The Gazette 1975

Young Solicitors' Seminar, Kinsale

title. There is also an implied warranty that the goods shall be free from rny incumbrance in favour of a third party when the property is to pass. In many agreements, there is, of course no implied term as to merchantable quality, but in hire-purchase agreements, there is such an implied condition in respect of latent defects. In cases of hire, the owner has a duty to en- sure that the goods let on hire are as s?fe as possible. In hire-purchaes transactions, the House of Lords de- cided that in general the dealer is not to be treated as agent for the Finance Company (Branwhite v Wor- cester Works)—(1968) 2 All ER 104. It is therefore safer ofr the hirer to sue both the Finance Company as owner, as well rs the dealer. T o be enforceable, every Hire-Purchase agreement must be in writing. As a re- sult of revocation of various statutory instruments, there are at present no statutory controls on hiring agreements, and they need not even be in writing. Th e maximum Court jurisdiction either in relation to the recovery of goods or to enforce payment of a sum under a hire-purchase agreement, is a claim for £250 in the District Court and for £1,000 in the Circuit Court. If the hirer has paid one third of the value of the goods, the owner cannot recover possession of them. On Saturday afternoon, the Hon. Mr. Justice Fin- lay, President of the High Court, delivered an address on "Advocacy". It has been said of a good ad- vocate that he can win a bad case before a good Judge. The President emphasised that his remarks must be personal, and were based on practising the craft of advocacy. A pleading lawyer must involve himself in one of these 5 tasks: (1) The outline of the facts which he either intends or hopes to prove. (2) The direct examination of witnesses. (3) The cross-examination of witnesses. (4) The direct examination and cross-examination of experts. (5) The submissions based on law or on the facts. In outlining. the case, one may assume that the Judge and Jury know nothing of the facts of the case, as modern pleadings are not designed to do so. The material facts should consequently be presented reas- onably fully, as well as in chronological and logical sequence. Although this may depend on the eccentric- ities of the Judge, it is usually possible to prophesize what will form the vital facts of the case. As between understatement and overstatement of a case, it is wiser to understate it. But the flowery and ornate speeches that used to be fashionable have now disappeared. The opening of a case is more significant before a jury than before a Judge. As to direct examination, many more cases have been lost by a bad or inept direct examination than were ever by a clever cross-examination. Ask the wit- ness first a number of non-contraversial questions, and .229

Th e 20th Seminar of the Society of Young Solicitors was held in the delightful resort of Kinsale, Co. Cork, on Saturday, 11th and Sunday, 12th April, 1975, and attracted the attendance of 170 solicitors. Mr. Peter Stanley delivered the first lecture in the Trident Hotel, where all lectures were held, on Satur- day morning, on "Hire-Purchase Law and Hiring Agreements" mainly insofar as it affects hirers. Normal- ly a hirer would not consult a solicitor unless he has a repayment problem, or that the goods let are unsat- isfactory; unfortunately the solicitor is usually faced with a restrictive standard form. A Hire-Purchase agreement is not a simple bailment or a contract for sale, but combines the elements of both—as in the case of bailment, the terms are pre- scribed irrespective of condition — and as in the case of sale, the option to purchase gives the the hirer a present right to acquire future title. A hiring agreement per se is a simple bail- ment, and there is no option to purchase. There can be financial leases , by which the hirer takes the goods for the estimated working life of the goods at a rental equivalent to the full price together with a finrncial charge. But in hire purchase transactions, the Finance Company still plays the major role. The standard form defines the hirer's obligations in minute detail, and the owner exempts himself from as many obligations, as possible, such es liability for any loss or damage. The Contra Proferentem Rule states that where a con- tractual provision is ambiguous, it will be very strictly construed against the party who seeks to rely on it; thus conditions would not necessarily include war- ranties. As regards the Doctrine of Fundamental Breach, the Clayton Love case (104 ILTR 157) held that an exemption clause could not be relied upon to cover a claim arising from a fundamental breach; the law to be applied will ultimately depend on the Judge who hears the case. It is a,question of construction whether terms, im- plied or expressed, may be avoided by the use of ex- emption clauses. If the person letting the goods is de- scribed as "the owner", there is an express condition that, at the time of delivery of the goods, the person letting the goods on Hire-Purchase has good title to them. In Ireland a fundamental breach of the condit- ion of title would not in any circumstances be pro- tected by an exemption clause. Where goods are lei on hire or hire-purchase by description, there is an implied term that the goods let correspond with that description; if the goods do not correspond to the de- scription, the hirer can either reject them and recover the payments made, or sue for a breach of warranty. There is also an implied condition that the owner of the goods will deliver them subsequently in the same condition as wh en the agreement was signed. There is an implied warranty that the hirer shrll have and enjoy quiet possession of the goods; a breach of this warrantly should be remedied by repudiating the agreement, and suing on the express condition of