Sale of Goods and Supply of Services Bill, 1978: Committee Stage (Resumed).

Wednesday, 26 March 1980

Seanad Eireann Debate
Vol. 93 No. 13

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Debate resumed on amendment No. 9:

In subsection (4), page 8, line 57, to delete “dealing as consumer”.

Mr. Molony: Information on David Molony  Zoom on David Molony  Last week I made the case for this amendment. This section makes it an offence for any one to put up a misleading notice in relation to goods, but it is only an offence where the person who is buying the goods is a person who deals as consumer. It seems senseless to limit the application of the offence to circumstances where the buyer is dealing as consumer. Whether a person is a buyer dealing in the course of business or a buyer dealing as a consumer where he is purposely subjected to misleading information there is no reason why the criminal offence should not be committed.

I would remind the Minister that we had a long discussion on the last occasion about section 5 of the Bill where the activities of directors or managers of companies or members of committees of management attract criminal sanctions. In section 5 (2) the mere neglect of a member of a committee of management in failing to attend to something could attract a criminal liability. We asked if [1408] that was too easy a way for someone to find himself a convicted criminal, and that reconsideration should be given to it. Here we have a situation where somebody who positively, with mens rea, with the intention to mislead people, puts up a false or misleading notice, but does not, unless he is dealing with the person who is buying as consumer, attract criminal liability. I urge the Minister to accept the amendment which can be given effect to simply by deleting the words “dealing as consumer”.

Minister of State at the Department of Industry, Commerce and Tourism (Mr. R. Burke): Information on Ray Burke  Zoom on Ray Burke  I had some time to think about the points made by Senator Molony and I can now see some merit in his amendment to widen the scope of the section. However, if we took out the reference to “dealing as consumer” we could be left in the position where all that section 4 would achieve would be a repetition of subsections (1) to (3). If the Senator is agreeable, I suggest that we leave the matter as it is for the moment on the basis that if we are going to delete “dealing as consumer” it might be as well to delete all of subsection (4).

Mr. Molony: Information on David Molony  Zoom on David Molony  I presume the matter can be dealt with on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: “That section 11 stand part of the Bill.”

Mr. Cooney: Information on Patrick Mark Cooney  Zoom on Patrick Mark Cooney  I did not get much support here the last day for my objection to introducing this element of criminality into what is essentially a contractual area. My argument applies particularly to this section where it will be a criminal offence for a person to publish a notice that attempts to exclude or restrict any of the rights conferred by the various sections of the 1893 Act as set out in subsection (1). The proper consequences if a person attempted to do such a thing would be remedy in damages or remedy at civil law. It is wrong to introduce the element of criminality into the section so as to make the doing of any such thing [1409] an offence punishable by fine or imprisonment according to the mood of the court or the merits or lack of the case, as the case might be. Now that the matter is going to Report Stage will the Minister reconsider my point particularly in relation to section 11? When replying, will the Minister expand on how he sees subsection (3) operating? Perhaps the Minister has some examples that would make it clear to us.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am convinced of a conclusion other than Senator Cooney's except in relation to the delivering of unsolicited goods and the entries in directories which I hope are clearly criminal matters. With regard to the others, I have difficulty in agreeing with the Minister in his decision. Like Senator Cooney, I dislike any extension of the criminal law and we should be very careful of it. If we are having offences arising by virtue of displaying notices of the kind specified in subsection (2) why is it not an offence to display a notice excluding buyers of services from their rights under section 37? Why do we not have as an offence excluding the rights that persons will have under the next succeeding section of this Bill, where the Minister may make an order providing certain things about implied warranties with regard to spare parts and after sales service?

If it is an offence for a shop selling goods to tell customers that they are buying without the implied rights that they cannot have taken away from them, which are given to them under the Act, why is it not an offence for another provider to put up a notice saying that the persons who are taking the goods with the services under section 37 are not going to have the benefit of the implied terms that if I understand section 37 cannot be taken from them? Why is it an offence to put up a statement telling them that the goods are being sold without the implied terms but because something more, services as well as the goods, are sold it is not an offence to put up such a statement? Why is it not an offence [1410] in that case, if the Minister makes an order with regard to implied warranties in connection with spare parts and after care, to tell the customers that their rights are being excluded when their rights cannot be excluded? It seems to require an explanation and a reason for the distinctions being made in the treatment of the different sections conferring the different rights.

I invite Senators Molony and Cooney to look at the words. What does “to display on any part of any premises a notice that includes any such statement” mean? Does that mean if one puts it up in the kids' lavatory and one got it before the Bill was enacted that is a criminal offence? If one displays it in a television reel of the events of 1980 when this astonishing Bill was enacted, is that an offence? These are all premises. If one is a printer and one happens to be showing it to the customer who has ordered it is one not displaying the notice to him? In “any part of any premises”—surely we need a little more circumscription in the definition of the net which will catch people and put them in jail, or whatever will happen to them under the penalties section.

