110

The implied conditions in sale of goods contracts

when the goods are in daily use, particularly if the seller refuses to accept a

rejection by the buyer and the latter is forced to continue using them while the

dispute is ongoing. Arguably, there will come a point when that continued use

may be classed as acceptance and possibly as an act that is inconsistent with the

continued ownership of the seller. That said, the court was prepared to allow

rejection after the lapse of six months in Rogers v. Parish146 and of two months

in Porter v. General Guarantee Corp.,147 a hire-purchase case decided on com-

mon law grounds, there being no statutory equivalent to section 35 of the 1979

Act in hire-purchase legislation.

A significant amendment to the rules on acceptance relates to the insertion in

1994 of section 35A of the 1979 Act dealing with partial acceptance. Until that

point, partial acceptance was only permissible in severable contracts, or where

the seller had delivered more than the contract amount when the buyer could

reject the excess,148 or where the contract goods had become mixed with goods

of a different description.149 The current section 35A, however, has expanded

the opportunity for partial acceptance by extending it to goods in non-severable

contracts. Thus, as long as there has been a breach that gives the buyer a right to

reject the goods for non-conformity with the contract, he will not lose his right

to reject the non-conforming goods just because he has accepted those that are

not affected by the breach.150 Partial acceptance will still be subject to the rule

under section 35(7) that prohibits partial acceptance of goods in a ‘commercial

unit’ when the division of the unit would materially impair the value or charac-

ter of the goods.

Q12 Analyse the methods through which acceptance can occur.

146

[1987] 2 All ER 232.â 147â [1982] RTR 384.

148

Sale of Goods Act 1979, s.30(2).

149

Ibid. s.30(4) (now repealed).â 150â Ibid. s.35A(1).

151

Liability for a breach of Sale of Goods Act 1979, s.12 cannot be excluded against any buyer,

consumer or non-consumer.

152

Sale of Goods Act 1979, s.15A.

111

10â Remedies

for non-consumer buyers have been restricted further since 1994 and the

insertion of section 15A of the 1979 Act, which provides that where the buyer

is a non-consumer and the breach of sections 13, 14 or 15 is so slight that it

would be unreasonable for the buyer to reject the goods, then the breach will

be treated as a breach of warranty instead which will sound in damages only.

The parties may contract either expressly or impliedly to overrule this section

and, when it is relied upon, the onus is on the seller to demonstrate that the

breach is so slight as to render rejection unreasonable.

The distinction between non-consumer buyers and consumer buyers is even

more apparent, however, when considering the new remedies introduced by

the Sale and Supply of Goods to Consumers Regulations 2002,153 which took

effect from 31 March 2003.154 The remedies are to be found in section 48A–48F

of the 1979 Act and comprise rights of repair, replacement of the goods, reduc-

tion of the purchase price and rescission of the contract. The remedies are avail-

able where the buyer is dealing as a consumer and the goods do not conform to

the contract of sale at the time of delivery. An interesting development is that

there is a presumption under section 48A(3) that if the goods do not conform

to the contract at any time within six months of delivery to the buyer, they are

assumed not to have complied at the time of delivery. This reverses the burden

of proof and requires the seller to demonstrate the non-conformity by showing

either that the goods did conform at the time of delivery or that six months is

incompatible with the nature of the goods or the nature of the non-conformity.

Thus, for example, perishable goods with a short life-span would be excluded

from this six-month presumption.

These remedies are in addition to those already in existence as, while the

United Kingdom was obliged to introduce these remedies to give effect to

the Directive on the sale of consumer goods and associated guarantees,155 the

Directive expressly permitted Member States to adopt or maintain more strin-

gent provisions to ensure a higher level of consumer protection.156 Thus, while

a consumer buyer may choose to use one of the additional remedies to request

a repair, replacement, etc., the buyer still has the right to reject the goods under

the existing regime if there has been an actionable breach of condition. It is

clear from the wording of the section that the buyer has the choice of remedy,

with section 48B(1) dealing with repair and replacement, and section 48C(1)

dealing with reduction of purchase price or rescission, both stating ‘the buyer

may require the seller…’â. This choice of remedy is important to prevent over-

bearing sellers from forcing weak buyers into accepting a lesser remedy against

their wishes when they might really prefer to enforce their traditional right of

rejection. The balance is restored by the provision that the buyer cannot force

153

SI 2002/3045.

154

The Regulations also provide for new controls over consumer guarantees, see SI 2002/3045, reg. 15.

155

Sale of Goods and Associated Guarantees Directive 99/44/EC.

156

Ibid. Art. 8.

113

11â Recommended reading