Statutory Regulations on Consumer Rights - Essay Example

Sta y Regulations on Consumer rights1 Introduction "Selling and buying of a product "turned to be a situation that we all come across every day, including having your milk delivered, getting a tap fixed, your car repaired - in fact any situation where someone is doing something for you, rather than just handing over a product. As with buying goods, the law has decided that the consumers need some extra protection from the sellers, i.e. the sellers should act with reasonable care and skill and in a reasonable time, for a reasonable charge. It is all very well to say that someone has a legal right, either under basic contract law, when someone fails to do what they say they are going to do, or under consumer protection legislation. The various legislations related to the consumer law protect the rights of a person as a consumer, whether it is of dispute regarding the sale and purchase of the goods/services, or it is of dispute regarding the quality of the goods. As a consumer, a person's rights are expressed as a series of "guarantees" that a seller automatically makes to you when you buy any good or service ordinarily purchased for personal use. These dictums manifest there always exist an agreement in between the seller and buyer/consumer while entering in a transaction. The parties to commercial contracts were considered to be themselves the best judges of what obligations should be imposed. For the most part the legislation was drafted from the buyer's perspective, and the legislation seems generally to prefer the interests of buyers. But some provision of the sale of 2 goods legislations(1) does not impinge greatly on party autonomy like the Sale of Goods Act 1893 (UK). Even though the buyer enjoys such privileges, the law always ponders to lay down some provisions to regulate the consumer civil rights, amidst of numerous issues regarding the magnitude of the enhancement of such provisions. Consumer civil rights under Sale of Goods Act 1863 and present legislations The provisions regarding the consumer's rights against the seller under sales law are to be found in the Sale of Goods Act 1979, which is the derived version of Sale of goods Act 1863, as amended by the Sale and Supply of Goods Act 1994. Sections 12-15 of the Act lays down some implied terms into contracts for the sale of goods relating to title, conformity with description and sample, quality and fitness. The consumer's basic remedies are rejection of the goods and/or damages. The Supply of Goods (Implied Terms) Act 1973 and the Unfair Contract Terms Act 1977 implemented recommendations for the control of clauses purporting 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 implemented recommendations relating to the reformulation of the implied term as to merchantable quality , making it clear that it applies to minor defects and covers 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 Report, www.parliment.uk 3 The recent statutes extend the protection not only to individual consumers but to business entities also. Unfair Terms in Consumer Contracts Regulations 1994(4) provides that they apply to any term in a contract concluded between sellers or supplier and a consumer where the said term has not been individually negotiated. From this it can be seen that this provision is intended to protect individual consumers. Moreover the s 3(1) of the Act provides that the provisions of the section apply to contracts where one party deals as consumer or where the contract is made on the other party's written standard terms of business.. In such instances the weaker party is entitled to the reasonable protection .The courts have also participated in extending the Act's protection to business parties. In R and B Customs Brokers Co. Ltd. v United Dominion Trust Ltd (5) the Court of Appeal decided that the sale of a used car to a "two-person company" of shipping brokers was a consumer transaction so that an exclusion clause in the contract could be held to be void. The company was not buying in the course of business because the transaction was not "an integral part of the business carried on". (6) Now we shall explore the implementations which were adopted by the government to ensure the rights of consumer of sale of goods. In 1997, as per the Proposal for a European parliament and Council Directive on the sale of consumer goods ------------------------------------------------------------------------------------------------------------ 4. Unfair Terms in Consumer Contracts Regulations 1994, Para. 3 5. R and B Customs Brokers Co. Ltd. v United Dominion Trust Ltd.[1988] 1 WLR 321 6. St.Collins, Brian J., (1994), Unfair Terms in Consumer Contracts Regulations Economics and Law, Blackstone Press Ltd 4 and associated guarantees, the select committee has brought forward a number of proposals to protect the physical or economic interests of consumers and promoting fair competition in the Single Market. The main aim of the proposal was to guarantee a uniform minimum level of protection for consumers throughout the Community when they buy goods. It requires goods to be in conformity with the contract not only must the goods satisfy any express terms of the contract but they must also conform to certain criteria like fitness, quality and performance. The main changes to the existing consumer protection legislation to implement the directive are consumers will have the right to have goods that do not conform to the contract of sale at the time of delivery repaired or replaced. Moreover the directive clearly says that the seller to reduce the purchase price by an appropriate amount or rescind the contract. Here the burden of proof lies on the consumer for the first six months of delivery of the goods .and guarantees offered by a producer or seller to a consumer will be contractually binding, and are to be made available to the consumer on request. The UK has chosen not to limit these new consumer remedies to the period of two years as per the minimum period in the Directive. Instead, the usual UK contractual limitation period of six years will generally apply. In consumer sale of goods cases, the new legislation provides that goods will remain at the seller's risk until they are delivered and delivery of goods to a carrier will not be delivery to the buyer. (The existing requirement that guarantees must state that the consumer's statutory rights are not 5 affected by the guarantee remains). (7) As per the Act of 1863 and its later amended versions, the main remedy available to consumers of goods in the UK is the right to reject the goods within a reasonable time of purchase where they are not of satisfactory quality or not as described and obtain a refund of money paid for the goods. In Bowes v Chaleyer,(8) it was argued 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' are as valid today as in 1923.But here we can see that there is no definition of what a reasonable time is and so this depends on the circumstances. But the new legislations has specifically mentioned that where the goods have been accepted or a reasonable time has passed, thereafter any remedy is in damages, which essentially means the cost of repair or replacement of the goods. The usual contractual limitation period of six years applies but it must be reasonable for the goods to last that long. These rights and remedies will continue in addition to the new rights introduced by the Regulations. Moreover the directive (9) amended Section 14 of the SGA and provides that the criteria for judging whether goods are of reasonable quality, "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 6 circumstances" includes any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly on advertising or labeling. Under the new Regulations where the buyer is a consumer, then the goods remain at the seller's risk until they are delivered to the consumer. Previously, risk passed when the property in the goods was transferred to the buyer, which was not necessarily on delivery of the goods (10). Apart from this, the Consumer Protection (Distance Selling) Regulations 2000 (the "Regulations") empowers the consumer to cancel a distance contract at any time during the cancellation period and also for the repayment within thirty days of cancellation. A contract which is cancelled must be treated as if it had never been entered into by the consumer. The regulation empowers the consumer to claim the refund of cost of delivery also. Where the supplier wishes to send substitute goods, the supplier must inform the consumer that the possibility of sending substitute goods in its contract so that the consumer was aware of the possibility of sending such substitutes. But in the case of the consumer canceling the contract and returning the goods, the supplier must bear the cost of such return.(11)From these it can be seen that the rights of the consumer has been rightly protected under the distance selling Act (regulations) also. ------------------------------------------------------------------------------------------------------------ 10. ibid 5 11. The Consumer Protection (Distance Selling)(Amendment) Regulations 2005 Conclusion 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 Bibliography 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. Statutes 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 Website 11. , www.parliment.uk Select Committee on European Communities, (1997) Tenth Report Read More