Consumer Law on Defective Goods

“The Sale of Goods Act 1979 covers the purchase of most things from shops, suppliers and online or mail order retailers. It also details the retailers obligations in situations where you have to return an item to them take on the basis that it is damaged or faulty – or both” [2] . If a consumer has bought goods and they are defective, the consumer has a right to refuse the goods and ask for a refund, as it is not of satisfactory quality. Under the Sales of Goods Act 1979 [3] before any amendments) in section 14 (2) it states “Where the seller sells goods in course of business, there is an implied term to that the goods supplied under the contract are of merchantable quality” [4] . The term merchantable is known as a Victorian expression. However, the act in 1994, the word merchantable had been amended to satisfactory. The new term had bought about a number of predicaments to take into consideration when mentioned.

The four main predicaments are as follows – Is the sale in the course of business? What is the meaning of “goods supplied”? Are the goods are of satisfactory quality? And do any of the exceptions apply? [5] The only predicament that had been affected by the amendment is the one that enquired – Are the goods of satisfactory quality? The first statutory definition and meaning was introduced in 1973 [6] . This was later imbedded, in the 1979 act, under section 14 (6). [7] Which states, “Goods of any kind are of merchantable quality… if they are as fit for purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances”. [8]

The Sale of Goods act 1994 Section 14 2A replaced the old definition by stating – “the standard that a reasonable person would regard as satisfactory” [9] . The 1994 act then continues to mention that a test must be adopted to assess of the goods are fit for the purpose of the buyer. The new definition in section 14 (2a) is followed by sub section (2b) which details a list of 5 areas that are of compliance to the quality of goods. Section (2A)” For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person”. However, other elements such as the description of the goods, the price and all the other relevant circumstances are only taken into account if relevant. This will protect the retailer’s products from being faulted for the wrong reasons. On the other hand, the new definition may still show to be complicated for consumers today as the term reasonable person is not clearly defined.

The purpose of the Sales of Goods Act 1994 includes the state and conditions of the products are of quality. Section 14 (2b)—(a) Fitness for all the purposes for which goods of the kind in question are commonly supplied, (b) The Appearance and finish of the product, (c) Freedom from minor defects, (d) safety and (e) durability”. [10] Therefore, if a product has been bought and is defective you can ask the retailer or seller for an exchange or even a refund if the goods are faulty.

When purchasing any product Consumers do not really need instructions on how to use them. Although it would make sense for any buyer to read instructions on certain products such as medicines, not reading a leaflet or instructions may result in faults of their own. This covers the safety aspect Under S14 (2b) (d) (Safety) [11] The next section however refers to S14 (2b) (e) [12] the Durability of a product, this will rely on how soon the defects of the product take place. If the defects start to show as soon as the product had been bought this shows that the goods were of unsatisfactory quality at the time of the contract. The seller of a product will always try to resist such claims and point out a list of things that could have caused defects in the product. Whilst the consumer will argue that the goods where used as they were intended. The Lambert v Lewis [13] case illustrates both safety and durability of a product; here a farmer had bought a tow bar which had specific parts missing from the bar. Although the farmer had known of the missing parts eventually the bar broke and resulted in a serious injury. Lord Diplock stated: “The implied warranty of fitness for a particular purpose is a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery. What is a reasonable time will depend on the nature of the goods but I would accept that in the case the warranty was still continuing to up to this date. Some 3-6 months before the accident” However Even thought the farmer had noticed the parts had been missing he should have still reported this at the time of purchase.

