Regulations Affecting the Sale of Goods and Services Act 1980 in Ireland, Lecture notes of Law

Download Regulations Affecting the Sale of Goods and Services Act 1980 in Ireland and more Lecture notes Law in PDF only on Docsity! Number 16 of 1980 SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980 REVISED Updated to 4 June 2014 This Revised Act is an administrative consolidation of the Sale of Goods and Supply of Services Act 1980. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law. All Acts up to and including Central Bank Act 2014 (9/2014), enacted 4 June 2014, and all statutory instruments up to and including Road Traffic (Lighting of Vehicles) (Amendment) Regulations 2014 (S.I. No. 249 of 2014), made 4 June 2014, were considered in the preparation of this Revised Act. Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to revisedacts@lawreform.ie. Number 16 of 1980 SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980 REVISED Updated to 4 June 2014 ARRANGEMENT OF SECTIONS PART I Section Short title.1. Interpretation generally.2. Dealing as consumer.3. Saving.4. Orders.5. Penalties.6. Prosecution of offences.7. Expenses.8. PART II SALE OF GOODS Citation and construction of Part II.9. Conditions and Warranties Sale of Goods Act, 1893, sections 11, 12, 13, 14 and 15.10. Statements purporting to restrict rights of buyer.11. Implied warranty for spare parts and servicing.12. Implied condition on sale of motor vehicles.13. Liability of finance houses.14. Guarantees Definition of guarantee.15. Terms of guarantee.16. 1 Liability of seller under guarantee.17. Exclusion of buyer’s rights under guarantee.18. Right of action under guarantee.19. Performance of Contract Sale of Goods Act, 1893, sections 34 and 35.20. Remedies for Breach of Contract Sale of Goods Act, 1893, section 53.21. Supplementary Sale of Goods Act, 1893, section 55.22. Sale of Goods Act, 1893, section 55A.23. International sales.24. PART III HIRE-PURCHASE AGREEMENTS Citation and construction of Part III.25. Implied terms as to title.26. Letting by description.27. Implied undertakings as to quality or fitness.28. Samples.29. Statements purporting to restrict rights of hirer.30. Exclusion of implied terms and conditions.31. Liability of persons conducting negotiations antecedent to hire- purchase agreements. 32. Application of sections 12, 15 to 19 to hire-purchase agreements.33. Application of section 13 to hire-purchase of motor vehicles.34. Antecedent negotiations and representations.35. Conflict of laws.36. International hire-purchase agreements.37. Goods let otherwise than under hire-purchase agreement.38. PART IV SUPPLY OF SERVICES Implied undertakings as to quality of service.39. Exclusion of implied terms.40. Statements purporting to restrict rights of recipient of service.41. Conflict of laws.42. PART V [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.] 2 MISREPRESENTATION “Contract”.43. Removal of certain bars to rescission for innocent misrepresenta- tion. 44. Damages for misrepresentation.45. Avoidance of certain provisions excluding liability for misrepresen- tation. 46. PART VI MISCELLANEOUS Unsolicited goods.47. Directory entries.48. Invoices.49. Power to withdraw acceptance of contract.50. Required particulars in contracts, guarantees and related writings.51. Notice as to use of standard form of contract.52. Size of type in printed contracts and other documents.53. Contracts required to be in writing.54. Functions of Director of Consumer Affairs.55. Consultation with Minister for Finance.56. Construction of sections 9 and 18 of the Consumer Information Act, 1978. 57. SCHEDULE FAIR AND REASONABLE TERMS [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.] 3 ... C6 Application of Act restricted (1.05.1991) by International Carriage of Goods by Road Act 1990 (13/1990), s. 3(3), S.I. No. 22 of 1991 (commenced in relation to carriage other than carriage between the State and the United Kingdom of Great Britain and Northern Ireland). Application of certain enactments in relation to CMR. 3. —... (3) The Carriers Act, 1830, section 7 of the Railway and Canal Traffic Act, 1854, the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, shall not apply in relation to contracts for the carriage of goods if the carriage is carriage in relation to which CMR applies. ... C7 Application of Act affected (9.07.1980) by Trading Stamps Act 1980 (23/1980), s. 8, commenced on enactment. Application of Sale of Goods Act, 1893, and Sale of Goods and Supply of Services Act, 1980. 8.