LEGISLATION AND COMPLIANCE
packing method and quality. A reference to goods on a label may constitute, or form part of, the description.
Quality of the goods Tere is an implied condition of merchantable quality, except as regards defects that are specifically brought to the buyer’s attention or defects that are plainly obvious. Goods are of merchantable quality if they are fit for the purpose for which goods of that kind are commonly bought. Where the buyer makes known to the seller, expressly or
by implication, any particular purpose for which the goods are being bought, then there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied. Where the purpose is an obv- ious one (ie food is for eating, a car is for driving) it is not necessary for the buyer to expressly inform the seller of the intended purpose. If any of these implied terms are breached by the seller the
buyer has the right to reject the goods and claim the purchase price back. Te buyer could also seek damages for consequen- tial loss and breach of contract.
EXCLUSION OF IMPLIED TERMS
Te implied term as to the right of the seller to sell the goods may not be excluded and any term of a contract purporting to exclude it is void. In the case of the implied term in relation to sale by description and quality of the goods, these terms may be excluded where the buyer does not deal as a consumer as defined in the Sale of Goods Acts and the exclusion is fair and reasonable in the circumstances. Tere have been numerous court decisions on what con-
stitutes a consumer. In one particular case it was held that a company that purchased a company car for its director, where the intention was that the car would be for both personal and company use, was acting as a consumer for the purposes of the Sale of Goods Acts.
SUPPLY OF SERVICES
With regard to the supply of services, the Sale of Goods Acts imply into the contract that the supplier has the necessary skill to supply the service, that it will be done diligently, that any materials used will be fit for purpose and that any associated goods supplied will be fit for purpose. Where any of the above conditions are breached the buyer is entitled to reject the services and/or seek damages for breach of contract. Tese terms may be varied and excluded by an express term of the contract regardless of whether or not the buyer deals as a consumer.
SALE BY SAMPLE
In the case of a contract for the sale of goods by sample, the Sale of Goods Acts imply into the contract that the bulk will correspond with the sample, that the buyer will have an opp- ortunity to compare the bulk to the sample and that the goods will be free from defects which would not be apparent on exa- mination of the sample. Where any of the above conditions are breached, the buyer has the right to reject the goods and/or seek damages
for breach of contract. A seller can expressly exclude the afore implied conditions, except where the buyer is dealing as a consumer.
THE CONSUMER PROTECTION ACT, 2007
Te Consumer Protection Act, 2007 (‘the 2007 Act’) is des- igned to protect consumers against misleading commercial practices. Its provisions are promoted and enforced by the Na- tional Consumer Agency (NCA). Interestingly, the 2007 Act is much more geared to the individual consumer and goes as far as defining a ‘consumer’, for the purposes of the 2007 Act, to mean a natural person acting outside his/her business, trade or profession. Tis definition excludes business from many of the protections afforded by the 2007 Act. It is arguable that a business could make a complaint to the
NCA, in the appropriate circumstances, which could lead to investigation and enforcement by the NCA. Furthermore, a business not excluded from the entitlement can seek a court order under the 2007 Act directing another business to cease a particular act or practice. Tere may be an academic legal argument that a business lacks the standing to seek such a court order but this remains, as yet, untested.
THE EUROPEAN COMMUNITIES (MISLEADING AND COMPARATIVE MARKETING COMMUNICATIONS) REGULATIONS 2007
Tese regulations are designed to protect businesses and pro- hibit misleading advertising and therefore can be availed of by business. A marketing communication is misleading if it in any way deceives or is likely to deceive the trader to whom it is addressed or whom it reaches and, by reason of its deceptive nature, is likely to affect the trader’s economic behaviour. If a misleading marketing communication is made the trader to whom the communication was directed can seek damages for any loss caused by that communication.
THE SMALL CLAIMS COURT AND DISPUTES GENERALLY
It should be noted that the facilities of the small claims court have, since the beginning of 2010, been available for disputes between two businesses valued under €2,000 and which do not relate to consumer credit agreements, lease agreements or debt recovery. Tis facility does not preclude businesses from access to the normal court system and disputes of all shapes and sizes can and are dealt with by the courts.
CONCLUSION
Tere are several provisions of consumer-type legisla- tion that can be relied upon by businesses to enforce their rights in the B2B purchasing context. If necessary, those rights can be enforced in the courts and, in some cases, the small claims court, where dispute resolution is cheap and efficient.
Laura Fannin is a solicitor in the commercial and business depart- ment of Hayes solicitors. Tis article does not constitute legal advice and should not be
taken as such. Owner Manager urges you to obtain professional advice when dealing with legal issues.
VOL 4 ISSUE 1 2011 OWNER MANAGER 33
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