The New regulations of the statutory remedies came into force on the 31st of March 2003. These principles of statutory interpretation will only apply to contracts made after this date. The regulations amend existing legislation so the sales of goods act for example must be cited not the actual regulations. The new remedies start from Regulation 5 this amends the sale of goods act from 1979. This adds 6 new sections. These sections are (48A to 48F) the first section 48A describes how remedies may be available. 48 (1a) explains how the buyer deals as a consumer, and (b) “the goods do not conform to the contract of sale at the time of delivery”. Together with section 48F which states – “For the purposes of this Part, goods do not conform to a contract of sale if there is, in relation to the goods, a breach of an express term of the contract or a term”. [14] The 6 month rule otherwise known as the burden of proof which is covered in section 48A (3) and (4) [15] focuses on the goods breaking down or defective soon after being delivered. This as discussed earlier in durability can be quite a challenge for the consumer to prove to the seller. Section 48 A (3) supports the consumer and reverses the burden of proof during the 6 month period. This state – “goods which do not conform to the contract of sale at any time within the period of 6 months starting with the date on which the goods were delivered to the buyer must be taken to have not so conformed at that date” [16] . However S.48 (A) (4) provides that this will not be the case (a) if is established that the goods did so conform at that date [17] ; (b) its application is incompatible with the nature of the goods or the nature of the lack of conformity [18] .

The next section focuses on the consumers needs. The new s.48 B concentrates on product repairs and replacements [19] . When a consumer purchases a product, the repair or replacement is more of service and business practice. Some products like cars may not necessarily be replaced. Under S.48 B (2) and (5) clarify that repairs or replacements should be comprehended to a consumer within reasonable time [20] . In doing so any costs incurred including labour postage and any other materials should be incurred by the seller. Reasonable time depends on the nature of goods and their purpose. A great example of this can be when a consumer may send off a phone for repair at a phone shop, most companies will repair phones under the terms and conditions and may even replace mobiles providing they are under warranty.

A buyer under the S.48 (B) must not necessitate a seller to repair /replace a defective good [21] . Although if replacing a product maybe a cheaper option then to repair it, this in result will occur less time and will be more cost efficient. However under s48.D if a consumer asks the seller to repair the goods, the consumer cannot ask for a replacement up until after the repair process within particular time frame [22] . Section 48C concentrates on the buyer’s right to (a) require the seller to sell the goods at a lower price [23] . (b) To rescind the contract [24] . This will only occur under s48C [25] . (2) (A) if a repair or replacement is unavailable [26] . (b) Seller breaches contract by not replacing or repairing within the reasonable time period stated [27] . If the contract between consumer and seller are breached then the contract may be terminated but money spent to purchase the good or product may be narrowed down by the usage and time of product or good held.

The next section of this essay will concentrate on the section of considerable importance to all consumers. This applies to all products bought mail order, cooker, washing machines and on products where consumers have just been demonstrated a product. Normally when a product is delivered in a box to a customer and the consumer is then expected to sign to agree that the product is satisfactory. This is not the case a seller must get a reasonable amount of time to test the product before it can be accepted as satisfactory. For example if a buyer wishes to purchase a dish washer and the product becomes faulty within the first couple of washes then it is not fit for its purpose. In result the buyer can return the product and ask either for an exchange or a refund from the seller. This can be illustrated in S14 (3) Fitness for purpose, [28] “If the buyer expressly or impliedly makes his purpose for the goods known to the seller, the seller is obliged to make sure the goods provided are fit for that purpose, if it is reasonable for the buyer to rely on the seller’s expertise. An example of the application of this provision can be found in Godley v Perry” [29] .

However, a consumer may not actually know if the product is of satisfactory quality with no defects if the box has not been opened or inspected before signing the form. The Sales of Goods Act 1994 when amended also inserted two new subsections into section 35 [30] . These sub sections explain the paragraph in detail mentioned above by stating. S35 (2) Where goods are delivered to the buyer, and he has not yet previously examined them, he is not deemed to have accepted them, until he has had reasonable opportunity of examining them for their purpose [31] . (A) Of ascertaining whether they are in conformity with the contract [32] , and (b) in the case of a contract for sale by sample, of comparing the bulk with the sample [33] . (3) Where the buyer deals as consumer [34] . The Buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise. The importance of this insertion allows the consumer to inspect goods in reasonable time and also look for any defects or even if the inspection leads the consumer dissatisfied the right for the consumer to return the item to the seller and claim their money back.