— (1) For the purposes of the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, the publication by a company which is the promoter of a trading stamp scheme of a catalogue shall be regarded as an offer, and the tender within the prescribed period of valid- ity of the appropriate number of stamps shall be regarded as an acceptance, in the same way as if the offer and the acceptance were for a monetary consideration. (2) The provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in every case where the promoter of a trading stamp scheme offers goods or services in exchange for trading stamps. (3) Where a person other than a promoter of a trading stamp scheme offers goods or services in exchange for trading stamps, the provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in the same way as if that exchange were for a monetary consideration. Editorial Notes: E1 Power granted to Minister, in determining whether a road transport operator has satisfied or continues to satisfy the requirement of good repute, to consider whether the operator or a person holding a specified position with the operator has, within the previous 10 years, been convicted of an offence under Act (4.12.2011) by European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011), reg. 6 and sch. E2 Obligation imposed on persons who hold a specified position with a road transport operator and who is or has been convicted of an offence under Act to inform the operator in writing of the fact of the conviction (4.12.2011) by European Union (Occupation of Road Transport Operator) Regula- tions 2011 (S.I. No. 697 of 2011), reg. 8. E3 Enforcement of Act provided for (1.05.2007) by Consumer Protection Act 2007 (19/2007), s. 73(8) and sch. 4 (written undertaking to comply or to refrain from act or practice, compensate, reimburse or return item, or publish advertisement containing a corrective statement) and s. 75(2) and sch. 5 (service of compliance notice by authorised officer), S.I. No. 178 of 2007. Note that the Consumer Protection Act 2007, s. 86 (publication of traders’ names, consumer protection list) also applies to these forms of enforcement, and s. 94 gives the Central Bank and Financial Services Authority functions in respect of, among other provisions, ss. 73, 75 and 86 of the 2007 Act. E4 Obligation imposed on applicant of a tour operator licence to disclose any prosecutions against the applicant or any director, shadow director, shareholder or partner under Act and the outcome of any such prosecutions (1.07.1993) by Tour Operators (Licensing) Regulations 1993 (S.I. No. 182 of 1993), reg. 6(a) and sch. 1, in effect as per reg. 2. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.] 6 E5 Obligation imposed on applicant of a travel agent’s licence to disclose any prosecutions against the applicant or any director, shadow director, shareholder or partner under Act and the outcome of any such prosecutions (1.07.1993) by Travel Agents (Licensing) Regulations 1993 (S.I. No. 183 of 1993), reg. 6(a) and sch. 1, in effect as per reg. 2. E6 Previous affecting provision: obligation imposed on applicant of a tour operator licence to disclose any prosecutions against the applicant or any director, shadow director, shareholder or partner under Act and the outcome of any such prosecutions (13.04.1983) by Tour Operators (Licensing) Regulations 1983 (S.I. No. 100 of 1983), reg. 6(a) and sch. 1, in effect as per reg. 2; as amended (2.07.1987) by Tour Operators (Licensing) (Amendment) Regulations 1987 (S.I. No. 175 of 1987), in effect as per reg. 2, and (1.07.1992) by Tour Operators (Licensing) (Amendment) Regulations 1992 (S.I. No. 176 of 1992), in effect as per reg. 2; subsequently revoked (1.07.1993) by Tour Operators (Licensing) Regulations 1993 (S.I. No. 182 of 1993), reg. 17, in effect as per reg. 2. E7 Previous affecting provision: obligation imposed on applicant of a travel agent’s licence to disclose any prosecutions against the applicant or any director, shadow director, shareholder or partner under Act and the outcome of any such prosecutions (13.04.1983) by Travel Agents (Licensing) Regulations 1983 (S.I. No. 101 of 1983), reg. 6(a) and sch. 1, in effect as per reg. 2; as amended (2.07.1987) by Travel Agents (Licensing) (Amendment) Regulations 1987 (S.I. No. 176 of 1987), in effect as per reg. 2, and (1.07.1992) by Travel Agents (Licensing) (Amendment) Regulations 1992 (S.I. No. 175 of 1992), in effect as per reg. 2; subsequently revoked (1.07.1993) by Travel Agents (Licensing) Regulations 1993 (S.I. No. 183 of 1993), reg. 17, in effect as per reg. 2. PART I PRELIMINARY AND GENERAL Short title. 1.—(1) This Act may be cited as the Sale of Goods and Supply of Services Act, 1980. (2) This Act shall come into operation six months after the date of its passing. Interpretation generally. 2.—(1) In this Act— “Act of 1893” means the Sale of Goods Act, 1893; “business” includes profession and the activities of any State authority or local authority; F1[‘consumer-hire agreement’ has the meaning assigned to it by section 2 (1) of the Consumer Credit Act, 1995;] “deals as consumer” shall be construed in accordance with section 3; “fair and reasonable” shall be construed in accordance with subsection (3); F2[‘hire-purchase agreement’ has the meaning assigned to it by section 2 (1) of the Consumer Credit Act, 1995;] “the Minister” means the Minister for Industry, Commerce and Tourism; “service” does not include meteorological or aviation services provided by the Minister for Transport or anything done under a contract of service; “State authority” means a Minister of the Government, the Commissioners of Public Works in Ireland and the Irish Land Commission. (2) A reference in this Act to the supply of a service includes reference to the rendering or provision of a service or facility and to an offer to supply. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. I S. 1 7 (3) Where, under section 13, 31, 40 or 46 of this Act or under section 55 of the Act of 1893 (inserted by section 22 of this Act), a question arises as to whether a term, agreement or provision is fair and reasonable regard shall be had to the criteria set out in the Schedule in deciding it. Annotations Amendments: F1 Inserted (13.05.1996) by Consumer Credit Act 1995 (24/1995), ss. 1 (2), 152 (a), S.I. No. 121 of 1996. F2 Substituted (13.05.1996) by Consumer Credit Act 1995 (24/1995), ss. 1 (2), 152 (b), S.I. No. 121 of 1996. Dealing as consumer. 3.—(1) In the Act of 1893 and this Act, 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. (2) On— (a) a sale by competitive tender, or (b) a sale by auction— (i) of goods of a type, or (ii) by or on behalf of a person of a class defined by the Minister by order, the buyer is not in any circumstances to be regarded as dealing as consumer. (3) Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not. Saving. 4.—(1) Subject to section 46 (which provides for certain agreements whether made before or after the commencement of this Act) this Act does not apply to contracts made before such commencement. (2) This Act does not affect any exemption from liability conferred by or under statute. Orders. 5.—(1) The Minister may by order amend or revoke an order under this Act including an order made by virtue of this subsection. F3[(2) Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.] [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. I S. 2 8 (a) an implied warranty that all charges or encumbrances known to the seller have been disclosed to the buyer before the contract is made, and (b) an implied warranty that neither— (i) the seller, nor (ii) in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person, nor (iii) anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed to the buyer before the contract is made, will disturb the buyer's quiet possession of the goods. Sale by descrip- tion. 13.—(1) Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. (2) A sale of goods shall not be prevented from being a sale by description by reason only that, being exposed for sale, they are selected by the buyer. (3) A reference to goods on a label or other descriptive matter accompany- ing goods exposed for sale may constitute or form part of a description. Implied under- takings as to quality or fitness. 14.—(1) Subject to the provisions of this Act and of any statute in that behalf, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a contract of sale. (2) Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition— (a) as regards defects specifically drawn to the buyer's attention before the contract is made, or (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed. (3) Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly. (4) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgement. (5) An implied condition or warranty as to quality or fitness for a particular purpose may be annexed to a contract of sale by usage. (6) The foregoing provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 10 11 reasonable steps are taken to bring it to the notice of the buyer before the contract is made. Sale by Sample Sale by sample. 15.—(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample— (a) There is an implied condition that the bulk shall correspond with the sample in quality: (b) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample: (c) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. Statements purporting to restrict rights of buyer. 11.—(1) Subsections (2) and (3) apply to any statement likely to be taken as indicat- ing that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act. (2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers: (a) to display on any part of any premises a notice that includes any such state- ment, or (b) to publish or cause to be published an advertisement which contains any such statement, or (c) to supply goods bearing, or goods in a container bearing, any such statement, or (d) otherwise to furnish or to cause to be furnished a document including any such statement. (3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circum- stances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1). (4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement. Implied warranty for spare parts and servicing. 12.—(1) In a contract for the sale of goods there is an implied warranty that spare parts and an adequate aftersale service will be made available by the seller 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 and for such period as is so stated or, if no period is so stated, for a reasonable period. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 10 12 (2) The Minister may, after such consultation with such interested parties as he thinks proper, by order define, in relation to any class of goods described in the order, what shall be a reasonable period for the purpose of subsection (1). (3) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void. Annotations Modifications (not altering text): C8 Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996. Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements. 