Caveat vendor?

District Judge Peter Jolly on the forthcoming improvements to consumer rights

Unfortunately, my colleague's dishwasher recently expired, and when most of us were buying Christmas trees, he spent rather more on a new appliance.

This was bad news on three counts: firstly, the size of the initial outlay; secondly, the new machine immediately broke down and he was consigned to the kitchen sink on Christmas Day; and thirdly, he did not wait until 31 March 2003 to make the purchase.

He could then have relied on the Sale and Supply of Goods to Consumers Regulations 2002 SI 2002/3045 which, as its title implies, is for the benefit of consumers.

In the regulations, 'consumer' is defined as a natural person acting outside the purposes of his trade, business or profession.

So while my colleague can take advantage of the new law when he buys his next dishwasher, my gardener who brings his own new mower which disintegrates on use, will be unable to do so.

The regulations are the fruit of EC Directive 1999/44, and part of the harmonisation of consumer legislation within the community.

Implementation is chiefly by way of alterations to the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, the Supply of Goods (Implied Terms) Act 1973 and the Unfair Contract Terms Act 1977.

Until reprinted as amended in textbooks, adopting a DIY procedure of cut and paste will ensure better access to, and interpretation of, the law as it stands at the end of March 2003.

Much of the directive was already part of English statute law, but these regulations bring extra certainty to some situations.

Consumer rights will depend less on construction of the contract, terms implied by conduct, and artificial devices.

In a nutshell, the regulations will mean that:

l The seller becomes liable for the 'manufacturer's publicity' as a statutory implied term.

l A statutory right of repair and replacement is enacted with a reverse burden of proof.

A seller is assumed liable for defects in the first six months after delivery - if the dishwasher fails to work after five months, it is presumed defective when sold.

l Equivalent provisions are imported into the 1982 Act; section 10 of the 1973 Act is also amended to shadow the changes to the 1979 Act.

l Passing of risk in consumer sales remains until actual delivery to the consumer, and delivery to a carrier cannot trigger acceptance (regulation 4).

l There is a stand-alone provision making manufacturers liable direct to consumers on their guarantees.

Publicity

The label says 'Economy Rating A' for the fridge, or the press advert shows '0-60mph in eight seconds' for the GT model.

The new section 14 (2D-F) of the 1979 Act makes the seller liable if the goods do not match the publicity of either manufacturer, or EC concessionaire, unless: the seller shows he neither knew, nor could have been aware, of the blurb; the statement had been withdrawn; or the statement could not have influenced the purchaser's decision to buy, for example, if he could never have seen it, or it was clearly a humorous claim, such as 'Goes like a rocket'.

See regulations 7, 10 and 13 for supply, hire, etcetera.

The computer that breaks down after three months, defective installations by retailers, major shortcomings in installation instructions or parts to enable self-assembly, and incorrect one-off kitchen designs - historically, with all of these circumstances, the supplier tells the customer to get off his premises and on his way.

From 31 March 2003, that should be a thing of the past.

Beyond the now-enforceable manufacturer's no-quibble warranty, the new part 5A of the 1979 Act establishes the available consumer remedies.

Non-conformity with express terms of the contract, or those implied as to fitness, durability, sample, etcetera, and the buyer can require: repair or replacement - section 48B of the 1979 Act; price reduction or rescission of the contract - section 48C.

Goods returned within six months of contract are presumed to have been out of conformity at time of delivery.

Hitherto, there has been a good argument that goods are faulty if they break down shortly after supply, but this clear presumption should help dispute resolution short of litigation.

Section 48B requires a response to a buyer's request to repair or replace within a reasonable amount of time (with no significant inconvenience to the buyer, and seller bearing the costs of postage, etcetera).

If replacement is impossible, disproportionate to the minor nature of the fault, or to cost of another remedy, the seller can refuse.

While section 48B and section 48C remedies are normally incompatible, the latter are available if repair or replacement are refused as being disproportionate.

Rescission does not mean the buyer making a profit out of the exercise - credit must be given for use of the goods.

Hence the concept of a partial refund.

Suppose the retailer takes an age to repair the faulty goods? After a reasonable time, the buyer can reject the goods and terminate the contract for breach of condition.

The court is not limited to the specific remedy sought, and can make such order as it thinks fit to do justice in the individual case.

(See regulation 9 for 1982 Act remedies).

Guarantees

Shopping for a new car, differential warranty periods significantly affect consumer decision-making.

Good customer relations dictated a non-legalistic approach to the warranty by reputable manufacturers.

But if the 'guarantor' was awkward, enforcing that arrangement was problematical.

Enter the statutory contract with no consideration.

If goods are supplied (including on hire-purchase), with a consumer guarantee (an undertaking given free of charge by a producer to replace repair or refund the price of goods not meeting the specifications of the guarantee or relevant advertising), that is a contractual liability to the consumer.

Guarantees must be clearly stated in English and in a durable medium.

As contractual obligations, they are enforceable by the consumer and assignable to any subsequent purchaser.

The regulation excludes manufacturers' extended warranties, which are separately 'purchased'.

Crystal ball gazing

More rights for consumers, and fairer more flexible dispute resolution in the future.

The government reckons this adds less than one-quarter of 1% to producer costs.

But less litigation?

I wonder.

The directive offers community-wide minimum standards of consumer protection, but for many buying abroad, suing our chargecard providers here under section 75 of the Consumer Credit Act 1974, looks a better option than taking our chances in the Grandvin-sur-Mer Palais de Justice.

Here's hoping that standardisation does not bring repeal of that provision.

District Judge Peter Jolly sits at Portsmouth Combined Court Centre