Sale of Goods and Supply of Services Bill, 1978: Second Stage.

Wednesday, 6 February 1980

Seanad Eireann Debate
Vol. 93 No. 9

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Question proposed: “That the Bill be now read a Second Time”.

[965]Minister of State at the Department of Industry, Commerce and Tourism (Mr. R. Burke): Information on Ray Burke  Zoom on Ray Burke  Is Bille tábhachtach é seo agus is céim eile é de pholasaí an Rialtais i leith cosaint do thomaltoirí.

The measure now before the House is intended not only to bring up to date the law relating to the sale of goods but to extend its provisions also to the supply of services. It also proposes certain significant changes in the law relating to hire purchase and it makes special provision for abuses such as demands for payments for unsolicited goods and for entries in directories. Thus it represents a major change in the law relating to consumer protection in this country.

In a number of respects it complements the Consumer Information Act, 1978, which was designed to ensure that the consumer would have protection from misleading advertising and misleading descriptions of goods and services. However, the present Bill is a more far-reaching measure than the Act of 1978. Both these measures, however, had their genesis in the report “Consumer Protection Law in America, Canada and Europe” prepared for the National Prices Commission in 1972 by Professor M.H. Whincup of the University of Keele. This report in turn provided the basis for the recommendations as to changes in consumer protection law made to the then Minister for Industry and Commerce by the National Consumer Advisory Council in December 1974. Between them, the Consumer Information Act, 1978 and the present measure account for almost all the recommendations regarding changes in consumer protection law urged by the National Consumer Advisory Council.

Before going on to deal with the provisions in the Bill, their purpose and their effects, I think I should endeavour to describe briefly, but I hope with reasonable accuracy, the principal features of the Sale of Goods Act, 1893, and the “implied” terms which are a feature of that Act and which are central to the revisions of the law in favour of the consumer now proposed.

As the law stands at present, the [966] buyer of goods in a retail sale has certain “implied” rights by virtue of the Sale of Goods Act, 1893. These rights are “implied” in that they do not have to be specifically claimed by the buyer, either orally or in writing, whenever goods are bought. These implied terms are described in the Act either as “conditions” or “warranties”. Breach of a condition entitles the injured party to repudiate his obligations and at the same time claim damages. Breach of “warranty” on the other hand entitles him only to claim damages for any loss incurred; the injured party has to fulfil his side of the contract. The legal meaning of the term “warranty” in this context is different from its common use as a synonym for guarantee.

The Sale of Goods Act is a carefully drafted codification of the law as it had developed by the end of the 19th century, and reflects the market philosophy of that time. Thus it recognises the freedom of both parties—the buyer and the seller—to make whatever agreement they wished, and, as the Whincup Report pointed out, the Act was intended to regulate the relationship of buyers and sellers only where they failed to make express provision themselves for such regulation. In short, the “implied” terms were intended to supplement, for the purpose of contractual arrangements, the agreement between the parties.

In keeping with the philosophy of the time, the Act presumed a general equality of bargaining power as between buyer and seller. Furthermore, the Act also provided under section 55 a means by which an economically stronger party may relieve himself of all liability for breach of contract.

As is well recognised both inside this House and outside, the 19th century commerical pragmatism which permeates the 1893 Act is, for several reasons, inappropriate in modern circumstances. For example, one aspect of the 1893 Act which has led to an erosion of the buyer's position is the regular use by many suppliers of the provision in [967] section 55 of that Act whereby the seller can exclude his contractual liabilities to the buyer. I am sure that every Member of this House has, at one time or another, experienced the device of the exclusion clause. Its purpose and effects have been to trim or undermine entirely the implied rights of buyers. I propose in this Bill to curtail the use of such devices.

Another commonplace feature is the use of guarantees offered by manufacturers or traders, often in substitution for the legal rights which buyers would have had under the provisions of the 1893 Act. I propose to ensure that the basic provisions of this Bill cannot be whittled away; traders may offer better terms, but they will not get away with anything less favourable to the consumer.

From the background to and the need for the Bill I turn now to its general aims. These are:

(1) to bring up-to-date and improve the important provisions of the Sale of Goods Act, 1893 which set out the implied rights of buyers and conversely, the implied duties of sellers in a sale of goods;

(2) to remove certain anomalies in contract law which had operated adversely against the buyer, and allowed the seller to evade his proper responsibilities and to refuse to remedy faults;

(3) except in the case of title, to give to persons acquiring goods under hire purchase agreements the same legal rights—as to merchantable quality, fitness for purpose and others—now being made available to cash buyers; the logic of this approach is that hire-purchase is in substance—if not in form—a purchase;

(4) to extend to the buyer and the supplier of services, implied rights and duties somewhat analogous to those for goods;

(5) to improve the relief accorded by the law in the case of misrepresentation primarily by regulating the use of clauses excluding or restricting liability arising from misrepresentation; and

(6) to provide greater protection for persons who receive unsolicited goods, [968] through the post or otherwise, and to regulate the methods by which entries in certain directories are collected.

The Bill has been structured so that associated provisions are grouped together to make it easier to identify those relating to specific areas namely: the amendment of the Sale of Goods Act, 1893; hire-purchase and services.

Part 1 brings together the basic provisions necessary in all statutes and sometimes dispersed throughout the text. Part II deals with the Sale of Goods Act, 1893 and contracts for the sale of goods and sets out the changes regarded as necessary to bring the law up-to-date. Part III sets out, in a self-contained way, the hire purchase provisions. All of these have been brought together in this part, even though some element of repetition of the text may appear to be involved.

Contracts for the supply of services are dealt with in Part IV and the question of misrepresentation in Part V. New provisions dealing with unsolicited goods and directory entries are dealt with in Part VI along with some remaining miscellaneous provisions.

As I mentioned at the outset, the Bill complements the Consumer Information Act, 1978, which is a criminal law measure of a generally preventive or regulatory kind, concerned to ensure that buyers are provided with reasonable and accurate information with which they can assess the options open to them when purchasing goods or services. Although there is a place for the general public in the task of enforcing the Consumer Information Act, such enforcement is primarily a matter for the Minister and for the Director of Consumer Affairs. The present Bill, on the other hand, is essentially a civil law measure designed to strengthen the position of the consumer in contract law, and thus is mainly a measure to be operated by the general public. There are, however, certain provisions which involve public authorities notably the Director of Consumer Affairs. Sections 11 to 13 and 46 to 54 of the Bill contain these provisions.

Earlier, I expressed the view that this [969] was a complex and technical legal measure. Because of that, and in the interests of the fullest discussion on this Second Stage, I feel that it is necessary now to elaborate on the provisions in the Bill in a manner that, in another Bill, might be regarded as more appropriate to the Committee Stage. In doing this I will concentrate mainly on Parts II— sale of goods—and Part V—mis-representation. Parts III and IV—dealing with hire purchase and services respectively—are also very important but the changes in the law on sale of goods proposed in Part II are being extended in Part III to hire purchase and in Part IV to services. In that way Part II lays the groundwork and sets the style for Parts III and IV.

In general, Part II is concerned with improving the buyer's lot under the Sale of Goods Act and in certain areas of contract law. In the Sale of Goods Act the areas where change is necessary and is proposed are: sections 11 to 14, dealing with implied terms in contracts which are the heart of the matter; section 35, relating to acceptance of goods; section 53, relating to remedies for breach of contract; and section 55, relating to exclusion clauses.

As Senators will have noted, the Bill has been so structured that the amendments to the Sale of Goods Act are set out in the appropriate sections of the Bill in the form of tables which contain not just the revisions but the particular sections complete with revisions. This structure has the advantage that the revisions now being proposed in the Sale of Goods Act, can be seen in context. In that way the danger of what is termed “legislation by reference” is avoided. The fact that section 10 of the Bill deals with amendments to sections 11 to 14 of the 1893 Act does create some possibilities for confusion of reference, but as I mentioned in the other House the printers have, I think, succeeded in laying out the text in a way that reduces the possibility for such confusion.

Beginning with section 11 of the 1893 Act and with the question of acceptance, it has been held that injustice can arise [970] for a buyer under section 11 subsection (1) (c) which provides that once the buyer has accepted specific goods, a breach of any condition which the seller should have fulfilled can only be treated as a breach of warranty and not as a ground for rejecting the goods. This seems to mean that a buyer loses his rights to reject defective goods at the moment of purchase. In accordance with the recommendations of the report of the NCAC, section 10 of the Bill proposes to change the basis for such an obvious injustice.

It is also desirable to ensure that acceptance, as defined in section 35 of the 1893 Act, is subject to the buyer's right to examine goods already provided at section 34 of that Act. Section 20 of the Bill contains the provision necessary to this end. A further aspect in regard to unsatisfactory goods and contractual commitment is dealt with in section 21 of the Bill. This amends section 53 of the 1893 Act in such a way that a purchaser who is a bona fide consumer will be able to reject faulty goods in circumstances where, under section 53 as it stands, he could only look for damages.

On the very important question of implied terms several amendments to the 1893 Act have been necessary. Section 12 of that Act, which deals with implied conditions and warranties as to title to goods is being amended to clarify the position in sales of limited title where a third party may have an interest. The benefits of section 13 of the 1893 Act, which provides for the implied condition that goods being sold by description must correspond with the description, are being extended so as to apply to goods selected off the shelf in a shop.

Section 14 of the 1893 Act introduced in statute form the concepts of “merchantable quality” and “fitness for purpose” as implied conditions to protect the buyer, but the Act did not attempt to define “merchantable quality” and did not extend to those who might be acting as agents, rather than dealers in goods. These weaknesses in the 1893 Act are being remedied in the Bill.

Section 22 adds several important [971] new provisions to section 55 of the 1893 Act which is the section regulating exclusion clauses. The essence of the proposed new provisions is that the improved implied rights as set out in section 10 of the Bill cannot be, in any way, voided in the case of consumer sales by the use of exclusion clauses. Complete prohibition of exclusion clauses will apply in the case of consumer sales, but in the case of sales between business people there is provision in section 22 for a test of reasonableness to be determined by the courts in respect of exclusion clauses. This, I think, strikes a fair balance between the need, on the one hand, to guard against exploitation of the small man by economically stronger and more resourceful groups and, on the other, the need to allow reasonable freedom to strong groups to bargain with each other on whatever terms they please.