81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller. Implied condition on sale of motor vehicles. 13.—(1) In this section “motor vehicle” means a vehicle intended or adapted for propulsion by mechanical means, including— (a) a bicycle or tricycle with an attachment for propelling it by mechanical power, and (b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical. (2) Without prejudice to any other condition or warranty, in every contract for the sale of a motor vehicle (except a contract in which the buyer is a person whose busi- ness it is to deal in motor vehicles) there is an implied condition that at the time of delivery of the vehicle under the contract it is free from any defect which would render it a danger to the public, including persons travelling in the vehicle. (3) Subsection (2) of this section shall not apply where— (a) it is agreed between the seller and the buyer that the vehicle is not intended for use in the condition in which it is to be delivered to the buyer under the contract, and (b) a document consisting of a statement to that effect is signed by or on behalf of the seller and the buyer and given to the buyer prior to or at the time of such delivery, and (c) it is shown that the agreement referred to in paragraph (a) is fair and reasonable. (4) Save in a case in which the implied condition as to freedom from defects referred to in subsection (2) is either not incorporated in the contract or has been effectively excluded from the contract pursuant to that subsection, in the case of every sale of a motor vehicle by a person whose business it is to deal in motor vehicles a certificate in writing in such form as the Minister may by regulations prescribe shall be given to the buyer by or on behalf of the seller to the effect that the vehicle is, at the time of delivery, free from any defect which would render it a danger to the public, including persons travelling in the vehicle. (5) Where an action is brought for breach of the implied condition referred to in subsection (2) by reason of a specific defect in a motor vehicle and a certificate complying with the requirements of this section is not proved to have been given, it [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 12 13 Annotations Modifications (not altering text): C13 Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996. Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements. 81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller. Liability of seller under guarantee. 17.—(1) Where the seller of goods delivers a guarantee to the buyer, irrespective of when or how it is delivered, the seller shall be liable to the buyer for the observance of the terms of the guarantee as if he were the guarantor, unless he expressly indicates the contrary to the buyer at the time of delivery. (2) Where, however, the seller, being a retailer, gives the buyer his own written undertaking that he will service, repair or otherwise deal with the goods following purchase, it shall be presumed, unless the contrary is proved, that he has not made himself liable to the buyer under the guarantee so delivered. (3) Sections 16, 18 and 19 shall apply to any such undertaking as they apply to a guarantee. (4) The liability of a seller to a buyer under this section is without prejudice to the rights conferred on the buyer under section 19. Annotations Modifications (not altering text): C14 Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996. Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements. 81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller. Exclusion of buyer's rights under guarantee. 18.—(1) Rights under a guarantee shall not in any way exclude or limit the rights of the buyer at common law or pursuant to statute and every provision in a guarantee which imposes obligations on the buyer which are additional to his obligations under the contract shall be void. (2) A provision in a guarantee which purports to make the guarantor or any person acting on his behalf the sole authority to decide whether goods are defective or whether the buyer is otherwise entitled to present a claim shall be void. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 16 16 Annotations Modifications (not altering text): C15 Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996. Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements. 81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller. Right of action under guarantee. 19.—(1) The buyer of goods may maintain an action against a manufacturer or other supplier who fails to observe any of the terms of the guarantee as if that manufacturer or supplier had sold the goods to the buyer and had committed a breach of warranty, and the court may order the manufacturer or supplier to take such action as may be necessary to observe the terms of the guarantee, or to pay damages to the buyer. In this subsection, “buyer” includes all persons who acquire title to the goods within the duration of the guarantee and, where goods are imported, “manufacturer” includes the importer. (2) In any case in which a guarantor is liable to an owner in damages, the court may at its discretion and on such terms as the court may deem just afford the guarantor the opportunity of performing these obligations under the guarantee to the satisfaction of the court within a time to be limited by the court. Annotations Modifications (not altering text): C16 Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996. Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements. 81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller. Performance of the Contract Sale of Goods Act, 1893, section 34 and 35. 20.—For sections 34 and 35 of the Act of 1893 there shall be substituted the sections set out in the following Table: TABLE Buyer's right of examining the goods. 34.—(1) Where goods are delivered to the buyer, which he has not previ- ously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable oppor- [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 18 17 tunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. Acceptance. 35.—The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or, subject to section 34 of this Act, when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when, without good and sufficient reason, he retains the goods without intimitating to the seller that he has rejected them. Remedies for Breach of Contract Sale of Goods Act, 1893, section 53. 21.—For section 53 of the Act of 1893 there shall be substituted the section set out in the following Table: TABLE Remedy for breach of warran- ty. 53.—(1) Subject to subsection (2), where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may— (a) set up against the seller the breach of warranty in diminution or extinction of the price, or (b) maintain an action against the seller for damages for the breach of warranty. (2) Where— (a) the buyer deals as consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty, and (b) the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition, then, if the seller refuses to comply with the request or fails to do so within a reasonable time, the buyer is entitled: (i) to reject the goods and repudiate the contract, or (ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him. (3) The onus of proving that the buyer acted with promptness under subsection (2) shall lie on him. (4) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. (5) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (6) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. II S. 20 18 Annotations Amendments: F8 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Implied undertak- ings as to quality or fitness. 28.—F9[...] Annotations Amendments: F9 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Samples. 29.—F10[...] Annotations Amendments: F10 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Statements purporting to restrict rights of hirer. 30.—F11[...] Annotations Amendments: F11 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Exclusion of implied terms and conditions. 31.—F12[...] Annotations Amendments: F12 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. III S. 27 21 Liability of persons conduct- ing negotiations antecedent to hire-purchase agreements. 32.—F13[...] Annotations Amendments: F13 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Application of section 12, 15 to 19 to hire- purchase agree- ments. 33.—F14[...] Annotations Amendments: F14 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Application of section 13 to hire-purchase of motor vehicles. 34.—F15[...] Annotations Amendments: F15 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Antecedent nego- tiations and representations. 35.—F16[...] Annotations Amendments: F16 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Conflict of laws. 36.—F17[...] [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. III S. 32 22 Annotations Amendments: F17 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. International hire-purchase agreements. 37.—F18[...] Annotations Amendments: F18 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. Goods let other- wise than under hire-purchase agreement. 38.—F19[...] Annotations Amendments: F19 Part III (ss. 25-38) repealed (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 19 and sch. 2, S.I. No. 121 of 1996. PART IV SUPPLY OF SERVICES Implied undertak- ings as to quality of service. 39.—Subject to section 40, in every contract for the supply of a service where the supplier is acting in the course of a business, the following terms are implied— (a) that the supplier has the necessary skill to render the service, (b) that he will supply the service with due skill, care and diligence, (c) that, where materials are used, they will be sound and reasonably fit for the purpose for which they are required, and (d) that, where goods are supplied under the contract, they will be of merchantable quality within the meaning of section 14 (3) of the Act of 1893 (inserted by section 10 of this Act). Annotations Modifications (not altering text): C17 Application of section restricted (2.08.2011) by Communications Regulation (Postal Services) Act 2011 (21/2011), s. 26(3), commenced on enactment. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. III S. 36 23 Removal of certain bars to rescission for innocent misrep- resentation. 44.