Here we are dealing with criminal law and we are amending the civil law in a manner which is not all that wrong, but it is common case among the Senators who have endeavoured to understand what we are doing that it is not easy to understand what we are doing and we cannot understand what we are doing unless we are the fortunate, in my case, borrowers of a little document called The Sale of Goods Act, 1893, which is published by Her Majesty's Stationery Office. Unless the Minister will tell us what alternative arrangements he is making for the provision on behalf of Her Majesty's Stationery Office of The Sale of Goods Act, 1893, we should at least, where we amend sections in that Act, repeat the sections we are amending, or where we are referring to sections which we are subjecting to amended provisions in this Bill we should repeat those sections. In this case, we are, for example, referring in our [1411] enactment of the law creating a series of offences to section 15 of the 1893 Act and it is only Her Majesty who will be able to give me an additional supply of copies of section 15. I am an extremely prudent man and I would not dare to risk making photostat copies of section 15 unless I was sure that I had the necessary permission to do so.

On section 22, we are all right but we have a little difficulty when we get to section 25 where we immediately have to chase off to section 61. If we are fortunate enough to be able to borrow a copy of the Sale of Goods Act, 1893, section 61(5) informs the commoners of this Republic that nothing in the Act shall prejudice or affect the landlords right of hypothec or sequestration for rent in Scotland. This might be a subsection that would get dropped out of a reenactment of section 61 which we are, incidentally, amending in section 23 or 24 of this Bill.

There is an amendment in section 61 somewhere here. Subsection (6) suddenly pops up in this Bill. We have to remember where we saw it which, of course, we will not do unless we read it from the beginning to the end. Then we have to carefully transcribe it into our copy of The Sale of Goods Bill, first striking out subsection (5) as not applicable and having done that we are meant to re-read section 55 which we will have to remember has been changed by this Bill. This is all very fine, but we are not able to press a button and produce all this stuff. Meanwhile the taximeter is charging and the customer is wondering why it is so hard to go to the pictures in Dublin. The reason is that we are not bothering to assist the people in the business of getting the taxi from one place to another, who are in fact the people in the business providing the professional service of telling people what their rights or their wrongs are, and are describing themselves as frightfully exhausted by the endeavour.

There is a chunk of the Sale of Goods Act that we should shove as much out of the window as we have done in other cases. I see no great problems. Why do [1412] we not have section 15 here? Section 15 also raises this matter that I mentioned the last day about sale by sample and the different language used in connection with such a sale from the language used when it is not a sale, for example. Why is it an offence to display statements, display notices, publish advertisements and supply goods with containers with statements, but it would not be an offence to do that if we were doing a building job for somebody? We could put anything we liked on the container with the goods, because this is not specifically provided in the section with regard to the services. The Minister, in relation to supplying goods as part of a contract for the supply of services, should not leave that matter in any doubt because we are dealing with a criminal matter that must be very expressly found in the section creating the criminal offence, particularly when we are dealing with the amendment of a code which only deals with the sale of goods, being the Sale of Goods Act. When section 11 is to be found in a Part which is related only to the sale of goods, why have it an offence in the one case and not have it expressly an offence in that other case where we are excluding buyers from rights that are given to them in the services section and where we are excluding them from rights that are given to them under the implied warranty section?

There is need for more careful use of the language with regard to premises. We should get these sections that are referred re-enacted even if we are not amending the very language.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  Senator FitzGerald made a point about the availability of copies of the 1893 Act. We have been in touch with the Minister for Finance in connection with the Stationery Office printing and making available copies of the 1893 Act, arising out of representations which we received from the Incorporated Law Society. The matter is under consideration at the moment and I will be in touch again with the Minister for Finance to try to expedite the printing to meet the point made by the Senator.

[1413] Regarding notices, one reason why we did not cover the services area in the range of implied terms is that the range of implied terms that we are providing in Part IV is not as wide-ranging and there is not the same need to make an offence in that case. However, we do not have any particularly strong reasons not to so provide and I will think about it for Report Stage.

Senator FitzGerald also made a point about sections of the 1893 Act which are referred to throughout the Bill. I see no problem in having them re-enacted in this legislation if the Senator feels strongly about it. Under section 10 we can meet the Senators wishes.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I would like the views of everyone. That is just my reaction to it.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I am interested in hearing Senators' views on it and if the House feels that this is what they would like, I have no strong objections to it and I would be prepared to do it.

Senator Cooney asked for an example in relation to subsection (3). The type of statements we have in mind are the notices which show that goods will not be exchanged or money refunded, or that only credit notes will be given for goods returned. That type of note will be made an offence under this subsection.

Mr. Cooney: Information on Patrick Mark Cooney  Zoom on Patrick Mark Cooney  I can see that, but the first thing was the exception in the latter part of the subsection:

“unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1).”

I find that difficult to follow.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I find that especially difficult.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I will give an example of the type of case we are trying to deal with in this situation. A lady goes into a [1414] shop to buy a dress. She buys a dress in a particular colour. She cannot go back afterwards and say that she does not like that colour. It is permissible to put up a notice saying: “We will not exchange because of a colour difficulty”, but you cannot put up a notice saying you are not liable because of a defect.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  One small point for consideration by the Minister. I wonder is the word “contractual” right in the third last line of subsection (4)? Are these rights contractual rights or are they not rights conferred by statute in fact?

