, and oppressive?
8.Will the courts refuse to enforce a contract because it requires someone to pay a very high price for something?
9.When is a court likely to find a contract unconscionable?
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Problem–solving: The Broken Promise
Ruth orally agreed to sell her car to Mike for 32,000. A few days later, she got an offer of $2,300 from Paul. Thereafter, she refused to sell her car to Mike. Can Mike hold her to the agreement? Should he be able to?
The Unfair Contract
A furniture store made an unemployed woman on public assistance sign its standard form contract for credit every time she made a purchase at the store. The contract had a term that said the store would own every item the woman purchased until all the items were fully paid for. The woman made several purchases at the store, signing this contract each time.
After several years of making all her payments, she purchased a stereo and missed two payments. The store believed it had the right under the contract to take back all the items the woman had ever purchased there.
A court of appeals found a portion of the contract to be unconscionable and did not enforce this unfair term in the agreement. The woman had to return the stereo but was able to keep all the items she had already paid for.
Match the words on the left with the correct definition on the right:
Unconscionable |
unfair. |
Uneven |
defend from trouble, harm. |
Enforce |
illegal. |
Protect |
a section of a legal document. |
Clause |
ensure observance of or obedience to a law, |
|
decision. |
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UNIT 17.
Warranties
Read and translate the texts.
A warranty is a promise or guarantee made by a seller concerning the quality or performance of goods offered for sale. A warranty is also a statement of what the seller will do to remedy the problem if the product doesn’t perform as promised. If the seller does not live up to the promises made in the warranty, the warranty is said to be breached.
Warranties give consumers very important rights. You should always be aware of the warranties that exist when you make a purchase.
Not all warranties are the same. It’s worthwhile to compare warranties when shopping.
When you look at a warranty, consider the duration (how long does it last?), the scope (what parts or problems are covered or excluded?), and the remedy (what do you get under the warranty and what must you do to get the remedy?).
Check your own state’s law. Sometimes it gives you rights that are not in the warranty.
There are two types of warranties: express and implied.
Express Warranties
An express warranty is a statement–written, oral, or by demonstration–concerning the quality or performance of goods offered for sale that becomes a part of the bargain between the parties. For example, if a salesperson tells you «This TV will not need any repairs for five years», this salesperson has created an express warranty. Similarly, an express warranty is created if you purchase a vacuum cleaner from an appliance store after seeing a demonstration of the vacuum picking up small particles from a deep shag rug. Since oral warranties and warranties by demonstration are difficult to prove, it is always best to get a written warranty.
Express warranties are created by statements of fact. Not everything a seller says is a warranty. If the seller’s statement is merely an opinion or an obvious exaggeration, it is considered puffing, or sales talk, and cannot be relied on. For example, a used car dealer advertising «Fantastic Used Cars» is engaged in puffing. No warranty is created, and no customer should rely on such a statement.
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What happens if your TV blows a tube or your watch won’t keep time? The first thing to do is check the warranty. One TV may be guaranteed for 90 days, while another may be covered for a full year. Your warranty may provide a remedy when things go wrong. You may be able to return the item for a refund, exchange it for another, or have it repaired.
Sellers do not have to give written warranties. However, if they do, the Magnuson–Moss Warranty Act requires that the written warranties (1) disclose all the essential terms and conditions in a single document, (2) be stated in simple and easy–to–read language, and (3) be made available to the consumer before a sale. Written warranties must also tell you exactly what is included and what is not included. For example, the warranty must explain what repairs are covered and who will make them. The warranty act does not apply to products that cost $15 or less.
Under the act, warranties are labeled either full or limited. Under a full warranty:
A defective product will be fixed or replaced free, including removal and reinstallation, if necessary.
The consumer will not have to do anything unreasonable (such as shipping a piano to a factory) to get the warranty service.
The product will be fixed within a reasonable time after the consumer complains.
If the product can’t be fixed after a reasonable number of attempts, the consumer can get a refund or a replacement.
The warranty applies to anyone who owns the product during the warranty period (not just the first purchaser).
Any protection less than this is called a limited warranty. Such a warranty could cover some defects or problems and not others. For example, the limited warranty on a video recorder might cover the cost of new parts but not labor. Or it might cover some parts but not others. To learn what is covered, read all of the warranty carefully.
Find the equivalents of the following words and expressions in the text.
Гарантия; действовать согласно обязательствам; невыполнение гарантийных обязательств; знать о существующих гарантийных обязательствах; продолжительность гарантийного периода; возмещение; прямая гарантия; связанная гарантия; очевидное преувеличение; торговец подержанными автомобилями;
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отремонтировать бесплатно; переустановить; получить назад деньги; заменить товар; ограниченная гарантия.
Answer the questions:
1.What is a warranty?
2.What happens if the seller does not live up to the promises made in the warranty? Have you ever come across such situations?
3.Why should you always be aware of the warranties that exist when you make a purchase?
