The phrase, “selling and buying of a product” refers to a situation most people encounter every day – from having milk delivered daily, to getting a tap fixed, to having your car repaired. In fact, the term refers to any situation in which someone performs a service for a customer, rather than just selling a product. As with purchasing goods, the law has decreed that consumers require certain protections from the sellers, for instance a seller is expected to act with reasonable care and skill and perform the contracted service within a reasonable time, and so for a reasonable fee. The law states that consumers have a legal right under basic contract law or under consumer protection legislation, to remedy the situation when a business fails to deliver what has been promised.
There exists various legislation related to the protection and rights of consumers, whether it is involves disputes relating to the sale and purchase of goods and/or services, or in regards to the quality of goods sold. Consumer’s rights are represented as guarantees which automatically become part of the seller ‘s transaction involving any good or service ordinarily purchased for personal use.
These dictums are predicated upon the assumption that there always exist an agreement between seller and buyer when finalizing a transaction. The actual parties to a commercial contract are considered to be the best judges of what obligations should be compulsory. For the most part this legislation was drafted from the buyer’s perspective, and the law generally protects the interests of buyers to a larger extent, although some provisions for the sale of goods (1) [C1] do not primarily encroach on party autonomy (such as the Sale of Goods Act 1893 – UK). Even though the buyer enjoys certain privileges, the law also affords some provisions which regulate these consumer civil rights, in response to numerous issues regarding claims.
Consumer civil rights under Sale of Goods Act 1863 and present legislations
The provisions concerning consumer rights in relation to the seller under sales law are found in the Sale of Goods Act 1979, which is derived from the Sale of Goods Act originally published in 1863, and further amended by the Sale and Supply of Goods Act of 1994. Sections 12-15 of the Act define implied terms in contracts for the sale of goods relating to title, quality, fitness, and conformity with description and sample,. Basic remedies available to a consumer include rejection of the goods and further compensation for damages. The Supply of Goods (Implied Terms) Act 1973 and the Unfair Contract Terms Act 1977 relate recommendations for the control of clauses claiming to restrict or exclude liability under the implied terms as to title, correspondence with description, fitness etc. The Sale and Supply of Goods Act 1994 set forth recommendations relating to the reformulation of the implied term in regards to merchantable quality, making it evident that it applies to minor defects as well as the durability of goods.(2)
————————————————————————————————————2. Carter, J. W. (1993) Party Autonomy and Statutory Regulation: Sale of Goods Commentary on rights of Termination, Journal of Contract Law and rejection:Impact of the CISG on Australian, English and Canadian law, 93-122
3. Select Committee on European Communities, (1997) Tenth
3Recent statutes extend protection to not only individual consumers but to business entities as well. Unfair Terms in Consumer Contracts Regulations 1994(4) refers to any term in a contract finalized between seller or supplier and a consumer where the said term has not been separately negotiated. It is evident this provision is intended to protect the individual consumer. Moreover, the s 3(1) of the Act states that the provisions of the section are in regards to contracts whereby one party in considered the consumer or where the contract is created based on the other party’s written standard terms of business.. In such cases the weaker party is entitled to reasonable protection under the law .The courts have also agreed to extend protections under the Act to the business party involved in a transaction. In R and B Customs Brokers Co. Ltd. v United Dominion Trust Ltd (5) the Court of Appeals decreed the sale of a used automobile concerns a “two-person company” in that it involves a shipping broker in a consumer transaction in order that an exclusion clause in the contract could be voided if necessary. The company was not purchasing in the ordinary course of their business due to the transaction not being considered “an integral part of the business carried on” (6)/The government has implemented further legislation which ensures the rights of consumers in the purchase of goods. The Proposal for a European parliament and Council Directive (1997) on the sale of consumer goods and associated guarantees regards————————————————————————————————————4. Unfair Terms in Consumer Contracts Regulations 1994, Para. 35. R and B Customs Brokers Co. Ltd. v United Dominion Trust Ltd. 1 WLR 3216. St.Collins, Brian J., (1994), Unfair Terms in Consumer Contracts Regulations Economics and Law, Blackstone Press Ltd4numerous proposals designed to protect the physical and/or economic interests of consumers by promoting fair competition in the Single Market. The main purpose of the proposal is to guarantee for consumers a uniform minimum level of protection within the community from which goods are purchased. The directive requires that goods are in compliance with the contract and that not only must the goods satisfy any articulated terms of the contract but they must also meet specific criteria regarding fitness, quality and performance.The preeminent modifications to existing consumer protection legislation include the fact that consumers have the right to obtain goods that do not necessarily conform to the terms of the sales contract at the time of delivery repaired or the goods can be replaced as necessary. Moreover the directive clearly states that the seller has the right to lower the purchase price by an appropriate amount or can even rescind the contract. In this case the burden of proof lies on the consumer, at least during the first six months after delivery of the goods. Any guarantees offered by the producer or seller to a consumer will be considered a binding contract and are to be provided to the consumer upon request.
