5.0Legal Conclusions
5.1If the defect in the machine was present prior to delivery, then Fillitup will be in breach and responsible for the cost of remedy/compensation. This is despite Clause 12(b), which is as previously stated likely to be unreasonable under the UCTA.
5.2If the jars are at fault, as they do not comply with that of the design then Babyburp are at fault and will need to fund replacement jars at their own expense. This is covered in Clause 12(a) that is considered to meet tests of reasonableness covered by UCTA.
5.3If the defect is a result of the move, liability will depend on when the contract was made. If it is decided that the contract was made on the phone and Clause 12(c) meets the tests of UCTA then Babyburp are liable. However, if contract is deemed to be when the order was returned with 12(c) deleted and no further negotiation was made until the machine was delivered, then Fillitup will be liable for damages.
5.4These damages could include not only the cost of making the machine defect free but also loss of income Babyburp would claim by not having a machine in full working order. Putting the defect right could be a repair or modification to the present machine or possibly a complete replacement. Due to the nature of the defect and how crucial it is to Babyburp's end product, it is likely that it will be considered a fundamental breach (aka a condition) rather than a warranty whereby it would be of lesser importance and therefore less damages.
…