—Where a person has entered into a contract after a misrepresentation has been made to him, and (a) the misrepresentation has become a term of the contract, or (b) the contract has been performed, or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Part notwith- standing the matters mentioned in paragraphs (a) and (b). Damages for misrepresenta- tion. 45.—(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true. (2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party. (3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (1), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (1). Avoidance of certain provisions excluding liability for misrepresenta- tion. 46.—(1) If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict— (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or (b) any remedy available to another party to the contract by reason of such a misrepresentation, that provision shall not be enforceable unless it is shown that it is fair and reasonable. (2) Subsection (1) shall not affect any right to refer a difference to arbitration. PART VI MISCELLANEOUS Unsolicited goods. 47.—(1) Where— (a) unsolicited goods are sent to a person with a view to his acquiring them and are received by him, and (b) the recipient has neither agreed to acquire nor agreed to return them, and either— [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. V S. 44 26 (i) during the period of six months following the date of receipt of the goods the sender did not take possession of them and the recipient did not unreasonably refuse to permit the sender to do so, or (ii) not less than 30 days before the expiration of that period the recipient gave notice to the sender and during the following 30 days the sender did not take possession of the goods and the recipient did not unreasonably refuse to permit the sender to do so, then the recipient may treat the goods as if they were an unconditional gift to him and any right of the sender to the goods shall be extinguished. (2) The notice referred to in subsection (1) shall be in writing and shall state— (a) the recipient's name and address and the address at which the sender may take possession of the goods (if not the same) and (b) that the goods are unsolicited. (3) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business, makes a demand for payment, or asserts a present or prospective right to payment for what he knows are unsolicited goods sent to another person with a view to his acquiring them, shall be guilty of an offence. (4) A person who, not having reasonable cause to believe there is a right to payment in the course of any business and with a view to obtaining any payment for what he knows or ought to know are unsolicited goods— (a) threatens to bring any legal proceedings, (b) places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so, or (c) invokes or causes to be invoked any other collection procedure or threatens to do so, shall be guilty of an offence. (5) In this section— “acquire” includes hire, “send” includes deliver, “sender” includes any person on whose behalf or with whose consent the goods are sent and any other person claiming through or under the sender or any such person, “unsolicited” means, in relation to goods sent to any person, that they are sent without any prior request by him or on his behalf. F21[(6) Where unsolicited goods are supplied, or unsolicited services are provided, by a trader to a consumer— (a) subsections (1) to (5) do not apply, and (b) subsections (7) to (10) apply. (7) The consumer is exempted from any requirement to provide consideration for unsolicited goods or services supplied by the trader. (8) The absence of a response from the consumer following the supply of unsolicited goods or the provision of unsolicited services does not constitute consent to— (a) the provision of consideration for the goods or services, or (b) the return or safekeeping of the goods. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. VI S. 47 27 (9) In the case of an unsolicited supply of goods, the consumer may treat the goods as if they were an unconditional gift. (10) The following definitions apply for the purposes of subsections (6) to (9): consumer means a natural person who is acting for purposes which are outside the person’s trade, business, craft or profession; services includes, without limitation— (a) digital content not supplied on a tangible medium, (b) water, gas, and electricity not put up for sale in a fixed volume or set quantity, and (c) district heating; trader means— (a) a natural person, or (b) a legal person, whether— (i) privately owned, (ii) publicly owned, or (iii) partly privately owned and partly publicly owned, who is acting for purposes related to the person’s trade, business, craft or profession, and includes any person acting in the name, or on behalf, of the trader; unsolicited, in relation to goods supplied or services provided to a consumer, means that they are supplied or provided without any request by or on behalf of the consumer.] Annotations Amendments: F21 Inserted (13.06.2014) by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 32. Editorial Notes: E10 The European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communications) Regulations 2001 (S.I. No. 207 of 2001), reg. 11 (as qualified by reg. 9(5)), contains provisions based on subss. (3) and (4) and uses the same definitions of “service” and “unsolicited”. Directory entries. 