8â Recommended reading

Bradgate, R. Commercial Law (Oxford University Press, Oxford, 2005)

Brown, I. ‘Divided loyalties in the law of agency’ (1993) 109 Law Quarterly Review, (April) 206

Cowan, D. ‘Lister & Co. v. Stubbs: who profits?’ (1996) Journal of Business Law (Jan.) 22, 23

Dobson, P. and Stokes, R. Commercial Law (Sweet and Maxwell, London, 2008) Dowrick, F. ‘The relationship of principal and agent’ (1954) 17(1) Modern Law Review

24, 31

Munday, R. Agency: Law and Principles (Oxford University Press, Oxford, 2010)

Nolan, R. ‘Conflicts of duty: helping hands from the Privy Council?’ (1994) 15(2)

Company Lawyer, 58, 59

Tettenborn, A. ‘Principals, sub-agents and accountability’ (1999) 115 Law Quarterly Review (Oct.) 655, 657

Watts, P. ‘Illegality and agency law: authorising illegal action’ (2011) 3 Journal of Business Law 213, 216

172 [1999] 1 All ER 174.

173 For a brief comment on this case see C. Gardiner, ‘The EC (Commercial Agents) Directive: twenty years after its introduction, divergent approaches still emerge from Irish and UK courts’ (2007) Journal of Business Law (June) 412.

Part 2

Sale of Goods and Services

Introduction

Part 2 analyses the law relating to the sale and supply of goods and services, often considered to be at the heart of commercial law, many other strands of which depend upon the provision of goods and services and, hence, upon the existence of a relevant contract. In addition to these two specific types of contract, other contracts, such as hire contracts, involving the supply of goods are heavily dependent upon sale of goods legislation, often having some similar, if not identical provisions, particularly in relation to implied conditions regarding description and quality. These ancillary contracts will be referred to as appropriate in this part of the text.

Part 2 is divided into five chapters. The first deals with the policy issues underlying the development of sale of goods legislation and thus considers both its origins and the way that it has developed in the last century. It analyses the equality of bargaining power between the seller and the buyer and how the rise of consumerism in the last fifty years has affected the development of the law in this area. It also considers the impact of the European Union in the field of sale of goods both as regards remedies and the measures to regulate Internet trading. Finally, it looks at the distinction between contracts for the sale of goods and other contracts involving the transfer of the property or possession of goods.

Chapter 2 concentrates on the implied conditions relating to the right to sell, sale by description, satisfactory quality and fitness for purpose, and sales by sample. It analyses the various aspects of each of the implied conditions before moving on to consider limitations and exclusions of liability, the concept and impact of acceptance on the rights of the buyer and the available remedies.

Chapter 3 moves on to consider the passage of property and risk under Sale of Goods Act 1979, sections 16–20, an issue of increasing importance in these recessionary times when the ownership of property and the risk attached to it may be crucial in determining rights and liabilities if a business goes into liquidation. Following on from this is a section explaining the rule of nemo dat and the valid exceptions to it under which an innocent purchaser acting in good faith will acquire good title to the goods even against the true owner.

60 Sale of goods and services

The chapter continues by looking at the related topic of delivery and payment, which, in the absence of a dispute, is usually of more concern to both parties to the contract. The buyer is primarily interested in receiving the goods while the seller is primarily concerned with receiving the payment. The chapter concludes by reviewing the remedies available to seller and buyer if delivery and payment do not take place properly.

The supply of services is the focus of the fourth chapter, which looks, initially, at the Provision of Services Regulations 20091 and the requirements contained in it as regards what information must be supplied to the recipient of services and the provision of dispute resolution and complaints systems. Thereafter, the chapter considers the Supply of Goods and Services Act 1982 and the implied conditions therein relating to goods supplied under a contract for services, together with the implied terms regarding the duty of care and skill and the time of performance imposed on the supplier and the responsibility on the customer to pay reasonable consideration for the services. The chapter concludes by looking at the role of codes of practice for services.

The final chapter in this Part addresses the impact of Internet trading and other forms of distance trading. It looks specifically at the provisions of the Electronic Commerce (EC Directive) Regulations 20022 and the controls they exert over trading on the Web. Thereafter, it analyses the provisions of the Consumer Protection (Distance Selling) Regulations 20003 as they apply to differing forms of distance selling.

1 SI 2009/2999.â 2â SI 2002/2013.â 3â SI 2000/2334.

Part 2 Chapter 1

Sale of Goods Policy

Contents

1â Introduction

This chapter looks at the law relating to the sale of goods, a central plank of commercial law. It is of crucial importance to both business purchasers and consumer buyers and provides the framework through which millions of goods are bought and sold.

Section 2 of this chapter outlines the role and breadth of sale of goods legislation. Section 3 details the development of sale of goods legislation from the passage of the Sale of Goods Act 1893 to the present day.

Section 4 discusses the equality of bargaining power between seller and buyer and the mechanisms that the law uses to attempt to maintain an appropriate balance. These include the Unfair Contract Terms Act 1977, the Unfair Terms in Consumer Contracts Regulations 1999 and the Sale of Goods Act 1979, section 15A.

Section 5 looks at the impact of the European Union on the recent development of sale of goods legislation. Section 6 analyses what constitutes a contract for the sale of goods. Section 7 considers contracts for non-monetary consideration, including the status of part-exchange contracts, and section 8 discusses other contracts for the transfer of property or possession that are not classed as