6 - Sale of Goods

Summary

INTRODUCTION

This chapter concerns the law governing non-consumer and consumer contracts for the sale of goods. The former are governed by the Sale of Goods Act 1979 (the ‘1979 Act’) and the latter, by the 1979 Act and the Consumer Rights Act 2015 (the ‘2015 Act’). There is considerable overlap between the two Acts. Certain sections of the 1979 Act apply to the 2015 Act. Certain sections of the 1979 Act have identical, or almost identical, equivalents in the 2015 Act. The main area of difference is the remedies available to parties in the event of breach of contract.

This chapter will not examine every provision of the Acts, confining itself to those which are most likely to be relevant to modern life and legal practice. The focus will be on the 1979 Act. The Consumer Credit Act 1974 and the Unfair Contract Terms Act 1977 fall outwith its scope. Internationally, ninety-four states have acceded to the UN Convention on Contracts for the International Sale of Goods (the Vienna Convention, 1980), which harmonises the legal rules on the international sale of goods. Parties include China, the US, the Russian Federation, Canada, Australia and all EU Member States bar Ireland and Malta. The UK has not (yet) acceded.

CONTRACTS FOR THE SALE OF GOODS

The legislation

Towards the end of the nineteenth century there was a strong move towards codification of commercial law. It was the spirit of the age, being promoted on all sides. The legal zeitgeist resulted in the Bills of Exchange Act 1882, the Partnership Act 1890 and the Marine Insurance Act 1906. It also resulted in the Sale of Goods Act 1893 (the ‘1893 Act’), the first codification of the law governing contracts for the sale of goods. With the exception of the Partnership Act 1890, all these codifying Acts were drafted by Sir Mackenzie Chalmers, who became an acknowledged master of the art of codification.

After the 1893 Act had received Royal Assent, a contemporary commentator declared that although it made radical changes to Scots law, it was, on the whole, ‘a good measure’. However, as was noted in the recent case of Caithness Flagstone Ltd v Ballyvesey Holdings Ltd, whatever Sir Mackenzie's level of mastery, the 1893 Act had its critics. Although the drafter was aiming to state the common law of England and Wales, the 1893 Act was applied to Scotland. Professor Gow wrote: