TLC LAWYERS

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MEMORANDUM

TO: Dan Travis

FROM: 

DATE:

SUBJECT: Justin Barber’s liability with regards to Darryn’s trailer.

Chris’ liability for the loss of Justin’s trailer. 

Analysis of whether Justin Barber has a cause of action against the previous owner. 

Questions asked

1. Whether Justin Barber has any liability with regards to Darryn’s trailer
2. Whether Chris is liable for the loss of Justin’s trailer
3. Whether Justin Barber has a cause of action against the owner.

Short Answer

1. No. The trailer in this case is the subject matter of their contract. Their agreement is that Justin uses the trailer and returns it after use. Due to misrepresentation of the trailer’s weight limit Justin cannot be held liable for using the trailer to carry the organ which led to the break down.
2. Yes. Justin and Chris had an agreement where Chris agreed to fix the break light in Justin’s trailer. Chris is in possession of the trailer and it is his responsibility as a bailee. When he places the trailer into the hands of another repair man he is in breach of their contract.
3. Yes. Justin entered and was motivated to enter into the sale contract based on the fact that the fixtures and fittings were part of the contract. Their contract also clearly provided for the transfer of the fixtures and fittings

Facts and Procedure

Justin relocated to the Sovereign Islands having won a lottery. He used Darryn’s, trailer to move his stuff. He would return it on the following Friday. While using Darryn’s trailer, Justin carried heavy furniture, he great weight of the cabinet he was transporting bent the chassis of the trailer and the cabinet fell off the trailer. The permitted weight limit for the trailer was incorrectly stated on the trailer as his cabinet was within the specified permitted limit. As a result of this event Justin’s cabinet was damaged beyond repair.

Justin only borrowed the trailer because his trailer was being serviced by a local mechanic, Chris. On delivery Chris signed a contract for repairs. Chris decided to take it to an electrical repairer. The trailer was stollen while it was placed in an unlocked yard. Justin held Chris liable for the loss. 

On the Havana plot he had bought, Clause 10 of their contract stated that ‘the sale includes all fixtures and fittings. There are no exclusion clauses in their contract. Later he noticed that the previous owner had removed the anchor at the entrance, a lantern and two bar fridges which had been under the counter in the bar area. He assumed these were part of the purchase; as well as a large potted palm tree by the front door which had added to the ambience of the house.

Discussion

• Darryn’s trailer

• Conclusion

Justin is not likely to be held liable for the damage on the trailer and failure to return the trailer to Darryn. The damage arises out of misrepresentation of the weight limit of the trailer. This is a misrepresentation of a material fact.

• Rule and Analysis 

A misrepresentation occurs, when one party makes a false representation at or before the time that the contract is made. It is essentially a false statement of a material fact made by one party which affects the other party’s decision in agreeing to a contract. The party entering into a contract agrees to something that isn’t a true representation of the actual nature of the subject matter.

For misrepresentation to be actionable the plaintiff has to show that there was misrepresentation of fact and not an opinion. This also includes statements of future sales is not a statement subject to misrepresentation. For misrepresentation to be actionable, the actionable, there should be a false unambiguous statement. Where the statement is obviously true one cannot claim it was misrepresented. Also, it should be clear and unambiguous. A statement should not be capable of being interpreted in another way. An ambiguous statement would lead the other party to argue that there was no misrepresentation of the statement.

• Analysis and Conclusion

In the present case, the trailer is in the normal case is used for transporting goods. It is hence important to the use of a trailer that the user knows the weight limit. In this case, Justin is using the trailer with the view that the trailer can carry the indicated weight capacity. Under this assumption on the trailer he proceeded to load the heavy furniture which he knew could be carried on the trailer. He proceeded to use the trailer that led to the damage of the trailer and his antique furniture that is written off as a result.

Darryn’s misrepresentation of the weight was fraudulent as the owner knows the actual weight and gives it out with a false statement of its weight limit. As a result, he has caused losses to Justin. Justin can hence sue for deceit against Darryn.  

• Justin’s trailer

• Conclusion

Chris is in possession of the trailer as a bailee to fix the trailer and return on completion of the repair. He is responsible as bailee to any damage on the bailed goods to the bailor.

• Rule and Analysis 

Bailment is the voluntary transfer of possession of goods upon trust from one person called the bailor to another called the bailee. The bailor transfers his/her property to the bailee transferring possessory rights but not ownership. Therefore, for bailment to be established, there must be a delivery by the bailor. He must part with his possession of the chattel for the agreed purpose. The bailed goods should be returned back to the bailor in good condition. This place a duty on the bailor to that he safeguards the goods from destruction. As was held in the case of Jackson v Cochrane, failure to return or breach of duty of care, renders him liable for the loss or damage to goods from the date of default. 

• Analysis and Conclusion

The right of lien over the goods is indefeasible and untransferable unless it is consented by the bailor. Such transfer would lead to breach of the bailment agreement. In the case of Justin’s trailer, Chris is merely a bailee under a duty of trust and in the contract to repair the car and return it when he is finished repairing the trailer. Chris is only in possession and not ownership of the trailer. His lien did not extend to taking the trailer to the other specialist without Justin’s consent. Chris is liable for the loss of the trailer as he had a duty to return the trailer in good condition and at the agreed time.

• Justin’s claim over the antiques

• Conclusion

The seller of the property is in breach of the sale of land agreement. Clause 10 clearly provided that all fixtures and fittings would form part of the sale. 

• Rule and Analysis

Fixtures are structures that are so affixed on the land that they form part of the land. Common law clearly establishes that quicquid plantatur solo, solo cedit, that what is affixed or rooted in the soil belongs to the soil. The fixtures are then transferred in the case of conveyance to the new owner. The former owner by dint of this loses ownership of any and all rights over these fixtures. The effect of fixtures on transfer of property is that a fixture passes presumptively with all subsequent conveyances or transfers of the realty unless and until lawfully severed from the land.

• Analysis and Conclusion 

In the present case the contract signed for the sale of property ‘Havana’ clearly states that the fixtures and chattels will be transferred with the property. The antique anchor was a fixture as it was halfway embedded into the ground and has been there for more than ten years.  Their contract also covers fittings on the land. The sellers act of removing the two bar fridges which had been under the counter in the bar area, as well as a large potted palm tree by the front door which had added to the ambience of the house is a breach of contract. Also, having seen the fixtures and fittings before sale, it can be argued that Justin was motivated to buy the house because of these fixtures and fittings and formed an important part of the contract. 

 

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