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Oldies but goodies

Oldies but goodies

Marketing Brief

Well, summer is over. In the last column I wrote about the Consumer Law Reform Bill – an enormous document which mostly updates our consumer law. Submissions have now closed and I have had my say on the vexed issue of substantiation notices. It’s not all bad though. The rather useless Unsolicited Goods and Services Act is being updated so that all the responsibility is on the seller who dumped the goods onto the consumer. And the Door to Door Sales Act will be updated to take into account those smart traders who phone for an appointment (so under the existing Act the trader would be “invited” and the Act would not apply).

One of the delightful aspects has been the updating of some of the older aspects of the law to take into account new technology. The Auctioneers Act 1928 has been updated at last, to take into account internet bidding and telephone bidding. Some people might well mourn the loss of the reference to “sale by outcry” and “the fall of the hammer” but this has been one of our most archaic commercial statutes. In case you’re wondering, “outcry” has its own special definition: it includes “any request, inducement, puff, device, or incitement made or used by means of signs, speech, or otherwise in the presence of not less than six people by any person for the purpose of selling any property offered or available for sale…” We’d better watch out for those incitements now.

Mind you, age is not an indicator that a statute is past its use-by date. We still have the Sale of Goods Act 1908, an oldie but goodie, which works well fleshing out the terms of the contract of sale. That’s the one which inserts the warranty of merchantable quality into an unwritten business to business contract which contracts out of the Consumer Guarantees Act. Do remember that if you’re selling consumer type goods or services, you have to actually contract out of the CGA with your business customers or they will have rights under it. It’s still a common misconception that the CGA doesn’t apply if your customer is a business. Wrong. It will apply by default if you are not careful so make sure that a) you have terms of trade which contract out, or b) your customer gets the goods after the contract is formed.

In business to consumer sales, merchantable quality is replaced by the guarantee of acceptable quality – a more flexible guarantee which addresses consumers’ reasonable expectations. However the rest of the Sale of Goods Act still hangs in there for all sales, unless modified by the contract. When we’re in the supermarket, it tells us that once the contract is made we have to pay the money, and once we’ve paid the money the supermarket must let us take the goods away. It contains all sorts of rules about what to do when things go wrong.

Occasionally I have the pleasure of delving into these when a client has a problem arising out of the sale or purchase of goods. The Act reminds me of taking my husband to see King Lear. As we walked out, he asked if Shakespeare’s language had been updated. No, it was written just like that 400 years ago, so well that it has survived the journey.

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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