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I am advised that they are not conferred by statute and that they are contractual rights. They are implied terms within the contract.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Would we call them implied terms? Let us use the words used earlier by the draftsman in the first subsection, “A right conferred. by”.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I do not want to interrupt the Senator but it will be an academic point. It is likely that subsection (4) will go anyway on the basis of the amendment to which I have agreed with Senator Molony.

Question put and agreed to.

Mr. Molony: Information on David Molony  Zoom on David Molony  I move amendment No. 10:

In subsection (2), page 9, line 7, to delete all words after “circumstances” and substitute:

“(a) as are stated in an offer, description or advertisement by the seller on behalf of the manufacturer or on his own behalf,

or,

(b) as the Minister shall by order direct.”

[1415] I do not know whether what I wish to do is in order. I should like the House to allow me to ask the Minister to explain precisely what is meant by, or what his interpretation is of section 12. If his interpretation is that of his colleague, the Minister for the Gaeltacht, when she spoke on Committee Stage in the Dáil, there may be no necessity for my amendment. I cannot see now her interpretation could stand. I am not sure because, on first reading, the section may not be what it appears to be.

An Leas-Chathaoirleach:  The debate on the amendment can be as wide as Members think proper, provided it is not repetitive.

Mr. Molony: Information on David Molony  Zoom on David Molony  I will raise the query I want to raise with the Minister and I will discuss the amendment pending his reply. The difficulty I have with the section is that it seems to me that the Minister may make an order which will have the effect of implying in a contract the term for which a service will be provided, or that spare parts will be available for a period that a seller has stated in an advertisement. In other words, where one advertises that spare parts will be available for, say, two years, if the Minister has made an appropriate order in relation to that type of goods, it will become an implied term in the contract. That is my understanding of the section. On the other hand, if one makes no reference at all to the availability of spare parts, or makes no reference at all to a period during which spare parts will be available, then the provisions of the section do not arise.

In the Dáil the Minister, Deputy Geoghegan-Quinn, seemed quite explicit that the section was a good deal more wide ranging that that when she said specifically that where the manufacturers 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 lake it that there would be an unlimited supply of spare parts. The manufacturer will [1416] have to stand over that. I cannot see how one could interpret section 12 (1) or (2) to mean that and I should like some clarification on that issue.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  The Senator is correct. There was a misunderstanding in the Dáil. However, could I say for the benefit of the Senator, before he makes his case for his own amendment, that I will not be in a position to accept his proposed amendment? There are one or two areas which could, perhaps, be tidied up and which would serve to strengthen this section.

For example, I am considering the possibility of removing the necessity for the Minister of the day to make an order under ssubsection (1). The effect of this would be that if a seller made an offer, on being accepted it would immediately form part of the contract. I am also considering whether to provide that if a seller makes an offer, the onus should be on him to specify the period for which his offer is valid. This would cover the point already made by Senator Molony about the uncertainty in the section as drafted in relation to the period for which spare parts and services will be made available.

Mr. Molony: Information on David Molony  Zoom on David Molony  I am grateful for the information the Minister has given. It is a great pity that we do not use this opportunity to deal with this whole problem of after-sales service and spare parts. With inflation and the costs that are involved for us all, nowadays people are very bitterly disappointed regularly that items of equipment they buy for their house, or their car, or their business, or whatever, have a relatively short life. They become obsolete because spare parts are not available. We had some discussion last week about the age of obsolescence in which we are living and we discussed the concept of durability. Steps could be taken—and the opportunity lies in section 12—to improve the position.

We now agree on the interpretation of the section and, as it stands, it is almost meaningless. I do not see what it does for anybody. It alters an existing position [1417] but, in terms of strengthening the position of the consumer, it does very little. All it does, in effect, is to say that where somebody says that spare parts will be available for 12 months they will be available for 12 months. That is all. I do not think that is any great advance. Under the Consumer Information Act, if somebody says spare parts will be available for six months and, in doing so, makes a false or misleading statement, he is guilty of a criminal offence. By any standard, I do not think we are advancing the position of the consumer one iota in any real sense of the word. This is something we need to attend to.

I cannot see why there should be an objection to the Minister taking this power. It will be up to the Minister to judge it. We are not asking him to impose an obligation on every supplier of every item of goods to ensure availability of spare parts for an unreasonable length of time. On the contrary, we are leaving the Minister with the power in relation to any item of goods on which he deems it appropriate to take this action that he could say: “If you are going to produce washing machines, or if you are going to import into this country, let us call them `Lollipop' washing machines of Italian, or Dutch, or Japanese make, we will give you a licence to do this but, you must ensure that spare parts will be available for that piece of equipment for the next three, four or five years, or six months,” or whatever the period is to be. The Minister can judge it in relation to that. It is something on which the Director for Consumer Affairs will be able to advise him.

That is what my amendment is seeking to do and no more than that. We are not making any major advance in doing that here. All we are doing is giving the Minister the power in the future to do that. The Minister has indicated already that he cannot meet us on this. I cannot see why. It seems to me to be possible and reasonable and at no cost to the State. It presents no difficulty for manufacturers, or suppliers. They will have the option of selling these goods. [1418] They can make their case to the Minister. If the Minister proposes to make an order, all options remain open. We would be taking the right step in giving the Minister the power to do this, and I would urge him to reconsider his position.

Mr. Cooney: Information on Patrick Mark Cooney  Zoom on Patrick Mark Cooney  I should like to support Senator Molony in what he said, because his amendment tightens the section. On the interpretation as put forward by Senator Molony and accepted by the Minister, the section can be pretty meaningless in many situations. It would be literally a “nothing” in certain situations. It brings with it the danger of the interpretation which the Minister now tells us was erroneous, but nevertheless was advanced by a colleague. Who is to say that such an interpretation might not subsequently be the one to be made by the courts? That would be a grave danger if the courts were to make such an interpretation.

The courts might be faced with a situation where the type of goods involved were those in respect of which an order had been made but in respect of which the manufacturer had not specified a time limit for a service or for the supply of spare parts and an aggrieved consumer decided to rely on this section because the goods came within the ministerial order and asked the courts to interpret it. How do we know that the courts might not decide that the Legislature intended that the meaning of the section was as given in the other House?

The courts cannot come and look at the statements in either House to make up their own mind. They have to look on the plain words before them and might say that this Bill is designed to help consumers, that here is a consumer looking for relief and that it is not good enough for the seller to say: “The order was made in relation to my goods but, because I did not put any time limit on the supply of spare parts, or my service, it does not apply to me at all.” The Minister would be safer to have this section removed, or at least amended, as suggested by Senator Molony.

[1419]Mícheál Cranitch: Information on Micheal C Cranitch  Zoom on Micheal C Cranitch  I raised this question of the supply of spare parts on Second Stage. Since then, quite a number of people have spoken to me on the matter. The stark reality is that people are very apprehensive at the moment about buying anything with movable parts and motors and so on. It is common experience for people to buy an article in good faith hoping that movable and wearable parts will be in supply for three, four, five or six years. They are absolutely shocked when after six months or 12 months they cannot get the parts. The machine is in perfectly good order except for minor parts which are not to be had. They are told blandly when they go to inquire about them that the machine is obsolete. People buy these things with great apprehension, that they are going to be “had”, that they are being manipulated, that in order to make more profit manufacturers will discontinue the making of certain parts with the result that the machine becomes obsolete before a reasonable time. I would ask the Minister to give this section special attention and, if necessary, to bring in a suitable amendment on Report Stage if that will solve the problem for him. This matter of the supply of parts over a reasonable period will have to be faced up to.

Mrs. Cassidy: Information on Eileen Cassidy  Zoom on Eileen Cassidy  Speaking as a housewife, I would be very happy if the Minister took on himself the power to specify a time limit during which spare parts for household goods should be available. As Senator Molony said, one buys an Italian washing machine now, not on the basis that it will be reasonably fit for the purpose of dealing with the household laundry, but because any reputable dealer will tell you that the length of time during which it will remain workable or usable is limited to about two years. Nothing will work after about two years.

These are rather expensive items. They are bought on hire purchase usually over a period of two years and by the time the housewife owns the machine, it is already obsolete. She cannot get the spare parts for it and, [1420] therefore, it is just useless junk. Surely the Minister could stop this rather cynical exploitation of a very vulnerable consumer by taking to himself this power in consultation with the manufacturers so that a very fair time could be agreed during which period spare parts should be available. Two years is too short a period for such expensive items. It should be at least four or five years.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I sympathise with the points made by Senators on both sides of the House with regard to the availability of spare parts. However, the market place will determine to a certain extent the case of a particular manufacturer who does not offer to make spare parts available. He will be at a considerable competitive disadvantage vis-á-vis the supplier who does make spare parts available as we envisage in the Bill.

Obviously what is being spoken about by Senators here is the ultimate form of protection for the consumer. However, it has far-reaching implications for industry generally and let us be fully aware of what we are talking about. The economic repercussions would be considerable. First of all, there are the manufacturers carrying full ranges of spare parts.

If we are mailing orders the rate of technological progress might unintentionally frustrate or interfere with these orders. Things are changing fast particularly within the domestic appliance field.

Difficulties might arise in justifying such a provision as contained in Senator Molony's amendment because of the different ways in which goods are sold. For example, electrical discount stores generally sell at lower than average prices but they do not provide after-sale service. Furthermore, nowadays many dealers are little more than agents for manufacturers who provide a service and offer it at least initially in accordance with a guarantee. Another difficulty would be that of determining the quantity of spare parts that would be required to be stocked and whether a retailer should be penalised for non-availability [1421] of parts due to failure of supply by a manufacturer.

In the face of these considerable problems, the simpler approach described in section 12(2), as drafted, was adopted. Because of the problems I have outlined—while my own personal sympathies lie with the line being pursued by Senators—I regret that I am not in a position to accept Senator Molony's amendment.