In making the various implied terms inescapable in contracts, it is also necessary to ensure that the provisions to that effect cannot be evaded in any other way and that, in particular, sellers cannot even claim or pretend to withhold them by notices or advertisements. I am sure that most Senators are familiar with the practice of some shops which display notices saying “goods not exchanged” or “no refunds”. Section 11 of the Bill makes it an offence to put up such notices in shops. To make the provision in this section effective, it is proposed that breaches of it will be an offence. Section 14 of the Bill is intended to plug a loophole which at present sometimes leaves credit purchasers without any recourse where goods are faulty. The seller has been paid in full by the finance house and the latter have no interest except to recover the amount lent to the purchaser. Under this section the consumer will no longer be left in a vacuum between the two as both the seller and finance house will have joint and several liability.

Another important new area covered is that of guarantees which in recent years have played a prominent part in selling and which are badly in need of rationalisation. Any seller of goods now [972] giving a guarantee will have to provide for the matters set out in section 16 of the Bill.

In accordance with the recommendations of the Whincup and NCAC Reports, special provision is being proposed in regard to the safety of motor vehicles. Unlike other goods provided for consumers, faults in motor vehicles may affect persons other than the purchaser—if, for instance, they cause an accident.

The need, therefore, for a high level of mechanical efficiency and road-worthiness in all motor vehicles sold for ordinary road use is vital. In addition to the safety angle, there is the consideration that, unless the buyer has some protection under a guarantee, the remedying of defects in a car following purchase can be very expensive indeed for the buyer.

The implied conditions and warranties provided in section 10 of the Bill as to merchantable quality, fitness for purpose and so on, will, of course, apply equally to sales of motor vehicles for ordinary road use. Under section 13, however, there will be an extra implied condition in such contracts to the effect that the vehicle is free from dangerous defects. If this does not prove to be the case, an aggrieved buyer will have an action against the seller for breach of contract.

In addition to this civil measure, section 13 also imposes a requirement that a motor vehicle dealer must give a written certificate to the effect that the vehicle is free from dangerous defect. The Minister will be empowered to specify the form of the certificate. This requirement should present no great difficulties to and indeed should facilitate the business of, reputable car dealers. It will, moreover, provide the buyer with much needed protection from the hazards he faces when tempted to buy from certain other kinds of car dealer.

Another innovation provided for under section 13 (6) is the extension of the right of civil action against the seller, to any person using the car with the owner's consent. There are those who might argue that this represents a serious [973] stretching of the concept of privity of contract but, whatever the theoretical considerations involved, a pragmatic approach is called for when dealing with a product which, if defective, can constitute a grave personal and public hazard.

Senators will doubtless be aware that section 13 was the subject of extensive debate on all Stages of the Bill's passage through the Dáil. While I am satisfied that the section as amended in the Dáil represents a fair degree of consensus as to how the section should be, I, nevertheless, appreciate the concern of the industry and have received many representations regarding the scope of the section. I am, of course, anxious that the activities of any sector should not be jeopardised by this or any other provision of the Bill. Accordingly, I am arranging for further consultation with the motor industry before Committee Stage on the scope of the section as a whole. I shall be meeting the FIMI, together with some of my officials.

Of particular relevance, too, to car owners and buyers, as well, of course, as buyers of other so-called “consumer durables”, are the provisions in section 12, under which any undertakings given by a seller as to future supply of spare parts and availability of servicing—sometimes given lightly as a seller device—may now be given the status of a warranty and can, therefore, be actively pursued in the civil courts by an aggrieved purchaser.

The new provisions contained in Part II in relation to the sale of goods are applied also, as appropriate, to hire purchase transactions in Part III of the Bill. The reason is that hire purchase transactions, although not sales in the legal sense, are a means by which consumer goods are acquired by consumers who are just as much entitled to protection as direct purchasers.

Similarly, Part IV extends the new provisions into the area of services where the consumer needs protection just as if he were buying goods. Nowadays, however, there is no reasonable basis on [974] which suppliers of services should be exempt from implied terms as to the quality of the service. Indeed, one could argue that the need for adequate protection for a consumer is all the greater in the case of a service, because in a sale of goods the buyer can at least see and examine a given product. This is not generally the case with a service, however. Where the latter is involved, a buyer may well be purchasing an expertise about which he may know very little unless he happens to have a degree of technical or specialist knowledge that the average person does not have. The quality of services is more difficult to define than that of goods, but I think sections 37 and 38 go as far as possible in this regard. These provisions apply to all suppliers of services in their contractual relationships. In other words, the term “services” in this context extends to all those areas in which the consumer today spends much of his disposable income—leisure, holidays, personal requisites, house repairs and so forth.

As to Part V of the Bill, common law contains many mysteries for the ordinary person in the area of misrepresentation. I shall not go into the details of this here except to confirm that the purposes of sections 40 to 43 of the Bill are, firstly, to provide for the rights of a buyer where he has been led into accepting a contract by misrepresentation even if it was negligent or innocent and, secondly, in the interests of equity to enable the courts to maintain a contract, instead of setting it aside, and award damages, keeping in mind the nature of the misrepresentation and the loss that would be caused to the parties by upholding or setting aside the contract.

Part VI of the Bill deals with various ancillary matters which could not readily be classified with the other parts. The provisions about unsolicited goods and directory entries are very necessary. My Department has been receiving a good many complaints over the last year or two about firms soliciting payments for entries in directories which do not seem to exist. I will not go into the need for the [975] other provisions in this part as they speak for themselves.

To conclude, it might be said that this Bill is about restoring people's rights in the market place, rights which, since the enactment of the Sale of Goods Act, 1893, have correspondingly diminished, as the market place itself has expanded in form, scale, complexity and sophistication. Its progress through the Dáil was marked by a spirit of genuine interest and co-operation on all sides and a number of amendments were made as a result of the discussions in that House. Even so, I recognise that there may be possibilities for further improvements and refinement as the discussion in this House proceeds.

I regard the measure as one where there is considerable agreement on all sides as to its need, its scope and its general provisions. Thus I look to our consideration of the Bill as a cooperative exercise designed to achieve the best possible text for what I have already described as a complex and technical measure in the legal sense.

Tá súil agam go gcuirfidh an Seanad fáilte roimh an Bhille seo, agus go mbeidh toradh fiúntach ar an scrúdú a ndéanfaimid air.

Mr. Molony: Information on David Molony  Zoom on David Molony  I want to compliment the Minister. Unlike the debate that took place in the Dáil, there has not been any claim by any party to parentage of this Bill. The history of this Bill goes back through more than one administration. It is very important when discussing this Bill to take it as far away from the field of party political differences as possible because it is a Bill that all political parties subscribe to in the sense that we agree with and are anxious to ensure that our consumer protection legislation is improved.

At the same time, this Bill presents the Seanad with a great responsibility and opportunity to assert itself as a very useful Chamber in our legislative system. I regret to say that this Bill did not receive the consideration it should have received in the Dáil. I hope that we in this House will be able to examine more [976] closely some of the provisions of this Bill which, in their overall apparent intent, are to be welcomed but have a kick-back or a sting which I submit might be very dangerous. I say that, and I say particularly that it is non-politically partisan because some of these provisions were in the Bill that the Coalition Government introduced in 1977. So, when we suggest to the Minister, as we will be suggesting to him, that this Bill should be referred to a select committee, he will, as we unfold our arguments as to why that should be done, appreciate why and he will also, I hope, appreciate the spirit in which I offer these few opening remarks.

Apart from the parentage of the Bill so far as political parties are concerned, there is the history to it that the Minister has mentioned. In 1972 the then Minister for Industry and Commerce referred the whole question of our consumer protection law to the National Prices Commission. This was followed by the Whincup appointment and a subsequent report and then the National Consumer Advisory Council report. This report ultimately led to the legislation that we have before us today. That is the Irish history of it.

There is another history of it that comes from three English statutes, the Misrepresentation Act of 1967, the Supply of Goods (Implied Terms) Act of 1973 and the Unfair Contract Terms Act of 1977. The greater part of the Bill is comprised in these three English statutes. There are some important differences. The supply of services aspect which is incorporated in our legislation does not appear in the English legislation. Similarly some portions of the English legislation go a good deal further than our own legislation proposes to do, particularly the Misrepresentation Act of 1967. We will have some points to make on the part of this Bill that deals with misrepresentation when we come to Committee Stage, but I want to say at this stage that it is a pity that the whole question of misrepresentation was raised in this Bill at all. It is a matter which certainly needs to be looked at and in respect of which our law needs to be [977] updated. It would have been far better if it were the subject of an entirely separate Act. There is going to be some confusion because of the way in which misrepresentation, so far as it relates to the sale of goods and supply of services and hire purchase agreements, is in one piece of legislation whilst the general law of misrepresentation, which properly belongs to contract law, will be thrown out amongst other pieces of legislation in our common law.

The Bill, as the Minister has said, reflects the change that has taken place in society since the first legislation in this area, the Sale of Goods Act of 1893, became law about one hundred years ago. Before the Sale of Goods Act itself the golden rule was caveat emptor, let the buyer beware. In other words, the parties could make up their own minds. I do not believe that it was as free and easy as that. But certainly developments that have occurred since then have created the necessity for active participation by the State in helping the consumer. This is made necessary by the sales techniques that we have today, from simple advertising to downright psychological gimmicks such as the layout of goods in a supermarket—there was an interesting television snippet on that recently—to things like subliminal advertising which we have all heard of.

All those things are legitimate but there are other things that are quite illegal; sometimes, because the world is now such a small place, some countries can be the recipient of goods, for example from the United States, that have been rejected by their consumer protection people. One famous example was the Ford Pinto car of which I am sure everybody at this stage has heard something. When finally the consumer protection authorities in the United States rejected that, any cars that were there in stock were dumped in another country. So the Americans managed to export their problem.

We will obviously have to come to the stage where our international law is far more effective so far as consumer protection is concerned. In that sense I know it is often said that we should not [978] copy English statutes for the sake of it and I agree with that. But it is a good idea that in so far as it is practical and sensible it is a useful thing that our laws should approximate to their laws. Already in the EEC there is a trend in that direction and it is something that is generally to be welcomed.