4.What should you consider when you look at a warranty?
5.What two types of warranties are there?
6.What is an express warranty?
7.Why is it always best to get a written warranty?
8.Is everything a seller says a warranty?
9.What is the difference between a warranty and a sales talk?
10.What is the first thing to do when something goes wrong with an item you purchased?
11.What does the Magnuson–Moss Warranty Act require? Do we have any acts like this in Russia?
12.What is the difference between a full and limited warranty? 13.Give your own examples of different warrants you have read.
Problem–solving:
Read and evaluate the one–year limited warranty and answer the following questions.
a.Who is making the warranty? Who will make any repairs – dealer, service center, manufacturer, or independent repairer?
b.How long is the warranty in effect? Does the buyer have to do anything to make the warranty effective?
c.What is covered – the entire product or only certain parts? What is promised – repair, replacement, labor, postage? Are there any limitations or exclusions? Is this a full or a limited warranty? Why?
One–Year Limited Warranty
Electro Toasters fully guarantees this entire product to owner against defects in material or workmanship for one year from purchase date.
Defective product may be brought or mailed to purchase place, authorized service center, or Service Department, Electro Toasters, Inc., 3rd & Maple Streets, Arlington, PA 15616, freight prepaid, for free repair or replacement at our option.
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Warranty does not include cost of inconvenience, damage due to product failure, transportation damages, misuse, abuse, accident, or commercial use.
For information, write Consumer Claims Manager at above
Arlington address. Send owner’s name, address, name of store or service center involved, model, serial number, purchase date, and description of problem.
This warranty gives specific legal rights. You may have other rights that vary from state to state.
This warranty becomes effective upon purchase; Mailing the enclosed registration card is one way of proving purchase date but is not required for warranty coverage.
Match the words on the left with the correct definition on the right:
Warranty |
be informed. |
Breach |
how long it lasts. |
Be aware |
break. |
Duration |
promise or guarantee made by a seller concerning the |
|
quality or performance of goods offered for sale. |
Scope |
what you get under the warranty and what you must do to |
|
get it. |
Remedy |
a statement–written, oral, or by demonstration – |
|
concerning the quality or performance of goods offered |
|
for sale that becomes a part of the bargain between the |
|
parties. |
express |
a warranty that covers some defects or problems and not |
warranty |
others. |
limited |
what parts or problems are covered or excluded. |
warranty |
|
|
UNIT 18. |
|
Implied Warranties |
Read and translate the text
Many consumers believe they have no protection if a new product without express warranties does not work. In many cases, however, consumers are protected – even though they may not realize it
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– by an implied warranty. An implied warranty is an unwritten promise, created by law, that a product will do what it is supposed to do. In other words, the law requires products to meet certain minimum standards of quality and performance, even if no express promise is made. Implied warranties apply only to products sold by dealers; they do not apply to goods sold by casual sellers. For example, if a friend sells you her bike, no implied warranties are involved. The three types of implied warranties are (1) warranty of merchantability, (2) warranty of fitness for a particular purpose, and (3) warranty of title.
A warranty of merchantability is an unwritten promise that the item sold is of at least average quality for that type of item. For example, a radio must play, a saw must cut, and a freezer must keep food frozen. This warranty is always implied unless the seller expressly disclaims it. Be especially wary of goods marked with disclaimers such as “as is” or “final sale.”
A warranty of fitness for a particular purpose exists when a consumer tells a seller before buying an item that it is needed for a specific purpose or will be used in a certain way. A salesperson who sells an item with this knowledge makes an implied promise that the item will fulfill the stated purpose. For example, suppose you tell a salesperson you want a waterproof watch and the salesperson recommends a watch, which you then buy. An implied warranty of fitness has been created. If you go swimming and water leaks into the watch, the warranty has been breached.
A warranty of title is a seller’s promise that he or she owns the item being offered for sale. Sellers must own the goods and be able to transfer title or ownership to the buyer. If a person sells stolen goods, the warranty of title has been broken.
Consumers who are harmed by products may be able to sue for damages because the manufacturer or seller has breached a warranty. Consumers may also be able to recover damages based either on the negligence of the manufacturer or seller or on a legal theory called strict liability.
You should remember that if you fully examine goods (or have the opportunity to do so) before making a purchase, the implied warranty may not apply to those defects you should have discovered during the inspection. Therefore, carefully inspect for defects any goods you buy. Be especially careful with used cars. It is wise to have a mechanic you trust examine the car before you purchase it.
Be sure to carefully read all instructions that come with a product. If you fail to use the product properly, or if you use it for an improper purpose, you may cancel the warranty.
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Find the equivalents of the following words and expressions in the text.
Соответствовать определенным стандартам качества; неофициальный продавец; гарантия товарного состояния; быть осторожным; гарантия соответствия конкретной цели использования; гарантия правового титула; халатность производителя; обязанность граждан возмещать ущерб, причиненный в результате какого–либо недоразумения другим лицам; использовать товар не по назначению.
