4. Contractual Exclusion of Liability

At common law a contract term which on its construction purports to exclude liability for breach of contract or in tort is effective, with the exception of liability (p.261) for fraud.³²² This general position applied fully to the liability of sellers to buyers, whether on the basis of breach of an express warranty, breach of one of the statutory implied terms³²³ or under the law of innocent misrepresentation.³²⁴ However, this position was radically changed in 1977 for sellers acting ‘in the course of a business’ as regards claims for breach of contract and for all sellers as regards liability for misrepresentation.³²⁵ While this English statutory control of exemption clauses was supplemented in 1994 on implementation of the Unfair Terms in Consumer Contracts Directive 1993,³²⁶ little has changed as regards the effectiveness between the parties of exemption clauses in contracts of sale of goods.³²⁷

First, a contract term which purports to exclude or restrict any remedy for breach of an express warranty as to the quality of goods will be subject to control only where (i) the seller makes the contract in the course of his business and (ii) the term is contained in the sellers written standard terms or is relied on as against someone ‘dealing as consumer’.³²⁸ Where these conditions are fulfilled, the contract term is subject to a test of ‘reasonableness’, i.e. that it was ‘a fair and reasonable [term] to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made’.³²⁹ The courts have developed a number of factors to be taken into account in determining the issue of reasonableness, adopting where appropriate those specifically provided by the Act for the exclusion of liability under the statutory implied terms in contracts of sale of goods.³³⁰ The 1977 Act provides that the burden of proof as to the issue of reasonableness rests on the seller for this purpose.³³¹ On the other hand, where an express warranty is made other than in the course of the seller’s business, and neither in the other’s written standard terms or as against a buyer dealing as consumer, any exemption clause is in principle valid.

Secondly, a contract term which purports to exclude or restrict any remedy under the law of misrepresentation, whether for rescission or damages, is also subject to a test of reasonableness, the burden of proof again being on the seller as to this issue.³³² Here, this control is not limited to sale in the course of a business, to sales made on standard terms or with those ‘dealing as consumers’.

(p.262) Thirdly, and perhaps most importantly, a contract term which purports to exclude or restrict any right or remedy³³³ arising for breach of the statutory implied terms as to the description, quality or fitness for purpose of the goods in a person selling in the course of business³³⁴ will be totally ineffective as against a buyer who ‘deals as consumer’³³⁵ and subject to a test of reasonableness as against other buyers,³³⁶ given a number of specified considerations and factors, including (where relevant) the relative strength of the bargaining positions of the parties, any inducement given to accept a term, the extent to which the party knew or ought reasonably to have known of the term, the practicability of compliance with any condition whose non-compliance excludes or restricts liability and whether the goods were manufactured, processed or adapted to the special order of the customer.³³⁷

In determining the effectiveness of clauses purporting to exclude a sellers liability for defects French law, like English law, distinguishes between sellers and buyers in business and those who are not. But as I explained in the context of the ambit of liability in damages,³³⁸ the notion of vendeur professionnel requires that any contract is of a type regular in the business, while the English selling ‘in the course of a business’ does not;³³⁹ and ‘dealing as consumer’ under the English legislation is broader than ‘consommateur ou non-professionnel’ under the French.³⁴⁰

All this means that, first, in the case of a sale of goods which forms a regular part of the seller’s business (for example, a retailer) to a person who buys other than as any part of their business (a consumer in a narrower sense), in both French and English law any exclusion of liability for failures in quality, safety or fitness for purpose is absolutely forbidden, without the need for any argument as to the fairness or reasonableness of the contract term in question.³⁴¹

(p.263) Secondly, though, the English statutory controls on exemption clauses apply to sales of goods made by a person acting ‘in the course of a business’ where in the same circumstances in French law the sale would not be made by a vendeur professionnel and so any exemption clause would be valid except for dol (in the case of pre-contractual liability), actual knowledge of the defect (as regards liability under the garantie légale) or dol or faute lourde (as regards liability for ‘contractual non-conformity’).³⁴² Moreover, a buyer may in English law ‘deal as consumer’ when in the circumstances he would not count as ‘consommateur ou non-professionnel’ in French law, as the English phrase includes business buyers of goods of a type which do not form a regular part of the business.³⁴³

Thirdly, French and English law both possess controls on the effectiveness of exemption clauses governing a business seller’s liability for defects or failures in quality to business buyers, but the ambit and pattern of their controls differs significantly. The French law takes a categorical approach here, distinguishing different types of buyers, different legal bases of liability and different types of conduct by the seller.³⁴⁴ So, for example, a vendeur professionnel may not exclude liability under the garantie légale unless he does not know of the defect and the buyer is in business ‘of the same speciality’ as the seller, a notion which has been interpreted narrowly by French courts,³⁴⁵ but he may exclude liability for ‘contractual non-conformity’ in the absence of deliberate non-performance (inexécution dolosive) or faute lourde.³⁴⁶ By contrast, English law subjects all clauses excluding liability for breach of the statutory implied terms or for breach of express terms to a single test of reasonableness as against those ‘not dealing as consumers’.³⁴⁷ There are no distinct situations where such a clause is upheld or invalidated, but rather a flexible standard which allows a court to take into account some of the sorts of consideration which lie behind the French distinctions (for example, the ‘same speciality’ of the parties may be thought relevant to their relative bargaining power). But the focus of the English test of control is the reasonableness of the inclusion of the exclusion clause in the contract at the time,³⁴⁸ whereas the focus of the French invalidating rules is the wrongfulness of the seller’s behaviour, reflecting its more ‘moralising’ approach to non-performance. So, in striking contrast to French law’s treatment of inexécution dolosive, English law specifically provides that ‘it is immaterial for any purpose of [the statutory controls] whether the breach was inadvertent or intentional’.³⁴⁹ The French law’s concern is with the standard of behaviour of the parties in performance, which is capable of being seen as part of its wider concern with contractual good faith;³⁵⁰ the English concern is with the reasonableness of the term itself, rather than the reasonableness of any behaviour under the contract.³⁵¹

(p.264) 5. Seller’s Liability beyond Privity and Indemnity Actions

In general, English courts have not allowed the development of true exceptions to privity of contract, the effectiveness of contracts for the benefit of third parties coming only in 1999 by statutory intervention.³⁵² At one level, this may be seen as no more than a reflection of the extraordinary strictness with which English courts have interpreted its principle of privity of contract, but it is noticeable that liability for failures of quality or performance has not really attracted any of the circumventions of privity visible in other contexts, notably, the courts not allowing ‘transmissible warranties’ in the law of sale of goods.³⁵³ This means that in general a buyer can sue only his own seller in respect of the failures in quality or fitness for purpose of goods and this has the secondary consequence that those further up the chain of distribution, such as importers or manufacturers will be liable on this ground only if their own buyer has been held liable.

