Consumer Protection Law - Essay Example

 Consumer Protection Law A sale by description occurs when the buyer relies on, or purchases on the basis of “a description of the goods by the seller, or alternatively, he or she buys in reliance upon the seller’s affirmation that the goods conform with the description given by the buyer.”1 This has been denoted by Section 13 of the Sale of Goods Act of 1979, where there is an implied warranty on the goods sold, which must conform to their description. But, this criterion is likely to be enforced by the Courts only in instances where an underlying assumption can be made that the parties intended to include the description of the product put forth by the Seller, as a contractual term. Imputing liability upon a Seller purely on the basis of goods not conforming to the exact description of the good offered for sale may not be applicable unless and until it can be proved that the buyer relied upon such a description in arriving at a decision to purchase the product. Under a sale by description, where the implications about merchantability of the goods are set out under Section 13(1) of the sale of Goods Act of 1979 as follows: “Where there is a contract for the sale of goods by description, there is an implied condition that the goods correspond with the description.”2 The description of the good is to be taken into account when determining whether the goods are of a satisfactory quality. In the case of Varley v Whipp3, it was held that in every case where the buyer has not had the opportunity to see the goods before purchase, the goods will be deemed to have been bought by description. The old pot ornament would therefore have been expected to conform to its description and photograph as laid out in the advertisement, which states “old pot ornament, in good condition for its age.” But the goods received by Chris show the ornament not conforming to description. The question of goods sold which did not match their description arose in the case of Beale v Taylor4 where the defendant had advertised his car as a 1961 Herald convertible, however the actual car comprised two parts welded together and only one of these parts came from the 1961 model rather than the entire car. As a result, the car that was delivered to the buyer was held to not conform to its description and the Court allowed the plaintiff to secure damages. The question of description also arose in the case of Andrews v Hopkinson5 where the dealer’s description of the item in question as a “good little bus, I would stake my life on it” was held to be a contractual term because it formed a part of the description that was set out in the advertisement for the goods. Similarly in the case of Couchman v Hill6 a statement made about the heifer sold was that it was “unserved” and the Court held that every item in the description which forms a component part of the identity of the object sold is a condition for which the seller can be held liable. The sale by description may apply “even where he (the buyer) has seen and selected the goods, if the deviation of the goods from the description is not apparent.”7 But in general, liability may not necessarily be imputed through description alone, unless a inference can be drawn from the conduct of the parties that they intended to include such description as a contractual term, or unless the buyer relied solely upon the description of the product in purchasing it. In the case of Oscar Chess v Williams8 the dispute concerned a car offered for sale that was described as a 1948 model. Both the parties believed that the car was a 1948 model, whereas it was actually a 1939 one. Denning J held that the effect in the case of a mistake, “the contract is not a nullity from the beginning, but it does in some circumstances, enable the contract to be set aside in equity.”9 In such an instance the remedy available to the buyer would be in damages because the goods do not conform to the description, but in order to gain the damages, he must first of all prove the existence of a warranty. To arrive at a determination of whether a warranty existed, the question that must be asked is whether the description is fundamental to the contract? Was it a binding promise or only an innocent misrepresentation?10 In the Oscar case, the Court held that the plaintiffs were entitled to claim damages, because the stipulation about the date of the model was equivalent to a contractual condition, which was also clearly set out in the contract as a “1948 Morris 10 Saloon”.11 In the case of Routledge v Kay, an antecedent statement about the product was not replicated in a later written contract, hence it was not the intent of the parties to incorporate the description into the contract and no liability was established. In the case of Gill and Duffus S.A. v Berger and Co Inc it was held that “one must look to the contract as a whole to identify the kind of goods that the seller was agreeing to sell and the buyer to buy.”12 The Sale of Goods Act also specifies that “if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description”13. In the Gill case, the Court in specifying how a sale by description was to be assessed applying this statute about the sample and description, stated that those characteristics of the product which would be evident to the buyer upon reasonable examination of the sample may not be intended by the parties to form a part of the description of the product. This would apply despite such characteristics being mentioned in the references in the contract to the goods that form the subject matter of the contract. Courts are reluctant to impose contractual liability upon a seller for advertising statements describing a product, especially in the case of more general statements14. If a buyer some specific enquiry about the product and received a response of affirmative description from the seller, there could be a liability15, otherwise, it is more difficult to establish. When a buyer has inspected the goods, the sale by description can apply only to those aspects which relate to something that is not immediately evident upon inspection, but constitutes a substantial part of the identity of the product. In other instances however, a seller may not necessarily be held liable for providing goods in perfect