Oral promises

Oral promises by vendors are difficult to prove. There are also legal difficulties, such as the parol evidence rule, which may sometimes prevent oral promises from being introduced. However, the main problem appears that the court has to decide who to believe - the vendor or the customer.

As mentioned previously, the use of tape recordings are very useful in proving your case. Even if you did not tape record the conversation in relation to which you are suing, if you can prove that the sales persons of the vendors systematically lie and over promise, you have a strong case but of course, there are no guarantees of winning.

On the other hand, if you are complaining only of hard selling, that this not normally a defence except perhaps in rare cases.

The best defence to bad vendors is information. If you are suing anyone, send me details and I will post details about your claim. If you have won a lawsuit, even better - let the whole world know about your win. Good luck and if in doubt, consult a lawyer.

Law - what is a claim?

As readers may know, the Small Claims Tribunal has a $10,000 limit on claims, which limit is increased to $20,000 if both parties agree.

The issue to be examined here is what is a claim? Every breach of contract can be considered a claim. Of course, one cannot divide a single claim into smaller claims in order to come within the Tribunal limit. However, every allegation of breach of contract can be considered a separate claim.

For example, if you bought a computer package consisting of CPU unit, monitor, printer, every instance where the package did not conform to the contract could be considered a claim. For example, if the processor and the graphics card were different from what was promised, these could be considered 2 separate claims.

The above suggestion would of course only be useful if you entered into an expensive contract worth much more than $10,000, so that your claims if not carefully drafted may well exceed the Tribunal limit.

Contract - damages

Even if you cannot prove a direct financial loss for the other party's breach of contract, you may be able to claim damages for loss of amenities. This means in simple English, that you suffered from less enjoyment.

Some simple examples -

• you buy an high end stereo system costing $10,000 and the sound that comes out sounds like a $200 system, which you used for 3 months before you obtained compensation,
• you buy a high end sports car that is supposed to accelerate from 0-100 km/h in 5 seconds but it takes 10 seconds to do so;
• you are promised a beautiful view when you rent a holiday chalet for a week at East Coast Park but the chalet only faces the rubbish dump.

There is of course no easy way to ascertain how much the loss of amenities is worth but the judge will use the cost of the entire contract as one of the guiding factors.

Misrepresentation 2

This posting is to further clarify what is meant by the phrase that "a misrepresentation must be operative".

The other party may make false statements of facts to you but to show misrepresentation, you have to show that the statement was important to you.

For example, before you buy a Porsche sports car, the salesman tells you that the car was designed by the famous designer Guigaro and its top speed is 350 km/hour. Both statements are untrue but if you can convince the judge who the designer is, was important to you, then the misrepresentation is operative. On the other hand, the salesman may be able to show that you are a careful driver who never exceeds the speed limit and who does not drive the car to Malaysia. In that case, the judge may well conclude that the top speed was unimportant to you and therefore the mispresentation was not operative.

Suing for breach of contract - contract terms

Proving the terms of a contract -

If there is a written document, then the document will be proof of the terms of the contract. If the contract was made orally, then it can still be proved. However, if the other party disputes your account of the terms, then the judge will decide who is more likely to telling the truth.

Solution - tape record any promises made by the other party. This can even be done after the contract has been made - e.g. you get the other party to admit that he failed to do certain things promised under the contract.

Note that Singapore law allows tape recordings to be used in court but some other countries do not.

It is possible for a contract to be made partly in writing and partly orally so don't give up if the other party is relying on a written contract. But trying to argue that the contract is partly written or partly oral may not always be easy.

Suing for breach of contract

If you are suing for breach of contract, you have to prove the following -

• the terms of the contract with the other party,
• the other party breached one or more of the contract terms, and
• you suffered loss due to the breach.

A later post will deal with these issues separately.