Mr. Molony: Information on David Molony  Zoom on David Molony  I am very disappointed to hear what the Minister had to say. I should like the House to understand that I too appreciate the problems involved. I accept the problem in relation to the volume of spare parts a manufacturer would have to keep. I also accept the difficulty that, with the technological advances being made, by the time they hit the shop floor for the first time, some goods may be out of date.

That is not a good enough reason to say that consumers or purchasers of goods should be denied any protection in this area. The Minister could take the power we are asking him to take, and consider particular situations that could arise in the future. If because of particular technological advances a retailer or a manufacturer make representations to him that it is unreasonable in relation to some particular item of produce that he should be expected to keep spare parts, or a certain volume of spare parts, or any spare parts for any period of time, that is something the Minister can consider at that time. All of those problems exist. Perhaps they cannot all be dealt with but, where they can be dealt with, at least the Minister should take the power.

We are not talking about the genuinely concerned supplier, the person who is concerned to provide a decent service. We are concerned primarily about the fast buck merchant. Let us take the discount electrical warehouses. I do not say this generally—I am sure there are very reputable operators in this field—but there are also some very unscrupulous operators who abuse the [1422] availability of consumers who will buy a television set which would cost them £50 or £75 more in a regular retail outlet. They save £50 or £75 and six months later the tube goes in the television set. They go back and the supplier is gone or it transpires that you cannot get a tube for that particular television set. Literally, a fast one has been pulled on the consumer. Goods have been dumped, as they have been dumped in the past. I am not sufficiently familiar with the details of consumer laws in other European countries to say that they have legislation dealing with spare parts, as I propose in the amendment I have tabled. I would almost wager that they have.

I am quite certain that the problems the Minister has outlined are not insurmountable. I do not accept that he has to deny himself this power for the reasons he has given. We could do a lot more. I accept that problems exist, but we have established an office of Director of Consumer Affairs. He can deal with the problem and look at it from the point of view of the retailer and the consumer. All we are asking is that the Minister take power to save the consumer from the unscrupulous dealer, not from the reputable dealer. I do not suggest that the Minister should introduce orders that would interfere with the ordinary efficacy of the business affairs of reputable suppliers of goods. But, if the Minister accepts this amendment, he and the Director of Consumer Affairs will have power to ensure that people who are disreputable and unscrupulous in this field will be stopped.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Even apart from disrepute and knavery of that kind, do we not have responsibility as legislators positively to inculcate a sense of responsibility in the sellers and suppliers and of durable use goods of the kind referred to? It seems to me that the Minister ought to have power to prevent people from selling goods if they cannot supply spare parts and after sales service. They should be so geared as to be able to do whatever is appropriate in relation to the customers they choose to take on. People [1423] in any profession are not free to take on patients or clients if they are not able to cope with them. People should not sell cookers, heaters, washing machines or whatever, if they have not got the necessary capital, the necessary arrangements, to see that an after sales service and an appropriate amount of spare parts will be available.

It would be a threat to anyone in business if he found himself in the situation where the Minister made an order placing a whole lot of obligations on him which he could not discharge. Senator Molony is proposing that power should be given to the Minister. As I understand the section it will convert sales talk and representations into implied terms of contracts, and that is all it will do. If there are not any sales talks of the kind described, if there are not these kinds of representations, there will not be any resulting effect on the contract between the parties. Senator Molony is proposing that the Minister should be given a power. Let him go away from the Seanad and think about what is best from the point of public order in terms of whom he should consult first before he makes any order, before he makes any order, what kind of notices should be given to whoever is in this particular business of selling television sets, and so on.

I have just come out of a house where the cooker broke down for a few days and perhaps I am more attentive to Senator Molony's amendment as a result. People should not sell cookers unless they can supply spare parts. The Minister should be in a position, after due warning, to tell everyone in that business “If you go on selling these things you will have to comply with the following requirements”. The Minister should be obliged to inform himself objectively. I take the point about technology, Perhaps there should be provision for the exclusion of warranties in a limited range of goods affected, for example, by the implied warranties.

Questions would arise, for example, under this section. Say this is enacted and somebody sells goods having advertised [1424] beforehand that he will supply spare parts, under what terms does he provide the spare parts. Is that a contract for the sale of spare parts? Are there implied terms about merchantable quality with regard to the spare parts? Does he have to supply fresh spare parts if the spare parts are not good enough? Does the person who gets the spare parts have the right under another section of this Bill to go off and get them repaired by somebody else if they break down? Is there a contract for sale arising under the Sale of Goods Act with regard to the spare parts which are supplied pursuant to this subsection?

I support Senator Molony's proposal because, after consideration and consultation with the appropriate people, in appropriate circumstances, the Minister might find it useful in the public interest to make an order and that is all Senator Molony's amendment is proposing to do. The giving of that power does not threaten the livelihood of anyone. There can be suitable consultation with the appropriate sector engaged in supplying these things. After all we are talking about a very important element in human living when we are talking about expenditure. Furnishing your house with all these modern requirements is a very solid, important business.

