Consumer and CommerCial law A01_TILL6972_04_SE_FM.indd 1 2/22/16 3:46 PM Tried and tested Law Express has been helping UK law students to revise since 2009 and its power is proven. A recent survey * shows that:  94% think that Law Express helps them to revise effectively and take exams with confidence.  88% agree Law Express helps them to understand key concepts quickly. Individual students attest to how the series has supported their revision: ‘Law Express are my go-to guides. They are an excellent supplement to my course material.’ Claire Turner, Open University ‘In the modules in which I used these books to revise, generally the modules I found the most difficult, I got the highest marks. The books are really easy to use and are extremely helpful.’ Charlotte Evans, Queen Mary University of London ‘The information is straight to the point. This is important particularly for exams.’ Dewan Sadia Kuraishy, University of Manchester ‘These revision guides strike the right balance between enough detail to help shape a really good answer, but brief enough to be used for last-minute revision. The layout is user friendly and the use of tables and flowcharts is helpful.’ Shannon Reynolds, University of Manchester ‘I personally found the series very helpful in my preparation for exams.’ Abba Elgujja, University of Salford * A survey of 16 UK law students in September 2014. A01_TILL6972_04_SE_FM.indd 2 2/22/16 3:46 PM Consumer and CommerCial law 4th edition Judith Tillson, Barrister Senior Lecturer in Contract and Commercial Law A01_TILL6972_04_SE_FM.indd 3 2/22/16 3:46 PM Pearson Education Limited Edinburgh Gate Harlow CM20 2JE United Kingdom Tel: +44 (0)1279 623623 Web: www.pearson.com/uk First published 2011 (print) Second edition published 2013 (print and electronic) Third edition published 2015 (print and electronic) Fourth edition published 2016 (print and electronic) © Pearson Education Limited 2011 (print) © Pearson Education Limited 2013, 2015, 2016 (print and electronic) The right of Judith Tillson to be identified as author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. The print publication is protected by copyright. Prior to any prohibited reproduction, storage in a retrieval system, distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise, permission should be obtained from the publisher or, where applicable, a licence permitting restricted copying in the United Kingdom should be obtained from the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. The ePublication is protected by copyright and must not be copied, reproduced, transferred, distributed, leased, licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers, as allowed under the terms and conditions under which it was purchased, or as strictly permitted by applicable copyright law. Any unauthorised distribution or use of this text may be a direct infringement of the author’s and the publishers’ rights and those responsible may be liable in law accordingly. All trademarks used herein are the property of their respective owners. The use of any trademark in this text does not vest in the author or publisher any trademark ownership rights in such trademarks, nor does the use of such trademarks imply any affiliation with or endorsement of this book by such owners. Contains public sector information licensed under the Open Government Licence (OGL) v3.0. www.nationalarchives.gov.uk/doc/open-government-licence. Pearson Education is not responsible for the content of third-party internet sites. ISBN: 978-1-292-08697-2 (print) 978-1-292-08702-3 (PDF) 978-1-292-08701-6 (ePub) 978-1-292-08754-2 (eText) British Library Cataloguing-in-Publication Data A catalogue record for the print edition is available from the British Library 10 9 8 7 6 5 4 3 2 1 18 17 16 15 14 Front cover bestseller data from Nielsen BookScan (2009–2014, Law Revision Series). Back cover poll data from a survey of 16 UK law students in September 2014. Print edition typeset in 10/12pt Helvetica Neue LT Std by 35 Print edition printed and bound in Malaysia NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION A01_TILL6972_04_SE_FM.indd 4 2/25/16 7:43 AM Contents Acknowledgements vii Introduction viii Guided tour xii Table of cases and statutes xiv Chapter 1: The need for consumer protection 1 Chapter 2: Contract terms 17 Chapter 3: Sale and supply of goods 1: Implied terms 41 Chapter 4: S ale and supply of goods 2: Transfer of property and risk 71 Chapter 5: S ale and supply of goods 3: Performance and remedies 87 Chapter 6: Distance selling and electronic commerce 111 Chapter 7: Product liability 127 Chapter 8: Product safety 143 Chapter 9: Consumer credit 157 Chapter 10: Agency law 181 Chapter 11: Liability for unfair trading practices 205 And finally, before the exam … 227 Glossary of terms 245 Index 251 v A01_TILL6972_04_SE_FM.indd 5 2/22/16 3:46 PM a y ! s u r o y e a v H What do you think of ? We’re really keen to hear your opinions about the series and how well it supports your studies. Your views will help inform the future development of Law Express and ensure it is best suited to the revision needs of law students. Please log on to the website and leave us your feedback. It will only take a few minutes and your thoughts are invaluable to us. www.pearsoned.co.uk/lawexpressfeedback vi A01_TILL6972_04_SE_FM.indd 6 2/22/16 3:46 PM Acknowledgements Our thanks go to all reviewers who contributed to the development of this text, including students who participated in research and focus groups which helped to shape the series format. vii A01_TILL6972_04_SE_FM.indd 7 2/22/16 3:46 PM Introduction Many students study consumer and commercial law as discrete modules. Some students may study one rather than the other. However, this