Throwing Away Policies

1
Throwing Away Policies

• Durability and the Law
• Cowan Ervine
• University of Dundee

2
Definiton of Durability

• goods, when delivered, should have the
  capacity to remain reasonably fit for the
  purpose, and retain their non-functional
  attributes, for a reasonable time.
• Atiyah, The Sale of Goods, 10th ed. p. 182

3
Legal Approaches

• Contract Law
• Tort Law
• Consumer Protection Act 1973 Part 1
• Other Regulation

4
Durability and Contract Law

• Sale of Goods Act 1893
• Implied terms
• merchantable quality
• Fitness for a specified purpose

5
Merchantable Quality

• Meaning not expanded in the Act
• Probably included durability
• Cases on perishables
• The critical date the date of delivery
• The problem of remedies
• Rejection
• damages

6
Reform

• Merchantable quality defined
• Goods of any kind are of merchantable quality
  within the meaning of this Act if they are as fit
  for the purpose or purposes for which goods of
  that kind are commonly bought as it is reasonable
  to expect having regard to any description
  applied to them, the price (if relevant) and all
  other relevant circumstances.
• Supply of Goods (Implied Terms) Act 1973 s.7(2)

7
Mr. Turpies Car and the 1994 Reforms

• Merchantable becomes Satisfactory Quality
• The definition of SQ different from MQ
• Guidelines added to the definition

8
Definition of SQ

• goods are of satisfactory quality if they meet
  the standard that a reasonable person would
  regard as satisfactory, taking account of any
  description of the goods, the price (if relevant)
  and all the other relevant circumstances.Sale
  of Goods Act 1979 s.14(2A)
• includes public statements about goods

9
The Guidelines

• fitness for all the purposes for which goods of
  the kind in question are commonly supplied
• appearance and finish
• freedom from minor defects
• safety
• durability

10
SQ and Remedies

• At what point does SQ apply?
• Delivery
• Two problems
• Proving not satisfactory
• Remedies

11
Proof

• Durability operates at the date of delivery
• But an early breakdown could be proof
• See 2002 reforms

12
Effectiveness of Reforms

• Explicit reference to durability should be
  helpful
• Wha kens?
• Consumers dont go to court
• See Genn, Paths to Justice
• And when they do go to court?

13
Reform and the Courts

• Thain v Anniesland Trade Centre
• Renault 16
• 80,000 miles
• 5 years old
• 2995
• Not driveable after 9 weeks

14
The Verdict in Thain

• Even a negligible degree of durability may not
  represent unsatisfactory quality where the
  secondhand car supplied is as old and as heavily
  used as the Renault had been. The plain fact is
  that, given the Renault's age and mileage when
  supplied, its durability was a matter of luck.
  Durability, in all the circumstances, was simply
  not a quality that a reasonable person would
  demand of it.

15
Further Reform

• Further amendment of Sale of Goods Act
• Information remedies
• See amendments to Sale and Supply of Goods Bill
• Guarantee Provisions of 2002 Regs