On the other hand, there is a very widespread practice of manufacturers giving express ‘guarantees’ of their products for the benefit of their purchasers, especially but not exclusively where these are consumers.³⁵⁴ For long, a main purpose of these guarantees was actually to reduce the manufacturer’s liability under the general law of the tort of negligence, but this practice was rendered ineffective in 1977.³⁵⁵ Now, these guarantees function as one among many selling points of the goods in question and their purpose is to increase the rights of the purchaser of goods, usually by allowing him to require their replacement or repair on the grounds of their defect (often termed ‘fault’) within a set period: typically, though, the guarantees do not create any liability in damages for any other losses caused by the defectiveness of the goods.³⁵⁶ While a one-year manufacturer’s guarantee is fairly standard, two-year, five-year or even ‘life-time’ guarantees are sometimes offered. It is often the case that while the guarantee is expressed as being made by the manufacturer, the latter entrusts the actual work of dealing with claims and even the putting into effect of repairs to retailers.³⁵⁷ While at common law there are technical problems with the legal validity of these guarantees, there is no reported case of a manufacturer refusing to act under them on this basis (or indeed more generally)³⁵⁸ and (p.265) their validity as regards ‘consumers’ is ensured after implementation of the Consumer Guarantees Directive.³⁵⁹

Given the general denial of liability in sellers beyond privity, any channelling of liability towards the business responsible for the failure in the quality of the goods must take place by suit up the chain, each intermediate contractor claiming damages so as to be indemnified in respect of the liability which he has incurred.³⁶⁰ This does not require separate litigation as the defendant sellers can bring in their own seller by what used to be termed ‘third party proceedings’ and are now an example of ‘Part 20 Claims’.³⁶¹ Any channelling of liability will be frustrated by a break in the chain of litigation and this may happen for a number of reasons, some legal and some practical. The main practical reason is where an intermediate contractor becomes insolvent, but legal obstacles to the channelling of liability are more varied.³⁶² So, some claims for an indemnity by an intermediate contractor may fail on the ground that no breach of the statutory implied terms can be shown. For English law does not focus on the existence of a defect in the goods traceable to its source (typically being the manufacturer), but instead looks to sets of factors concerning the goods in relation to the particular contract under which they are supplied,³⁶³ in particular, any description of the goods, their price and their general or particular purpose made known to the seller. Even if an intermediate seller can establish a breach of contract, he will also need to show that his indemnity loss was both caused by this breach (rather than by his own actions) and was not too remote.³⁶⁴ Suit up the chain may also become impossible owing to the effectiveness of an exemption clause in one of the contracts: for while exclusion of liability by a retailer will not be effective against a buyer who ‘deals as a consumer’, it may be effective when relied upon by a distributor, importer or manufacturer against another intervening business contractor (who would not usually be dealing as consumer) if ‘reasonable’, this last condition being assessed by reference to criteria applicable to each individual contract.³⁶⁵ Finally, any claim for an indemnity by an intermediate seller on the ground of breach of the statutory implied terms may be time-barred, since the applicable limitation period of six years starts running from the time of breach of the contract (here, the delivery of non-conforming goods by the relevant seller) so that the longer the chain of distribution, the more likely it will be that this period will have expired before any claim for an indemnity by an intermediate contractor is made.

The pattern here is, therefore, radically different from that which is found in relation to French law.³⁶⁶ There a sub-purchaser (whether the ultimate purchaser or an intermediate contractor) may claim against a manufacturer or any other member of the chain of distribution of goods by way of action directe either under the garantie légale or on the basis of their ‘contractual non-conformity’, whatever the solvency or otherwise of any intervening contractor. Such an action directe is said to be brought on (p.266) the basis (or bases) of the contractual rights of which that person’s buyer held against the seller (or sellers) whom a buyer chooses to sue and so is contingent on proof of the existence of a defect at the time of delivery by the member of the chain sued, but this would appear to cause no particular difficulty where the goods suffer from problems of design or manufacture.³⁶⁷ Given this background of the imposition of liability directly on manufacturers and distributors towards sub-purchasers through the ordinary law of sale and given the consensualist nature of French contract, it is not surprising that manufacturers’ express guarantees are readily viewed as enforceable. While they are certainly prevalent in French practice, their function is merely to supplement the existing legal liabilities rather than (as in English law) to form the sole basis of liability.³⁶⁸

In my view, though, when contrasted with the English strict adherence to privity of contract, the importance of actions directe en garantie in forming the legal basis for recourse actions by intermediate contractors becomes clear. Apart from avoiding intervening insolvency, any claim for an indemnity by action directe under the garantie légale could be brought within a bref délai of the time when the individual claimant has himself been sued,³⁶⁹ whereas in the English context an intermediate contractor is much more at risk of being out of time.³⁷⁰

Notes:

(¹) Above, pp. 69–70.

(²) B. Nicholas, ‘Rules and Terms—Civil Law and Common Law’ (1974) 48 Tul LR 947.

(³) Below, p. 228.

(⁴) Below, p. 264.

(⁵) Above, p. 72.

(⁶) Sale of Goods Act 1979 (the ‘1979 Act’), s. 14(2B)(d) as inserted by the Sale and Supply of Goods Act 1994 (‘the 1994 Act’), s. 1.

(⁷) Above, p. 70.

(⁸) Parkinson v Lee (1802) 2 East 314.

(⁹) Hart v Windsor (1843) 12 M & W 68 (lease); Bottomley v Bannister [1932] 1 KB 458, 468; Lynch v Thorne [1956] 1 All ER 744; Southwark LBC v Tanner [2001] 1 AC 7, 17.

(¹⁰) 1979 Act, s. 61(1) and see Benjamin § 1–078 et seq.

(¹¹) Benjamin § 1–080 .

(¹²) Ibid., § 1–085 but see below, pp. 278–9.

(¹³) Benjamin § 1–087 .

(¹⁴) Above, p. 70.

(¹⁵) Benjamin § 1–089 ; Dobson v North Tyneside Health Authority [1996] 4 All ER 474. American decisions are divided as to whether the supply of blood by transfusion constitutes the supply of services or sale of goods: Belle Bonfils Memorial Blood Bank v Hansen 579 P 2d 1158 (1978); Perlmutter v Beth David Hospital 123 NE (2d) 792 (1955).

(¹⁶) St. Albans City & District Council v International Computers Ltd. [1996] 4 All ER 481, 493 per Sir Iain Glidewell. A contract for the transfer of software would contain a similar implied term at common law: Ibid., 494.

(¹⁷) Benjamin § 1–086 citing M. Chissick and A. Kelman, Electronic Commerce Law and Practice (Sweet and Maxwell, London, 2nd. edn., 2001), 62–4 .

(¹⁸) Below, pp. 271–3.

(¹⁹) Above, pp. 64–9.

