香港新浪網 MySinaBlog
« 上一篇 | 下一篇 »
John | 31st Aug 2010, 17:37 PM | 法律英語 | (7298 Reads)
The Sale of Goods Ordinance of Hong Kong (Cap. 26) (“SOGO”) deals with consumer protection.  SOGO is intended to give protection to the consumer who buys goods from someone who sells the goods in the course of business.  (即是說,只適用於賣方賣貨時是在業務過程中/正在做生意的情況。若你用100元向從不做生意的隔離屋二嬸買個舊衣櫃是不能得到《貨品售賣條例》保護的。

Known as ‘consumer sections’, sections 14 – 17 of SOGO are implied into every contact for the sale of goods to a consumer.  These are: (根據《貨品售賣條例》第14-17條,每份買賣合約均有以下的隱含條款,即買賣雙方即使完全沒有提及但根據這條例仍然隱含在買賣中的條款。

Section 14 deals with seller’s right to sell goods and imply into every contract for the sale of goods the condition that the seller has the right to sell the goods.  This means that if the seller is not the true owner, the purchaser can get a refund if the true owner reclaims the goods.(對方賣東西給你,隱含條件是他有權賣給你,若賣方其實無權賣那些東西給你,你便有權向賣方索償了。不過,有時,有人破產,法庭將財物拍賣,東西的來歷執達吏也不一定搞得清楚,拍賣時會向你說明,拍賣方將東西賣給你的權利只是「有限的」而非「絕對的」,物權出了問題時情況會較複雜。)

Section 15 deals with sale by description 憑貨品說明售貨and imply into every contract for the sale of goods the condition that the goods correspond with their description.  In fact, a sale which is not a sale by description is very rare.  A buyer who asks for a cashmere sweater buy ‘by description’, even though the cashmere sweater is right in front of the customer’s eyes and the customer may in fact have selected it.  However, there are cases in which goods may correspond exactly with their description but still be unfit for the purpose for which they are bought, e.g. a cashmere sweater which is pure cashmere but causes a skin rash because of chemicals in the dyeing process.  SOGO deals with such cases in Section 16.(你去公司,話買cashmere 毛衣,即使是你自己揀的,也算sale by description。如果你穿上買回來的cashmere 毛衣,那些cashmere純得很純,但你一穿上就出疹,咁就要睇係你本身敏感,抑或那些純cashmere製造時有沒有錯落化學品或有否出了其他問題。這已經不是sale by description的保障範圍,而是下一段所談的reasonable fitness的問題和merchantable quality 的保障問題。)

Section 16 deals with merchantable quality and imply into every contract for the sale of goods the condition that the goods are of merchantable quality, or are fit for the purpose(s) for which goods of that kind are commonly bought.  Milk powder that contains harmful chemicals and a toy that breaks easily during normal use are examples of goods not of merchantable quality, or ‘unmerchantable goods’.  However, if Tom develops a skin rash after purchasing a pair of ABC underpants from a street stall in Shanghai Street, but Tom is himself abnormally allergic (敏感)and other people do not develop skin rashness wearing the ABC underpants, the seller will not be liable (“reasonable fitness”).  If the buyer relies on the seller’s skill and judgment and the seller can show that it is unreasonable for the buyer to do so, the seller will not be liable. (如果穿起條底褲全世界都唔敏感只係你敏感就唔關賣方事。如果你叫一個根本不懂製造貓糧的人製造貓糧然後賣給你,你就是unreasonably rely on his skill or judgement,對方毋須向你承擔責任。不過,這些到時都可以各搬一套證據來爭論。)

Section 17 deals with sale by sample (憑樣本售貨)and imply into every contract for the sale of goods the condition that the bulk of the goods will correspond with the sample, that the buyer will have a reasonable opportunity to compare the bulk of the goods with the sample, and that the goods shall be free from any defect rendering them unmerchantable.  However, the buyer’s right to reject the goods sold by sample is lost if he has accepted the goods (i.e. if the buyer has had reasonable opportunity to examine the goods or keeps the goods without notifying the seller that he has rejected them), in which case the buyer must claim for damages. (如果貨不對辦,你唔收貨就要早響,過了合理時間無通知賣方拒收貨物就當作接受,屆時只能申索損害賠償,不能不履行合約(即拒收貨物)了。)

引用(0) | 話題(英文)