Discussing the Proposed Consumer Rights Directive - Essay Example

Proposed Consumer Rights Directive (PCRD) Introduction "In October 2008, the European commission issued the proposed consumer rights directive(pCRD hereafter) to harmonize further, consumer right throughout the European Union including those relating to consumer sales. A month later the law commission published a (critical) joint consultation paper on the United Kingdom's consumer remedies for faulty goods. This consultation paper was not a direct response to the pCRD. Instead it was a response to the need to simplify the United Kingdom's dual regime of remedies that resulted from the implementation in 2002 of the consumer sales directive” As evident in the above paragraph, the proposed Consumer Rights Directive (pCRD) issued by the European Commission in October 2008 was the foundational step to enhancing consumer rights in the United Kingdom. Laws regarding the rights of consumers across the UK were not protective enough to sufficiently safeguard the interest of consumers. The new laws were, therefore, put forward to enhance sanity in sales of products and consumption of faulty products. In order to show that the grievances presented by the European Commission were heard, the Law Commission published laws that would protect the consumers against consumption of faulty goods. Law Commission made an indirect response to the European Commission’s paper with pretence that it was responding to the 2002 Consumer Sales Directive. Whether or not the publication of the Law Commission was ignited by the October release of the European Commission, these laws are a sure relief to the UK consumers. The laws protect the rights of consumers in a way that had not been possible in the past. A critical analysis of the Law Commission Proposals and Remedies for Faulty goods to Consumers relays a lot to be desired about the laws. The need for harmonization of European consumer rights and related remedies was the primary objective of both publications. Whereas the consultative paper was not designed to directly respond to the “The European Law Commission Proposals”, it indirectly touched the core values of that proposal as an attempt to harmonize all United Kingdom Laws relating to consumer rights and remedies with those of the Commission proposals. This Consultative paper further earmarked an indirect advice to the commission regarding short term remedies to be harmonized across Union members without necessarily deviating from the traditional Contract Law remedies like rejection, repair and replacement or rescission (The Joint Consultative Paper, 2009, P.63). European Commission Proposals are another area of the laws that exhibit great deal of fascinating and likeable issues. The Law Commission Proposals were aimed at achieving the “consumer acquis” across the European Union relating to goods consumed and trading rights (The European Law Commission,2008). These rights include the right of withdrawal by the consumer from an ambigueous contract and is associated with the “cooling off period”, the need to protect consumers from “aggressive commercial practices”, removal of all trade barriers across all member states boarders, promotion of online contractual arrangements or trading among other things. The right of withdrawal is concerned with door to door and distance trading activities including both goods and services rendered to the consumer (Schultze, 2009, P.179). By all means, such steps to protect the rights of citizens of the wider European Union are a reason to smile about. The commission proposals are most likely going to enhance economic productivity of the region with increased trade and commerce. These European Commission proposals are majorly intended to harmonize trading activities among European states and once the Union has achieved this, it will have a better competitive advantage over other regions in trade and industry. The major bottleneck is understanding the micro and macro economic factors that drives businesses. More in particular is an understanding of the cultural dynamics of different countries although there is a common economic heritage of the english culture, norms and values as far as most wanted products are concerned. Therefore, harnominisation is a great idea but cannot be achieved in a short period and requires careful tending over time (Schulze, 2009, P.188). An explicit look at Proposed Remedies For Faulty goods in United Kingdom brings about another reason to support the laws. The proposals were followed by the a publication of a “ Joint Critical Consultative paper relating to United Kingdom’s consumer remedies for faulty goods” as an indirect response to the Eurpean Commission proposals. The recommendation relating to these remedies were later adopted by the European commission. These remedies among others included the right to reject goods, rescission, damages through restitution and other forms compesation, the right to repair and or replace faulty goods, and the reduction in prices. These remedies were proposed as a mechanism of solving known to unknow uncertainities that may result from goods not being fit for intended purpose, not being of merchantable quality, failing to correspond with sample, prescription and discription among other related priciples governing the sale of goods in United Kingdom and an agreement to sale Contracts (The Joint Consultative Paper, 2009, P. 20). The right to reject faulty goods became the most far reaching short term remedy among all remedies with considerable modifications where necessary (The Joint Consultative Paper, 2009, P.9). In order to avoid ambiguity and unreasonableness in trading, it was proposed that the consumer should be given a reasonable period of 30 days within which to decide either to accept or reject the goods. However, this may differ depending on the circumstance of each case. The proposed 30 days period may eithter be reasonable or unreasonable. What is reasonable is both a question of fact and law as upheld in Bernstein v Pamson Motors (Golders Green) Limited (1987). To traders dealing in perishable goods, this period is too long and a shorter period would be reasonable to the trader and consumer. In situations where it takes longer than 30 days to examine the goods ,the proposal period should as well be extended to more than 30 days. Therefore, the right to reject goods is the most acceptable remedy but must be exercised in conformity with the nature of goods and the circumstances of each case (The Joint Consultative Paper, 2009, P. 28). The other applousible remedy is seeeking for damages. It can take the option restitution where upon the consumer seeks a refund and is placed back in his or her original position in which that person was before breach occurred. It can also take the form of compesation for other costs incured in the proceess which are incidental to breach per the Court