94 Chapter 3The terms of the contract
Additional rights of the buyer in consumer cases
The Sale and Supply of Goods to Consumers Regulations 2002 amended the SGA 1979 by
adding ss. 48A – 48F. These new sections confer significant new rights on buyers who deal
as consumers when the goods bought do not conform to the contract of sale. Before con-
sidering the new rights in detail, it is important to note that the new rights are additional to
any other rights which the consumer might have. They do not replace the statutory implied
terms or any other remedies which might exist.The circumstances in which the new rights apply
Two requirements must be satisfied before the new rights will apply:
(i) The buyer must have dealt as a consumer.
(ii) The goods bought must fail to conform to the contract of sale at the time of delivery.
For the purposes of ss. 48A – 48F, the definition of dealing as a consumer set out in the
Unfair Contract Terms Act 1977 (UCTA 1977) is applied. This definition, which is complex,
is considered later in this chapter in relation to the UCTA 1977. Figure 3.10 gives an
overview of how the definition should be approached.
Section 48F provides that the goods do not conform to the contract of sale if either an
express term of the contract is breached or if one of the statutory terms implied by ss. 13 –15
of the SGA 1979 is breached. Furthermore, s. 48A(3) provides that if the goods fail to con-
form to the contract within six months of the date of delivery, they are to be presumed not
to have conformed on the date of delivery. Section 48A(4) allows this presumption to be
overturned if:(a) it is established that the goods did conform to the contract at the date of delivery; or
(b) the presumption is incompatible with the nature of the goods or the nature of the lack
of conformity.The powers of directors
Once it has been established that the buyer dealt as a consumer, and that the goods did
not conform to the contract at the time of delivery, the buyer acquires a hierarchy of rights.
The two primary remedies of the buyer are to have the goods repaired or replaced. The two
secondary remedies are to gain a reduction of the price or to rescind the contract.
Section 48B allows the buyer to require the seller to either repair or replace the goods. It
also requires the seller to carry out the repair or replacement within a reasonable time and
without causing significant inconvenience to the buyer. The seller has to bear any costs in
doing this, including the costs of labour, materials and postage. However, a buyer cannot
insist on repair or replacement if the remedy requested would be disproportionate in rela-
tion to one of the other three remedies. A remedy is disproportionate if the costs which it
imposes on the seller are unreasonable, taking into account:(a) the value which the goods would have if they did conform to the contract of sale;
(b) the significance of the lack of conformity; and
(c) whether the other remedy could be effected without significant inconvenience to the
buyer.