Chapter Updates

March 2003

9.1 INTRODUCTION – p 193

Note that the General Product Safety Regulations 1994, have been repealed and replaced by the General Product Safety Regulations 2005 (SI 2005/1803).

9.2 THE SALE OF GOODS ACT 1979 – p 206

The Sale and Supply of Goods to Consumers Regulations 2002 (2002 Regulations) will be operative from 31st March 2003.

9.2.4 Seller’s implied obligations – p 213

In relation to the relevant circumstances a court should consider in determining whether goods are of 'satisfactory quality' under s 14(2) of the SoGA 1979, the 2002 Regulations add: ‘ If a buyer deals as a consumer … the relevant circumstances … include any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.’

The ‘producer’ is the manufacturer, the importer of the goods into the European Economic Area or any person placing his trade mark or other distinctive sign on the goods.

Accordingly, retailers will have to be more aware of, for example, manufacturer’s advertising and take care to examine labelling on the goods they sell. However, if the sellers are sued for breach of s 14(2) of the SoGA 1979 on the basis of such ‘public statements’, they may not be liable if they were not aware and could not reasonably have been aware of the statements when selling or the misleading statements were publicly withdrawn before sale or the buyer could not have been influenced to buy by the statements.

9.2.8 Buyer’s remedies – p 223

The 2002 Regulations only apply the ‘six month non-conformity’ rule to the additional remedies given by the regulations; the rule can be displaced by proof of conformity with the contract at the date of delivery or ‘where its application is incompatible with the nature of the goods or the nature of the lack of conformity’.

Furthermore, the 2002 Regulations do not adopt a two year limitation period for the additional remedies or a requirement to make complaint within two months of discovering the non-conformity.

Whilst the traditional remedies of rejection and refund for breach of a condition of the sale of goods contract are lost by ‘acceptance’, the Regulations make no correlation between ‘acceptance’ and the ‘additional remedies’. Accordingly, it must be assumed that, whilst the ‘acceptance’ rules continue to apply to claims for rejection and refund, they do not apply to a claim for any of the additional remedies. Theoretically, therefore, claims for any of the ‘additional’ remedies could be available up to six years from the date of delivery of the goods, six years being the usual limitation period for breach of contract claims. It remains to be seen how the courts will treat this situation.

9.2.19 Exclusion and limitation of liability – p 225

The provisions of the draft regulations are retained in the 2002 Regulations.

9.2.11 Guarantees - p 227

The provisions of the draft regulations are retained in the 2002 Regulations.

9.2.12 Transfer of property and risk – pp 228, 231

The 2002 Regulations amend s 20 of the SoGA, which deals with the transfer of risk. A sub-s (4) is added, which indicates that s 20(1) and (2) does not apply where the buyer deals as a consumer; instead the goods remain at the seller’s risk until they are delivered to the buyer.

9.3 THE SUPPLY OF GOODS AND SERVICES ACT 1982

9.3.1 Implied terms – p 236

The 2002 Regulations amend the rules relating to implied terms and remedies in the same way as for sale of goods contracts (see updates on 9.2.4 and 9.2.8, above).

9.3.2 Exclusion clauses

9.4 THE CONSUMER PROTECTION (DISTANCE SELLING) REGULATIONS 2000

9.4.1 Application – p 220

See EasyCar (UK) Ltd v Office of Fair Trading ECJ 2005 (Case C–336–03). Here the European Court of Justice examined the scope of the application of the Regulations to car hire contracts.

9.5 THE CONSUMER PROTECTION ACT 1987

9.5.3 “Defective” product – p 222

The Court of Appeal considered the meaning of a “defective” product under s.3(1) CPA 1987, in Pollard v Tesco Stores Ltd [2006] EWCA Civ 393, [2006] All ER (D) 186 Apr. It was decided that a bottle cap, which could have been made safer for children, nevertheless met the standard of safety that the public would expect. The public would expect that the cap was harder to open than that of a normal bottle, but nothing more as they would not be aware of relevant safety standards. The decision appears to imply that, even if a product fails to meet general safety standards, it is not “defective” under s.3(1) if it meets public expectations.

9.6.3 The General Product Safety Regulations 1994 – p 224

See note above, on 9.1.

The new Regulations came into force on October 1 2005, making a few, but not many, changes in the law. Under the new Regulations, a producer or distributor who knows a product supplied is unsafe, must give written notification of such to an enforcement authority. Furthermore, s.31 CPA 1987 is amended to curtail the powers of customs officials to seize and detain goods suspected to be 'unsafe'. Now it is not enough that the goods may contravene the “general safety requirement”, they must be suspected of infringing specific safety regulations relating to the particular goods in question.

9.6.4 Misleading Price Indications – p 225

Note should be taken of the decision in Office of Fair Trading v The Officers Club Ltd [2005] EWHC 1080 Chancery Division. Here it was determined that an advertisement could be misleading despite compliance with the Code of Practice for Traders on Price Indications.

The 2002 Regulations amend the rules relating to exclusion and limitation clauses in the same way as for sale of goods contracts (see update on 9.2.10, above).