book treats them as complementary topics by examining areas common to both. Consumer and commercial law covers a wide range of subjects so module content will vary between institutions, but several topics will be common features, including sale of goods, agency law, credit, product liability, product safety and unfair trading practices. Because of the increasing influence of online contracts and distance selling, you are likely to be expected to appreciate the legal challenges presented by this mode of contracting. No doubt individual lecturers will emphasise particular topics in this diverse area. You should always refer to your lecturer or tutor and your course materials with any questions on what you will be expected to cover. Another factor to bear in mind in preparing for the exam is that, inevitably, several topics will overlap and cannot be revised as discrete units. It is important to appreciate that studying consumer and commercial law will require that you have a sound basis in contract law, especially misrepresentation, unfair contract terms and remedies for breach. The subject lends itself to problem questions which provide an opportunity for the examiner to assess your understanding of how different aspects of consumer and commercial law interlink. Don’t be surprised to find that a problem on a topic such as product liability may also encompass aspects of sale of goods, negligence and privity. Likewise, questions calling for an analysis of unfair contract terms will expect you to be able to demonstrate detailed knowledge of aspects of sale of goods, misrepresentation and the supply of services. You will be expected to show clear understanding of the degree of statutory protection offered to those dealing on a commercial as well as consumer basis. When dealing with such multi- faceted problem questions, it is easy to digress into areas that are not relevant; it is also difficult to gauge which areas require a greater level of detailed analysis. Some questions may help you in this respect by allocating marks to different sections. The most difficult problems are those that include a range of issues within one detailed scenario. Always devise an outline plan to ensure that you deal with all relevant issues in a systematic and structured manner. It is a good idea to identify an issue, explain it and then apply it to the facts given. With essay questions you should ensure that you understand what the question requires before outlining your plan. Essay questions tend to expose those who have a superficial viii A01_TILL6972_04_SE_FM.indd 8 2/22/16 3:46 PM INTRODUCTION understanding of a topic, as they call for detailed explanation of legal principles with application of case law and statute as well as critical comment. You will be expected to be able to highlight areas for criticism and potential reforms. You may be required to address a specific reform and carry out an evaluation, using recent authority, as to whether or not it is effective. A likely example would be the recent reform of the area of unfair trading practices. Keep to the issue by referring to the question and submitting suitable comment (based on your evaluation) where appropriate. Whether you are analysing a problem or writing an essay, make sure that you submit a conclusion. This book is designed as a revision guide, not as a substitute for a textbook or your course notes. In order to promote quick understanding and effective revision, it gives you a clear overview of key topics in consumer and commercial law. It also provides a guide to suitable resources to develop a critical approach to examinations and assignments. The book focuses on common areas of misunderstanding and confusion, such as concepts of consumer status, the different heads of liability in product liability and the difference between sale by description and misrepresentation. In order to help you develop a confident attitude towards examinations, guidance is given in each chapter with regard to revision and exam tips, pointing out difficult areas and suggesting good approaches to a range of sample questions. Finally, it is important that you are aware of progress on the implementation of the European Directive on Consumer Rights. The Directive merges four existing EU Consumer Directives, namely: Sale of Consumer Goods and Guarantees (99/44/EC), Unfair Contract Terms (93/13/ EEC), Distance Selling (97/7/EC) and Doorstep Selling (85/577/EEC). By means of a process of codification, the law in these areas will eventually be updated to reflect technological changes in commerce and to try to overcome common problems with distance selling. With these aims in mind the Consumer Rights Bill was introduced into Parliament in June 2013 and resulted in the introduction of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations, the Consumer Protection (Amendment) Regulations 2014 and the Consumer Rights Act 2015 which aim to clarify and consolidate legislation covering distance and doorstep selling, rights of redress for victims of unfair trading practices, the sale and supply of goods (including digital content), unfair contract terms and powers of enforcement. Naturally there will be some inevitable overlap between the new reforms and existing legislation. The table below is designed to clarify the effects the Consumer Rights Act 2015 will have on existing legislation. Effect of the CRA 2015 on existing legislation The provisions in the existing legislation listed in Table 0.1, which cover B2C (business- to-consumer) contracts only, will be repealed. The provisions that relate to other types of contract (for example, contracts between businesses) will remain in the existing legislation. ix A01_TILL6972_04_SE_FM.indd 9 2/22/16 3:46 PM