In the fact
scenario given, Jeanine has taken over and expanded the family cheese
business.  This includes rebranding the
packaging and marketing materials and setting up an online shop.  Her new business endeavours cause her to be
the subject of a plethora of legal issues. 
A new buyer places a large order to sample her produce for his café chain
and later gets in touch to place a business order which is paid for by
cheque.  Despite the size of the order
the client makes, it appears that a formal agreement is never made, giving Jeanine
little to no contractual security when the client’s cheque bounces after the
goods have been delivered.  Separate to
this negotiation, Jeanine enters into several discussions with food chains in
hope of securing large deals, which leads to one client commissioning a Christmas
themed cheese.  Jeanine is unable to
fulfil the original terms of the agreement, so the client requests a refund.  In addition to this, a caterer claims her
cheese made hundreds of guests ill, though Jeanine believes there is no legal
issue here as her terms and conditions state that the company ‘could not be
held liable for illness occurring as a result of consuming our cheese’.  Further to this, one of Jeanine’s customers
complains that the branding of her cheese as ‘The Smelliest Limburger of them
all’ is false as they have found a smellier variety elsewhere.  With reference to case law and statutes, this
essay will explore how Jeanine’s business stands in a very weak legal position
in three of the four issues outlined.

In
reference to the complaint made by a catering company that the branding on the
cheese as ‘The Smelliest Limburger of them all’ being false, if this were
brought to court as a claim for misrepresentation, the claimant could argue that
this claim has become a term of the contract, as per the Misrepresentation Act
1967.  However, luckily for Jeanine, it
is clear that, as established in Dimmock v Hallett, this is a mere ‘puff’

 

With
regards to Jeanine’s dealings with Simon, she is convinced of his
creditworthiness as she assumed his company ‘Smells Good’ was short for ‘Smells
Real Good’, the larger café chain.  Even if
it could be proven that this was a unilateral mistake as to identity and Simon
was shown to be aware of Jeanine’s wrongful assumption, the business name that
Simon is trading under is not incorporated as a term of the contract.  Therefore, as in Smith v Hughes1
where Blackburn J asserts that there is ‘no legal obligation in a vendor to
inform a purchaser that the latter is under a mistake not induced by the act of
the vendor’2, the
contract would still stand as the same would arguably apply in instances where
the vendor was under a mistake as to the business name of the purchaser. 

As it is
evident that Simon has not tried to deceive Jeanine into thinking that he
represents the larger café chain, there is no common intention (as in Raffles v
Wichelhaus where one contracting party was referring to one ‘Peerless’ vessel
and the other another).  In the case of Raffles
v Wichelhaus, it is clear that the mistake is so fundamental to the contract
that had Raffles been aware of this discrepancy, he might not have wished to
enter into the agreement in the first place. 
However, whilst in this case Mellish LJ affirms that there is no consensus ad idem (meeting of the minds)
and therefore no binding contract3,
it is unclear in Jeanine’s case how important it is that she believed Simon
represented ‘Smells Real Good’.  One
might argue that as it is only at the point of receiving the cheque that she
decides ‘Smells Good’ is an abbreviated form of ‘Smells Real Good’, that
perhaps this is not central to her deciding that Simon is creditworthy. 

