Consumer and Commercial Relationship in the UK Sale of Goods Act - Dissertation Example

Consumer and Commercial Relationship The UK Sale of Goods Act, 1979, as modified and amended by the Sale and Supply of Goods Act 1994, is by far, the most important commercial piece of legislation in the United Kingdom, in as far as chattels, or movable goods are concerned, and the most contentious, thought provoking and mind challenging at that, for two reasons Firstly, in terms of the fact that it may not been uniformly and consistently applied by English courts to address litigation aspects of modern business transactions, and secondly, the Courts themselves differ on how to provide the kind of justice needed and its modus operandi. Much has been decided based on the jurisdictional framework of cases and its surroundings, the arguments put forth by It is often seen that where case deliberations could hinge on, perhaps a wildcard or a substantive piece of argument that has perhaps, eluded the most brilliant of legal manoeuvrings and orative arguments, by either the defence, or appellant counsel. Or it could also be in terms of certain crucial elements in the case that one party has missed and the other has used. The section which we propose to deliberate, viz. Section 14 has been a controversial one, more so, since it has fuelled more speculative thinking than it has laid to rest, and also because it has been acquiescent to major elucidation and explanations, depending upon the perspectives of the Jury and judges. Perhaps more than anything else, the aspects that matter relate to whether the strictest interpretation could provide and dispense justice- in terms of monetary compensation and damages to the aggrieved, and the need for recompense, on the part of the defendant, in commensuration with the extent, and level of misdemeanour committed. And whether the best course of justice could possibly be pursued and met by adopting judicial stands and legal proclivity. While the hallowed institution of law cannot be used to perpetrate and enforce furtherance of commercial interests of one party at the disadvantage of another, simultaneously, it also needs to be seen that one party does not suffer detriment at the expense of another. Again the aspect of satisfactory quality is also a matter of heated debate. For one thing, only transactions regarding goods and services could come within the purview of Sale of Goods Act and this be eligible for restitution should the need arise, for another, the term satisfactory quality is also subject to various meaning and interpretations, taking cognizance of the aspects surrounding it. This it is quite possible that what has been determined as unsatisfactory quality, or not meeting the standards of performance in one case, may be validated and confirmed as reaching quality parameters in another. Thus, both subjective and objective aspects could be deemed necessary, as relevant to the final verdict. Therefore, it is first necessary to identify and explain the law surrounding satisfactory quality as understood and interpreted under Section 14 read with its provisos. The first aspect to be understood is that under a Contract of Sale, there are no implied terms and conditionality, about the quality or fitness for any particular purpose. However, it is believed that where the seller sells goods during the course of business transaction, there vests an implied condition that the goods supplied under agreement shall abide by the need for satisfactory quality. Thus, for the aspect of satisfactory quality to emerge or be contested, under Section 14 (2A) of Sale of Goods Act, there is need for two aspects- firstly, it has to be a business transaction and secondly, there also need to be an agreement, between buyer and seller. Further under Section14 SS 2B, it is seen that certain parameters of satisfactory quality, or required standards are met when and if, a reasonable man would consider it acceptable, and passing fitness parameters, with respect to the description of goods, it’s pricing aspects and other important and germane considerations. Further it is said that fitness or looks would be considered as is the need for it to be, devoid of minor defects, and also passes the following aspects with regard to being fit for the desired objective, in terms of its appearance and finish, not possessing any slight defects or deficiencies that could be a cause for complaint and also finally, that it should meet safety and durability standards. This it is seen that in the normal course, all these aspects need to be considered when passing a judgement regarding the suitability, fitness or otherwise of the goods under question. Under the provisions of Section 14 SS 2 (C), it is seen that there are certain conditionalities, with regard to the interpretation of Section 14(2), regarding the implied terms that goods supplied cannot be deemed as unsatisfactory, or unacceptable, if these aspects are brought to the notice of or attention of the buyer, before the contract is made; or where the buyer has examined the goods before buying, the said defects could have been noticed during such examination; or further, or where it is a sale of goods by sample, it could have been reasonably evident upon checking of samples. (Sale and supply goods Act 1994 2009). However, it may be argued that checking of samples does not confirm or ratify the actual goods, since it is also necessary that the samples need to conform to the actual goods in terms of satisfactory quality and fitness of purpose. Thus it is seen that there are two major aspects regarding sale of goods, in that it has to be of satisfactory quality and also it needs to be consistent with the need for which the said goods are being bought, especially in cases where the buyer relies on the judgment and knowledge of the seller and makes it known to him. Thus, if A purchase a