This Bill is a technically oriented Bill, a Bill that will require thorough examination on Committee Stage whether by Select Committee or a Committee of the House in the ordinary sense of the word. I sympathise very strongly with those Senators who have not the benefit of legal training and who are interested in this Bill because it is almost impossible to read it and understand it. I must candidly admit, although having legal training, I found it extremely difficult to read and to understand and appreciate all the nuances of the Bill and its likely ramifications. I was concerned as a lawyer not just with the position of the consumer, a position I would sympathise with, but also with what is to happen to our laws, our legal system, because this Bill does some very dramatic things. It flies right in the face of fundamental legal doctrines that have existed not just since the passing of the Sale of Goods Acts, but for centuries, doctrines like that of privacy of contract, which is very fundamental to our original common law system and to our legal system, which now is being torn to shreds in this Bill.

I do not object to that per se. Indeed, many of our legal doctrines should be torn to shreds, but I wonder whether we appreciate the consequences of some of the provisions of this Bill as far as that is concerned. With the ignorance of somebody who will make that submission when I come to deal with it, in one respect in this Bill we will breach that doctrine of privacy, but I will for the moment advocate an extension of this breach, but there are other areas where I think it will be reprehensible in the sense that it will make the job of business people almost impossible: I agree consumers must be protected, but we must look at the business efficacy of some of our proposals as well, and we have to bear in [979] mind this balance. If I may say so on behalf of lawyers, it will cause great headaches for lawyers, and judges as well, because it will be so difficult to interpret the intention behind some sections in the Bill. I want to say this, and I will be referring specifically to it later—I do not like saying it—anybody who read the Dáil debate carefully will agree some Deputies showed an abominable ignorance of what they were discussing. I say that without disrespect for them because they do not have the resources, any more than we do, to discuss many aspects of this Bill. In one particular section I will be mentioning, the Minister who was then in the Dáil said something that on my reading of the Bill was complete and utter nonsense.

An Leas-Chathaoirleach:  Could I remind the Senator that it is not usual to refer to proceedings in the other House.

Mr. Molony: Information on David Molony  Zoom on David Molony  I do not believe that I have ever once heard a discussion in this House about any Bill without reference being made to the Dáil debate, and I will fix that position strongly because I want to refer specifically to the Dáil debate in the interest of the legislation we are discussing, and the worth of it. Whatever the convention of the House in the past, I can only speak for the past two-and-a-half years, and for that time, which is the period I have been here, there never has been a problem about this. Therefore, I would ask the Chair's indulgence.

This is our first session since the Fine Gael policy document by Deputy Bruton was published in which he highlighted some of the deficiencies of the Dáil where Deputies do not have the resources and it is almost impossible for Members, even front bench Members, to have the resources to understand fully what Bills like this are all about. It seems, because Bills are becoming technical and complex and because our society may be becoming so complex, that the people who now make legislation in this country are the civil servants, and there it stops because they have the [980] resources to look into it and our legislators do not. This is a classical example of the necessity to give to Deputies and Senators the resources to enable them to understand what they are doing and to enable them to bring in and to pass legislation that is worthwhile and not legislation that is defective.

Before I pass from that point, I should like to pay a special word of thanks to somebody who helped me in dealing with this Bill, and I have never met the man. He is G.M. Golding, a lecturer in business law at University College, Dublin. He published a very excellent series of articles in The Irish Law Times and The Solicitors' Journal. It was of marvellous benefit to me because I would have required six to eight months' notice of this debate to absorb what one would have to absorb by way of background law, by way of just what was in this legislation, by way of everything one would need just to consider the legal implications of it.

Even now I know I am inadequate in what I want to say. I am quite sure that many Members of this House will feel the same way about it. Mr. G.M. Golding published ariticles that I will be relying on heavily. He did a great day's work when he published those articles because he brought together all the areas of law we are concerned with here, that made the job of people like us in this House a lot easier when approaching the subject matter of this Bill.

Having said that, I want to voice a criticism. Maybe there is a reason for it, but the Minister referred in his opening remarks to the way in which this Bill has been laid out, in Parts. As far as that went that was a good idea, but why not repeal the Sale of Goods and Supply of Services Act 1893 altogether, and the Hire Purchase Acts—this Bill will affect the basic principles in those Acts—and bring in one solid codifying statute bringing everything together to make it easy for people to read? In this day and age we should be encouraging consumers to get the statutes themselves and read them. If the Acts were in one volume, with section following after section, people [981] would have some hope, but to have to refer back, as we must, to legislation of 1893 and Hire Purchase Acts here and there, and substitute for sections 12, 13 and 14 Table A in section 10 of the 1980 or 1981 Act, or whatever, the Sale of Goods and Supply of Services Act, makes it almost impossible not just for ordinary consumers but for lawyers. It makes their lives very difficult, and even though it changes the law, and all we are about is to change the law, we should bear in mind the ease with which business people, consumers and legal practitioners should be able to consult this legislation in the future.

So I regret that the opportunity was not taken, because this is a fairly broad Bill and it is affecting changes in all the items of legislation I have mentioned, here to put it all together. This is a trend, it seems, of modern life and I think it is to be very much regretted. I do not know whether it is because the Dáil and Seanad are inadequate that we allow this to happen, or is it because we do not have the resources to draft proper legislation——

An Leas-Chathaoirleach:  I will have to insist that the Senator is not to make comparisons between one House and the other. The precedents are quite plain, so the Chair would be grateful if the Senator would relate his remarks to the Bill.

Mr. Molony: Information on David Molony  Zoom on David Molony  I did not attempt to draw any comparisons between the Dáil and the Seanad in any sense at all. I am merely looking at the record of the Dáil so far as this particular piece of legislation is concerned and saying that it indicates the inadequacy of our entire legislative system. Unless we adopt a certain course, which we will be asking the Minister to adopt in relation to this Bill, the same inadequacy will be experienced again.

An Leas-Chathaoirleach:  It is, of course, in order to refer to arguments made in the other House, but references [982] to proceedings there are not in order, or comparisons between the two Houses.

Mr. Molony: Information on David Molony  Zoom on David Molony  It is the first time I have heard that.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  What is the reason? I do not understand.

Mr. Molony: Information on David Molony  Zoom on David Molony  This is the first time I have heard this.

An Leas-Chathaoirleach:  For the Senator's information, there is a long list of precedents and I do not wish to go through the whole lot of them, but the Senator could look at Volume 71, column 100. It puts the Chair in an awkward position if the Senator draws comparisons with the working of the other House.

Mr. Molony: Information on David Molony  Zoom on David Molony  I will say that this legislation is such as to render our job here impossible unless we have the resources that we would require to examine in detail what we propose. I make the same comment in relation to the Dáil but I do not draw a comparison between the two Houses because we are both inadequate in that sense.

An Leas-Chathaoirleach:  The Chair understands the Senator's sentiments on that.

Mr. Molony: Information on David Molony  Zoom on David Molony  Then we have been at cross-purposes. To move on to the contents of this Sale of Goods and Supply of Services Bill, the Minister in his opening remarks mentioned the terms that this legislation will imply in future contracts between sellers and purchasers, or hirers or consumers, or whoever these people may be. The main implied terms under the 1893 Sale of Goods Act and subsequent Hire Purchase Acts related to title to sell the goods, the quality of the goods and the fitness for purpose of the goods. I shall not bore the House by reciting those. There are some new implied terms proposed in this Bill. I would like briefly to list the major ones. I shall be reverting to some of them later on. We should [983] clearly fix it in our minds what this Bill is all about.

In relation to the difficult section 13, where a purchaser buys a car, there will be an implied condition of freedom from defect that might cause a danger or that would render the vehicle a danger to the public if that defect exists at the time of delivery. This is a new implied term. Section 12 relates to spare parts or availability of spare parts. There is a new implied term, an implied warranty, as to the availability of spare parts and service for a period in such circumstances as the seller indicated in the offer. I want to make one point in relation to that section. It seems to me the section is quite clear. If a company or a seller makes an offer to, say, Senator Murphy for the sale of a television to him and says “We guarantee this set for two years, both as to service and to spare parts”, the effect of this section will be to imply a term in the contract to that effect if when the offer was made to Senator Murphy that was part of the offer and there is no written contract, just a verbal contract. If it was made in the offer, this Bill says that there will be in the agreement, or in the contract between the seller and Senator Murphy, an implied condition or warranty that spare parts and services will be available for the period mentioned. That is all it does. In my view the section does nothing at all where there is no reference in the offer to spare parts or availability of service afterwards. During the Dáil debates—Volume 316, No. 6, column 1039 of the Dáil Official Report—the question was put to the Minister whether, if there was no time limit mentioned, if there was no reference to a period of six months during which spare parts would be available what would be the position. The reply was:

Where the manufacturer specifies that spare parts will be available he will have to stand over that and have them available. In the case where a manufacturer does not specify any period, that is his hard luck. If he does not specify a period you may take it that there would be an unlimited supply [984] of spare parts. The manufacturer will have to stand over that.

Deputy O'Connell asked:

If he indicates that spare parts will be available will he be obliged to provide the spare parts?

Deputy Geoghegan-Quinn answered:

No. If the manufacturer does not mention the period for which the spare parts will be available; if he does not specify the time during which they will be available, two years, one year or six months, it can be taken that that means an unlimited period of time. If he specifies that spare parts will be available for a two-year period then he must have them available for two years and the Minister must insist on this.

I cannot accept that that in any way reflects what is in the section of the Bill. I would ask the Minister here to clarify that position because it has caused considerable disquiet. As I understand it, it is only where, in the offer, a period is mentioned, where in the offer, the supplier says there will be spare parts available for this piece of equipment, service will be available for 12 months. Then there is implied in the purchase contract a warranty to that effect and, if it is breached, one can sue for damages. The Bill goes further in other respects, but more of that later.

The Minister either misread or misunderstood the section. I would ask for clarification on this. It is an example of a technical area that could cause great problems in the future. It is another reason why this Bill should be referred to a Select Committee.

The other large area in which there are new implied terms is that of supply of services. This does not exist in any of the English statutes to which I have referred. Therefore, it is novel here. I agree with the Minister: there is a case to be made for this. The supply of services is an integral part of the stuff on which a consumer loses, spends, wastes or whatever his money. The terms that will be implied here now, in respect of a supplier [985] of services, are that the supplier has the necessary skills to supply the service; that he will supply the service with due skill, care and diligence and, where he uses materials, that the materials used will be sound and reasonably fit for the purpose for which they are required.