(²⁰) Rescission must be demanded of a court and is not a unilateral right in the party in error: art. 1117 C. civ. and above, p. 64.

(²¹) Above, p. 66.

(²²) Above, p. 65.

(²³) Below, pp. 230–2.

(²⁴) Below, pp. 234–42. Sale of Goods Act 1979, s. 13; s. 14(2) and 14(3) respectively.

(²⁵) Below, p. 251.

(²⁶) Below, pp. 251–7.

(²⁷) Above, pp. 69–72.

(²⁸) Below, p. 253.

(²⁹) J. Cartwright, ‘Defects in Consent and Security of Contract: French and English law Compared’ in P. Birks and A. Pretto, Themes in Comparative Law in Honour of Bernard Rudden (OUP 2002), 153 .

(³⁰) See generally Treitel, The Law of Contract, Chaps. 8 and 9 ; Chitty on Contracts, Vol. I, Chaps. 5 and 6 .

(³¹) Redgrave v Hurd (1881) 20 Ch D 1.

(³²) Misrepresentation Act 1967, s. 2(1). He may also be able to recover damages in the tort of negligence (Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465; Esso Petroleum Co. Ltd. v Mardon [1976] QB 801) or the tort of deceit (Derry v Peek (1889) 14 App Cas 337, 374–5).

(³³) Smith v Hughes (1871) LR 6 QB 597; Bell v Lever Bros Ltd. [1932] AC 161; Great Peace Shipping Ltd. v Tsavliris Salvage (International) Ltd. [2002] EWCA Civ 1407; [2003] QB 679 rejecting the existence of a wider doctrine of mistake in equity as accepted in Solle v Butcher [1950] 1 KB 671. And see B. Nicholas, ‘The Pre-contractual Obligation to Disclose Information, 2. English Report’ in D. Harris and D. Tallon (eds.), Contract Law Today (OUP, 1989) 166 .

(³⁴) Above, p. 64.

(³⁵) Art. 1134 al. 3 C. civ.

(³⁶) Above, p. 65.

(³⁷) Ibbetson, Historical Introduction, 227–9 .

(³⁸) Kennedy v The Panama, New Zealand and Australian Royal Mail Co. Ltd. (1867) LR 2 QB 580, 587–8, Blackburn J citing D 18.1.9–11; approved in Bell v Lever Bros Ltd. [1932] AC 161, 207, 219–20 and 233–4.

(³⁹) Cf. R. David, ‘La doctrine de l’erreur dans Pothier et son interprétation dans la Common law d’Angleterre’, Etudes de droit civil à la mémoire de Henri Capitant (Dalloz, Paris, 1939) 145 .

(⁴⁰) Carter v Boehm (1766) 3 Burr 1905, 1910.

(⁴¹) Ormrod v Huth (1845) 14 M & W 652, 655 (Tindal CJ rejected Lord Mansfield’s dictum as to good faith in the context of misrepresentation of quality in sale of goods).

(⁴²) J. Cartwright, op. cit. n. 29.

(⁴³) Above, pp. 64–9.

(⁴⁴) Above, p. 64.

(⁴⁵) Above, pp. 65–8.

(⁴⁶) (1802) 2 East 314, 321–2.

(⁴⁷) In Jones v Just (1867–1868) LR 3 QB 197, 202–04 Mellor J summarised nicely the position at the time.

(⁴⁸) Sale of Goods Act 1893.

(⁴⁹) Sale of Goods Act 1893, s. 61(2).

(⁵⁰) Ibid., s. 14(1).

(⁵¹) Ibid., s. 14(2).

(⁵²) Ibid., s. 14(3). To this can be added the special provisions for sale by sample found in s. 15.

(⁵³) The Supply of Goods (Implied Terms) Act 1973, ss. 2 & 3; the Sale of Goods Act 1979, s. 14; 1994 Act, s. 1. For implementation of the EC directive, below, pp. 585–8.

(⁵⁴) Eg. VAI Industries (UK) Ltd. v Bostock & Bramley [2003] EWCA Civ 1069; [2003] BLR 359 (a continuing express warranty of goods as ‘free from defect’).

(⁵⁵) The question remains one of construction: 1979 Act, s. 11(3); L Schuler AG v Wickman Machine Tool Sales Ltd. [1974] AC 235; Rice v Great Yarmouth BC [2003] 3 LGLR 4 (both contracts for the provision of services over an extended period).

(⁵⁶) Hongkong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd. [1962] 2 QB 26; Bunge Corpn. v Tradax Export SA [1981] 1 WLR 711; Cehave NV v Bremer Handelsgesellschaft mbH [1976] QB 44 and see Chitty on Contracts, Chap. 24 .

(⁵⁷) Heilbut Symons & Co. v Buckleton [1913] AC 30.

(⁵⁸) Benjamin § 10–017 .

(⁵⁹) Oscar Chess Ltd. v Williams [1957] 1 WLR 370; Dick Bentley Productions Ltd. v Harold Smith (Motors) Ltd. [1965] 1 WLR 623.

(⁶⁰) Misrepresentation Act 1967, s. 2.

(⁶¹) VAI Industries (UK) Ltd. v Bostock & Bramley [2003] EWCA Civ 1069.

(⁶²) Office of Fair Trading, Extended Warranties on Domestic Electrical Goods (July 2002) , published on the internet at http://www.oft.gov.uk/.

(⁶³) On manufacturers’ guarantees, see below, pp. 264–5.

(⁶⁴) The statement in the text assumes that the buyer ‘deals as consumer’ for the purposes of the Unfair Contract Terms Act 1977 (‘the 1977 Act’), s. 6 and see Benjamin, § 14–043 .

(⁶⁵) Office of Fair Trading, Extended Warranties on Domestic Electrical Goods, 5 .

(⁶⁶) Unlike the terms implied by the 1979 Act, s. 14, below, pp. 236–7, 240.

(⁶⁷) Benjamin , § 11–012.

(⁶⁸) Berger & Co. Inc. v Gill & Duffus SA [1984] AC 382 and see Benjamin §§ 11–008, 11–012.

(⁶⁹) Varley v Whipp [1900] 1 QB 513, 516.

(⁷⁰) Harlingdon and Leinster Enterprises Ltd. v Christopher Hull Fine Art Ltd. [1991] QB 564, 574, per Nourse LJ.

(⁷¹) Ibid. Slade LJ agreed.

(⁷²) Ibid. at 571, 574.

(⁷³) Below, pp. 237, 240.

(⁷⁴) Ashington Piggeries Ltd v Christopher Hill Ltd. [1972] AC 441, 489, per Lord Wilberforce (claim that mink food made up to the buyer’s formula did not correspond to its description because it contained an impurity rejected).

(⁷⁵) Grenfell v E.B. Meyrowitz Ltd. [1936] 2 All ER 1313.