drilling machine from B, and makes known to the latter that it would be used for drilling strong reinforce glass materials, A relies on the skill and judgment of B in providing him satisfactory and suitable quality products, and in case the product fails to meet satisfactory quality, or performance standards, B would be accountable to A for supply of inferior goods, and breach of contract. However, if A had purchased the drilling machine as seconds, it would not be justifiable or reasonable on A’s part under the provisions of Section 14(2A) to expect the quality of a new drilling machine. Again, the product needs to be fit for the intended purpose. In this case, it is seen that when a specific intention is conveyed to the seller, this creates an implied term of contract, or, there is a legal implication that goods shall meet the required fitness purpose, even if this objective is not the normal intentions for which the goods are purchased and used. (Sale of goods act n.d.). This in such cases, the onus is on the sellers to make sure that the goods not only are of satisfactory quality and performance standards, but also are according to customer specifications and meet the needs and requirements for which it has been brought. Even if the goods supplied are not regularly of the kind that seller transacts, the very reason that he has accepted the contractual obligation makes him responsibly to ensure that his goods pass the suitability of purpose criteria. The main aspect of this study is that of assessing satisfactory quality. It has been seen earlier that, unless anything to the contrary arises, or is perforce to arise, satisfactory quality under Section 142(A) would mean, and I quote, “goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.” The various factors of satisfactory quality that influences aspects of quality may include, interalia, fitness for purpose for which goods have been supplied, final looks of the product, devoid of minor imperfections, and being safe and of lasting nature. (Dti: a traders guide 2005). It is seen that aspects of fitness for purpose are important, since it forms crux of contractual obligations. However, in certain cases it may be difficult to pass a confirmed opinion as to fitness of purpose. A small washing machine may not be able to take heavy loads, and thus may not be considered fitness of purpose at one level, while being able to pass the fitness test at another. Thus if a machine is bought and used beyond its capacity, it cannot be said not to have be of fitness. The purpose of use needs to be clarified. If the seller of computers, for instance, guarantees software compatibility with certain kinds of personal computers when it is not so, there is breach of contractual obligations. But if nothing is mentioned, the buyer cannot hold the seller responsible for it. Another important and interesting aspect of satisfactory quality could be in terms of products which have manufacturing defects ab initio, as compared with defects that crop up, later on, or after a certain time period. Goods could be said to be possessing manufacturing defects, if despite normal use, it does not render proper service, or does not possess the life span that is normally expected of it. If an air conditioner whose average life is 8 years works for 9 years without fault and then develops problems, it could be said to be of satisfactory quality, having regard to its performance over its useful working years. However, if the same air conditioner develops faults after 2 years, it could rationally be expected for buyer to assess reasons for its breakdown, despite normal use, and reassess the possibilities of the machine failing due to manufacturing defects, or apparent unsatisfactory quality. Here, if the seller had categorically denied responsibility after 2 years of machine’s use under the initial contract, it could be seen that the specific description of contractual terms obviates the liability on his part. After description of the goods, the next aspect is that of pricing of the goods. The law has, in its scope, sought to differentiate situations, so as to make the legal implementation of disputes more lucid, clear and amenable to reasonableness and practical application. In most cases, it is seen that the higher priced the goods, the more quality and performance standards it needs to maintain. But that does not mean that cheaper goods need not have any quality standards at all. Obviously, a pair of shoes that cost £250 would be of more satisfactory quality than a pair that say, costs £25. Thus, relative pricing is an important aspect of quality, for it would not be wrong to state that more often than not, especially in consumer goods, pricing does have a direct bearing on quality standards and performance. One would not expect a pair of shoes bought for £250 to come apart within a week of its use. The next aspect with regard to other relevant conditions for fulfilling Test of Satisfactory Quality could be seen as follows: 1. Products need to meet fitness for desired objective of purchase 2. The said product need to meet appearances and finish test 3. The products need to comply with minimum small and minor defects tests 4. Need to conform to safety standards 5. Need to observe durability standards. It is now necessary to consider each of the above in greater detail. Products need to meet fitness for desired objective of purchase It is no travesty from the truth to believe that customers and consumers buy products to satisfy wants, or to fulfil objectives. Whether it is purchase of a jet airliner worth millions of pounds, or just a humble loaf of bread, needs must be satiated. Where the customer does not specify the actual fitness need criteria, the normal and usual standards need to be met, but in the event the seller is aware of specific needs of the product, there is need for it to be satisfied if