The major difficulty with the 1893 Act was that the implied terms applied only where the parties did not otherwise indicate. As the Minister said, we had come to the stage where, when one bought a car, television, washing machine or whatever, one got a guarantee with it. The effect of the guarantee was to reduce one's right enormously, to whittle them away.

If this Bill is to have teeth the Administration decided rightly that one must ensure that these implied terms cannot always be overruled by one or other of the parties providing in the contract, what is called an exclusion clause. In this section there is no question of exclusion clauses. It becomes technical difficult to follow because there are various categories of people involved apart from the buyer and the hirer. For example there is this new being called a consumer, or a buyer or a hirer who deals as consumer.

The buyer or hirer who deals as consumer is given certain rights. The ordinary buyer or the ordinary hirer is given other rights. For example, in relation to the implied term as to title to sell goods, any attempt to exclude that, whether you are dealing with a consumer or a buyer, will always be void. Where a buyer deals as consumer any attempt to exclude the implied terms under sections 13, 14 or 15, which relate to quality and fitness and sale by description, sale by sample, will be completely and utterly void. The same applies in relation to hire purchase contracts. But in other instances, where the buyer or hirer does not deal as consumer, the exclusion clause will prevail only where it is seen to be reasonable and fair. I cannot quibble with that so far as it goes. I wonder whether in relation to other rights given to the consumer we should question the definition, because it is a fairly narrowly drawn one. We should give great consideration—and [986] this is a Committee Stage matter—to the distinction we draw between the ordinary buyer and the consumer. However, the Schedule to the Bill sets out the matters to which a court must have reference in considering whether an exclusion clause is fair or reasonable. It seems reasonably comprehensive. We will give it more thought on Committee Stage. Overall, the general approach in relation to exclusion clauses is not entirely unreasonable.

I should like to deal now with the buyer dealing as consumer. The consumer is given certain very specific rights apart from the seller's inability to put in any form of exclusion clause even where that might be fair and reasonable when he is dealing with a consumer. If a seller, for example, purports to limit a buyer's rights by advertisements in relation to most of the implied terms, the seller will commit a criminal offence. Most Senators will have seen this in the Bill. This Bill creates a great number of criminal offences. This is regrettable since basically it is legislation that is designed to help the consumer.

I question the sense of doing that. I wonder whether we should not keep our criminal law and our civil law separate so far as possible. We should have one piece of legislation here instead of several pieces. We should be trying to simplify our law, but by putting so much in together, we are doing the opposite.

There is one specific aspect that is of very great importance to the new consumer and it relates to a situation where a buyer dealing as consumer purchases an item with a finance house financing the arrangement. The intention of the Bill is to ensure that where a consumer buys goods and is financed by a finance house, that the finance house becomes just as responsible as is the seller of the goods. I must get this right, because there is a difference between a hire purchase company and a finance house but in the instance of a sale, if I go in as a consumer and buy a television set and use a finance house to help me pay for the transaction, what actually happens is that the seller or the television salesman [987] sells his television to the finance company, gets his money from the finance company and the finance agreement provides for repayments by me to the finance house itself. The difficulty has arisen in the past that where a television purchased in this way breaks down, the television man having got his money is not too concerned but the liability for the repayments still falls on the consumer. Consumers have become very annoyed over this in the past when they realised that they must continue to make repayments though they have no service at all from their television sets.

I listened recently to a consumer programme on radio during which there was great concern expressed by finance houses as to their possible liability as a result of this legislation. They feared that their rates would have to soar and that they would be put in jeopardy in certain instances. I can understand their problem in some sense though I do not have great sympathy for them. I say that without a knowledge of their problem but again this is another reason why this Bill should be referred to a Select Committee, so that people could be brought in and witnesses examined on this issue.

I find myself in a position where I cannot make an independent judgment about what should be done. I have seen many instances of people being caught in that terrible situation and where they must pay back £30 a month even though the motor bike, the television or the fridge is not working. I wonder why the finance houses should not be regarded as people who are involved in a very lucrative market. They are in the business of buying and selling money and are doing very well out of it, charging very high interest rates. They are never introduced by the buyer but always by the seller. They are an inducement to a sale. If someone is walking down the street and sees something that costs £100 and if he does not have £100, that is the end of the matter. However, if he sees that he can buy it at £2 a week or £2 a month over so many months, he [988] feels he can buy it. The seller of the goods will say there is no problem. The buyer has never met the finance company. He does not know who they are and is caught in the position of thinking that the service is being provided by the vendor of the goods. One has to sympathise with his plight when he is caught like this. My sympathy is with the consumer, with the buyer of goods in the circumstances I have outlined.

I do not have here the information I would need to say whether it is just and proper that this provision should become law, and even if I had I am not in a position to cross-examine the finance houses and ascertain whether their side of the story would stand up to examination. If we are going to consider making finance houses liable, why draw a distinction between buyers? Section 3 of the Bill provides that:

...a party to a contract is said to deal as consumer in relation to another party if—

(a) he neither makes the contract in the course of a business nor holds himself out as doing so, and

(b) the other party does make the contract in the course of a business, and

(c) the goods or services supplied under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.

Basically, it is a private person who does a deal with a business person about goods that are supplied for private use or consumption. If a housewife goes out to buy a washing machine for her house, she deals as consumer but if a taxi driver goes out to buy a car he does not deal as consumer. If a child goes out to buy a saddle for his pony he deals as consumer but a jockey who goes out to buy a saddle for his racehorse does not deal as consumer though the same jockey who goes out to the same saddler and buys the same saddle with the intention of using it on his hunter rather than on his racehorse would be dealing as consumer.

[989] If I went out and purchased goods to re-decorate my home, I would be dealing as consumer, but if I bought the same goods from the same supplier for use in my office, I would not be dealing as consumer. The definition is difficult to word. It is almost impossible to draw a distinction like that. If I wished to decorate my office, I would not be in a position to say whether any materials I might purchase for this purpose would be likely to prove inferior. I am not in that business but if I were in that business I would say that I am not a consumer because I am in that business.

If a bookmaker in a betting shop wished to provide a television so that his clients could see races being run, he would be denied the benefit of being a consumer. I do not see that this distinction is of any benefit. Therefore, it is something that should be looked at again. I say that particularly in relation to the finance house question.

In relation to the implied terms and exclusion clauses, the difference is important but not as great. Finance houses will not be liable, for example, to the young chap from the country who decides to start off as an agricultural contractor, goes out and buys a piece of equipment and is financed by a finance house. If the finance house happen to give the money to a very disreputable dealer, there is no responsibility on the finance house to make sure that the person they give their money to will provide a service afterwards. That new agricultural contractor will not be dealing as a consumer. He will have no rights whatever against the finance house. That is a genuine difficulty for that person. If it is right to bring the finance house in as a party liable to a consumer, that very same argument must stand to the buyer who is not a business person in the type of goods you are dealing with. If this legislation is to be sensible in respect of the finance house proposal, it should be changed and I would ask that it would be changed.

When the Bill was being discussed in the Dáil, Deputies were throwing out such questions as whether combine harvesters would be covered. I cannot imagine [990] how a combine harvester could be considered in the sense of being domestic but the Minister denies this. He did not say that it will not cover combine harvesters. What is the position regarding combine harvesters? The implication in the Dáil debates is that the Minister found no objection to combine harvesters being included. Brendan Grace's song about a combine harvester might lead one to see harvesters in some sort of romantic role and to that extent being domestic, but I cannot see them being described as “domestic”.

I want to mention a major flaw in this Bill to which many people, particularly Mr. Golding, referred, that is, that the leasing of goods does not appear to be covered by the Bill. Sale of goods and hire purchase agreements in relation to goods are covered, but the leasing of goods, which has become a very popular and very widespread operation here, does not in any way seem to be covered. This is a massive flaw in the Bill, because I know what is going to happen. Once the business people—I will not say all, but certainly some—who will not want to be caught within the provisions of this Bill see this, they are going to stop selling goods and will lease goods. Buyers and consumers will adopt that practice and they will accept it—just like the standard form contracts were accepted, just like these silly guarantees were accepted, they will accept it—because they will not be any the wiser.

Anybody involved in any sort of business realises that an awful lot of office equipment is leased. I would love to know the amount of office equipment that is leased. Expensive office equipment, cars, all sorts of business equipment and household equipment can be leased. Those leases will continue to operate with their exclusion clauses which are, to say the least of them, widespread and very comprehensive.

I snitched out of one original lease of a well-known and reputable leasing company, Hamilton Leasing (Ireland) Limited, a clause setting out one's rights under the Sale of Goods Act [991] which reads as follows:—

The Lessee shall not rely upon any representation as to the quality of the Equipment or as to its fitness for any particular purpose unless the same shall have been made by the Lessor in writing.

This is the written contract one is getting:

No condition or warranty whatsoever of any kind has been or is given or made by or on behalf of the Lessor in relation to the quality of the Equipment of its fitness for any particular purpose, and all conditions and warranties, whether statutory or otherwise, whether express or implied, whether collateral or antecedent hereto or otherwise and whether in relation to the fitness of the Equipment for any particular purpose or the description, state, quality or condition of the Equipment on delivery or at any other time are hereby expressly excluded and extinguished. The Lessor shall be under no liability for any loss or damage whatsoever (including delay in delivery) in respect of or arising from or in connection with the Equipment or any part thereof howsoever caused.

In fairness there is another section which provides for very minimal maintenance and inspection of equipment, but these are the rights one has in relation to that piece of equipment. If an expensive photocopying machine costing £3,000, is on lease and it breaks down eight or ten months later, you are caught. You have no right of comeback good, bad or indifferent. The purpose of this Bill is to stop that type of situation. It will not be stopped if leasing of goods is not brought within its scope. I would ask that the matter be looked at and an immediate amendment be prepared.

I understand some people believe that leasing might be regarded as a service which is covered by the Bill. I do not accept that and if the Minister feels that the part of the Bill which provides for supply [992] of services includes leasing, I do not accept that and I ask him to sell the idea to me, or at least lease the idea to me.

I want to move to a very serious part of the Bill the Minister referred to quite extensively, that is, section 13 which covers motor dealers. The Bill effectively does two things. First it implies a condition that at the time of delivery a vehicle is free from defects which would render the vehicle a danger to the public. That in itself is a protective measure that enhances the consumers' position. People might quibble with it, but it is not unreasonable. The section goes on, however, to provide that at the time of sale or delivery the motor dealer will provide a certificate to the purchaser that the vehicle is free from the defects I mentioned. If there is a failure either to deliver the certificate or if the certificate is false, and “false” is fairly broadly spelled out in the Bill, there is a criminal offence committed by the motor dealer. This is not what was recommended by the National Consumers' Advisory Council. This, it appears, came from the depths of the Department of Industry, Commerce and Tourism.

I have already mentioned what I regard as the very undesirable state of affairs of introducing criminal sanctions into legislation like this, where they can be avoided, but I wonder what this particular criminal offence, or the existence of it in the statute, will do for the consumer. On the other hand, I wonder what it will do to people in the motor trade. I can think of one glaring instance where a very highly reputable motor dealer, who is anxious to please in every way he can, could be caught very quickly. We are not talking about a civil liability. The civil liability exists either under the contract or under subsection (1) which implies the terms mentioned in the contract. We are talking here about a motor dealer becoming a criminal—because this is going to be a serious criminal offence. Take the case of a motor dealer who takes the trade-in of a car and he tells the mechanic to examine it, to strip it down and see what is in it, to see if it is all right. If the [993] mechanic negligently or maliciously, fails to discover a defect which ought on reasonable examination to have been discovered, and reports to the seller of that car that everything is all right and the motor dealer delivers the certificate which is false, because there is a defect that should have been seen on reasonable examination, that motor dealer becomes a criminal.

That is unfair, to say the least of it, but what is serious is this. This section applies to motor dealers. It does not apply to a person who makes a private sale. Given that a motor dealer has a problem and does not have scruples, he will engage in a practice that is already shockingly prevalent in this country—instead of selling it in his shop window the unscrupulous dealer will put an advertisement in the paper and sell it by way of a private deal and nobody is in a position to show otherwise. It is well known that there are a lot of cars being sold like this in this country at the moment. This could do nothing but encourage more of it. The reputable motor dealer has his civil liability. To avoid the provisions of the Bill people at the lower end of this market will sell their cars privately. This is a double-edged sword that is going to fly back and cut the face of legislators who try to impose such a silly criminal liability. It is silly because it does not enhance the position of the consumer. If what we are on about here is to enhance his position, we are not doing one iota for him by imposing this criminal sanction on somebody involved in such a transaction. It does not matter if he was innocently involved or otherwise. The crime will nevertheless have been committed. What are we doing to the consumer? We are doing absolutely nothing for him. This, it appears, is a shoddy attempt to overcome a system that exists in most European countries, and certainly in the United Kingdom, where there is an authority established by the State to examine vehicles of a certain age to ensure that they are roadworthy. It may cost money to do it, but if that is what we want to do, and it appears that it is, let us do it. We are not going to do anything at all by [994] putting in this reprehensible section. It does nothing for the consumer except cause him damage because it is going to cause those unscrupulous motor dealers who do not give a hang about the safety of the vehicles, to sell them apparently by private means. I am delighted the Minister has agreed to an examination of this before Committee Stage.

I know that many Members of this House received representations from the society concerned about this. They are worried about it. They are a responsible association. They are anxious to ensure that cars are roadworthy. They will support the idea of an authority to examine vehicles. They have no objection to being civilly liable themselves but they object to the criminal sanction being imposed. It should be changed. We should have a Select Committee of legislators, not just civil servants. I do not mean to say anything against civil servants but legislators do not have the opportunity to interview these people. If we get representations, by post or otherwise, we have to take them at face value. We cannot question them. We should be able to talk to these people and see what they have to say, see if they can sell their idea subject to argument and cross-examination. This Bill would greatly benefit if it were sent to a Select Committee.

In the last subsection of that section there is another proposed breach of the doctrine of privity. It could cause difficulty. The provision simply says that a person, lawfully using the motor vehicle, who suffers loss as a result of a breach of the condition implied by subsection (2) may maintain an action for damages against the seller in respect of the breach as if he were the buyer. It is proposed there, that if A goes along and buys a car from a garage and sells it to B and B sells it to C and C sells it to D and while D is using the car he suffers an injury or suffers a loss, he has the right to sue the garage. He must prove in his case that the defect was there at the time of delivery. It is a very difficult proof to produce. The vast majority of judges in this country, when they are faced with a [995] case of a consumer or a car owner versus a garage, are very sympathetic to the cause of the consumer or the car owner. Judges recognise that the car owner is not an expert and that the garage has all the resources. I would not like to see sympathy like that floating around with a section like this because anybody could go in and claim the defect was there when he got it. There could be great uncertainty as to whether or not it was there at the time of delivery. What is the garage proprietor meant to do? Is he meant to keep a detailed record of every nut and bolt in every car and, if he is, for how long? Is he meant to do this so that he will be in a position, when challenged with this case a year or two years later, to debate it? This particular proposed breach of the doctrine of privity is an unwise one and should be reconsidered.

There are other aspects to this Bill that will certainly take a lot of time on Committee Stage. I simply want to welcome the proposals regarding directory entries. That is timely and necessary; I regret to say necessary but certainly it appears to be that way. In relation to guarantees the Minister says that they will have to be in a specific form. There is another breach of the doctrine of privity here. It is not the purchaser of the goods who will merely have the right to sue under the guarantee but subsequent purchasers. That is a slightly different situation from the situation with the motor dealer and the secondhand car. I do not think I would object to that particular breach of the doctrine of privity.

I am delighted to see section 44, which relates to unsolicited goods. If I have any disagreement with that it is that it does not go far enough. Where somebody takes a chance and decides to post out goods to somebody in the hope that the person might buy them they should lose the right to those goods the minute they go through the recipient's letterbox. If a businessman wants to take a risk like that let him take it. Charitable organisations do it. It is an invasion of privacy to [996] post Christmas cards, magazines, or boxes of chocolates, like this. As soon as something like that goes through the recipient's letterbox the owner's rights disappear.

We are dealing here with consumer law in a very particular respect and I should like to refer to a favourite topic of mine. You can provide for rights and give all the protection you can but it is not much use unless the consumer can gain ready access to justice and thereby ensure that his right and his remedy is achieved quickly.

There are lots of things in consumer law that we could consider and use. There was one great thing that went into law because of a decision of the Supreme Court, what they call the piggyback claim, where you piggyback a civil claim on a criminal action. In other words, when somebody commits a criminal offence and the consumer is prosecuted, the consumer is entitled to appear at those proceedings and the judge is entitled to impose a fine on the provider of the goods. In imposing the fine for the crime he can also impose a compensatory fine in the amount of the loss suffered by the consumer. That was in a Road Traffic Act and it was in the Consumer Information Act but it was abandoned because of fears about its constitutionality. Provided the jurisdiction of the court is provided for correctly it is quite constitutional; it is a very good idea and should be used. There is also a case to be made for consumer courts. Consumers should not have to go to solicitors at all, particularly for small claims. We should try to devolve some system where there would be some form of informal court they could go to to argue the case for themselves. Their case would be dealt with more quickly. Solicitors and lawyers do not have time to deal with them. They do not want to deal with them but they provide a service in dealing with them and it does not pay them. We could save the time of the court. Any argument over a small consumer claim can last a couple of hours just the same as a big claim can. It is nonsense to see the court's time wasted on things like that.

[997] There are other ideas that we should consider in legislation like this. If a consumer commits an offence and a sanction is imposed there should be room for multiple damages if there are a lot of people affected by it, something like the class action they have in the United States. The recently appointed Director of Consumer Affairs may have thoughts on this subject. It is in the Minister's area of responsibility and I ask him to consider the broad changes that one could make in our business system, in our legal system, to provide ready access for consumers so that they can gain quick access to justice and thereby vindicate their rights. We would do a good day's work if we could advance our legal system in that particular respect.

Ruairí Brugha: Information on Ruairí Brugha  Zoom on Ruairí Brugha  We all welcome this Bill as a step forward in the enactment of legislation to help the consumer. Speaking as a layman, after my first reading of the Bill, and indeed after my second and third readings of some sections of it, I am still not too clear as to what it is all about. I could understand things and approve of them but I was not too clear about many others and probably will not be even when this Bill has passed through this House.

I would like to compliment the Minister on his speech which cleared the air for me on the general principles involved. I do not think that you can provide for everything through legislation. You can make provisions, in so far as it is legally possible, to prevent total dishonesty and misrepresentation but when you start getting into the fine print you may find yourself getting into deeper water and perhaps damaging different interests. We know that there are people who could sell anything to anybody. Fortunately, perhaps, they are the exceptions but no slick salesman will be stopped by any legislation because he will have covered himself; he will have talked gullible people into buying something that they did not want. On the other hand, we all have experiences where the producer, the retailer, has had to give way, in spurious claims, to a form of blackmail—“If you do not replace it, or [998] give me back my money, even though there were no defects I am going to take you to court”, and quite frequently practical business people have to decide that the publicity attendant on that court action is far less desirable than the few pounds or whatever it is that getting out of this difficulty may cost them. It is, in a sense, deplorable, but firms—and sometimes industries—have to protect their good name from misunderstanding and misrepresentation.

However, by and large, I welcome the Bill. I certainly welcome the updating of provisions and I particularly welcome and compliment the Minister on what, to me, is an innovation—the changing of legislation should be seen in full rather than by reference back to sections in Acts that were passed many years ago. It certainly makes it a little bit easier, from the point of view of the Legislature to understand what is the intention of the Bill. I welcome also the similar protection for those who buy on HP as for those who buy for cash.

Section 13, to which the previous speaker referred, is causing some unease. As he said, most of us have received representations of one kind or another. On the practical side, from the consumer point of view it does seem that there is merit in the idea of having some sort of certificate, not just to protect the buyer of the secondhand car but to protect the public in the event of there being any defect in it. The question has been fairly posed as to how you are to frame the certificate, what that certificate will contain. If there is no practical means of having some sort of a roadworthiness certificate available to a dealer, he will be in difficulty. That form of certificate which the Minister proposes to specify would also need to have some time limit on it. I am sure everybody in this House has seen or experienced the different ways in which people use and drive cars. You could see one car at the end of 12 months looking almost perfect and another one almost a total wreck. There must be some protection for a dealer, whether by way of mileage, with no defect occurring, or by way of a time [999] limit. The Minister should consider that aspect of it. It is not alone the purchaser but the bona fide retail dealer, who is, I have no doubt, providing a very good service in this country in capital goods so far as the community is concerned, who may need some degree of protection.

I am not going into the points made by the previous speaker, who is qualified to make them, about the difference between civil law and criminal law—I will merely approach the whole question generally. Regarding the special committee which he has suggested, I do not see how any special committee from this House could be very effective unless they had expertise at their disposal, unless they had not alone legal people but people expert in the drafting of legislation and so on to explain the difference to them. It might be a desirable thing, which might take some time.

I understand that a Bill has to be drafted in the draftsman's office; having gone from the Minister's office, having been drafted conscientiously and carefully by civil servants, by the time it has gone through the printer and reached me—or any of us, possibly barring Senator FitzGerald who has considerable experience in phraseology and legal detail—it has gone beyond the stage where one is able to grasp entirely what is meant by a particular clause or paragraph. In relation to section 13, I am very glad that the Minister has agreed to meet the representatives of the motor industry retailers. That is a commendable step and may help considerably to get over some of the difficulties about which these people have been writing to me. I support the general idea of this Bill.

Mrs. McGuinness: Information on Catherine McGuinness  Zoom on Catherine McGuinness  I also should like to join in welcoming this Bill. It takes a number of big steps forward, although it contains some weaknesses. I have a particular interest in it as I feel, in a sense, that it is my child. I was a member of the original National Consumer Advisory [1000] Council which set this whole business in train and it is very satisfactory to see both the Consumer Information Act and this Bill emerging from the deliberations of that committee. It is also nice to see that after 60 years of independence, we at last have our own Sale of Goods Bill, although I would agree with Senator Molony that it might have been simpler for lawyers and, above all, for ordinary consumers if we had taken the opportunity to produce a whole new Bill rather than going through a series of still fairly complex amendments of the Sale of Goods Act, 1893.

The Minister referred to the way in which the Bill has been laid out and I appreciate that it makes it easier that it is set out in the form of tables rather than in the usual reference amendments, nevertheless, we must remember that on Committee Stage in the Dáil there was a certain amount of confusion about which section was being referred to and so on, and if our legislators are going to be confused, how much more are our ordinary consumers going to be confused by this kind of thing? It is a pity that the opportunity was lost of drafting a whole new Sale of Goods Bill, I feel sure that I will have to continue to use my extremely well thumbed and well underlined copy of the Sale of Goods Act, 1893, to complement this new Bill.

I very much welcome the new provisions on exclusion clauses and on the so-called guarantees and warranties that are issued to consumers. We must all realise that the ordinary consumers do not read these things properly, or if they do, they do not understand them. In other areas of law we have seen the terrible difficulties that can arise from people—for instance, under the Adoption Acts—being unable to understand the kind of forms that they are supposed to fill in. Lengthy Supreme Court actions can result and certainly the ordinary consumer has no idea that by signing these guarantees or warranty forms he or she is handing away rights under the Sale of Goods Act and common law rights. Any of us who have dealt with the kind of secondhand car cases in the courts that [1001] Senator Molony referred to will know perfectly well that some of these guarantees and warranty forms so reduce the consumer's rights that they are almost equivalent to fraud. It is also of vital importance that the supply of services should be brought into this area so that the Consumer should also be protected in that area.

There are a few general points I would like to make here in criticism of the Bill, while welcoming its main intentions. There are other more detailed things which will arise on Committee Stage. In the meantime, on the general part of the Bill, there are some things that I would like the Minister to take another look at. First is a matter which was also mentioned by Senator Molony but which I would like to develop a little further: the fact that the Bill applies to the sale of goods, and hire purchase agreements—and that is very welcome—but does not apply to leasing, which is a very important and large question both in regard to office equipment and to motor cars of which there is a great deal of leasing at the moment. In addition to leasing, as far as I understand, it will not apply to bailments. Contracts of bailment arise very considerably in areas where one leaves in something for repair or for cleaning, and so on. This is a matter which affects consumers quite considerably. It would be better if something was brought in in the area of bailment as well as in the area of leasing. Also, general hiring may or may not be covered in some of the areas. It is possible that these things may come within the ambit of the supply of services. I am not too sure, on reading the Bill, whether the supply of services provisions would apply in these areas. Even if they did, they would only apply in a rather limited fashion. The general sale of goods provisions should also apply to these sort of contracts.

I agree that the misrepresentation provisions would perhaps be better included in a whole new Misrepresentation Act which is something very badly needed in our law. In the Bill they would apply to sale of goods and hire purchase agreements and supply of services, but [1002] there are these other contracts such as leasing and bailment which would fall outside these provisions altogether.

Section 21, which amends section 53 of the 1893 Act, is a very important improvement in that it improves the position of the consumer in regard to the distinction between the conditions in warranties. It is a very important distinction in law in that a warranty, if it is a warranty, will give the consumer only right to damages rather than any right to repudiate the contract or give back the goods. Though it is important in law and lawyers always look for it, for an ordinary consumer it is a rather meaningless kind of distinction and the word “warranty” in ordinary usage has not at all the same meaning as the word “warranty” in legal terminology. Therefore, people get confused. I would like to see this distinction, which is weakened and rather improved by the Bill, carried even further so that fewer cases would arise where damages would be the only remedy for the consumer.

In practical experience I have too often seen defaulting vendors hiding behind provisions that allow them to say that it is only a warranty and therefore the position of purchasers is that they can only get damages, very often through a court case which the ordinary person who is not particularly well-off is, in the absence of any civil legal aid, unlikely to undertake unless he is very sure of the outcome; at District Court level it is not going to cost people that much but to take it even into the Circuit Court can cost quite an amount in legal fees before they can consider taking an action of this sort.

In regard to the provisions on the supply of services, I presume that the subsection excluding electricity supply and international transport is framed so as to exclude the Electricity Supply Board and Aer Lingus International specifically. Other statutory exemptions are mentioned in section 4 (2) of the Bill. I presume that these statutory exclusions would include that inimitable supplier of non-services, the Department of Posts and Telegraphs and also, perhaps, Córas [1003] Iompair Éireann. I can see that in the position of such State and semi-State services there may be difficulties but we should understand that these are areas where the ordinary consumer in the street and in the home really suffers when services are interrupted or when services are badly looked after.

The Minister should look at this area and see if there is anything that can be done to provide some sort of remedy for the ordinary consumer against these monolithic bodies which withdraw their services at a moment's notice or provide services which are so defective as to be practically useless. Some sort of remedy might make them take a harder look at their own practices. This is an area where it seems that there is none of the desirable checks and balances of democracy, that all the power is on one side—literally so in the case of the ESB—and none of the power is on the side of the consumer. This Bill is trying to give the consumer more power. Let it try to give him some in that area.

Section 38 (5) (b), while it is framed to deal with Aer Lingus, might also be held to exclude some of the activities of travel agents, apart from package holidays, because they include more than just transport of persons and transport of goods. Some areas where travel agents operate might be excluded by this subsection and we should be careful about this because this is an area in which again there is a great deal of consumer complaint and a great deal of litigation at the moment.

In section 38 (6) the provisions applying to transport contracts cannot be brought into effect without the permission of another Minister. One rather wonders why this should be so. My experience of legislation hitherto has been that this kind of provision can be almost infinitely delayed if it has to be by the order of another Minister; quite often it can be years before the actual provisions are brought in. I mention, as an example, the Marriages Act of 1963 where it took some ten years to bring in some of the [1004] provisions because that had to be done by ministerial order of this kind. This area of transport contracts is an important area. It would cover things like taxis, private buses, haulage contracts. furniture removal and so on as they affect the consumer. If it is just a matter of one Department not treading on the toes of another Department, this could be got over rather more easily than by putting in a special provision in the Bill about it.

I was very glad to see that the Bill as a whole appears to apply to banks, though there are some exceptions as to orders regarding banks contained in section 53. I was particularly glad of this because the Consumer Information Act does not seem to apply to banks and I wondered, reading through that Act, what was so special about banks that they should be exempt from things that happened to other businesses just because they dealt in money rather than actual tangible goods. I am pleased to see that this Bill applies to banks but I do not see why we should have the exceptions that are contained in section 53.

There is one other matter that I particularly want to raise here and that is in connection with the Director of Consumer Affairs who is envisaged in this Bill, under section 52 in particular, with finance provided under section 8, as having functions in putting the Bill into practice, in actually making these things happen. First of all, I do not understand why a ministerial order is necessary to give him these functions under section 52. In the Consumer Information Act he was simply directly given the functions and I see no reason why it should not be so here. These powers can be very readily conferred directly on the Director of Consumer Affairs as he is intended to be an independent officer of the State and not an integral part of the Department.

This brings me to the general position of the Director, and I would ask the Minister how can the Director of Consumer Affairs be expected to enforce the provisions of this Act when, after hearing others, it appears to me that he has not got sufficient resources, particularly in regard to staff, finance and so on, to [1005] enforce properly the Act he has already tried to enforce, the Consumer Information Act? For instance, in regard to his independence, from the point of view of the public he would appear much more independent if he had separate offices as, for instance, the Director of Public Prosecutions, rather than having his offices as an integral part of the Department.

In regard to staff, is there not a possibility that the Director, in order to emphasise his independence, should be allowed to select his own staff or at the least that he should be assured that whatever staff he gets out of the Labour Exchange or the civil service should stay in his office for a period of, say, three years? I understand that at present the position is that no guarantee can be offered that anyone will stay for longer than 18 months. The net result of this is bound to be that any good staff will move on after 18 months whereas anyone who turns out to be perhaps less than supremely successful may be left there for years and years, making a nuisance of himself or herself rather than otherwise.

As regards his budget, I am not au fait with the way in which his money is administered. I feel that a grant-in-aid and an independent budget would be far more satisfactory than the position revealed in answer to a parliamentary question. I understand that some time ago his budget was simply part of the Department's budget. I cannot see that he can be seen to be independent while he is put in this position. Working within the Department—I do not want to hurt the feelings of any civil servants who happen to be present or listening—brings the Director into the ambit of a certain type of civil service procedure which may be very necessary for the Department but not for his office. I have in my garden a plant called the Russian Vine which grows extremely fast and twirls its tendrills arouund everything in sight. I have a feeling that some of the procedures in the civil service are like that. You can put persons into an office and however good they may be some of these procedures, even procedures as [1006] regards getting a letter typed or getting a letter that has been typed corrected, become like the Russian Vine—they stretch out and eventually they strangle. It is a pity to strangle both a good man and a good office in this way.