(⁷⁶) Ibid. at 1317, per Slesser LJ.

(⁷⁷) Ibid., quoting Willes J, in Wieler v Schilizzi (1856) 17 CB 619, 674.

(⁷⁸) ‘Merchantable can only mean commercially saleable’: Henry Kendall & Sons v William Lillico & Sons Ltd. [1969] 2 AC 31, 75, per Lord Reid.

(⁷⁹) J. Oldham, ‘Special Juries in England: Nineteenth Century Usage and Reform’ (1987) J Leg Hist 148 .

(⁸⁰) Cf. Tronson v Dent (1853) 8 Moore 419.

(⁸¹) Above, p. 191.

(⁸²) B. S. Brown & Son Ltd. v Craiks Ltd. [1970] 1 WLR 752, 754, per Lord Reid.

(⁸³) Henry Kendall & Sons v William Lillico & Sons Ltd. [1968] AC 31, 75.

(⁸⁴) B. S. Brown & Son Ltd. v Craiks Ltd., cit., 754–5. On this law, see Law Commission Report Sale and Supply of Goods, Law Com. No. 160 (1987) (‘Law Com. No. 160’) 7 and Bridge, Sale of Goods, 293 et seq.

(⁸⁵) Shine v General Guarantee Co. Ltd. [1988] 1 All ER 911. Similarly, Lee v York Coach and Marine [1977] RTR 35.

(⁸⁶) Milmo J, 5 July 1982 (Lexis). The buyer recovered damages on the ground of misrepresentation under the Misrepresentation Act 1967, s. 2(1).

(⁸⁷) Law Com. No. 160 .

(⁸⁸) Stevenson v Rogers [1999] QB 1028, 1039, per Potter LJ. The change had been made by the Supply of Goods (Implied Terms) Act 1973, s. 4.

(⁸⁹) Benjamin § 11–046.

(⁹⁰) Law Com. No. 160 § 2.10, 8 .

(⁹¹) Cf. below, p. 238.

(⁹²) Benjamin, § 11–049 .

(⁹³) Chitty on Contracts , para. 43–086.

(⁹⁴) Below, p. 238.

(⁹⁵) HC Deb. (2 Feb. 1994) Vol. 237 Col. 633; Law Com. No. 160 §§ 3.19–3.22 .

(⁹⁶) Law Com. No. 160, § 3.26 .

(⁹⁷) Supply of Goods (Implied Terms) Act 1973, s. 7(2).

(⁹⁸) Law Com. No. 160 § 3.27 and see above, pp. 234–5.

(⁹⁹) Benjamin § 11–040 .

(¹⁰⁰) B. S. Brown & Son Ltd. v Craiks Ltd. [1970] 1 WLR 752, 754.

(¹⁰¹) Rogers v Parish Ltd. [1987] QB 933, 944, per Mustill LJ.

(¹⁰²) Keeley v Guy McDonald Ltd. (1984) New LJ 522.

(¹⁰³) Jewson Ltd. v Boyhan [2003] EWCA Civ 1030 at [78]; [2004] 1 Lloyd’s Rep. 505, per Sedley LJ.

(¹⁰⁴) Rogers v Parish Ltd. [1987] QB 933, 944 (under the law of ‘merchantable quality’ as amended in 1973).

(¹⁰⁵) Ibid. 944–5.

(¹⁰⁶) Medivance Instruments Ltd. v Gaslane Pipework Services Ltd. [2002] EWCA Civ 500; 2002 WL 1876274 § 37.

(¹⁰⁷) This change had been made previously by the 1979 Act, s. 61(1) ‘quality’ (as enacted).

(¹⁰⁸) 1979 Act, s. 14(2B) as inserted by the 1994 Act, s. 1.

(¹⁰⁹) Law Com. No. 160 §3.38 et seq.

(¹¹⁰) Cf. Sale of Goods Act 1893, s. 14(2) (no liability where ‘defect’ ought to have been discovered on examination).

(¹¹¹) Henry Kendall & Sons v William Lillico & Sons Ltd. [1969] 2 AC 31; Aswan Engineering Establishment Co. v Lupdine Ltd. [1987] 1 WLR 1.

(¹¹²) 1979 Act, s. 14(6) as enacted.

(¹¹³) Jewson Ltd. v Boyhan, cit. at [68] per Clarke LJ.

(¹¹⁴) Watson v Buckley, Osborne, Garrett & Co. Ltd. [1940] 1 All ER 174 (hairdye); Godley v Perry, Burton & Sons (Bermondsey) Ltd. [1960] 1 WLR 9 (dangerous toy catapult); Lee v York Coach and Marine (1977) RTR 35 (unsafe second-hand vehicle).

(¹¹⁵) 1979 Act, s. 14(2B)(d).

(¹¹⁶) Law Com. No. 160 § 3.44–3.46 .

(¹¹⁷) The Law Commission was not concerned by any overlap with liability under Part I of the Consumer Protection Act 1987 as this would ‘perform an essentially different function’: Ibid., § 3.46.

(¹¹⁸) Ibid. § 3.45.

(¹¹⁹) Above, pp. 65–9.

(¹²⁰) Above, p. 237.

(¹²¹) Wormell v R.M.H. Agriculture (East) Ltd., [1987] 1 WLR 1091.

(¹²²) Clegg v Andersson [2003] EWCA Civ 320i; [2003] 1 All ER (Comm) 721 (design of keel for yacht rendering it ‘unsatisfactory’).

(¹²³) The omissions include equivalent provisions as regards credit sellers.

(¹²⁴) Bridge, The Sale of Goods, 316–17 .

(¹²⁵) Above, p. 236.

(¹²⁶) 1979 Act, s. 14(3) in fine.

(¹²⁷) Teheran-Europe Co. Ltd. v S.T Belton (Tractors) Ltd. [1968] 2 QB 545, 555.

(¹²⁸) Above, p. 237.

(¹²⁹) Bristol Tramways Carriage Co. Ltd. v Fiat Motors Ltd. [1910] 2 KB 831.

(¹³⁰) Frost v Aylesbury Dairy Co. [1905] 1 KB 608, esp. at 612 (milk described as ‘pure and unadulterated’ infected with typhoid); Jackson v Watson & Sons [1909] 2 KB 193 (tinned salmon causing death). Cf. Preist v Last [1903] 2 KB 148 (hot-water bottle burst causing scald).

(¹³¹) Griffiths v Peter Conway Ltd. [1939] 1 All ER 685.

(¹³²) Above, pp. 75–6.

(¹³³) Law Com. No. 160 § 2.18 (‘the seller does not guarantee that his goods are absolutely suitable’).

(¹³⁴) Bartlett v Sidney Marcus Ltd. [1965] 1 WLR 1013, 1017, per Lord Denning MR.

(¹³⁵) Bridge, The Sale of Goods, 321 .

