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PART 1
THE NATURE OF CONTRACTS
FOR THE SUPPLY OF GOODS
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CHAPTER 1
INTRODUCTION
SCOPE OF THE ENQUIRY
[1.01] This book is concerned with what laymen might term āsales of goodsā to consumers who are within England and Wales. Such transactions will normally be governed by English law (see para 18.13). The fundamental transaction in such activity must be that which is technically characterised as a sale of goods (see para 1.02).
This is a specialised area of the common law which largely developed in the eighteenth and nineteenth centuries, typically in relation to merchants purchasing for resale. It was first codified as a set of general rules in the Sale of Goods Act 1893. However, even in 1893 there may be observed some special rules fashioned for export sales; and, since then, export sales have become such a specialised area of law as to be beyond the scope of this work. For the UK,1 the 1893 Act was subsequently re-enacted with amendments in the Sale of Goods Act 1979 (SGA). Unless otherwise stated, subsequent references to the SGA are to the SGA 1979:2 the 1979 Act in fact only consolidated all the statutory amendments previously made to the 1893 Act.3 Since then, Parliament has pursued a policy of piecemeal amendment.4 Ignoring export sales, this body of legislation applied to goods bought for resale and those bought for consumption, whether the buyer be a business or a private person.
However, with the twenty-first century there has been introduced a further formal distinction in respect of goods bought for private consumption: these are to be found in the EU-led special developments in respect of consumer sales in the Sale and Supply of Goods to Consumers Regulations 2002 (SSG Regs).5 So, it would seem that English law has at last reached a point where this book may consider alone a separate body of law relating to sales to private consumers (see para 1.02), where perhaps the single most important complicating factor is the need for ābuyersā to finance the acquisition of goods (see para 1.03). Additionally, such sales may bring into play a whole range of specialised statute-based rules of criminal law, largely introduced as ancillary supports for the civil law, e.g. the Consumer Credit Act 1974 (see para 1.03); and so the totality of the transaction must inevitably involve consideration of the interplay of civil and criminal āremediesā (see paras 1.04 and 1.05). Sometime in the future, the common law of contract basis of the subject may be displaced by an EU Code.6
The categories of contract
[1.02] Basic sales. In terms of legal analysis, no doubt the greater number of sales are achieved within the scope of the SGA by way of a simple sale of goods with payment on delivery (s 28: set out, para 23.16). The SGA 1893 purported to do no more than ācodify the law relating to the sale of goodsā and expressly left the general principles of the common law untouched save insofar as they are inconsistent with the terms of the Act (now 1979 Act, s 62(2): set out, para 10.18). However, subsequent statutes have steadily reduced the role of the common law in the regulation of consumer sales (see below).
Within the context of sales of goods, the draftsman of the SGA 1893 (Sir Mackenzie Chalmers) endeavoured to capture the spirit of the common law rules, leaving alterations in the common law of England to be made by Parliament.7 The underlying philosophy was to hold the ring between two equal parties whilst they achieved a true bargain,8 the rules themselves being displaceable by contrary agreement: this attitude is often described as laissez-faire. Whilst Chalmers for the most part succeeded in embodying this philosophy in his draft, e.g. caveat emptor (see para 15.22), it may be questioned however, whether (a) the optimum moment was chosen for codification in terms of common law development, and (b) Chalmers was as successful in achieving his objective as is sometimes traditionally held. A fortiori, the continued universal use of the philosophy as regards sales of goods may itself be criticised.9 The assumption of equality of bargaining power must clearly be erroneous in some cases, e.g. consumer standard-form contracts (see para 11.08); and it would seem an almost impossible task to formulate a set of even prima facie rules which would do justice to all parties in all the circumstances obtaining at the time of codification, let alone subsequently.10 For consumer sales (see below), there are now considerable powers to insist that the express terms are consumer-friendly, both prospectively11 and retrospectively.12
Consumer sales. English statute first introduced notions of consumer contracts in the context of exclusion clauses: there has since 1977 been a concept of ādealing as consumerā (Unfair Contract Terms Act 1977 (UCTA), s 12: see para 18.18); and this has, subsequently, been utilised in amendments to the SGA (see paras 11.05A and 11.12). Whilst there have, since, been other Westminster-inspired definitions of consumer,13 in the twenty-first century, the dominant definition in our field has become the Euro-inspired one of the āconsumerā, as meaning (SSG Regs, reg 2):
āany natural person who in the contracts covered by these Regulations, is acting for purposes which are not directly related to his trade, business or profession.ā
As the Euro-version is compulsory, English law has begun to adapt the old ādealing as consumerā concept to conform. The basic issues for parliamentary draftsman in the next few years are as follows:
(1)Whether we should retain a single code for all sales, or move to a separate consumer sales code.14
(2)Bearing in mind the pressures on the Parliamentary timetable, how should the new statutory provisions be kept up to date.15 This appears to involve at least two major policy decisions: (a) whether any consumer sales code should be drafted in ...