he accepts the contract., and he cannot escape responsibility, in the event this is not met or fulfilled. Under all circumstances, for products and services that fall within the ambit of Sale of Goods or Services Act, or a commercial or business transaction, this needs to be reinforced. This principle holds even if the products do not ordinarily need to meet such criteria. The said product needs to pass appearances and finish test The said product needs to meet appearances and finish test in as much as where goods are purchased, inter alia for aesthetic value, there is need for both looks and performance criteria to be met. This is more pronounced in the event both seller and buyer are aware of it, even if the contract is unvoiced on such criteria, and could thus be said to be an implied, or inferred term of the contract. It could thus be seen that certain items may need priority looks and finish criteria while others may not. For instance, the degree of importance attached to aesthetic design and beauty in a television set, or a Persian carpet may be more than what could be attributed to a motor pump set, or automobile battery set. The salient aspect is that where the Sale of Goods demands the need for this aspect to be conformed, it needs to be met. The products need to comply with small and minor defects tests Under sale of goods, it is necessary that the goods need to conform to buyer’s specification in every way and to be perfect in every way. Even if the goods possess small and minor defects that may otherwise not affect its performance, still, it is well within the rights of buyers to reject such goods or seek perfect replacements. While a lot would devolve upon surroundings of case, and its material bearing, it would be necessary to infer terms of offer and sale in such cases. It would also be necessary to seek out the importance attached to such terms and clauses in the contract, whether expressed or implied. Needs to conform to safety standards The safety standards, by far form the major and salient aspects of business transactions since health and safety hazards could be a major issue during the use of products. While many aspects of safety may be gleaned from the contractual obligations and product literature, it is incumbent on the art of the seller to inform the buyer regarding the safe use of products, preferably through provision of training workforce and affording practical demonstration about the safe use of products. This is practically important in case of industrial goods where the user may not be expected to have ample knowledge, especially on how to deal with emergency situations. The question of safety and operability of the vehicle has been examined in the case of .Lamarra v Capital Bank Plc 2006. In this case it is seen that the respondent signed a Hire Agreement (subsequently to be confirmed into a total Purchase Agreement) during 2001, for hire purchase of 4.6Litres Range Rover for £51,550 with down payment of £6717.82 and 36 monthly instalments, first instalment £1517.80 and second, £1422.80. The respondent paid down payment and the first two instalments, but refused to pay the balance citing that vehicle had manufacturing defects that rendered it unworthy of being bought. There were both minor and allegedly major defects. The matter went to Court. It was seen that although defects were cited and the vehicle repossessed by the owners, it had clocked nearly 6000 miles. (Osborn, Philip & Kirkwood 2006). “There were several defects in this vehicle at the time of delivery, only some of which were minor. The pursuer was aware of two of these at the time of delivery. At least one of the other defects was certainly not minor. The Act refers to freedom from minor defects. This vehicle was not free from minor defects; nor was all the defects minor." Thus, the authority decided to reject the appeal of the company and upheld the decision of the buyer to rescind the contract and reject the goods. (Osborn, Philip & Kirkwood 2006). Need to observe durability standards. Under Sale of Goods Act, it is seen that products need to conform to durability standards and the ability to perform for a continuous period of time. It is thus seen that in the event the description of the goods speaks of durability and permanency, and yet these standards are not maintained, there is apparently a breach of contract that needs to be remedied. It could also be in terms of the fact that often jury needs to take a contextual view of durability standards and the surroundings of the case adds up to durability or lack of it. In the case of Egan v. Motor Services (Bath) Ltd. 2007 the question arouse as to whether the AUDI TT 3.2 litres V6 motor car purchase for £32,300 was in fact defective, since it was inclined to veer to the left and was “camber sensitive.” However, the Courts did not find this unsatisfactory and ruled that it is necessary to prove that “the vehicle was unsatisfactory to the purchaser is not enough: it is only unsatisfactory for the purposes of section 14(2A) of the Sale of Goods Act 1979 if it does not meet the standard that a reasonable person would regard as satisfactory. That is an objective test and the judge held, and was entitled to hold, that this car did meet that standard. So the claimant loses his claim.” (Ward, Arden & Smith 2007, p.7). Explanation to Section 14 of Sale of Goods Act, 1979: That being said, it is now necessary to consider the next part of this study in terms of a explanation of Section 14 of The Sale of Goods Act, 1979, read with its amendment, Sale and Supply of Sale and Supply of Goods Act 1994 along with Sale and Supply of Goods to Consumers Regulation 2002. A major aspect that needs to be considered is whether the goods are ascertained or unascertained ones. If A agrees to buy unascertained goods, for instance, a future purchase of 5000 bags of grains, it is seen that it would