The Legislature lays down rules with regard to the way the roads are used and the way cars are driven. It does not hesitate to make rules with regard to the market place in particular areas. This is a particular area of the market place with regard at least to consumer items, the things you expect to last a few years, washing machines, dishwashers and the rest of it. There should be rules of a different character with regard to these kinds of goods and the rules shall be changed if technology changes the position. After all, profit is a reward of risk-taking; maybe this should be one of the risks if technology renders the particular goods uninteresting. The risk of the business should be taken by someone who is selling and who ought to inform himself. We should be concerned to protect the individual in his role as a consumer.

[1425]Mr. Cooney: Information on Patrick Mark Cooney  Zoom on Patrick Mark Cooney  Part of the Minister's case in resisting the amendment was to refer to the part that competition would play, the implication being that the people who would not provide the spare parts and the after sales service would suffer in the market place in that the goods would be less attractive than in the case of those who would provide these things. I think the history of sales of goods in the general consumer durable range does not necessarily support that contention. In theory it should work like that but in practice I do not think it does work like that, in the sense that any deficiencies in the terms of after sales service are very often not alluded to because the initial cost may be less than the competing goods and a person who is on a tight budget may be tempted to go for the cheaper article without paying sufficient attention to the other matters involved. Again, too, clever advertising can blunt any competitive disadvantage which that particular type of consumer durable might have over its competitors. So if you have price and clever advertising and if you have a wide range of dealers, people would be constrained to buy them as the particular object more readily available. I do not know that the Minister is on altogether safe ground in relying on competition and the effects of competition as an argument for resisting this amendment. It has not worked up to now and there is no guarantee that it will work in the future.

Mícheál Cranitch: Information on Micheal C Cranitch  Zoom on Micheal C Cranitch  Perhaps I am wrong in my reasoning or in my approach. I am not a lawyer but the more often I read section 12 (2) the more alarming it becomes. It states:

...there shall be an implied warranty that spare parts and an adequate after-sales service will be provided by the seller for such period and in such circumstances as are stated in an offer, description or advertisement by the seller on behalf of the manufacturer or on his own behalf.

Suppose that no description, offer or advertisement is forthcoming. Does not [1426] that mean then that the manufacturer is under no obligation good, bad or indifferent about any sort of services as far as spare parts are concerned?

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Correct.

Mícheál Cranitch: Information on Micheal C Cranitch  Zoom on Micheal C Cranitch  That is positively alarming. I appeal to the Minister to examine that again and see if some protection for the consumer or the buyer could be incorporated in this subsection. I think that the customer is subject to a gross injustice unless there is an adequate amendment to this subsection for the sake of the customer.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  On the surface it is a simple matter to accept the suggestions made by the various Senators. I would also like to thank the Senators for recognising the economic and other problems that are involved in this situation. This is not just exercising the minds of legislators in Ireland. I would like to inform Senator Molony that this situation is causing difficulties right across Europe to all of our partners within the European Community and he is wrong in his assumption that there is a solution in most countries. There is not. But we are attempting, together with our other partners in the second consumer programme which is at present under discussion, to come to a satisfactory solution to this whole problem of spare parts. I hope that in that second consumer programme a satisfactory solution will be arrived at to protect the interests of the consumers in Europe. We are playing our part in the discussions on this programme. All of the technological and other difficulties I have mentioned are at present exercising the minds of the Community and the various Parliaments within the Community.

Reference was made to the role of the Director of Consumer Affairs here. The Consumer Information Act gives a particular function to the Director of Consumer Affairs, that is, to encourage and promote the establishment and adoption of codes of standards and the Director of Consumer Affairs would have a role with regard to the question that we have [1427] under discussion. I am afraid at this stage that despite my personal sympathy with the Senators I am not in a position to accept the amendment as put forward by Senator Molony.

Mr. Molony: Information on David Molony  Zoom on David Molony  I should like to make one thing clear. While I and other Senators expressed sympathy for some of the problems presented in relation to the spare parts problem generally I do not for one moment want anybody to believe that I regard this as a good reason for the Minister to adopt the stance he is adopting in relation to this amendment. It was precisely because of those problems that I tabled the amendment so that the Minister would have the power in individual cases to impose such a responsibility and duty on suppliers of goods. I do not accept the problems the Minister has outlined as a valid reason for not accepting this amendment. I very much regret the attitude that has been adopted by the Minister. I think we are losing an excellent opportunity to do something that is positive and worthwhile and of aid to consumers. We are losing that opportunity and that is something I regret. Certainly I cannot agree to withdraw the amendment.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I cannot accept the amendment but I accept the fact that the section could be tidied up and strengthened and I have assured the House that I will do that between now and Report Stage.

Mr. Molony: Information on David Molony  Zoom on David Molony  I will not abandon the right to table another amendment. There is a simple point of policy involved in this. Every day we meet problems over everything we touch or think about but we seem to have a fundamental disagreement between us on a matter of policy here. Let us dispose of it now; let us decide which standard we are going to take. The section may need to be tightened up; certainly in relation to the interpretation of subsection (2) there may be a question of tidying it up, but I want to know whether the Minister is prepared to take the power to enable him to introduce meaningful orders or [1428] legislation to protect consumers in relation to spare parts. That is how I would like to put the issue.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I am afraid my position at this stage is that I cannot accept the Senator's amendment.

