The Supply of Goods and Services Act 1982
| Author | N. E. Palmer |
| Date | 01 September 1983 |
| Published date | 01 September 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02537.x |
LEGISLATION
THE
SUPPLY
OF
GOODS
AND
SERVICES ACT
1982
(I)
Introduction
THIS
Act received the Royal Assent on July
13,
1982.’
Part
I
reproduces
clauses
1
to
11
of the draft Supply of Goods (Implied Terms)
Bill,
appended to the Law Commission’s Report No.
95.2
The result is that
terms equivalent to those implied by statute into contracts of sale and
hire-purchase are now implied by statute into other contracts for the
transfer of property in goods (such as contracts for work and materials
and contracts of exchange) and, with some variations, into contracts
of hire. A further clause in the draft Bill, designed to project the statutory
resemblance between sale and other property-transferring transactions
into the realm of exclusion clauses and thus to reduce the differences
between sections
6
and
7
of the Unfair Contract Terms Act
1977,
is
likewise reproduced in the
1982
Act.a The new Act goes further than the
draft Bill, however, by implying certain obligations into contracts for
the supply
of
services, irrespective of whether those contracts
additionally involve the supply of goods. The stimulus for this Part
of
the Act (Part
11)
came from
a
report of the National Consumer Council
in
1981.4
Unfortunately, the authors of this report were reluctant to
recommend an extensive statutory prescription of the supplier’s
obligations concerning quality of workmanship without more detailed
research into the position at common law than circumstances allowed.
They also appear to have believed that to imply by statute certain strict
liability undertakings on the part of the supplier would exceed the
avowed purpose of the Act as a purely codifying ~tatute.~ Part
I1
of the
Act therefore contents itself with implying obligations on the part of
the supplier who acts in the course of a business that he
will
perform the
service with reasonable care and skill and
will
do
so
within a reasonable
time, and an obligation
on
the part
of
the acquirer
of
the service that
he
will
pay a reasonable charge. Of course, the last two
of
these implied
terms take effect only in the absence
of
any specific or inferrable agree-
ment between the parties. This Part of the Act seems especially dis-
appointing. Coupled with the draftsman’s general failure to examine
and specify with sufficient accuracy the range of transactions to which
For
commencement dates see
s.
20
(3) (for Pt.
I
and parts of
ss.
18 and 19); the
remainder came into force on July 4, 1983; see
S.I.
1982 No.
1770.
For
transitional
provisions,
see
s.
20
(2)
and (5) and the Schedule to the Act. The final enactment (like
the Law Commission’s draft
Bill)
applies only to England and Northern Ireland and does
not affect Scottish law at
all,
though the Bill
in
its early stages did.
ItnpliedTernisin Contracts
forf/ieSifpplyofGoods(I979);
noted (1980)43
M.L.R.
193.
CI.
12 (3), becomes
s.
17
(2);
see
infra,
630.
Service Please. Servicesand tlieLaiv:
a
consumer view
(October 1981).
N.C.C. report,
p.
25. This belief
is
clearly not correct: see,
e.g.
G.
K.
Sergraphfc Lid.
v.
Dispro
Lrd.
(1980) C.A. unreported, December 15.
619
620
THE
MODERN
LAW
REVIEW
pol.
46
the Act is to apply, Part
I1
has contributed to a rather platitudinous
statute
of
uneven impact and value.
(2:)
Contracts
for
the
Supply
of
Goods
The Act divides such contracts into two categories: contracts for the
transfer
of
goods (which are governed by
ss.
1
to
5)
and contracts
for the hire of goods (which are governed by
ss.
6
to
10).
Contracts for
the
Transfer
of
Goods
Such a contract is defined by section
1
(1) as one
''
under which one
person transfers or agrees to transfer to another the property in goods,
other than an excepted contract." Excepted contracts are sale and hire-
purchase; contracts whereby the property
in
goods is (or is to be)
transferred in exchange for trading stamps on their redemption; any
transfer
or
agreement to transfer which is made by deed and
for
which
there is no consideration other than the presumed consideration
imported by the deed; and contracts intended to operate
by
way of
mortgage, pledge, charge or other security." The character of a contract
as one for the transfer of goods is not affected by the fact that services
may also be supplied under it; and a contract may possess that character
whether the consumer's consideration is
of
a pecuniary
or
of some
other nature (such as goods, service or land).7
The terms implied into such contracts are, for all practical purposes, a
mirror-image of the corresponding terms in contracts of sale. The
conditions as to reasonable fitness and merchantable quality can be
displaced in equivalent circumstances to those which would displace
them from contracts of sale*; the implied condition as to conformity
with description is, like its counterpart within the 1979 Act, expressed
to apply notwithstanding the fact that, being exposed for supply, the
goods are selected by the transfereee; land sections 2
(3)
to
2
(5)
of the
Act confer the same power to transfer
a
limited title to goods as section
12
of the 1979 Act recognises in the seller. Other features of the 1979
legislation are likewise faithfully adopted, although there
is
a greater use
of subsections in the 1982 Act and a consequent elongation of
provisions. It follows,
of
course, that many of the legislative defects
of
the law of sale are multiplied by the new legislation. This gives the Act a
rather temporary
or
makeshift appearance and a built-in necessity for
review.
Sections
1
to
5
affect many different transactions, ranging from
contracts of work and materials'* and exchange
to
the numerous
innominate contracts whereunder a party transfers (or agrees to transfer)
"
s.
1
(2)
(a)-(e). Quaere
whether this last excludes,
for
instance, the supply of goods for
a non-monetary consideration, subject
to
il
reservation of title clause. Such a supply
of
goods
for
a money price would presumably constitute a sale
and
therefore be excepted
by
s.
1
(2)
(a).
Cf.
T.
B.
Smith,
Praperfy Problems
in
Sale,
Chap.
5.
s.
1
(3).
*
s.
4
!2).-(6),
(9).
9
s.
3
$4).
lo
Building contracts are,
of
course, a particularly important area of application.
The Law Commission
(No.
95,
paras.
63-65)
concluded that there
should
be
no
special
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