The Protection Of The Consumer And Purchaser Of Goods Under English Law1
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02280.x |
| Date | 01 January 1969 |
| Published date | 01 January 1969 |
THE
MODERN
LAW
REVIEW
Volume
32
January
1969
No.
1
THE
PROTECTION
OF
THE CONSUMER AND
PURCHASER
OF
GOODS
UNDER ENGLISH
LAW‘
FOR
the Molony Committee on Consumer Protection the word
cc
consumer
”
meant
‘‘
one who purchases
(or
hire-purchases) goods
for private use
or
consumption.”
*
For
one who has done most of
his work in the law of tort, however, that definition is obviously
unacceptable for
it
excludes the law’s best known consumer, Mrs.
M‘Alister
(or
Donoghue). Indeed, for the tort lawyer
“
consumer
”
extends even
so
far as a passer-by in the street who is injured by
a
wheel which comes
off
a passing lorry,3 and
I
propose to use the
word in that kind of extended sense in this lecture.
“
Protection
”
is, perhaps, even more ambiguous than
‘‘
consumer
”
for the word
is regularly and indiscriminately used by lawyers in two quite differ-
ent senses. In its more literal sense, to protect someone means
to prevent his suffering some harm. An umbrella protects from the
rain by preventing rain from falling on its user. But a person who
is arranging some public function planned to take place in the open
air may want protection from rain in a different sense and will
secure
it
by insurance. This does not mean that the insurance com-
pany accepts an obligation to prevent rain from spoiling the
occasion.
It
means that the company will relieve its assured of the
financial losses that will accrue
if
rain should actually fall.
“
Consumer protection
”
can, therefore, mean one
or
both of
two things:
it
may mean either the prevention of things going
wrong for the consumer
or
it
may mean the provision of financial
redress for the consumer when things have gone wrong. In the best
of all possible worlds there would be no need for protection in this
second sense, for nothing ever would
go
wrong, but it will be some
time yet before we reach that Utopian condition. In the mean-
while
it
seems to me that
I
can justifiably limit myself to protec-
tion in its second sense, and
I
have chosen to do this for two main
1
A
Special University Lecture in Laws delivered at Quegn Mary College, Uni-
2
Final Report
of
the Committee
on
Consumer Protection (Cmnd. 1781) 1962,
3
Stennett
v.
Hancock
[1939]
2
All
E.R.
578.
versity
of
London, February 5, 1968.
para.
2.
1
VOL.
32
2
THE MODERN
LAW
REVIEW
VOL.
32
reasons. In the first place
I
must obviously
fix
some limit, how-
ever arbitrary, to the scope of this lecture: in the second place
I
am somewhat sceptical about the extent to which the law and
lawyers can effectively contribute to consumer protection in its first
and more literal sense. The criminal law can, no doubt, do some-
thing towards this end, but consumer-and producer-education
seem to me to be more important. Consumer protection in
its
secondary sense, However, is something which the law, and in the
ultimate result the law alone, can provide. My intention, there-
fore, is to invite your attention
So
that part of the law which does,
or
should, provide that kind of protection, in other words to the
civil remedies of the consumer.
I
do not, however, propose to
embark upon yet another exhaustive analysis of the relevant sec-
tions of the Sale of Goods and Hire Purchase Acts.
I
want rather
to try
to
look more broadly at the problem of the civil remedies of
the consumer and to adopt what,
I
hope, may be considered a more
or
less functional point of view.
As
I
have already pointed out, the Molony Committee defines
a
consumer as one who purchases
or
hire-purchases goods for private
use
or
consumption. This definition focuses attention on the con-
tractual character of the consumer’s position and, indeed, is such
that
no
one is
a
(‘
consumer
”
unless he has acquired the possession
of goods under a contract of sale
or
of hire purchase.
It
is not
surprising, therefore, to find that the Committee are reluctant to
endorse a principle of liability without privity of contract
*
or
that
they should refer, with evident distress, to the ignorance of the
general public of the fact that the law imposes obligations on the
retailer rather than on the manufact~rer.~ One thought which
I
should like
to
develop in this lecture is that in this matter, if not
in others also, the public may actually be wiser than the law.
Should we as lawyers not open our minds to the possibility that the
doctrine of privity of contract,
so
beloved of the hommon law, is a
distorting factor in the law of consumer protection and that the
contractual relationship which exists between buyer and selIer
or
between hire-purchaser and finance company is a less important
element than the present structure of the law makes it out to be
?
The importance of privity of contract as the law now stands is
easily demonstrated by a comparison between the remedies which
are available under the general law to the consumer who can rely
upon a contract and those which are available to him independently
of contract.
I
am not unaware of the fact that many of the rights
available under the general law of contract may be taken away by
exclusion clauses and
I
shall have something to say about that in
due course. But exclusion clauses operate in derogation of the gen-
eral law, and
it
is the general law and the remedies which it pro-
vides
to
which attention should in the first instance be directed.
4
Report,
para.
417.
5
Ibid.,
para.
400.
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