Mícheál Cranitch: Information on Micheal C Cranitch  Zoom on Micheal C Cranitch  Do I understand from the Minister that he will give an assurance that he will look carefully into this between now and Report Stage and bring in an amendment to tidy up this section to make it more acceptable to the consumer?

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I have already given the assurance to the House that I see scope for tidying and strengthening the section. The Senator can rest assured that by the time it comes back on Report Stage I will have introduced amendments to tidy it up and strengthen it.

Mr. P. Reynolds: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  This is a very serious situation and I do not think it can be neglected. In the past three years a certain number of cookers have been dumped on the Irish market. In my opinion spare parts will not be available. I retail the cookers and I tell the people that. If you offer them a more expensive cooker for which spare parts are available they think you are trying to influence them to purchase it. Maybe they think you have a greater margin of profit on it. There is another point which cannot be neglected. A number of these cookers cannot be serviced by a local handyman or mechanic. One will have to go further than providing spare parts; an aftersales service must be provided. The Minister and his Department are obliged to do something about this.

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I know how strongly the Senators feel about this but I am not in a position at this stage to bow to their wishes. They have made very strong points and I am prepared to look at them again but at this stage I am not prepared to accept the amendment. I will look at it and discuss it on Report Stage if that is acceptable to the Senators. If Senator Molony insists on putting the amendment, I cannot accept it at this stage.

[1429]Mr Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I conducted some inquiries in preparation for this Bill but unfortunately I did not undertake an exhaustive analysis of Irish industry. We may have people engaged in the production of some of these things in this country. Without drawing too explicitly the benefits to the Irish community, it might be useful to us if the Minister could make an order that Irish producers comply with the requirement to supply spare parts and servicing and people engaged-in the business of selling such goods on the domestic market in competition with Irish producers could be prevented from selling them because they did not have or were not making available a sufficient supply of spare parts and proper arrangements. In this fashion it seems to me that not merely the consumer but Irish employment might well be assisted. I wonder would the Minister think again on this matter?

Mr. R. Burke: Information on Ray Burke  Zoom on Ray Burke  I do not feel that the Committee Stage of the Sale of Goods and Supply of Services Bill is exactly the forum for a discussion on the provision of non-tariff barriers to trade. I readily admit that I would be prepared to do anything in my power to assist the provision and maintenance of jobs in this country within the rules of GATT and other international agreements with which we are involved. I am prepared to look at the matter again in the light of the strong case that has been made by both sides of the House but I am not in a position to accept the amendment on Committee Stage. If Senator Molony insists on putting it I will not be in a position to accept it now. I promise the Senator and the House that I will give it sympathetic consideration between now and Report Stage. I am not promising anything except that I will give it sympathetic consideration.

I want to assure the House that it is not just Ireland that has this particular problem with what on the surface should be a simple question and simple solution. The whole of the Community is involved. The Community is also involved in drafting rules on spare parts under the [1430] second consumer programme which is at present under discussion. We are involved in that discussion. I can assure the House that I am very conscious of the points that have been made by the various Senators but I am not in a position to accept here and now the amendment as proposed.

Mr. Molony: Information on David Molony  Zoom on David Molony  Certainly I am in no position to sulk and say that I insist on pushing it to the limit. As far as I am concerned we have made an advance. I accept that the Minister will consider this seriously. He may take it that from our point of view we are very serious about it. We believe that the legislation would be inadequate without a provision like this. So far we have certainly found the Minister to be most co-operative in dealing with the Bill. We are not concerned about party differences or anything like that here; we are concerned to produce the best legislation to help the consumer. There is a basic policy involved in this. The Minister may have come into the House today with his mind set in one way. I urge him to switch it around the other way. With the leave of the House I will withdraw the amendment and hope for something on Report Stage.

Amendment, by leave, withdrawn.

Section 12 agreed to

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  There are amendments on section 13. Amendments Nos. 11, 12, 13 and 14 are related and they may be discussed together.

Mr. Molony: Information on David Molony  Zoom on David Molony  I move amendment No. 11:

To delete subsection (3).

It seems that all the meaty sections in this Bill come one after the other. I am going to complain again about the procedure we have here. It is very difficult sometimes to speak to amendments first. Perhaps it is inexperience but it seems to me to be much easier and [1431] more logical to have a discussion first about the section and come on to the amendments then. As will be seen from the amendments we tabled, our main concern first of all is in relation to the proposal under the original section 13 to create a new criminal offence, something that occurs on every page of this Bill. On Second Stage many Senators on all sides of the House expressed concern that the motor trade had been singled out for this type of attention. It was felt that we were not advancing the cause of the consumer by imposing this new potential criminal liability on motor dealers. The way in which the section was to operate was that motor dealers would be obliged to furnish a certificate with the car stating that basically it was roadworthy and, if the certificate was not provided or falsely provided, a criminal offence would be committed.

