Lloyd's Maritime and Commercial Law Quarterly
QUALITY CONTROL, PUBLIC LAW REGULATIONS AND THE IMPLIED TERMS OF QUALITY
Djakhongir Saidov*
This article contends that the implied terms of quality in sales laws inevitably perform the function of maintaining and promoting quality standards in a society. This function is evident in cases where goods pose a danger to human or animal health and safety and where the quality standards are imposed by the public law requirements. In these cases, courts seem to be driven by an impulse to hold sellers liable. The article discusses whether this apparently strict treatment of sellers is justifiable as a matter of legal analysis. This article also addresses the question whether the existing rationale of the implied terms of quality is capable of fully accommodating their function of promoting quality standards. The issues are discussed in the context of English law and the UN Sales Convention (“CISG”).
1. Introduction
Almost every sales law today will have some rules relating to the quality of the goods.1 For instance, English law’s general test of “satisfactory quality” defines goods which meet this test as those which “a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances”.2 If the buyer makes known to the seller any “particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose …, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller …”.3 The UN Convention on Contracts for the International Sale of Goods 1980
* Professor of Commercial Law, Dickson Poon School of Law, King’s College London. The author is very grateful to Professor Michael Bridge, Professor Nelson Enonchong, Dr Steven Hazelwood and Mr Keith Uff for their comments on an earlier draft. Any errors are the author’s own.
The following abbreviations are used:
Benjamin: M Bridge (ed), Benjamin’s Sale of Goods, 9th edn (Sweet & Maxwell, London, 2014).
Bridge: M Bridge, The Sale of Goods, 3rd edn (OUP, Oxford, 2014);
CISG: UN Convention on Contracts for the International Sale of Goods 1980;
SGA: Sale of Goods Act 1979;
SGSA: Supply of Goods and Services Act 1982.
1. See, e.g., I Schwenzer, P Hachem and C Kee, Global Sales and Contract Law (Oxford, OUP 2012), 361–400.
2. Sale of Goods Act 1979 (“SGA”), s.14(2A).
3. SGA, s.14(3). In the original Sale of Goods Act of 1893, the quality and fitness for purpose tests were set out in the reverse order. The fitness for purpose test was provided for in s.14(1), whereas the test as to quality (“merchantable quality”) was set out, although not defined, in s.14(2). The Act was amended by the Supply of Goods (Implied Terms) Act 1973. Subs.(1) became subs.(3) while the merchantable quality test, now fully defined, remained in subs.(2). The Sale and Supply of Goods Act 1994 replaced the merchantable quality test with that of “satisfactory quality”.
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