The UK has made the choice not to limit these consumer remedies to a minimum period of two years as stated in the Directive. Rather, the normal contractual limitation period of six years will usually apply. In consumer sale of goods cases, the most recent legislation states that goods will remain at the seller’s risk until such time as they are delivered and the delivery of goods to a shipping carrier is not considered release to the buyer. (The existing requirement which guarantees the consumer’s statutory rights are not
affected by the guarantee remains). (7)
According to the Act of 1863 as well as its later amended versions, the main remedy available to consumers of goods in the UK is the ability to reject those goods within a reasonable period of time after purchase due to the fact that they are not of satisfactory quality or not as described in the contract and then obtain a refund of monies paid for the goods. In the case of Bowes v Chaleyer,(8) the argument states was that “it is far safer to treat as conditions substantial and important provisions in a contract relating to the time, place or mode of shipment goods the subject matter of the contract unless the contrary intention is manifest” and this is just as valid today as it was in 1923. It is evident here that there is no definition of what constitutes a reasonable time period and so this factors depends purely on the circumstances of the specific case.
The new legislations, however, specifically proscribe that where goods have been accepted or a reasonable period of time has passed after delivery, thereafter any remedy must be for damages. Essentially this means that the cost of repair or replacement of the goods is covered. The normal contractual limitation period of six years is valid but it must be reasonable to expect the goods will last that long. These rights and remedies are in continuance to the rights introduced in the new regulations.
One directive (9) which amends Section 14 of the SGA states that the criteria for judging whether goods are of reasonable quality, the existence of “any other relevant
7. The Sale and Supply of Goods to Consumers Regulations 2002,( 2003)Team Discovery 25th Jan 2003
8. Bowes v Chaleyer (1932) 32 CLR 159 at 196
9. European Parliament and Council Directive on the sale of consumer goods and associated guarantees,(1997) Regulation 3
circumstances” and includes any public statements on the individual characteristics of the goods purported by the seller, the producer or his representative, particularly on advertising or labeling.
With these new regulations where the buyer is considered a consumer, the goods are considered to remain at the seller’s risk until which time they are delivered to the consumer. Prior to this, risk was passed along when the goods were transferred to the buyer, which was not necessarily considered actual delivery of the goods (10).
Aside from this, the Consumer Protection (Distance Selling) Regulations 2000 (the “Regulations”) authorizes the consumer to cancel a distance contract at any time during the proscribed cancellation period as well as approves repayment within thirty days of cancellation. A canceled contract is to be treated as if it had never been entered into by the consumer and seller. This regulation allows the consumer to make a claim for refund of cost of delivery as well. If the seller opts to deliver substituted goods, the supplier must first inform the consumer of this possibility in its contract in order that the consumer receives full disclosure. However, in the event that the consumer cancels the contract and returns the goods, it is up to the supplier to bear the cost of this return.(11). It is evident, therefore, that the rights of the consumer have been properly protected under the distance selling Act (regulations).
10. ibid 5
11. The Consumer Protection (Distance Selling)(Amendment) Regulations 2005
Part 1 of the Consumer Protection Act 1987 transposes the Product Liability Directive into UK law. (12) The legislation imposes strict liability on producers for harm caused by defective products. This means that people who are injured by defective products can sue for compensation without having to prove the producer negligent, provided that they can prove that the product was defective and the defect in the product caused the injury. Hence it can be inferred from the above discussions that the recent laws are imparting more attention in ensuring the rights of consumers both in civil and criminal laws.
12. Department of Business Enterprise and Regulatory form, (2008), 85/374/EEC and 1999/34/EC, Product Liability, Defective Products, Unsafe Products Quick Facts, 11 April, 2008
Books and Authors
1. Carter, J. W. (1993) Party Autonomy and Statutory Regulation: Sale of Goods Commentary on rights of Termination, Journal of Contract Law and rejection:Impact of the CISG on Australian, English and Canadian law, 93-122
2. St.Collins, Brian J., (1994), Unfair Terms in Consumer Contracts Regulations Economics and Law, Blackstone Press Ltd.
3. The Consumer Protection (Distance Selling)(Amendment) Regulations 2005
4. The Consumer Protection Act 1987 (Commencement No. 1) Order 1987
5. The Sale of Goods Act 1893
6. The Sale of Goods Act 1979
7. The Sale and Supply of Goods Act 1994.
8. The Unfair Contract Terms Act 1977
Journals and Publications
9. BERR, Department of Business Enterprise and Regulatory form, (2008) Product Liability, Defective Products, Unsafe Products Quick Facts, 11 April, 2008
10. Team Discovery The Sale and Supply of Goods to Consumers Regulations 2002,( 2003) 25th Jan 2003
11. , www.parliment.uk Select Committee on European Communities, (1997) Tenth
[C1]There is no reference for this.