Answer the questions:
1.Is there any protection if a new product without express warranty does not work?
2.What is an implied warranty?
3.What deal do these implied warranties apply to?
4.What are the three types of implied warranties? Characterize these warranties.
5.What can consumers do if they are harmed by products?
6.Why should you carefully inspect for defects any goods you buy?
7.What happens if you fail to use the product properly or use it for an improper purpose?
Problem–solving:
Is a warranty created in any of the following situations? If so, what type of warranty? Has the warranty been broken?
a. Juan sells Terri his used car. As Terri drives home, the car breaks down. The cost of fixing the car is greater than the sale price.
b.Deitra buys a dress after telling the sales clerk that she plans to wash it in a washing machine. The clerk replies, “That’s fine. This material is washable.” Deitra washes the dress in her washing machine and the dress shrinks.
c.A salesperson tells Suzanne, “This is the finest camera on the market. It will last for years.” Eight months later, the lens breaks.
d.Mike steals a diamond ring from a jewelry store and sells it to Maria after telling her his mother has given it to him.
e.Sandy orders a baseball bat from a catalog. The catalog reads,
“31–inch baseball bat, $7.95,” and includes a picture of a wooden bat. Two weeks later, Sandy receives an aluminum bat in the mail.
f.Ned buys a new sofa from a furniture store. One of the legs falls off two weeks after delivery.
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Match the words on the left with the correct definition on the right:
Implied warranty |
unwritten promise that the item sold is of at |
|
|
|
least average quality for that type of item. |
Casual sellers |
when a consumer tells a seller before buying an |
|
|
|
item that it is needed for a specific purpose or |
|
|
will be used in a certain way. |
Warranty |
of |
seller’s promise that he or she owns the item |
merchantability |
being offered for sale. |
|
Warranty |
of fitness |
unwritten promise, created by law, that a |
for a |
particular |
product will do what it is supposed to do. |
purpose |
|
|
Warranty of title |
unofficial seller. |
|
UNIT 19.
Disclaimers
Read and translate the text The Guitar That Quit
Sherry buys a new guitar for $300. On the sales receipt is a clause that reads, “This writing is the “exclusive statement of the terms of agreement between the parties. Seller makes no warranties either express or implied with respect to this product.” The third time Sherry plays the guitar, one of the strings snaps. Can she return the guitar?
A disclaimer is an attempt to limit the seller’s responsibilities should anything go wrong with a product. The clause quoted in the Case of the Guitar That Quit is a disclaimer. It is an attempt by the
store to avoid responsibility for anything that goes wrong with the guitar. The quoted clause makes it clear that an express warranty is not being offered. But does the clause disclaim the implied warranty?
Sellers can usually disclaim the implied warranty of merchantability by using such expressions as “with all faults” or “as is”
Unless these or other easily understood words are used, the seller must actually use the word merchantability in disclaiming the implied warranty of merchantability. In addition, to be effective, the disclaimer must be written so as to be easily seen by the consumer. Because the
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sales receipt for the guitar did not say “as is,” “with all faults,” or “merchantability,” it is probably not effective as a disclaimer of the implied warranty of merchantability. Sherry should be protected if she returns the guitar.
Under the Magnuson–Moss Warranty Act, sellers offering a written warranty may not disclaim or modify any implied warranty during the effective period of the written warranty.
Sellers sometimes use disclaimers to limit the consumer’s remedy. For example, a contract may read, “It is expressly understood and agreed that the buyer’s only remedy shall be repair or replacement of defective parts. The seller is not liable in damages for injury to persons or property.” Suppose the warranty limits the remedy to “repair or replacement of defective parts” and this remedy does not work (that is, after repeated attempts at repair, the product still does not work). In such cases, the buyer can usually seek other remedies. But courts will require that the buyer give the seller a reasonable opportunity to repair the product.
Find the equivalents of the following words and expressions in the text.
Отказ; ограничить ответственность продавца; неполадки с товаром; «как есть» (выражение, используемое в текстах официальных соглашений; означает, что покупаемый или поставляемый товар принимается приобретающей стороной ровно в том состоянии, в каком находится на момент покупки, со всеми ошибками, неполадками, недоделками или какими– либо другими дефектами); гарантийный период; ограничить возмещение убытка покупателю; быть ответственным; искать другие возможности возмещения ущерба.
Answer the questions:
1.What is a disclaimer?
2.How do sellers usually disclaim the implied warranty of merchantability?
3.Why must the disclaimer be written?
4.Can sellers disclaim or modify any implied warranty during the effective period of the written warranty?
5.How can sellers use disclaimers to limit the consumer’s remedy?
6.Where can the buyer seek other remedies?
7.Have you ever come across a disclaimer?
Problem–solving:
Mock Trial:
James Phillips v. The Radio Shop
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