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Whilst this
particular transaction was made inter
absentes (as pre-contractual negotiations take place via email and
payment/goods are exchanged by post), the reasonable person would assume that
it is unlikely that someone other than Simon is dealing with Jeanine.  Taking into account the fact that the two
have had a previous business transaction at the marketplace (though not substantial
enough prior business so that a regular course of dealing might be established as
in British Crane Hire Corp Ltd. v Ipswich Plant Hire Ltd.4),
one might go so far as to decide that it is immaterial which company Simon
represents, as he is the contracting party, not the business entity.  This concept is similarly explored in Ingram
v Little5
where Devlin LJ cites that ‘if Miss Ingram had been asked whether she had
intended to contract with the man in the room or with P. G. M. Hutchinson, the
question would have no meaning for her, since she believed them both to be one
and the same’6.  However, the distinction between Ingram and
this transaction is that H had intentionally set out to deceive Little as to
his identity, providing a name and address for such P. G. M. Hutchinson, a real
person.  If Jeanine had been asked
whether she had intended to contract with ‘Simon from the market’ or ‘Simon
from ‘Smells Real Good”, she would have stated that she believed them to be
the same person.  However, Simon at no
point states that he is from ‘Smells Real Good’, thus it is only due to Jeanine’s
lack of due diligence that she did not confirm he represented the company that
she thought he did.  Whilst I would argue
that Simon later selling the goods on to the chain ‘Smells Real Good’ might
somewhat suggest that he was aware that Jeanine might be led to believe that
his company name could be interpreted to be the same as ‘Smells Real Good’,
this is a separate issue and has no bearing on the agreement in question
between Jeanine and Simon as he does not fraudulently misrepresent
himself.  Perhaps adding insult to
injury, I would add that Jeanine does not have a case to seek damages from ‘Smells
Real Good’ for non-payment as they acquired the goods from Simon and had no
intention to contract with Jeanine.

In the case
of the caterer that claims several guests at an event are taken ill after
consuming cheese purchased from Jeanine, she takes comfort in the existence of
the clause in her terms and conditions that states her company ‘could not be
held liable for illness occurring as a result of consuming our cheese’.  On one hand, it is common for a retailer to exclude
some degree of liability on their part in relation to goods and services.  This is not a particularly onerous term and is
often incorporated in terms and conditions to limit the scope of negligence
claims.

However, as
per the Consumer Rights Act 2015, ‘a trader cannot by a term of a consumer
contract or by a consumer notice exclude or restrict liability for death or
personal injury resulting from negligence’. 7
Furthermore, whilst Jeanine might try to claim that the contract is between her
and the caterer, as established in Donoghue v Stevenson8,
a duty of care exists that dismisses the privity of the contract.  In other words, as a vendor of foodstuffs, Jeanine
has an established duty of care to keep her produce safe.  Whilst she did not contract directly with the
guests at the event, it is reasonably foreseeable that her product might be consumed
by a broad range of persons that may not have purchased the product (as in
Donoghue v Stevenson)9.

Despite
this, Jeanine is not immediately liable for any of the guests at the event
becoming ill.  In order to establish if a
duty of care exists (and, in turn, if a negligence claim is likely to be
successful), the Caparo test (as developed by Lord Oliver in Caparo v Dickman10)
is used.  According to the Caparo test,
there are three parts to establishing a duty of care: foresight (it being reasonably
foreseeable that consumption of the cheese could result in illness); proximity
(there being a relationship between Jeanine, the vendor, and the consumer (the
guests at the party); and it being fair, just and reasonable to suggest that
any illness developed is as a direct result of consuming the cheese.  In this scenario, I would therefore advice
Jeanine to request evidence that any illness can be directly linked to the
consumption of her cheese.  We do not
know the full fact scenario surrounding the illnesses, though it would not be
unreasonable to suggest that the event served foods other than just this
cheese.  If she is able to establish that
this is the case, she might be able to argue that the illness could have been
caused by another food served at the event, or at the very least, assert that
it is difficult to pinpoint the exact cause of the illness.  Further to this, a reasonable person would
follow packaging instructions in relation to food, i.e. consuming it by its ‘Use
By’ date and storing it at the correct temperature.  If Jeanine is able to prove that any illness
is as a result of the caterers incorrectly using the cheese past its ‘Use-By’
date or storing it incorrectly, this would exclude her company’s liability.

1
Smith v Hughes

2
Ibid

3
Raffles v  Wichelhaus

4
British Crane Hire Corp Ltd. v Ipswich
Plant Hire Ltd.

5
Ingram v Little 1961 QB 31, 51, 60.

6
Ibid

7
CRA 2015

8
Donoghue v Stevenson

9
Kidner’s Casebook on Tort

10
Caparo v Dickman

x

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