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3.3. The rights and duties of the buyer in the sale contract of the goods by the right of Scotland

The set of the remedies at law, accessible to the buyer, has undergone to changes by means of Regulations of 2002. Till 2002 remedies at law of the buyer were the right to the indemnification (right to [366 [367] [368] [369] [370]

damages) in case of infringement by the seller of treaty provisions and the right to cancellation of the contract and goods return (right to rescind and reject the goods) in case of contract material breach (material breach). Additional protection frames were given within the limits of consumer contracts. In such cases all infringements of conditions in law were considered as the essential. [371]

New protection frames were added in cases when the buyer is the consumer, namely, the right to repair, replacement, depreciation and the subsequent right to contract cancellation. [372]

The Scottish right did not provide earlier the right to repair or goods replacement. New protection frames have been entered by the new position by the Law of 1979 entitled as the additional rights of the buyer in case of consumer contracts. It underlines circumstance, that these remedies at law in addition to earlier existing rights to refusal of acceptance of the goods and compensation by the loss, given to all buyers by section 15В (1) are given buyers. [373]

In aggregate with other amendments brought by Regulations about purchase and sale and delivery of the goods of 2002 (The Sale and Supply of Goods to Consumers Regulations 2002) [374], the new rights were applicable only to consumer contracts with the "obvious" consumer. They are based on discrepancy of the goods to positions of the contract at the moment of delivery and

The conformity lack is defined as presence of infringements of treaty provisions or one of conditions in law. [375]

The buyer has the right to repair or replacement of the goods with the seller. The seller should repair or replace the goods in reasonable term without the serious inconveniences caused to the buyer. The law of 1979 had been fixed new definition of "repair" (repair): reduction of quality of the goods in conformity with treaty provisions. [376] necessary expenses are born by the seller, including materials, expenses on items of mail and a manpower. [377] seller can avoid execution of the obligations in following cases: 1) if realisation it is right is impossible (impossible); 2) if realisation of one of the rights, for example, repair, would be disproportionate to the price of the goods or its replacement; 3) if one of remedies at law would be disproportionate in comparison with other remedies at law fixed in the Law 1979 according to Regulations 2002, namely, depreciation and contract cancellation. [378]

The right to reduction of the price of purchase (to reduce the purchase price) or the right of cancellation of the contract (rescission) are the subsidiary rights (subsidiary rights). The granted rights are accessible, only if the buyer cannot demand from the seller to repair or replace the goods in a kind of impossibility, disproportion of such protection frame (impossibility, disproportion of the remedy) or if the seller has not made replacement or repair in reasonable term and without essential inconvenience for the buyer. [379] if the buyer wishes to terminate the contract the court can define, that compensation should be reduced in proportion to what period the buyer used the goods from the moment of their delivery.

[380] such approach differs from the approach in section 15B (1) which is applied only in Scotland. According to section 15B (1) buyer is allocated by the right of refusal without reduction

Compensation. [381]

The regulations of 2002 have introduced the important changes in the nature of remedies at law of the buyer. The basic moment is the recognition, that the consumer wants the goods for which he has paid, and the right to replacement or repair are fixed assets for realisation of it. [382] hence, we observe rapprochement with continental legal tradition which assumes execution of obligations in nature. Innovations of Regulations 2002 is the certificate of a withdrawal from English legal tradition of monetary indemnification for contract default.

Nevertheless, it is necessary to notice, that formulations of amendments not absolutely accurate. [383] positions about the right of the buyer to contract cancellation (rescind) - the right which existed to amendments - remain without changes. In the new approach to the remedies at law, the granted right could be displayed more clearly, considering its importance. Judgements have cleared up having defined, that the buyer should not prove a rationality of preference of refusal of the goods (does not have to

act reasonably in choosing rejection), instead of the indemnification even if it can seem to someone несоразмерным.384 Abundantly clear, that for the buyer there should be a fundamental law of refusal of the goods and compensation of the cost paid for it. Repair and goods replacement can lead to delays and затруднениям.385

The right to refuse the goods is one of fixed assets of protection of the consumer. Hence, by the legislator it is in detail disassembled the moment of fulfilment of the acceptance or acceptance of the goods and loss of the right of refusal of it. The acceptance takes place when: i) the buyer directly declares it (intimates) 386; ii) makes action, which mismatches the property right of the seller to the goods (inconsistent with the ownership of the seller) 387; iii) keeps the goods the reasonable period of time, not declaring about refusal from него388.

