77 |
9â Recommended reading |
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An alternative analysis was expounded by Lord Penrose in the Scottish deci- |
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sion of Beta Computers (Europe) Ltd v. Adobe Systems Ltd,58 in which he drew |
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attention to the intellectual property aspect of the transaction and the fact that, |
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irrespective of the way that the software is acquired, the user will require a |
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licence from the owner of the intellectual property rights. |
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Q6 Analyse the various categories of contract under which a purchaser or |
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hirer can acquire the property in or possession of goods while not being subject |
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to the Sale of Goods Act 1979. |
9â Recommended reading
Atiyah, P.S., Adams, J.N. and MacQueen, H. The Sale of Goods (11th edn, Pearson Education Ltd, Harlow, 2005)
â The Sale of Goods (12th edn, Pearson Education Ltd, Harlow, 2010) Bradgate, R. Commercial Law (3rd edn, Oxford University Press, Oxford, 2000) Bridge, M. The Sale of Goods (Oxford University Press, Oxford, 1997)
Dobson, P. and Stokes, R. Commercial Law (7th edn, Sweet & Maxwell, London, 2008) European Commission Proposal for a Directive of the European Parliament and the
Council on consumer rights, COM(2008)614 final (Brussels, 2008)
Howell, G. and Weatherill, S. Consumer Protection Law (2nd edn, Ashgate Publishing Ltd, Aldershot, 2005)
Macleod, J. Consumer Sales Law (2nd edn, Routledge-Cavendish, Abingdon, 2007) Mark, M. Chalmers Sale of Goods (18th edn, Butterworths, London, 1981)
Sealy, L.S. and Hooley, R. Commercial Law : Text, Cases and Materials (4th edn, Oxford University Press, Oxford, 2009)
Singleton, S. ‘Draft Consumer Rights Directive and Unfair Terms’ (2008/2009)
Consumer Law Today (Dec.) 8
The background to sale of goods and the policy underlying it is addressed in most standard works on the topic, such as Atiyah’s The Sale of Goods. Reading the relevant sections in a selection of the books referred to above will give the reader a good understanding of the topic. Having been relatively static for a considerable period, sale of goods law is now progressing due to the influence of the European Union, the current area of activity being the Consumer Rights Directive. Readers would benefit from reading the Commission’s proposal.
58 1996 SLT 604.
Part 2 Chapter 2
The Implied Conditions in Sale of
Goods Contracts
Contents
â 1â |
Introduction |
78 |
â 2â |
Background |
79 |
â 3â Sale of Goods Act 1979, section 12: the right to sell |
80 |
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â 4â Sale of Goods Act 1979, section 13: compliance with description |
85 |
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â 5â Sale of Goods Act 1979, section 14(2): satisfactory quality |
91 |
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â 6â Sale of Goods Act 1979, section 14(3): fitness for purpose |
102 |
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â 7â Sale of Goods Act 1979, section 15: sale by sample |
105 |
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â 8â Exclusion and limitation of liability |
106 |
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â 9â |
Acceptance |
107 |
10â |
Remedies |
110 |
11â |
Recommended reading |
112 |
1â Introduction
This chapter looks in detail at the implied conditions in the law governing the sale of goods which are of equal importance whether the purchaser is a business or a consumer. As such, they are an extremely important aspect of both commercial contracts and consumer contracts, although there are differences between the two, the significance of which will become apparent from the discussion below.
Section 2 looks at the background to sections 12–15 of the Sale of Goods Act 1979 and considers some of the differences in the impact of the provisions dependent upon the nature of both seller and buyer.
Section 3 analyses the implied condition as to the right to sell contained in section 12 of the 1979 Act and considers the section 12(1) implied condition and the section 12(2) implied warranties.
Section 4 deals with the implied condition that requires that goods that are sold by description must comply with that contractual description, and considers the ambit of the condition; what constitutes a ‘sale by description’; compliance with description and the relationship between section 13 and section 14.
79 |
2â Background |
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Section 5 analyses the most well-known of the implied conditions, namely, |
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that goods supplied under a sale of goods contract must be of a satisfactory |
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quality. The section breaks down the analysis of this topic as follows: sale in |
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the course of a business; merchantable quality; the introduction of ‘satisfactory |
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quality’; the statutory exceptions to the requirement for satisfactory quality; the |
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goods included in the requirement for satisfactory quality; the meaning of sat- |
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isfactory quality; and the section 14(2B) criteria. |
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Section 6 addresses the implied condition in section 14(3) that goods sup- |
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plied must be fit for their intended purpose. This subsection, which to some |
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extent overlaps with the section 14(2) requirement regarding satisfactory |
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quality, addresses the particular purpose or purposes for which the buyer |
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purchased the goods and the role of his reliance on the skill and judgement of |
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the seller. |
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Section 7 considers the section 15 requirement that goods that are sold by |
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reference to a sample must comply with that sample. |
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Section 8 looks at the extent to which it is possible to exclude or limit the |
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liability of a seller for a breach of any of the implied conditions. It draws par- |
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ticular attention to the extent to which the nature of the buyer, i.e., business or |
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consumer, affects the ability of the seller to exclude or limit his liability. Section 9 |
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considers the concept of acceptance and its impact on the remedies available to |
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the buyer, and section 10 analyses the remedies available to both business buyers |
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and consumer buyers for a breach of any of the implied conditions. |
2â Background
The implied conditions,1 originally introduced by the Sale of Goods Act 1893 but now to be found in sections 12–15 of the Sale of Goods Act 1979, are at the heart of the statutory controls over the right to sell, sale by description, satisfactory quality and fitness for purpose of goods and compliance with sample in contracts of sale.2 As these sections are implied into all contracts of sale, it follows that they apply irrespective of the monetary value of the goods in question or their nature and character. Thus, it applies equally to a business- to-business contract worth millions of pounds and a contract by which a consumer buys a box of matches from a small corner shop. In both instances, the seller must have the right to sell the goods and they must be in conformity with the contract.
1 The provisions in Sale of Goods Act 1979, ss.12–15 refer to implied terms. However, while this terminology is appropriate in Scotland, ss.13–15 make clear that in England and Wales the implied terms contained in those sections are conditions, see s.13(1A), s.14(6) and s.15(3). Further, s.12(5A) stipulates that the implied term regarding the right to sell contained in s.12(1)is a condition in England and Wales, while the other implied terms in s.12 are implied warranties.
2 See the Supply of Goods (Implied Terms) Act 1973 for the equivalent provisions in respect of contracts of hire-purchase and the Sale and Supply of Goods Act 1982, Part I for the equivalent provisions for contracts for the transfer of goods other than by sale and for contracts of hire.