involve unascertained goods. (Bradgate & White 2007, p.515). But if A agreed to buy a television set seen in a shop, it is seen that the goods are ascertained and known, and the consequences of the sale is entirely upon him. The Court of Appeal held that goods which were imperfect on deliverance were not to be taken to be of saleable value for the purpose of section 14 of the Act of 1979 by reason only of the fact that the defects had not damaged the workable character of the goods; it was not relevant to whether the goods had been of merchantable quality on delivery that the defects had subsequently been repaired; and that in respect of any passenger vehicle the purpose for which goods of that kind were commonly bought would include, not only the purchasers purpose in driving it, but that of doing so with the degree of comfort, ease of handling, reliability and pride in its appearance appropriate for the market at which the vehicle was aimed. The issue of the significance of a warranty in that context was the subject of disagreement. The dispute was that any car which did not satisfy basic requirements was not merchantable, but a defective new car which satisfied those requirements would be of merchantable quality, if there was a warranty that any fault would be repaired immediately without cost to the buyer. The manufacturers warranty fell to be considered as a relevant circumstance for the purpose of the statutory warranty under section 14(2) and (6). Thus it is seen that the main aspects that Section 14 seeks to enforce is whether the goods falls within the class of being of satisfactory quality or not, and if not of satisfactory quality the main aspects that impact upon it. In the context it is also to be seen that defects may be of minor type which may not affect the performance or otherwise of the product; hence under such circumstances it could be seen that minor defects that are within the warranty period could be repaired by the seller, and thus there is no cause for rescission of contract or claiming damages. It is seen in the Bramhill and another v Edwards and another [2004] EWCA Civ 403 the court held that, even though the goods were illegal to use in the UK no breach of section 14(2) was established and even if a breach could have been established no award of damages would have been made. In this case what transpired was that the length of the vehicle was of a certain specified length but the permissible limits in the UK were exceeded. Since permissible length was exceeded, it was possible that the vehicle could be impounded and its owners proceeded against. But this, in no way, affected the legality of the sale contract since the buyers and sellers were well aware of the fact that the vehicle was larger in size than acceptable. Thus, it is seen that under the provisions of Section 14 SS 2 (C), it is seen that there are certain conditionalities, with regard to the interpretation of Section 14(2), regarding the implied terms that goods supplied cannot be deemed as unsatisfactory, or unacceptable, if these aspects are brought to the notice of or attention of the buyer, before the contract is made; or where the buyer has examined the goods before buying, the said defects could have been noticed during such examination; or further, or where it is a sale of goods by sample, it could have been reasonably evident upon checking of samples. (Sale and supply goods Act 1994 2009). In the Bramhill case, it is seen that the buyer had reasonable ground for examination of goods and thus he could not reject the same, after the delivery was affected. Again coming to the 1954 case of Wilson v.Rickett,Cockerell & Co. Ltd., it is seen that The applicant, a housewife requisitioned coal which was duly sent to her. When the coal was put in the fire, it exploded and caused damages. In this case Section 14 was invoked and it was held that the goods were not of merchandisable quality and the sellers were liable for supply of substandard goods, not fit for use under Section 14(2). (Rickett 2009). Again, coming to the Roger v. Parish (Scarborough) Case 1987, it is seen that the applicant bought a Range Rover vehicle for £ 16,000, but it became apparent that the vehicle had a defective engine, gearbox, etc. Under such circumstances, the courts held that the buyer was entitled to reject the vehicle since it failed to meet satisfactory quality and performance standards and was entitled to reclaim the purchase price and damages. (Kelly, Holmes & Hayward 2005, p.199). In the case of Jewson v. Kelly (2003) it was held that in case of a conflict between Section 14(2) and 14 (3), the courts would apply what would be most appropriate under the circumstances. It is thus seen that Section 14(2) seeks to establish what is reasonable or satisfactory quality- keeping in mind the price; servicing and other factors while Section 14 (3) establishes performance etc. In this case although the products could not affect energy cost reductions, it was able to perform reasonably well. The courts decided that in this case, the main question that was being argued was the performance and this was beyond doubt. Thus, the claims of the buyer in this case were negated by the Courts and the claim was rescinded. Understanding the implications whether the term in breach is classified as a warranty or a condition: It could be seen that the impact of whether a term in breach is a warranty, or a condition could be seen from point of view of the perspective of satisfactory quality. It is seen that goods which are defective, ab initio, are not saleable. Thus if the seller was aware of the defect but the buyer is not, it is well within the rights of buyer to rescind the contract. But where goods are sold under warranty, in that, in the event the vehicle is impaired and needs repair and servicing within a time frame, that is, 2 years or so, and the seller undertakes