The remainder of section 35 s.2 (1) explores the aspect of goods being accepted [35] . There are 3 types of acceptance [36] to any good/s. They are as follows -The intimation of acceptance, this can be done by a quick signature on the form from seller to buyer which can be classed as acceptance buy only if the conditions of S.35 (2) [37] are followed. (Conduct on part of buyer to seller to accept goods) The Next form of Acceptance is the Act after delivery inconsistent with the seller’s ownership. This can occur were a consumer may purchase a good and be an inability to restore to the seller. An example of this can be wood bought to make a shed. Once the wood has been cut, it can be argued that it is not in its original form since being bought. Meaning the buyer’s right to return the goods maybe rejected if the goods are not in their original form. Although of forms of acceptance are given the opportunity to examine, thus giving the buyer reasonable time and opportunity will not obliterate the right to reject the good. Most cases involving this type of acceptance have concerned commercial contracts delivering to sub buyers has destroyed right to reject. Illustrated in the case of Ruben v Faire Bros [38] However under S35 (6) (b) has altered the law on this point. [39] All areas of acceptance must be given the “opportunity to examine” under the statutory wording reasonable time to do this will not destroy the right to reject.

The last form of Acceptance is the Retention beyond a reasonable time The Bernstein case. This is one of the most contentious types of acceptance in the consumer context. The Main element of this all is if acceptance is all in reasonable time. The element of reasonable time starts when the buyer has discovered the defect. This can be a very important point if goods start to defect after a number of months or even years of use as time may elapse. A seller will always ask for proof that the goods had been unsatisfactory from the date of delivery.

However, this is evidenced by the goods following failure that they are in fact not durable. This has to be proven by the buyer so that the right to reject the goods can come into effect. If the buyer can prove this, the buyer may reject the goods. Although this is not always the case, the misunderstanding of the word acceptance can cause some confusion in S35. A buyer may reject the goods if the seller treats the contract as continuing even after the detection of the breach. This can be illustrated in Bernstein v Pamson Motors [40] Rougier J. Stated – “Once a buyer has had the goods for a reasonable time and not noted any defect he is deemed to have accepted them”. He then went onto continue the point of “Reasonable time means to examine goods in general terms”.

The question of is Bernstein law considered as good law? Still arises even after the changes to section 35. The Courts of Appeal however has a negative approach to this question in a case were the facts were very particular. The case of Clegg v Andersson [41] the nature of the case explains on the time within which a yacht had to be rejected as being not of satisfactory quality since the Sale and Supply of Goods Act 1994 [42] , for the purposes of the Sale of Goods Act 1979 [43] . The Courts of Appeal held in the light of the changes by the 1994 Act (sub sections (5) and (6) redrafted section) the period of time over 5 months waiting for information had not amounted to acceptance under reasonable time. The courts also held that even if Bernstein had been accurate when decided, it was no longer considered as good law.

In conclusion, as the time has passed the relevant acts in Law have been amended to coincide with it. All Amendments made have been done to protect the consumer and provide them with a key part of Law to use express their rights as consumers. Whether, it is the Supply of goods Act 1973 to the Sales of goods Act 1979 all the way to the Consumer Regulations Act 2002. However as time will elapse the need for more consumer protection will be needed as different and innovative products arrive. As long as the consumers follow the updated legislations and refuse defective goods in a reasonable time frame then the issue of defective goods can be long forgotten.

Referencing & Bibliography.

Bernstein -v- Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220

Clegg v Andersson [2003] EWCA Civ320

Godley v Perry [1960] 1 WLR

G.Woodroffe, R.lowe, Woodroofe and low’s consumer law practice (7th Edt 2007

Lambert v. Lewis [1982] A.C. 225 72

Ruben v Faire Bros [1949] 1 K.B. 254

The Supply of Goods (Implied Terms) Act 1973

The Sale of Goods Act 1979

The Sale and Supply of Goods Act 1994

www.wikipedia.org Accessed 8th March 2010

www.whatconsumer.co.uk Accessed 6th March 2010

www.Opsi.gov Accessed 8th March 2010.