accord with their description. When the Sale and Supply of Goods to Consumer Regulations 2002 is applied, a seller may be liable for advertising statements, and the goods actually supplied must match their description, or be held to be of unsatisfactory quality. Regulation 3 however holds that the seller will not be liable for such statements when the decision to buy the goods could not have been influenced by the statement of the seller or the description of the product.16. According to Oughted et al, the notion that sale by description automatically attributes importance to the buyer’s reliance on the description of goods may be theoretically correct, but it is only when it has “sufficient influence in the sale to become an essential term of the contract” that it may actually be actionable17. But it is the intent of the parties that is likely to provide a more reliable indicator about the extent of importance that is actually attributed to the description of the goods. As pointed out by Lord Wilberforce in Ashington Piggeries18 the question that must be determined is whether the item that is sold corresponds to what the buyer bargained for and this may be answered by applying a common sense test of whether or not the good has a mercantile character. Although this suggests that the goods must generally comply with their description, it does not necessarily mandate strict compliance. Rather the problem that is posed to the Court is determining whether a term that is used in the contract is necessary in identifying the subject matter of the contract and therefore a part of the description, or whether it refers to the quality of goods, which is not necessary to identify.19 On this basis, a sale by description will not necessarily apply in those cases when the parties to the contract do not contemplate that the buyer is relying upon the description of the goods in purchasing it. It is the intent of the parties and the circumstances surrounding the case that will play a greater role in determining the extent to which a buyer can rely upon the argument that goods must correspond exactly with their description. Hence, goods may be described but such descriptions may not be relied upon by the buyer in making certain purchases, such as in those instances where the buyer purchases the goods in an as is condition, for example. In the case of Harlingdon and Leinster Enterprises v Christopher Hull (Fine Art) Ltd20 the defendant Company was asked to dispose of two paintings that were purportedly the products of a German painter, Munter. The plaintiffs who purchased the paintings, later sued because the paintings were not Munters and therefore did not correspond to the description that had been offered. But in this instance, the defendant was not held to be liable for the failure of the goods to conform to the description since he did not claim to be an expert and plaintiffs were also aware of this fact. As a general rule, every item within the description of a product that “constitutes a substantial ingredient in the identity of the thing being sold is a condition.”21 In specific reference to the name of the painter constituting an essential part of the description, Denning LJ in another case stated that “there was a term in the contract as to the quality of the subject matter, namely as to the person by whom the picture was painted…”22 In the case of Harlingdon however, the Court held that the description must be “influential in the sale” and in the absence of such an influence, “a description cannot be said to be the one by which the contract for the sale of the goods is made.”23 The Court clarified that while in general, the reliance of the buyer on the description of a painting as being by a particular painter, could constitute a sale by description, the circumstances in the instant case indicated that the buyer had not relied upon the description offered by defendant Hull, but had purchased the painting as it was. As a result, this could not constitute a sale by description. In this instance, a representation had been made about the Munter painting by Defendant Hull who was not an expert, hence it was not held to be a sale by description. But in those instances where the maker of a statement has special knowledge about the product and was therefore in a position to verify the accuracy of the statement being made in the description, then it is likely that liability may apply. For example, in the case of Dick Bentley Productions v Harold Smith Motors24 an oral statement made by the seller of a car about the number of miles traveled was held to be a contractual term because the sellers were in a position to know the true mileage. On this basis therefore, it may be seen that a sale by description is more likely to hold good when the description is offered by a knowledgeable party. It may thus be concluded that a sale by description will apply when (a) the buyer relies solely upon the description in making the purchase (b) the maker of the statement in the description possess expert knowledge. In most other instances, the extent to which a sale of description will apply will depend upon the circumstances surrounding the purchase and the intent of the parties. Bibliography Campbell, Christian, 2006, “International Product Liability”, Lulu Chalmers, M, 1981. “Sale of Goods”, Butterworths Gillies, Peter, 1998. “Concise Contract Law”, The Federation Press. Goldring, John, Maher, Laurence and McKeough, Jill, 1998. “Consumer Protection Law”, The Federation Press Oughton, Davis, Martin and Oughton, David, 2000. “Sourcebook on contract law”, Routledge Willett, 2000. “The Role of contract law in product liability”, IN “The Law of Product Liability” Butterworths Cases cited: * Andrews v Hopkinson (1957) 1 QB 229 * Ashingtron Piggeries Ltd v Christopher Hill Ltd (1972) AC 441 * Beale v Taylor (1967) 1 WLR 1193 * Couchman v Hill(1947) KB 554 * Dick Bentley Productions v Harold Smith Motors (1965) 2 All ER 65 * Gill and Duffus S.A. v Berger and Co Inc (1984) AC 382 * Harlingdon and Leinster Enterprises v Christopher Hull (Fine Art) Ltd 3 WLR 13 CA * Leaf v International Galleries (1950) 2 KB 86 at pp 89 * Oscar Chess v Williams (1957) 1 WLR 370 CA * Shanklin Pier Ltd v Detel Products Ltd (1951) 2 KB 854 * Varley v Whipp (1990) 1 QB 513 Read More