I do not think there is any point in our appointing a consumer watchdog and giving him more functions under this Bill if all we are giving him is rubber teeth. The Minister should take a look at this area. He is new in his Department. He can come in as a new broom and I hope he sweeps clean and sets up this office as a genuinely independent office which can be seen by consumers to be acting independently on their behalf.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  In giving a partial welcome to the Bill, we must have a general look at consumer legislation as it has evolved in the past 25 to 30 years. In his opening remarks, Senator Molony made reference to the fact that he found it hard as a legal person to read the Bill. I as a non-legal person find all Bills hard to read. The English I use normally is not the English that lawyers use in drafting Bills. Perhaps there is a peculiar reason for this but I have yet to find out what it is. I am glad he got help from G. M. Golding in his effort to go through the ramifications of the Bill because when I went to look for the Act of 1893 in the Library, either he had got it or somebody else had got it, but it is not available in the Library. It is very hard to have a look at legislation to see from where it evolved if you cannot even get in the Dáil Library the statutes being referred to. An amending Bill of 1973 is available but that is not of much use because it does not give you the details necessary when you are dealing with a Bill of this particular nature.

Looking at consumer legislation in general, one often wonders where the inpetus is coming from for consumer legislation. Is it genuinely coming from the consumer or, as people have said, is it coming from the tendrils of the civil service? I often wonder what value is it to the consumer to have a small shopkeeper down the country fined £50 [1007] for charging a halfpenny extra on a bale of briquettes inadvertently. The consumer definitely does not benefit. If there had been over a number of months or over a long period consistent overpricing, definitely in that case there might be a case for prosecuting.

Consumer legislation generally has created absolute offences. We have been talking here in terms, in particular section 13 of this Act—this has been mentioned by all speakers so far—of bringing into consumer legislation a criminal element. A motor trader may be dealing, as has been said, in a responsible way in his business and if he were not dealing in a responsible way he would not stay in business because the competition would force him out.

Consumer protection at present is creating criminal offences but the consumer does not benefit. What benefit is it to a consumer if a criminal case is brought against a motor trader? There is absolutely no benefit to the consumer in that.

Another problem with consumer legislation is that it creates in the minds of the public an illusion that they are being protected. They do not have as in the past the feeling “Let the buyer beware”. They go in and they buy and they say, “I am being protected. Therefore, I must be getting something which is good and which has complied with the legislation”. In the recent past, Michael Shine, Chairman of the National Consumer Council, wrote,

It is true that consumers cannot expect to be mollycoddled. But they are beginning to expect it. It has something to be said for it as a principle that too much legislation can be counter-productive or ineffective and that consumer protection is not cost free.

He raised a very important question when he said that consumer protection is not cost free. He went on:

It is estimated in the States at present that the cost of consumer legislation [1008] is in the region of $80 billion per annum, or 3.6 per cent of the GNP of the States.

That is a frightening figure. When one looks at it, what do the consumers in the States get for that? They get the dearest medical service in the world; they get the dearest this and the dearest that because the cost of their protection has made certain that the very items they want to purchase have gone out of their reach. The Economist Intelligence Unit recently did a survey in England on behalf of a major group of companies and the publicity that was given to that has created many problems for consumers in England. It has been proved that in 1978 the assessible cost to the consumer of protection legislation in England was £150 million. We have as yet not have had an indication in this country of the cost to the consumer of consumer legislation. The product has to be packaged and presented in a certain way but whatever is inside the package still remains the same whether it is in a cardboard box or a gold-plated container. We should be talking about the product that is inside the box.

The Minister referred to section 13. As has been said, there are two separate parts to this section. The motor industry is not objecting to all of section 13. They realise that there is a civil liability involved in anything they sell but they are concerned about the provision in the section relating to a criminal offence with regard to the issue of a certificate. It was amended in the Bill that went through the Dáil to state that the certificate will be as worded by the Minister. The problem about this is that there is not an MOT test here. There is not a standard by which we can go. It will require, in all cases, that every nut and bolt will have to be minutely examined. What will be the result? The result will be that motor vehicles will become more expensive or, as has been pointed out by Senator Molony, the reputable garage owner may decide that he will no longer deal in second hand cars. That will be to the detriment of the public because then the cowboys will get involved—the boys [1009] who advertise under box numbers and telephone numbers in the back pages of the Evening Press and the Evening Herald. Nobody wants them involved in the motor trade. The trade do not want them and the customers do not want them because they are not getting a service from these people.

As a result of the survey that The Economist Intelligence Unit did, there has been a suggestion that a voluntary code of conduct for each individual industry would be a better protection for the consumer rather than legislation. The voluntary code of conduct proposition has been tried in other countries and it has been found to work. It has been proved that only where there has been a failure on the part of the organisation which has this voluntary code of conduct that then legislation should be brought in.

The motor industry has been looking at the problem of the consumer for many years. It was not because of this particular Bill that it started to get interested. The motor industry has to protect itself and protect the consumer. It is a highly capital intensive industry and if it does not regulate its business properly it will become a very disreputable type of industry in the public mind. I regret we should be talking about the cost to the consumer. Certainly we must regulate standards. We must regulate procedures under which anything is sold. There was mention of hire purchase and finance houses. How many people know the real rate at which they are being charged for goods they purchase on hire purchase or that they lease from companies? They do not know the actual rate. More and more people nowadays have to go to lease companies. The very high rates which they are being charged is something that should be looked into in this type of legislation also.

The major thing we could do in this exercise of dealing with consumer legislation is to try and find out how cost effective it is. I do not think that it is cost effective. When the Committee Stage is [1010] reached I presume we will be able to go into detail on each section. There are many sections which need to be looked at in detail. I am glad to hear the Minister say that he is goin gto meet the motor industry because not alone is it in the interest of the motor industry but also in the interest of the consumer that he does so.

The Economist Intelligence Unit report is something that should be read by anybody who is interested in this type of legislation. An interesting point in the report is that at present the EEC are looking at consumer legislation and they will be presenting consumer legislation Bills in the EEC. The OECD are now producing reports on consumer legislation as are the Economic and Social Research Institute. It could well be that the piece of legislation we are talking about might be overruled by some piece of legislation that comes from the EEC in the near future. There is a motion here to discuss a Bill on the EEC and possibly by the time we get to discuss that motion we will be discussing EEC legislation which will have a bearing on what we are talking about here.

In case anyone thinks I am talking very much in favour of the motor industry I should point out that I am part of the motor industry and what I am saying has to be coloured by that very fact. I do not think that it makes any difference. It is up to people who are involved in a particular business to discuss it here. It is up to people within the motor industry to express to the public their fears on this Bill and if there is lobbying going on it is not the only Bill on which there has been lobbying.

I agree that the Bill contains many good points but there are fears and they have been expressed by speakers other than I. We will have to leave the complex legal aspects of the Bill to the legal eagles but we can express the hope that the consumer will get the benefit of the legislation and that the lawyers and the barristers will not be the only people who will benefit. In the past too much of the benefit has gone to the legal profession and too little to the consumer.

[1011]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  It seems an appropriate moment for me to stand up and to continue, not too long I hope. My own reaction to the Bill is that I would not have to say very much on Second Stage as it is very definitely a Committee Stage measure. It occurred to me that there were a few questions of principle which ought to be referred to on Second Stage and about which the Minister should think more before Committee Stage. All of the questions have already been referred to and I will add my voice to those who have already spoken on these particular points. Before doing that I would like to say in relation to this legislation that I do not feel I am concerned with the consumer, nor am I concerned with the supplier or with the manufacturer. I understand that we are engaged in the business of introducing legislation as to what would be a just relationship between these people engaged in these transactions. I do not think we are concerned to tilt it in one direction or another, though we have to have regard to economic reality.

In the Minister's introductory statement it did seem to be possible to infer that he understood that the Sale of Goods Act of 1893—when it was introduced to set forth these implied terms and to set forth the provisions which were set forth in it with regard to exclusion clauses—was, as it were, enacting something, imposing something favourable on one party as against another. It is worth reminding ourselves that in 1893 what was being done was codifying what were in fact the findings of the courts as to what was just between parties, where, in relation to particular matters, the parties had been silent, where there was no express provision with regard to fitness for purpose, where there was no express provision with regard to merchantable quality, where there was no express provision as to the quiet possession, title and so on. The Act simply said what the courts found, when the parties were silent, was in fact the law at that time.

Now of course the situation has changed and this may explain the [1012] problem to which Senator Lanigan referred. The whole economic and commercial situation has changed. We must take cognisance of the fact, as Senator McGuinness said, that these guarantees which have been permitted to exist in this country for so long and for too long were in fact an exploitation of the defect in our law because that Act of Parliament was not amended to deal with the changed economic situation where you went into a shop and bought, as we know people now buy. It is of great importance to us to realise though, that when we get down to the details of these sections, we are concerned not to favour a consumer, who may be a very rich consumer, as against a supplier, who may be a very poor supplier, or who may be in very great difficulties in his business. We should not get hung up about lobbies. We should not be talking about large groups, strong groups and small groups. We should be asking ourselves: what is the proper and just law to have at present with regard to the sale of goods and supply of services? That should be the overriding test that we should apply.

If we are going to have—and it is right that we should have—the kind of implied terms proposed in this Bill, with one or two other comments that will arise on Committee Stage as to the language in particular cases, and if we are going to have like terms in hire purchase transactions, I would like to be told by the Minister—and the Minister should really be asked to say this in his reply—why leases are excluded when hire purchase contracts are included? Why are bailments, whether short-term or long-term, to which Senator McGuinness referred, excluded? Why is the position with regard to these totally caveat emptor, whether the transactions are fair and reasonable or not: whether the terms of exclusion, for example, are fair and reasonable to have in the leasing contracts or in the bailment contracts; whether they are fair and reasonable or not? There may be—I am not saying there are not, I just do not know—reasons for this exclusion, the [1013] exclusion of leases, the exclusion of bailments.

Failure to provide for these implied terms and for the restriction on the exclusion, save in the case where the exclusion is fair and reasonable, in the case where the purchaser is not a consumer, the absence of these provisions in relation to leases simply favours the companies that have developed a leasing business as against the companies that have not developed a leasing business and that have developed a hire purchase business. It seems to me that there will be an economic distortion, an economic consequence and a similar financial consequence arising therefrom. What it may be I do not know. We ought to know about it and we ought to be able to make an assessment with regard to it.