the responsibility to have it repaired within such time, the warranty rules comes into effect and as such, except under extreme circumstances, the buyer may not be at liberty to cancel, or rescind contractual obligations. Thus, it is seen that defective goods may become of reasonable and acceptable quality, if there is an undertaking by seller to undertake needed repairs and servicing under contract. On the other hand a condition, is when the seller needs to fulfil specific terms in order for the contract to be effectuated, otherwise, there are risks of rescinding contract and claiming damages, or filing a suit for breach of warranty as was seen in the case of Bernstein v. Pamsons Motors (Golden Green) Ltd. (1987). (Kelly, Holmes & Hayward 2005, p.201). In this case, it is seen that the buyer purchased a brand new Nissan for £ 8000, and after having traversed 140 miles during a course of three weeks, the car developed engine trouble and ceased to run. Although it was subsequently repaired and sent back, the owner refused to accept it, claiming that the car was new and it should not have developed defects at an early stage, and also it would seem to be an inherent manufacturing defect that needs to be settled by the manufacturer. However, the courts felt that although these aspects need to be considered, the important factor was that the main aspect was that of warranty and not condition. Thus, the repair and restitution of the object of contract and also the fact that three weeks, or travel of 140 miles by the owner, was enough time for judging the car, it is as good as the car having been accepted and therefore the courts allowed only breach of warranty and not return. “If he is deemed to have accepted the product, he will only be entitled to bring a claim for damages.” (Showcase: consumer law- UK by hkhalek 2009). It is now necessary that warranties or more so extended warranties be examined. It is seen that an “extended warranty is a contract which is purchased by a consumer and which offers protection in case the product(s) covered by the warranty break down. “ (Twigg- Flesner 2002). It is seen that warranties are not only for the present, but also for future wear and tear of vehicles that could arise due to usage and movement of vehicles. It is not a manufacturer defect and the buyers’ rights are not covered under warranty, since it is decided by the manufacturer or the seller to decide what the warranty may be. The essential difference between warranty and condition would be that in the case of warranty, the maximum a buyer could do is to seek breach of warranty, or fitness assurance of the product, he may not under normal circumstances be able to rescind the contract, claim back the purchase price or sue for return of goods. But under condition for instance, if the buyer wanted to buy an air-conditioned, grey sedan, and he is delivered a non AC, yellow one, it is quite possibly on his part to rescind the contract or claim actual performance. Again he may also claim breach of contractual obligations by the seller. It is pertinent in this context to consider the decision in Stevenson v. Rogers case The judge held on a beginning issue that the sale by the defendant of the fishing vessel to the plaintiff was not a sale of goods in the course of a business for the purposes of s 14(2) of the Sale of Goods Act 1979, and was thus not a saleable product. However, upon appeal the Court allowed the appeal. Thus, according to the final judgement, it was held that there was an implied term as to merchantable quality in the contract for sale of the vessel and the courts validated the sale. (Rogers 2009). Conclusions: From the above deliberations it is seen that it is often the circumstances and situational aspects that determine the ultimate outcome of case laws. It could be seen that in certain situations the courts may, considering the holistic aspects, decide that the parameters and conditional ties of satisfactory description, quality and other relevant aspects have been met, but in others even sale with minor errors that are repaired by the buyer can be major cause for concern. While the laws of the land seek impartial, unbiased and non contentious passing of verdicts by courts, it is often seen that similar cases may be decided differently, may be due to the preponderant factors, the arguments of the counsel and other factors that may surround the cases. On their part, judges need to verdict carefully since an unprecedented decions would definitely create legal precedents that may be innovative but not pass the test of law. Thus, it is very much important that Courts need to consider the good and welfare of all concerned, and dispense justice in commensuration with the level and depth of the transgression or fault, and administer verdicts with a sense of equity, justice and good conscience. While the common good needs to be considered, especially in commercial and financial litigation, it is also necessary that the breach may repair and the aggrieved restituted in what would have occurred had the breach of sale or transaction not taken place. It is also necessary to consider that degree of reasonableness and equity that needs to be imparted on each of the litigating party, the situational aspects and surrounding of the case, and how the fundamental issues of repair and restitution could be afforded to the parties. APPENDIX 1 (Dti: a traders guide 2005, p.8). 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The legal issues of extended warranties explored: what are extended warranties, Web Journal of Current Legal Issues, viewed 31 May 2009, http://webjcli.ncl.ac.uk/2002/issue4/twigg-flesner4.html Ward, L J, Arden, L J & Smith, L J 2007, Egan v Motor Services (Bath) Ltd [2007] ADR.L.R. 10/18: lord justice ward, viewed 31 May 2009, http://www.nadr.co.uk/articles/published/AdrLRep/Egan%20v%20MS%202007.pdf Read More