in Hadley v Baxendale (1854). In either way the consumer will seek damages where the goods are not of merchantible quality, do not correspond with the prescription and description or there is a latent defect in the commodity among other things which may vitiate a contract upon delivery or supply and is treated a breach of a warranty (The Joint Consultative Paper, 2009, P.12 ). In addition to these are the remedies of rescission, termination or repudiation of a contract by the consumer. These remedies are exercised upon proof that the contract should come to an end due to the factors mentioned above especially where there is a breach of a condition. For example, if the cosumer contractd for the supply of jean trousers and instead the trader supplied blouses, it amounts to a fundamental breach of a condition necissitating termination of the contract. However, it has been adumbrated that where the breach does not affect the core of the contract, the condition can be treated as a warranty thus availing the consumer with the remedy of reduction in price other than rejecting or terminating the contract (The Sale of Goods Act, s 48C(1)(a)). It can also take the form of seeking a repair if the product is repairable or replacing a faulty part or whole commodity. The Commissioners gave the example of washing machine stating that if upon delivery of the machine, it’s incapable of functioning due to a faulty mechanical damage that can be replaced, then its vital that the seller or trader is allowed to replace the faulty part instead of terminating or rejecting the goods. The seller is given the opportunity to perfect their defective performance(The Joint Consultative Paper, 2009, P. 14). Notable though, whereas the right to reject the goods is different from rescission of a contract, the report uses both terms in the proposal to mean rejection of faulty goods. The commissioners further weighed the right to reject faulty goods against the effect of latent defects. It is argued that where this occurs, a reduction in the purchase prices is the appropriate remedy other than rejection of such goods (The Joint Consultative Paper, 2009, P. 26). Take for example, if the goods were supplied and the latent defect is discovered after one year, it would be unreasonable to reject the goods and claim for a refund.The rationale is that the consumer had been using the product and should not be left to freely reject the products for which he had benefited from. I concur with the above except that where the latent defect is material enough to be treated as a condition precedent, termination or seeking a refund is more appropriate (The Joint Consultative Paper, 2009, P. 27). The other underlying factors in the consultative paper include the limitation period. There was a proposal that the period be reduced from the traditional and normal contractual period of 6 years wihin which such a cause of aciton for breach of a contract can be instituted by the consumer against the seller to 2 years. In such cirumstance I disagree with the European commission proposal of 2 years and concur with the Joint Consultative Commission proposal that the Traditional 6 years period be maintained. If for instance I bought a car and it was a condition that its engine has a guaranty 3 years but before the 3 years elapse, the engines fails. It thus means that the two years would bar this cause of action making it difficult for the consumer or buyer to seek any of the above remedies. Therefore, the traditional period of six years should be maintained across the European union. The other factor relates to the burden of proof. The six months initial burden is not convincing to me as far as civil procedure is concerned. The burden should not been given a limitation period as it has been the custom that in all civil procedure cases, the burden rests upon the plaintiff ( Consumer who asserts) and standard of proof is on “preponderance of evidence” ( balance of probabilites) (The Joint Consultative Paper, 2009, P. 81). Despite the overwhelming arguments in favor of the Law Commission’s laws, there are some issues that need to be considered. The Cooling off relates to the period within which a European Union consumer may decide either to the return the goods to the seller for a refund and or to repudiate the contract but goes hand in hand with the right of withdrawal (Schultze, 2009, P.178). The promotion of online contracts was geared at creating accessibility to goods between member states and also promoting internet marketing and trade thus giving consumers a wide array of choices for their utility and or satisfaction. The protection of consumers from “aggressive contracts” was a bench mark for guarding against undue influence as far as the comodities offered to consumers are of a merchantable quality. This would be more often in door to door trading and the commission saw it necessary to promote the creation of harmonized rules to give consumers enough time to analyse the product being sold and guard against unfair trading. This will in the long run promote value for money (Schultze, 2009, P.178). The proposals should, therefore, be treated on a case by case basis although uniformity of the rules should be upheld. Conclusion Despite the demerits discussed in this writing, it is evident that the laws will contribute greater good o the citizens of UK. Consumers’ rights are properly deliberated. The Law Commission’s laws equally protects the rights of businessspeople so that they are not intimidated by their clients. Contractors and their clients too have guidelines to monitor their business relationships. The laws are , therefore, a practical package to all. Bibliography Bernstein v Pamson Motors (Golders Green) Limited [1987] 2 All ER 220. European Law Commission. (2008) Proposal for A consumer rights directive of the European Parliament and of the Council on consumer rights.[Online] October 2008. Availble from: http://ec.europa.eu/consumers/rights/cons_acquis_en.htm. GREAT BRITAIN. The Law Commission and The Scotish Law Commission. (2009) a (critical) joint consultation paper on the United Kingdom's consumer remedies for faulty goods 2009. London: H.M.S.O. GREAT BRITAIN. Sale of Goods Act 1979: Elizabeth II. Chapter 54. (1979) London: The Statutory Office. Hadley v Baxendale (1854) 9 Exch 341. Schultze, G. H. (2009) Modernising and Harmonising consumer contract law [Online] March 29 Available from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374063. Pdf [Accessed 25th, February, 2013] Schulze, G. H, (2009) Modernising and Harmonising Consumer Contract Law.[Online] Munich. European Law Publishers. Available From: http://books.google.co.ug/books?id=qaAzw9_C67wC&pg=PA3&lpg=PA3&dq=the+proposed+consumer+rights+directive%28pCRD+hereafter%29,+2008&source=bl&ots=GquPXGe8Tp&sig=LMvMBD184Ye-T5ZeQgIOonXmP6o&hl=en&sa=X&ei=47UoUZ7_AYiShgfuoIDIAw&sqi=2&redir_esc=y#v=onepage&q&f=false Read More