(¹³⁶) Henry Kendall & Sons v William Lillico & Sons Ltd. [1969] 2 AC 31, 115 (emphasis added).

(¹³⁷) Cf. Above, pp. 192–200.

(¹³⁸) Cf. Henry Kendall & Sons v William Lillico & Sons Ltd. [1969] 2 AC 31, 79, per Lord Reid.

(¹³⁹) Preist v Last [1903] 2 KB 148, 154, per Collins MR.

(¹⁴⁰) Lee v York Coach and Marine [1977] RTR 35.

(¹⁴¹) Vacwell Engineering v BDH Chemicals [1971] 1 QB 88, 105. The lack of any knowledge of this char acteristic was not relevant to the issue of breach of the implied term, unlike the position in negligence: cf above, p. 194. See similarly, Wormell v RHM Agriculture (East) Ltd. [1987] 1 WLR 1091.

(¹⁴²) Medivance Instruments Ltd. v Gaslane Pipework Services Ltd. [2002] EWCA Civ 500; 2002 WL 1876274 [45], per Neuberger J.

(¹⁴³) Geddling v Marsh [1920] 1 KB 668 esp. at 673.

(¹⁴⁴) Britvic Soft Drinks Ltd. v Messer UK Ltd. [2002] 1 Lloyd’s Rep 20, affd. on other grounds [2002] 2 Lloyd’s Rep. 368. The court also held that the gas was not of satisfactory quality for the same reason. See similarly Bacardi-Martini Beverages Ltd. v Thomas Hardy Packaging Ltd. [2002] EWCA Civ 549; [2002] 2 All ER (Comm) 335.

(¹⁴⁵) [2002] 1 Lloyd’s Rep. 20 at p. 41.

(¹⁴⁶) Ibid.

(¹⁴⁷) Above, pp. 237, 240.

(¹⁴⁸) Above, p. 286.

(¹⁴⁹) Cf. above pp. 80, 81, concerning remedies where the commercial nature of the contract is significant.

(¹⁵⁰) Above, p. 85.

(¹⁵¹) Above, pp. 65–9, 72.

(¹⁵²) Above, p. 71.

(¹⁵³) Above, p. 70.

(¹⁵⁴) Above, p. 66.

(¹⁵⁵) Above, pp. 234, 235, 240.

(¹⁵⁶) Above, p. 238.

(¹⁵⁷) Bridge, The Sale of Goods, 293 .

(¹⁵⁸) Above, pp. 239, 240.

(¹⁵⁹) Above, pp. 237, 239.

(¹⁶⁰) Above, pp. 73–4.

(¹⁶¹) Above, pp. 65–9.

(¹⁶²) Above, p. 74.

(¹⁶³) Ibid .

(¹⁶⁴) e.g. J. Calais-Auloy, ‘Ne mélangeons plus conformité et sécurité’, D 1993 Chron. 130.

(¹⁶⁵) Above, pp. 70–1.

(¹⁶⁶) Above, p. 240.

(¹⁶⁷) Above, pp. 68–9, 240.

(¹⁶⁸) Above, pp. 76–7, which explains the position as regards liability for ‘contractual non-conformity’.

(¹⁶⁹) 1979 Act s. 14(2C)(a) and (b). It is further provided that ‘in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample’: Ibid., s. 14(2C)(c).

(¹⁷⁰) Cf. Bridge, The Sale of Goods, 314–5 ; Benjamin § 11–054 .

(¹⁷¹) Vacwell Engineering v B.D.H. Chemicals [1971] 1 QB 88; Medivance Instruments Ltd. v Gaslane Pipework Services Ltd. [2002] EWCA Civ 500; 2002 WL 1876274 [40] et seq.

(¹⁷²) Above, p. 240.

(¹⁷³) Above, pp. 73–4, 75.

(¹⁷⁴) Above, p. 78.

(¹⁷⁵) Above, pp. 189–202.

(¹⁷⁶) Above, pp. 189–90, 235.

(¹⁷⁷) Rogers v Parish Ltd. [1987] QB 933, 943, per Mustill LJ. This was intended to encourage appellate courts to be slow to interfere with decisions at trial, though they have done so where the approach taken by the judge is seen as incorrect or insufficient weight was given to expert evidence: e.g. Clegg v Andersson [2003] EWCA Civ 320 [2003]; 1 All ER (Comm) 721; Jewson Ltd. v Boyhan, cit.

(¹⁷⁸) Cf. liability under the Occupiers Liability Acts 1957 s. 2(2) and 1984 s. 1(4) and (5) where the assess ment of ‘negligence’ is partly structured.

(¹⁷⁹) Randall v Newson (1876–1877) LR QBD 102 (CA) (jury verdict that goods not reasonably fit for their purpose but against negligence upheld).

(¹⁸⁰) [1905] 1 KB 608.

(¹⁸¹) Ibid. at 613.

(¹⁸²) E.g. Preist v Last [1903] 2 KB 148.

(¹⁸³) Ashington Piggeries Ltd v Christopher Hill Ltd. [1972] AC 441, 505; Henry Kendall & Sons v William Lillico & Sons Ltd. [1969] 2 AC 31, 84, per Lord Reid.

(¹⁸⁴) Above, pp. 237, 239.

(¹⁸⁵) E.g. Grenfell v E.B. Meyrowitz Ltd., above, p. 235.

(¹⁸⁶) [2002] EWCA Civ 500, 2002 WL 1876274 esp. at [24].

(¹⁸⁷) Ibid. at [30].

(¹⁸⁸) Ibid. at [39] quoted by Neuberger J. The test of merchantable (rather than satisfactory) quality applied as the facts pre-dated the amendment in 1994 of the Sale of Goods Act which made this change.

(¹⁸⁹) Above, p. 240.

(¹⁹⁰) Britvic Soft Drinks Ltd. v Messer UK Ltd. [2002] 1 Lloyd’s Rep. 20, 41 quoted above, p. 242.

(¹⁹¹) Above, pp. 72, 90 and as to force majeure, see below, p. 248.

(¹⁹²) Above, p. 67.

(¹⁹³) Ibid.

(¹⁹⁴) Above, pp. 87–91.

(¹⁹⁵) Above, p. 58.

(¹⁹⁶) Above, p. 89.

(¹⁹⁷) Above, p. 90.

(¹⁹⁸) Above, p. 89.

(¹⁹⁹) Above, pp. 90–1.

(²⁰⁰) Above, p. 91.

(²⁰¹) In some situations, force majeure may find a broadly functional equivalent in the law of frustration: Bell, Boyron and Whittaker, 342–3 .

(²⁰²) Above, p. 246.

(²⁰³) below, pp. 249–50.

