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Young Solicitors' Seminar, Kinsale
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
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
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