I understand that the Minister now proposes to remove the criminal liability altogether and we agree with that. I am pleased that we have advanced to that position. However, my main concern in proposing that we also delete subsection (3) was to rid ourselves entirely of this certificate. I do not know who thought up this idea of a certificate leading to criminal responsibility. The whole idea was ill conceived. Given that we are discussing a consumer Bill I do not believe that we are doing a lot for the consumer by introducing certificates at all. What we do for the consumer is basically being done when under subsection (2) we imply the condition that at the time of delivery of the vehicle under the contract it was free from any defects which would render it dangerous to the public including persons travelling in the vehicle. That is basically what we want to give to the consumer: the right to sue under the contract if the vehicle was defective.

The certificate was necessary if we were going to have a criminal liability on the motor dealer in respect of a defective vehicle. Now it is proposed to remove the criminal liability altogether but the Minister in his amendment proposes to retain the certificate, to shift the onus of proof as to the existence of a defect from [1432] the user of the vehicle back to the retailer or the motor dealer himself. I personally think that to adopt this approach is unfair to say the least, and will present genuine/difficulties so far as court proofs are concerned. At worst, under the Ministerial amendment proposed, someone could buy a car from a motor dealer and hold on to it for 12 months and subsequently sell it, say, to a farmer living at the top of a mountain. He could use the car to bring calves in from the fields, to bring milk to the creamery or whatever and then after two years he could say there was a defect in the car; that he did not know the condition of the car when it was purchased originally from the motor dealer because he was a secondhand car buyer. If he thinks there was a defect in that car and if he can show that no certificate of roadworthiness was given with the car, he can sue and the obligation is on the motor dealer to prove that there was no defect in the car. The onus of proof shifts completely. In other words, the minute that this farmer or secondhand car owner issues the summons he is immediately forcing a motor dealer to prove that the car which was sold to someone else a couple of years before was free from all defects. That will apply if someone for some reason fails to deliver one of these certificates. It is unfair to approach it that way. It is confusing and will lead to all kinds of difficulties.

The motor dealer may decide to be clever and give a false certificate stating there was no defect in the car. He delivers the certificate to the purchaser who afterwards sells the car to the farmer. Notwithstanding that it was a false certificate that came with the car the farmer will have to go to court and prove his case. The fact that a certificate existed, even though it was a false certificate, will change the situation around the other way and if someone wishes to bring a case against another person he will have to go into court and prove it. A certificate does no more or less than to bring about a situation in which the onus of proof is changed. It is making a nonsense out of the law and out of consumer [1433] legislation to introduce what I would regard as a red herring.

We want to ensure that all cars on the road are roadworthy. That is a very laudable purpose and something that we should pursue but this is not the place for it. As the Minister pointed out, it is not his responsibility, it is the responsibility of the Department of the Environment. Other countries have established authorities to examine cars to make sure they are roadworthy. It seems to me that the idea of the certificate emanated from the Department in an effort to deal with this problem and to get over the difficulty of the cost factor involved in establishing such an authority in Ireland.

In relation to the certificate, I do not see why the motor trade should be singled out. Why should not producers of items such as electric saws, printing presses and industrial equipment be obliged to Issue certificates? Certainly if one were to be consistent there should be certificates in all of these areas but for some reason the motor trade has been singled out for the application of this new concept of a certificate of worthiness. I do not see the logic or sense of it. It came about through the very laudable desire that all cars on the road be roadworthy. If that was the intent behind it, then we should go about it in the proper and regular way, that is, by setting up an independent authority that could vet vehicles and judge their roadworthiness, independent of a motor dealer or purchaser.

Even though we propose the deletion of those three subsections, I want to stress that it will in no way affect the position of the consumer. The consumer is well protected. If a consumer buys a car there is implied in that contract that the vehicle is free from defect as outlined in subsection (2). There is also the very important new right that is given to consumers in this legislation in section 21. It is a section which should be stressed because it will have far-reaching consequences in the whole area of consumer [1434] purchases. Where a person buys a car, and finds a month later that there is a defect in it he can go back and insist that the defect be put right. If the defect is not put right he can leave the car with the seller and the whole deal is off. These are rights that the car purchaser is being given under this legislation. This whole idea of the certificate and the criminal liability is a red herring.

In conclusion I want to make a point which I think is a useful one. Unless the whole idea of the certificate is removed a criminal liability will still remain quite apart from the fact that the Minister is removing the specific criminal liability being created by this section. If the certificate remains, the criminal liability will remain because under another Act, the Consumer Information Act, where one produces a certificate that is false or misleading, an offence will be committed. I say to the Minister if it is his intention and desire to remove the criminal aspect of this section he should remove it fully by removing the liability of the certificate.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  The House has already ordered that debate on this Bill be adjourned at 5 p.m.

Mr. Molony: Information on David Molony  Zoom on David Molony  When is this being adjourned to?

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  It is a matter for the House.

Mr. Molony: Information on David Molony  Zoom on David Molony  Is there a particular rush over this Bill? This is a very technical and difficult Bill and any time we can get between sessions is very welcome.

Progress reported; Committee to sit again.


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