(²⁰⁴) This stems from the decision that the Law Reform (Contributory Negligence) Act 1945 does not apply to claims for breach of contract unless they are founded on the breach of a contractual obligation to take reasonable care concurrent with breach of a tortious duty to take reasonable care: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852; Barclays Bank plc v Fairclough Building Ltd. [1995] QB 214; Barclays Bank plc v Fairclough Building Ltd. (No. 2) [1995] IRLR 605.

(²⁰⁵) Above, p. 87.

(²⁰⁶) Above, p. 244.

(²⁰⁷) Above, p. 88.

(²⁰⁸) Above, p. 240.

(²⁰⁹) Hamilton v Papakura District Council [2002] UKPC 9.

(²¹⁰) Above, p. 87.

(²¹¹) Above, p. 240.

(²¹²) Above, p. 88.

(²¹³) Heil v Hedges [1951] 1 TLR 512.

(²¹⁴) E.g. Biggin & Co. Ltd. v Permanite Ltd. [1951] 1 KB 422, 435, per Devlin J.

(²¹⁵) [1982] AC 225.

(²¹⁶) Ibid. at 276 per Lord Diplock.

(²¹⁷) Ibid. at 276–7.

(²¹⁸) Cf. Chitty on Contracts paras. 43–443–43–445 .

(²¹⁹) [1904] 1 KB 725.

(²²⁰) Wren v Holt [1903] 1 KB 610 (claim for personal injuries by beer drinker).

(²²¹) [1904] 1 KB 725, 741–2. The court had referred to the Sale of Goods Act 1893, s. 53(2) which it treated as framed on the general law of Hadley v Baxendale (1854) 9 Ex 341. Cf Mowbray v Merryweather [1895] 2 QB 640 (successful claim for an indemnity by an employer in respect of damages for negligence in respect of defective equipment supplied under a contract for services which injured employee).

(²²²) Basildon District Council v J.E. Lesser (Properties) Ltd. [1985] QB 839, 849, per Judge Newey QC.

(²²³) Above, pp. 69, 84.

(²²⁴) Above, p. 71.

(²²⁵) The 1979 Act, s. 11(4) refers to a buyer ‘rejecting the goods and treating the contract as repudiated’ on the ground of breach of condition. Benjamin § 12–028 notes the qualifications on this identity of incidence of the rights of rejection and repudiation, notably where a seller has the possibility of re-tender of goods within the time fixed for performance after tender of non-conforming goods: Ibid. §§ 12–022 and 12–031 .

(²²⁶) See below, p. 254.

(²²⁷) Lombard North Central PLC v Butterworth [1987] QB 527, 535 and see Law Com. No. 160, §4.1 .

(²²⁸) Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce [1997] 2 Lloyd’s Rep 386, 398 Evans LJ. A buyer may not reject goods where he is unable to return them in the same state as they were delivered, unless this inability was caused by the seller’s breach of contract: for further discussion, see Benjamin § 12–057 .

(²²⁹) Below, p. 255.

(²³⁰) Below, p. 253.

(²³¹) Peyman v Lanjani [1985] Ch 457.

(²³²) 1979 Act, s. 11(2). Waiver of the condition is to be distinguished from waiver of the breach itself the latter referring to a choice by the buyer not to maintain any remedy for the breach: Chitty on Contracts, para. 22–046 .

(²³³) 1979 Act, s. 35.

(²³⁴) Ibid., s. 35(2). This second limitation was introduced so as to avoid a buyer losing the right where he signs a paper on their delivery stating that he has ‘accepted’ the goods as well as having ‘received’ them: Law Com. No. 160 §§ 5.20 et seq. Section 35(3) prevents avoidance of this rule by agreement as against those ‘dealing as consumer’.

(²³⁵) Benjamin § 12–047 ; 1979 Act, s. 35(6)(b).

(²³⁶) 1979 Act, s. 35(6)(a).

(²³⁷) 1979 Act, s. 35(4).

(²³⁸) Benjamin § 12–054 .

(²³⁹) Law Com. No. 160 §5.6 .

(²⁴⁰) Ibid. § 5.7 .

(²⁴¹) Ibid. §5.16 .

(²⁴²) Ibid. §5.19, note 19 .

(²⁴³) 1979 Act, s. 35(5) as inserted by the 1994 Act, s. 2(1).

(²⁴⁴) 1979 Act, s. 35(6)(a) as inserted by the 1994 Act, s. 2(1).

(²⁴⁵) Clegg v Andersson [2003] EWCA Civ 320 [63], per Sir Andrew Morritt V-C.

(²⁴⁶) 1979 Act, s. 15A(1) as inserted by the 1994 Act, s. 4.

(²⁴⁷) The 1979 Act, s. 6(5A) provides that this phrase is to be construed in accordance with the 1977 Act, s. 12 which defines ‘dealing as consumer’, itself interpreted in R. & B. Customs Brokers Co. Ltd. v United Dominions Trust Ltd. [1988] 1 WLR 321. The Court of Appeal noted that a firm would also fail to ‘deal as consumer’ if it ‘held itself out’ as making the contract in the course of a business, but the mere use of the corporate name, list of directors etc. was not enough: Ibid., 328–9.

(²⁴⁸) 1979 Acts. 15A(2).

(²⁴⁹) Law Com. No. 160 §4.1 et seq.

(²⁵⁰) Ibid., §4.4.

(²⁵¹) Law Com. No. 160 §4.9 .

(²⁵²) Ibid., §4.11 .

(²⁵³) ‘For example, did the seller have to redeliver the ‘cured’ goods to the buyer or did the buyer have to collect them? What if by this time the buyer had moved far away? How promptly should the cure be effected? At whose risk were they to be while being redelivered to the buyer?’: Law Commission, §4.13.

(²⁵⁴) A. Burrows, The Law of Restitution (Butterworths, London, 2nd. edn., 2002) , Chap. 10 and esp. 324 et seq.; R. Goff and G. Jones, The Law of Restitution (Sweet and Maxwell, London, 6th. edn., 2002) Chap. 19; Chitty on Contracts para. 29–54 et seq.

(²⁵⁵) There are other advantages: Chitty on Contracts , para. 29–059.

(²⁵⁶) 1979 Act s. 54.

(²⁵⁷) Burrows, op. cit. n. 254, 324 et seq.

(²⁵⁸) Yeoman Credit Ltd. v Apps [1962] 2 QB 508 (this use was coupled on the facts with an intention to keep the car on the part of the hirer).

(²⁵⁹) Rowland v Divall [1923] 2 KB 500; Treitel, The Law of Contract, 1049 et seq.

(²⁶⁰) Benjamin § 12–068 . The requirement of ‘total’ failure of consideration has been much criticised: see notably Burrows, op. cit. n. 254, 333 et seq . and P. Birks, ‘Failure of Consideration’ in F.D. Rose (ed.) Consensus Ad Idem: Essays in Honour of Guenter Treitel (Sweet and Maxwell, London, 1996) Chap. 4 .

