The Differences Made by the Transposition of the Consumer Sales and Guarantees Directive (1999) into English law: Could a case be made for extending the Changes to Non-Consumer Contracts?

Abstract

It used to be a principle of English law that a seller or a party to a contract was not under a legal obligation to disclose to the buyer or the other party to the contract any facts relating to the contract, even if that fact “would have materially influenced” his decision to the contract. This principle was governed by the legal maxim of caveat emptor, i.e., let the buyer beware. The rle of caveat emptor ‘used’ to apply to a contract of sale of goods and other forms of contract except if the buyer could show that there was an express warranty of quality or there was fraud on the part of the seller. However, in relation to the sale of goods, which is the subject matter of this article, it may be argued that besides this known exception, the rule “has been tempered” by an implied condition in the common law that where the goods are sold by description, they shall be of merchantable quality “[answering] the description in the contract”. Although a purchaser could not benefit from this common law implied condition in the sale of specific goods, where he expressly demanded the goods for a particular purpose, there was an implied condition that the goods should be reasonably fit for that purpose.These common law rules applied even before the Sale of Goods Act 1893. Firstly, this article brings out and analyses, in terms of the sale of goods, some of the differences that have been affected by the transposition of the Directive on consumer sales and guarantees into English law through the 2002 Regulations, with emphasis on the key provisions of the Regulations, i.e., Reg. 3, 4, 5, and 15-16. Secondly, as these Regulations, as well as the changes they brought, aimed at protecting person “who deals as consumer” or consumers generally, this article argues whether or not a case could be made for extending these changes to non-consumer contracts. It may be interesting to note that, whereas the changes made by the 1994 Act were “plainly directed towards finding a formulation which is appropriate to the consumer as well as to commercial sales,”; the 2002 Regulations, on the other hand, are directed only to consumers.