Amendment
Mectlod 24.
Repeal and replachocol
of seedon 57.
(7) In subsection (6) "antecedent negotiations" means any negotiations or actangements with the buyer whereby he was induced to make the agreement or which otherwise promoted the transaction to which the agreement relates.".
7. Section 24 of the principal Ordinance is amended by deleting subsection (2)
a.
Section 57 of the principal Ordinance is repealed and replaced by the following new section-
Exclusion of implied
terms a cpedition,
1973 U. * 4.
ST. (1) Subject to subsections (2) to (11) where any right, duty or liability would arise poder a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.
(23) An express condition or warranty does not negative a condition or warranty implied by this Ordinance Unless inconsistent therewith.
(3) In the case of a contract of sale of goods, any Term of that or any other contract exempling from all of any of the provisions of section 14 shall be vold,
(4) In the case of a contract of sale of goods, any term of that or any other contract exempling from all or any of the provisions of section 15, 16 or 17 shall be vold in the case of a consumer sale and shall, in any other case, not be enforceable to the extent that it is shown that it would not be fair or reasonable to allow reliance on the LETT.
(3) In determining for the purposes of subsection (4) whether or not reliance on any such term would be fair or reasonable regard shall be had to all the circumstances of the case and in particular to the following matters-
(a) the strength of the bargaining positions of the seller and buyer relative to each other, taking into account, among other things, the availability of suitable alternative products and sources of supply, (b) whether the buyer received an inducement lo agree to the term or in accepting it had an opportunity of buying the goods or suitable alternatives with- out it from any source of supply;
(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the Lerma (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties)
(d) where the term exempts from all or any of the provisions of section 15, 16 or 17 if some con- dition is not complied with, whether it was reason- able at the time of the contract to expect that compliance with that condition would be practic- able;
(e) whether the goods were manufactured, processed, or adapted to the special order of the buyer.
(6) Subsection (5) shall not prevent the court from holding, in accordance with any rule of law, that a term
9.
which purports to exclude or restrict any of the provisions of section 15, 16 or 17 is not a term of the contract,
(7) In this section "consumer sale" means a sale of goods (other than a sale by auction or by competitive tender) by a seller in the course of a business where the goods-
(*) are of a type ordinarily bought for private use
or consumption; and
(b) are sold to a person who does not buy or hold himself out as buying them in the course of a business
(8) The onus of proving that a sale falls to be treated for the purposes of this section as not being a consumer sale shall lie on the party so contending.
(9) Any reference in this section to a term exempting from all or any of the provisions of any section of this Ordinance is a reference to a term which purports to ex- clude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
(10) It is hereby declared that any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is ăn. corporated in the contract by another term of the contract,
(11) This section la subject to section 62(5),”.
The principal Ordinance is amended by adding after section 57 Addison of the following new Iection...
*RDDO..
ม
1973
*. 13. 4. 5.
STA. Where the proper law of a contract for the sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Hong Kong, or where any such contract com- tains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 14 to 17 and $7. those sections shall, notwithstanding that term bui sub- ject to section 62(5), apply to the contract.".
11
DARY BECLood STA.
1. Section 62 of the principal Ordinance is amended by inserting Amendment of after subsection (4) the following new subsections-
197)
G 13.
IL. §.
(5) Nothing in section 57 or $7A shall prevent the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 14 to 17,
(6) The amendments of this Ordinance made by the Sale of Goods (Amendment) Ordinance 1977 shall not apply to con- tracts to which this Ordinance applies which were entered into Prior to the date of commencement of that Ordinance; and all such contracts shall continue to be governed by the provisions of this Ordinance in operation immediately prior to the date of commencement of the Sale of Goods (Amendment) Ordinance 1977."
abelio 62.