(²⁶¹) Above, p. 253.

(²⁶²) Above, p. 84.

(²⁶³) 1979 Act, ss.51 and 53 .

(²⁶⁴) Above, pp. 85–6. The main qualification in French law relates to the requirements contained in arts. 1149–1150 C. civ.

(²⁶⁵) For discussion of the meaning of this phrase, see Benjamin, paras 16–062 et seq.

(²⁶⁶) 1979 Act s. 51(3).

(²⁶⁷) Chitty on Contracts para. 43–416 .

(²⁶⁸) A buyer does not have to accept non-conforming goods from the seller by way of mitigation of damage: Heaven and Kesterton Ltd. v Establissements Francois Albiac & Cie. [1956] 2 Lloyd’s Rep 316, 321.

(²⁶⁹) 1979 Act s. 53(3).

(²⁷⁰) Above, pp. 79, 82.

(²⁷¹) 1979 Act, s. 53(1)(a) and (4).

(²⁷²) The cost of repair may sometimes be seen as representing the likely difference in value: Keeley v Guy McDonald Ltd. (1984) 134 New LJ 522. Following the general principle explained in Ruxley Electronics and Construction Ltd. v Forsyth [1996] AC 344, the cost of repairs or replacement cannot be recovered if unrea sonable in the circumstances. Where no market value of the defective goods can be determined, the cost of repairs may be awarded: Minster Trust Ltd. v Traps Tractors Ltd. [1954] 3 All ER 136.

(²⁷³) British Westinghouse Electric and Manufacturing Co. Ltd. v Underground Electric Railways Co. of London Ltd. [1912] AC 673.

(²⁷⁴) (1854) 9 Exch 341; 1979 Act ss. 53(2) and 54. E.g. H. Parsons (Livestock) Ltd. v Uttley Ingham & Co. Ltd. [1978] QB 791.

(²⁷⁵) Randall v Newson (1877) 2 QBD 102; H. Parsons (Livestock) Ltd. v Uttley Ingham & Co. Ltd. [1978] QB 791 (damage to other property); Bostock & Co. Ltd. v Nicholson & Sons [1904] 1 KB 725 (property itself contaminated by defect and contaminating other property).

(²⁷⁶) Benjamin § 17–074 et seq.

(²⁷⁷) Chitty on Contracts, para. 43–459 .

(²⁷⁸) Chitty on Contracts, para. 43–457 ; Lambert v Lewis [1982] AC 225 (claim rejected on the facts).

(²⁷⁹) Jackson v Chrysler Acceptances [1978] RTR 474.

(²⁸⁰) By analogy with damages for ‘loss of amenity’ in Ruxley Electronics and Construction Ltd. v Forsyth [1996] AC 344 (swimming pool not built to specification).

(²⁸¹) Limitation Act 1980, s. 5 (unless the contract is contained in a deed, when the period is 12 years: Limitation Act 1980, s. 8). It is to be noted that there can be no extension of time under the Latent Damage Act 1976, creating Limitation Act 1980, s. 14A as claims for breach of the implied terms are not claims for negligence.

(²⁸²) Battley v Faulkner (1820) 3 B & Ald 288.

(²⁸³) Limitation Act 1980, s. 11. Cf below, p. 528 as to liability under Part I of the Consumer Protection Act 1987.

(²⁸⁴) Limitation Act 1980, ss.11 and 14. Claims under the Fatal Accidents Act 1976 must be brought within three years from the date of death or the date of knowledge of the person for whose benefit the action is brought, whichever is the later: Limitation Act 1980, ss. 12, 13 and 14.

(²⁸⁵) Above, pp. 252–3.

(²⁸⁶) Above, p. 85.

(²⁸⁷) Above, p. 236.

(²⁸⁸) Above, p. 84. For its effect on exemption clauses, see above, p. 94 below, p. 262.

(²⁸⁹) Above, p. 84.

(²⁹⁰) Above, pp. 64, 65–7. (though on occasion an obligation d’information has been imposed on a non-professionnel).

(²⁹¹) Above, pp. 70–2, 85.

(²⁹²) 1979 Act s. 14(2) and (3), Above, pp. 236, 239.

(²⁹³) Above, p. 234.

(²⁹⁴) Above, pp. 233–4.

(²⁹⁵) Above, p. 230.

(²⁹⁶) Above, p. 230.

(²⁹⁷) Cf. above, p. 251 n. 225.

(²⁹⁸) Above, p. 82.

(²⁹⁹) Above, p. 253.

(³⁰⁰) Above, pp. 253–4.

(³⁰¹) Above, p. 255.

(³⁰²) Above, p. 253.

(³⁰³) Above, p. 253.

(³⁰⁴) Misrepresentation Act 1967, s. 2(2).

(³⁰⁵) Above, p. 253.

(³⁰⁶) Above, p. 233.

(³⁰⁷) Above, p. 252.

(³⁰⁸) Above, p. 233.

(³⁰⁹) Above, pp. 81–4.

(³¹⁰) Above, p. 81.

(³¹¹) Above, pp. 81–2.

(³¹²) Above, p. 80.

(³¹³) Above, pp. 82–3. A buyer has sometimes ‘resolved’ the contract on the ground of the goods’ ‘contractual non-conformity’ even after their delivery: Ibid.

(³¹⁴) Above, p. 82.

(³¹⁵) Above, pp. 91–3, 583 where the reform to this period is noted.

(³¹⁶) Above, p. 253.

(³¹⁷) Above, pp. 255–6.

(³¹⁸) Above, pp. 82–3.

(³¹⁹) Above, p. 80.

(³²⁰) Above, pp. 84–6.

(³²¹) Above, p. 82.

(³²²) Nicholson v Willan (1804) 5 East 507 (the general rule); S. Pearson & Son Ltd. v Dublin Corporation [1907] AC 351; HIH Casualty & General Insurance Ltd. v Chase Manhattan Bank [2003] UKHL 6; [2003] 1 All ER (Comm) 349 (fraud). The courts for long used the construction of exemption clauses contra proferentem as a limited technique for their control, but this has become less necessary and appropriate since the enactment of the 1977 Act.

(³²³) Sale of Goods Act 1893, s. 55; Sale of Goods Act 1979, s. 55(1) stating the general position.

(³²⁴) Boyd and Forrest v Glasgow Rly. 1915 SC (HL) 20, 36.

(³²⁵) 1977 Act, ss. 3, 6 and 8.

(³²⁶) Dir. 93/13/EEC on unfair terms in consumer contracts.