That is the first question of principle and the first issue on which we should be given some explanation by the Minister. This has been pointed out before. This point was made long before we gathered together here today. There has been silence on the matter from the Minister's side. That silence ought to be broken; we ought to be told why. Maybe there is a very good reason: fine, then we will agree, perhaps. But if there is not a good reason there will be a distortion resulting from this which ought to be removed. On the other hand, my view at this stage—and I can develop it on Committee Stage—is that the exposure of the hire purchase companies is excessive; it has been increased to an excessive extent. My view, according to the information and the understanding I have at present, is that it is going to reduce the availability of hire purchase finance. Taking Senator Lanigan's point, the effect of that may be to add to the consumer's cost, to the consumer who is perhaps the least able to afford it.

Just to make a simple comparison of the UK position with ours, there is provision in the United Kingdom for a right of indemnification. In section 74 of the Consumer Credit Act, 1974 there is provision for the joining of the supplier as the joint party in any proceedings. There is an exclusion in the case of minimal claims of £30, or transactions of £30, [1014] and where the finance involved is in excess of £10,000. All of that applies only where there is in fact an association of a kind between the hire purchase company and the supplier, which I doubt exists as a counterpart in this country. There is a matter here provided for by this Bill rendering the dealer the agent of the hire purchase company which has been, according to the judicial findings so far—and at which I would have thought we should leave the matter—a matter of fact in each case as to whether or not the dealer was the agent of the hire purchase company. I think it should be left as a matter of fact because each case differs, and every dealer should not be deemed, as I understand this Bill will deem him, to be the agent of the hire purchase company, with all of those consequences for the hire purchase company.

A third point—again a question mentioned by Senator Molony, amongst others—is the question of the definition of the consumer. This is extremely important. The original definition has been amended since the Bill was initiated. The amendment is not adequate. For example under the UK code sales at auction the buyer is never a consumer. Under this Bill it is only sales of goods that the Minister shall specify which will render the buyer not to be a consumer. I would like to ask the Minister how he proposes to deal with, for instance, the case of the administration of an estate where there is a lot of furniture or stock or mixed goods to be sold. How is the personal representative ever going to distribute the proceeds of the sale if he is to have a contingent liability on implied conditions which result from his having sold these goods at auction? The same applies to people selling companies that are being liquidated. If they cannot sell by auction they will be subject to liability under this Bill by reason of the implied conditions which will attach to all the goods they have for sale. What will be the position of the receiver?

Senator Molony has mentioned the case of the jockey buying the saddle. There are countless other cases of different people buying different things. At [1015] least consumer should be limited to an individual. It should be limited—taking the language of the EEC—to a “natural person”. I cannot see that any corporation should be treated as a consumer and get the benefits of that situation. Let caveat emptor apply in his case.

With regard to the misrepresentation, I have just one question, and it is rather important to me to have an answer. In general the part of the Bill that applies to misrepresentation is limited to sales of goods. Section 40 sets forth the limitation in that respect but—and I should like to have the answer to this before the Bill reaches Committee Stage—is there any other reason for so limiting that part than that it is part of a Bill dealing with the sale of goods and supply of services? The argument on the whole has run that this misrepresentation chapter should apply to everything. I am inclined to go on the side of that argument but I would like to know whether the Minister is convinced that this misrepresentation part should only attach to goods. I should like if possible to have references on that. The matter is not without argument. The argument has not been engaged in in this country but it has been argued elsewhere and I would like to know what is the Minister's thought on it. In effect we have taken the Misrepresentation Act of 1967 and put it into this part, and fair dues to the Department for doing this. May I say straight away that in this field of substantial law the Government are right in following as closely as possible statutory language which is being used in the UK, particularly when moving into this whole trading area because we get a free ride. We get the overhead cost of discovering what our language means. That cost is borne by the British. We get very good judicial opinion as to the meaning of particular phrases. Consequently, we would be totally mad to use different language if the language of a UK Act has gone through the UK courts. For any one action we will have they will have 100 and well thought out actions too with good judgments on them. It would be very foolish not to [1016] take note of these. We would be equally foolish to use the language of their legislation if it is found in some cases to be defective and the sections not as good as they should be. I think this may be true of the Misrepresentation Act 1967. When we get down to that I think we may have to suggest changes on it.

Perhaps the most important single point I want to make is that there must be introduced rapidly, in case somebody would forget it, a section into this Bill providing that it does not come into operation for a period of time sufficiently long to give all those who are engaged in the business of selling in Ireland an opportunity to get all their documents right. Because their documents are all drafted on the basis of the existing law, it is entirely unwise to assume that it is fair dealing to business people who have prepared conditions of sale and terms of agreement in their guarantees and so on on the basis that that is the law. It cannot be assumed that they are following our debates. They have something more productive to do than to be following our debates while holding their breaths and assuming that we are going to conclude as the Bill has been circulated. They cannot start the business of replacing their documents until we have completed our business whatever that may be. There must be a provision—though perhaps this should be by way of ministerial order—whereby a sufficient period of time would be specified so as to ensure that they can get their legal people to do whatever they should do to get the documents right and to consider generally the position.

With regard to the motor industry, I am used to every class of lobby operating on me and I have long since made it clear to them all that I shall just try to make up my own mind as best I can in this regard. I have satisfied myself that the subsection here providing for criminal offence is wrong. The section seems in general to be right. The absence in the Bill even of adequate provision for defence almost suggests something not serious about it at the beginning. We have nothing like the same sort of provisions [1017] for defending proceedings as we have, for example, in the Consumer Information Act. I hope that this subsection will go. I very strongly hold the opinion that there ought to be established a system of vehicle testing. I do not think the Minister can simply deal with this on the basis it is for another Department. I would like to see all the criminality with regard to this taken out of this Bill. It is a matter for another Bill. It belongs in the road traffic law. We have no provision here for rendering people criminal who provide machinery that slaughters people in factories or that leads to miseries in mines. There are all sorts of other things that do damages apart from defective motor cars and they should be in the appropriate legislation dealing with such matters. But the need for such legislation is very great.

In a press release dated 6 December last the Dublin Road Safety Council said that car tests showed a terrifying figure. Of the 786 vehicles checked 99.6 per cent had a fault of some sort. It went on to say that excessive fuel consumption resulting in incorrect exhaust emission is also a matter of concern from three points of view—health, environmental damage and uneconomic use of imported fuels. It said that 43 per cent of vehicles checked fell into the above category. An Foras Forbartha calculated that defective vehicles were involved in between 5 and 10 per cent of road accidents.

If we stand by and allow these things to happen and do nothing about them, we are really guilty. There ought to be a proper system, such as exists in England and elsewhere. The British Ministry of Transport have been operating a system which started in 1960. It was extended in 1968, in 1969 and 1977. Under this system any car over three years has to be tested annually. Here we are going to have a system of a certifier—not necessarily competent—issuing a certificate at any age, but only on sale and only if the person who is selling happens to be in the business of selling cars. This is not merely cosmetics; it is cosmetics the lady should not put on. We would be better without what is proposed in this [1018] Bill and with the bare look we were born with. All we are going to do in regard to this is to expose a lot of reputable people to possible criminal charges. That is very wrong of us to do without providing an adequate system.

Jorrock's Jaunts and Jollities is a book I used to enjoy. Mr. Jorrocks was very interested in hunting. Somebody asked him would he warrant a horse sound. He replied: “Warrant the horse sound? I would not warrant he were a horse”. If I were a motor dealer I would not issue a certificate under any circumstances. That would be my own personal view. I would go out of the business of acting in such a way that, through some defective arrangements in my own work organisation, I could be rendered criminally liable or prosecutable, as the man who got off with Judge Adams saying: “You leave this court with no other stain on your character than that you have been found not guilty by a Limerick jury”. I would not like that to be my fate.

We should not light-heartedly create criminal offences. I do not like the tinge of criminality around this. That is all right for people who engage in these kind of fraudulent things about directors, soliciting goods and so on, but there should be some separate piece of commercial criminal law dealing with all of that and not getting it mixed up with ordinary decent trading. We should be setting out what is the law between parties, what they can agree on and what they cannot agree on. Let that pass. It would take a long time to persuade Senators of the virtue of that. This is very serious. No reputable trader is going to put up a notice about his conditions and exemption clauses. He is not going to send out invoices. He is not going to do the other things in the Bill. He is in business, is under pressure about sales and wants to keep his turnover up. He may be lazy, or drunk and his business may not be as organised as it should be. He may find himself responsible for certificates issued on his behalf. He should be responsible to the person who has acquired that car and take all [1019] the civil consequences, but he should not be responsible in the sense of being a possible accused in a criminal prosecution. I feel very strongly about that. It ought to be changed.

Senator McGuinness mentioned the exemptions in section 4. It would be very helpful to us if we knew what they were and if we could get the statutory exemptions that are there brought together and scheduled in some way. I do not find any contract being rendered void which is in breach of our trade description Act, that is, the Consumer Information Act, 1978. Perhaps there is a section that I have missed. If there is not a section and if somebody is selling goods in a manner which is in breach of the criminal provisions of what was a criminal act, that contract should be void. We ought to so provide in this legislation.

These are not Committee points. These are points I am drawing the Minister's attention to ahead of Committee Stage where there are questions of principle involved and where the retailer has the right to exempt himself from the guarantee liability. I wonder should that not be excluded where the retailer is also the importer. That seems to have a possibly distorting effect economically in a competition for the sale of goods between a home manufacturer and an importing manufacturer.

Am I correct or am I misreading section 33 of the Bill? It seems to make the finance house liable in the matter of the supply of spare parts under section 12 and in respect of the guarantee section 17. Notwithstanding the language of section 14, which was introduced in the original Bill, about paying the supplier direct, it is possible the courts might hold that the section attaches a liability to the finance house when there are concurrent transactions relating to the sale of goods and other lending of money. Does the Minister understand that there are different conditions in Ireland which would justify the sterner legislation on the hire-purchase side to that existing in the UK?

Senator Conroy rose.

[1020]An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  It is now 5.30 and the Seanad already has agreed to move on to No. 5. Would the Senator move the adjournment of the debate?

Professor Conroy: Information on Richard Conroy  Zoom on Richard Conroy  I move the adjournment of the debate.

Debate adjourned.


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