It is important to mention a presumption, that if the buyer has not checked up the goods acceptances does not occur until while at the buyer not to appear reasonable opportunity to check up the goods for the purpose of an establishment of conformity to conditions договора.389 If the buyer does not check the goods in reasonable term or checks only in much later term, it is considered, that it it акцептовал.390Любая attempt to limit in the contract of purchase with the consumer time period in which current the buyer should refuse the goods (in case of such [384 [385] [386] [387] [388] [389] [390]

Desires) will be considered as restriction of the rights покупателя.391 In a case if the contract party is not the consumer, such restrictive position will be estimated proceeding from it разумности.392 If the buyer has asked or has agreed on goods repair, or the goods have been delivered other buyer (another purchaser under sub-sale) or other administrative action (disposition) it does not mean took place, that the buyer has accepted товар.393 Reasonable term to prezjumirovanija the acceptance or goods acceptance (deemed to have accepted) the goods starts to flow since that moment when the goods are under repair (goods are being repaired ^). 394

In a case if all goods or goods part mismatches treaty provisions (if the parties have not agreed about other), the buyer has following варианты:395

1) to accept all goods;

2) to refuse all goods;

3) to refuse only the goods which mismatches requirements;

4) to refuse only a part of the goods which mismatches requirements.

The buyer has a right to claim damages from the seller. It can sometimes realise this right simultaneously with the right of refusal of the goods. It can sometimes be a unique remedy at law as breach of contract does not give [391 [392] [393] [394] [395] is automatically right to the buyer on refusal of the goods, and also in case of loss of such right after the acceptance or goods acceptance (accepted) the goods or if the goods have not been delivered at all. [396] if the seller it is illegal not to care wrongfully does not care about (wrongfully neglects) or refuses delivery of the goods to the buyer the buyer can submit the action for damages. [397] measure of losses (measure of damages) is the size of speculative damages, directly and naturally arising at usual succession of events from infringement of the seller. [398] If the goods are accessible in the market, that, until proved otherwise (so-called prima facie), a measure is the difference between cost under the contract and market cost at the moment of prospective delivery of the goods or if delivery time is not established, at the moment of refusal from

Deliveries. [399]

If the buyer refuses the goods with lacks (defective goods) until proved otherwise, losses will pay off by analogy to a situation when the goods have not been delivered. If the buyer decides to leave to itself the goods with marriage until proved otherwise, losses will pay off proceeding from a difference between the price of the goods at the moment of delivery and by the goods at the moment of making contract. [400]

If the contract is concluded concerning individually certain thing and this thing has not been delivered, the buyer has the right to demand through court from the buyer of execution of a contract in nature. [401]

In Scotland the right to indemnification is additional to the right of the buyer to demand execution of a contract in nature. [402] theoretically, such tool of a legal protection as the requirement to execute the contract in nature is the general in case of contract default. [403] hence, the right to demand execution of a contract in nature arises not only in case of individually certain thing. Nevertheless, such possibility remains purely theoretical. Courts traditionally hold the opinion, that it is necessary to use other remedies at law if the goods are freely accessible in the market. [404]

By itself, the buyer has not only the rights, but also duties. The buyer should accept and pay the goods according to the contract. [405] in spite of the fact that the parties can change the given rules by means of inclusion in the contract of corresponding positions, delivery and goods payment are the conditions which observance should occur simultaneously (concurrent conditions). By the law of 1972 it is fixed, that the seller should be ready and wish to transfer in possession of the buyer in exchange for payment of its cost, and the buyer should be ready and wish to pay goods cost in exchange for transfer it possession of the goods of the seller. [406]

Term is not the essential treaty provision of purchase and sale, and, hence, the seller does not have right to terminate (rescind) the contract if payment has not been made in due time. Nevertheless, the purchase and sale contract can (expressly) directly give to the seller the resale right if the buyer in due time does not pay the goods. [407] if the seller will take advantage of the right of resale of the goods the contract will be terminated though for the seller there is a right to demand from the initial buyer of the indemnification. [408] if the goods are perishable (of a perishable nature) or if the seller has notified the buyer on the intention to resell the goods and the buyer in reasonable term has not paid or has not suggested to pay the goods (pay or tender the price) the seller has the right to resell the goods. [409]

The buyer is obliged to accept the goods in reasonable term [410] though default of the given duty usually is not the basis for contract cancellation if default or execution refusal is not unilateral refusal of execution of treaty obligations (repudiation of the contract). [411] If the goods are perishable, term will be always considered as an essential condition. The buyer also is obliged to make the acceptance or goods acceptance. [412] wrongful refusal of it allocates the seller with the right to terminate the contract.

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A source: Afanaseva Taisija Aleksandrovna. LEGAL REGULATION OF RELATIONS OF THE TRADING TURN In Scotland. The dissertation on competition of degree of the master of laws. Moscow, 2017. 2017

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