(³²⁷) The EC directive was implemented in English law by the Unfair Terms in Consumer Contracts Regulations 1994 SI No. 3159, revoked and replaced by the Unfair Terms in Consumer Contracts Regulations 1999 SI No. 2083. Their limited impact in the context of sale of goods results from the usually wider definition of protected buyer in the 1977 Act as opposed to the 1999 Regulations (‘dealing as con sumer’ rather than ‘consumer’) and the complete ban imposed by the Act as opposed to the ‘test of fairness’ put in place by the Regulations.

(³²⁸) 1977 Act, s. 1(3); s. 3. On ‘dealing as consumer,’ see above, n. 247.

(³²⁹) 1977 Act, s. 11(1).

(³³⁰) 1977 Act, s.11(2) and Sch. 2.

(³³¹) 1977 Act, s. 11(5).

(³³²) Misrepresentation Act 1967 s. 3, as substituted by the 1977 Act, s. 8. A similar test of control applies to liability under Hedley Byrne at common law: 1977 Act, s. 2(2).

(³³³) The varieties of exemption clause for this purpose are set out broadly in the 1977 Act, s. 12.

(³³⁴) A very broad view has been taken of this phrase in the context of the 1979 Act, s. 14 so as to extend the incidence of its statutory implied terms, excluding only ‘purely private sales’ (Above, pp. 236–7), but for the purposes of the 1977 Act, s. 12, a narrower view requiring a degree of regularity in making contracts of the type in question by the business has been taken so as to extend the Act’s stricter controls to a wider category of contractor: R. & B. Customs Brokers Co. Ltd. v United Dominions Trust Ltd. [1988] 1 WLR 321). It is submitted that the broader view is right for s. 1(3) of the 1977 Act as this applies the same test to the incidence of the statutory implied terms and to controls on their exclusion and this reflects the legislative history, for the 1977 Act replaced earlier provisions which simply provided that the statutory implied terms could not be excluded against a consumer or against others unless reasonable: Supply of Goods (Implied Terms) Act 1973, s. 4, new 1979 Act, s. 55(4).

(³³⁵) Above, n. 247.

(³³⁶) 1977 Act, s. 6(2) (those ‘dealing as consumer’ within the meaning of s. 12); s. 6(3) (others). After implementation of the Consumer Guarantees Directive, an individual (as opposed to a company) does not ‘deal as consumer’ for these purposes if the goods are second-hand and sold at a public auction at which individuals have the opportunity of attending in person: 1977 Act, s. 12(2)(a), below, p. 588. Such a person may prefer to rely on the test of unfairness of terms contained in the Unfair Terms in Consumer Contracts Regulations 1999, SI No. 2083 rather than the test of reasonableness contained in the 1977 Act, s. 11. On the differences between these two tests of control, see Chitty on Contracts, 15–068 .

(³³⁷) 1977 Act, s. 11 and Sch. 2. The burden of proof is on a person claiming the reasonableness of a term: Ibid., s. 11(5). The courts have added other factors: Benjamin § 13–083 .

(³³⁸) Above, p. 85.

(³³⁹) Above, pp. 236–7.

(³⁴⁰) Above, pp. 94, 253.

(³⁴¹) In French law, this falls within the ban in Déc. 78–465 of 24 Mar. 1978, art. 2; in English law, this would be sale in the course of a business to someone ‘dealing as consumer’ within the 1977 Act, s. 6(2) (implied terms). An exception is found as regards the exclusion of liability under an express term, where the test is one of reasonableness: s. 3(2).

(³⁴²) Above, p. 94.

(³⁴³) Above, pp. 236–7.

(³⁴⁴) Above, p. 95.

(³⁴⁵) Ibid.

(³⁴⁶) Ibid.

(³⁴⁷) Above, p. 262.

(³⁴⁸) 1977 Act, s. 11(1), the question being whether ‘the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made’.

(³⁴⁹) 1977 Act, s. 1(4).

(³⁵⁰) Art. 1134 al. 3 C.civ.

(³⁵¹) In this respect, there was a change from a test of ‘reasonable reliance’ on an exemption clause found in the Supply of Goods (Implied Terms) Act 1973, s. 4, creating new Sale of Goods Act 1893, s. 55(4) to the present test found in the 1977 Act, s. 11(1).

(³⁵²) Contracts (Rights for Third Parties) Act 1999 and see Law Commission, Privity of Contract: Contracts for the Benefit of Third Parties, Law Com. no. 242 (1996) , Above, pp. 158–9.

(³⁵³) The absence of any ‘transmissible warranty of quality was noted by Lord Keith of Kinkel in arguing against the imposition of a duty of care in the tort of negligence with a similar effect in Murphy v Brentwood DC [1991] AC 398, 469. The idea of rights running with property has been used in the context of covenants concerning land: for a summary of the position, see Law Commission, Privity of Contract: Contracts for the Benefit of Third Parties , Law Com no. 242 (1996), §§ 2.10–2.12. Occasionally English courts have found a ‘collateral contract’ between parties beyond ordinary privity of contract so as to impose liability in a manufacturer directly where the manufacturer has made a direct representation to the buyer: Shanklin Pier Ltd. v Detel Products Ltd. [1951] 2 KB 854. The courts have not used the tort of negligence to avoid privity in this context: above, p. 184.

(³⁵⁴) See generally, C. Twigg-Flesner, Consumer Product Guarantees (Ashgate, Aldershot, 2003) .

(³⁵⁵) 1977 Act, s. 5.

(³⁵⁶) Twigg-Flesner, op. cit. n. 354 Chap. 2.

(³⁵⁷) C. Twigg-Flesner, ‘Network Liability for Manufacturer’s Guarantees—Remedying Legislative Shortcomings with a Legal Jigsaw’ [1999] JBL 568 .

(³⁵⁸) At common law, a manufacturer’s guarantee could be effective if agreed after the sub-purchaser com pletes the purchase only if he incurs some detriment, but the main example of this (the surrender of other rights against the manufacturer) may fall foul of the invalidity of any such surrender by way of the application of the 1977 Act, s. 5.

(³⁵⁹) below, pp. 624–5.

(³⁶⁰) E.g. Mowbray v Merryweather [1895] 2 QB 640 (claim by an employer in respect of liability to his employee for negligence); Lambert v Lewis [1982] AC 225 (owner of vehicle claims indemnity from retailer, who in turn claims indemnity from manufacturer).

(³⁶¹) CPR 20.6. E.g. Lambert v Lewis, cit.; Muirhead v Industrial Tank Specialities Ltd. [1986] QB 507.

(³⁶²) Bridge, Sale of Goods, 371–2 .

(³⁶³) Above, pp. 237–8, 240.

(³⁶⁴) Above, pp. 249–50, 256.

(³⁶⁵) Above, p. 262.

(³⁶⁶) Above, pp. 95–8.

(³⁶⁷) Above, p. 97.

(³⁶⁸) Above, p. 98.

(³⁶⁹) Above, p. 92. On reform of the bref délai see below, p. 583.

(³⁷⁰) Above, p. 265.