48.—(1) A person shall not be liable for any payment and shall be entitled to recover any payment made by him by way of charge for including or arranging for the inclusion in a directory of an entry relating to that person or his trade or business, unless an order or note complying with this section has been signed by him or on his behalf and, in the case of a note of agreement to the charge, a copy was supplied to him for retention before the note was signed. (2) An order for an entry in a directory must be made by means of an order form or other stationery belonging to the person to whom, or to whose trade or business, the entry is to relate and bearing in print the name and address (or one or more of the addresses) of that person, and the note of a person's agreement to a charge must state the amount of the charge immediately above the place for signature, and [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. VI S. 47 28 provision of this Act or the Act of 1893 to discontinue or refrain from such practices, (d) to institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in any practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893, to discontinue or refrain from such practices. (2) The Minister may by order confer on the Director of Consumer Affairs and Fair Trade such further functions as he considers appropriate for the purposes of this Act.] Annotations Amendments: F25 Substituted (25.01.1988) by Restrictive Practices (Amendment) Act 1987 (31/1987), s. 32, S.I. No. 2 of 1988. Editorial Notes: E11 The Consumer Protection Act 2007 (19/2007), s. 37(3), establishing the National Consumer Agency on 1.05.2007 by S.I. No. 179 of 2007, provides that references to the Director and the office of the Director contained in any Act or instrument relating to any functions transferred by subsection (2) of the same section shall, on and after the establishment day, be read as references to the National Consumer Agency. Note also the statement of the functions of the Agency in s. 8 of the 2007 Act. Consultation with Minister for Finance. 56.—The Minister shall not make an order under section 51, 52, 53, 54 or 55, except after consultation with the Minister for Finance, where the order would affect the business authorised by a licence to carry on banking business for the time being in force under section 9 of the Central Bank Act, 1971, or any business exempted by section 7 (4) of that Act. Annotations Modifications (not altering text): C18 References to the holder of a licence under section 9 of the Central Bank Act 1971 (24/1971) construed (31.03.2014) by European Union (Capital Requirements) Regulations 2014 (S.I. No. 158 of 2014), reg. 152. 152. Notwithstanding Regulation 7(1), the references, however expressed, to the holder of a licence under section 9 of the Act of 1971, in— Construction of licence holder in enactments (a) sections 19 to 26, section 28, sections 31 to 42 or section 58 of the Act of 1971, (b) section 27, sections 49 to 51, sections 90, 108, 117, 134 or 140 of the Central Bank Act 1989 (No. 16 of 1989), or (c) any other enactment which was in force on 1 January 1993, shall be construed so as to include any person who, but for the application of Regulation 7(1), was or would have been required to hold a licence under section 9 of the Act of 1971. Construction of sections 9 and 18 of the Consumer Information Act, 1978. 57.—Sections 9 (6) (h) and 18 of the Consumer Information Act, 1978 (which relate to the prosecution of offences by the Minister, a local authority or the Director of Consumer Affairs) shall be construed as referring to summary proceedings only. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. VI S. 55 31 Annotations Editorial Notes: E12 Consumer Information Act 1978 (1/1978) was repealed (1.05.2007) by Consumer Protection Act 2007 (19/2007), s. 4 and sch. 2, S.I. No. 178 of 2007. This provision would appear to be spent. [1980.]Sale of Goods and Supply of Services Act 1980 [No. 16.]PT. VI S. 57 32 Section 2 (3). SCHEDULE FAIR AND REASONABLE TERMS 1. In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made. 2. Regard is to be had in particular to any of the following which appear to be relevant: (a) The strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met; (b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term; (c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); (d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable; (e) whether any goods involved were manufactured, processed or adapted to the special order of the customer. 3. In this Schedule— “contract” includes “agreement”, “term” includes “agreement” and “provision”. ACTS REFERRED TO 1851, c. 93Petty Sessions (Ireland) Act, 1851 1893, c. 71Sale of Goods Act, 1893 1946, No. 16Hire-Purchase Act, 1946 1957, No. 6Statute of Limitations, 1957 1971, No. 24Central Bank Act, 1971 1978, No. 1Consumer Information Act, 1978 [No. 16.]Sale of Goods and Supply of Services Act 1980 [1980.]SCH. 1 33