Sale of Goods and Supply of Services Bill, 1978: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 4, subsection (1), between lines 21 and 22, to insert the following new definition:
" `hire-purchase agreement' has the meaning assigned to it by section 1 of the Hire-Purchase Act, 1946;".
This is a drafting amendment to make it clear that the term "hire-purchase agreement" has throughout the Bill the same meaning as it is given by section 1 of the Hire-Purchase Act, 1946. The term appears not only in Part III, which is construed as one with the Act of 1946, but also in sections 40 and 47. Section 1 of the 1946 Act provides:
...the expression "hire-purchase agreement" means an agreement for the bailment of goods under which the bailee may buy the goods or under which the property in the goods will or may pass to the bailee, and where by virtue of two or more agreements, none of which by itself constitutes a hire-purchase agreement, there is a bailment of goods and either the bailee may buy the goods, or the property therein will or may pass to the bailee, the agreements shall be treated for the purpose of this Act as a single agreement made at the time when the last of the agreements was made.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Perhaps the Minister would explain what she is getting at in regard to dealing as a consumer in relation to another party.
The expression "deal as consumer" replaces the terms "consumer sale", "consumer agreement" and "consumer transaction" which were in the original Consumer Protection Bill. All three were primarily concerned with ensuring that certain implied rights could not be excluded by a seller where goods or services were supplied or provided to a consumer. The reason for the change in terminology in this Bill is that the expression "deal as consumer" lends itself more suitably to general use, even as in Part IV, when we are dealing with contracts for the supply of services. A person would be dealing as a consumer when he is not dealing in the course of a business.
A person who is an ordinary consumer and not involved in business is covered by the Bill. A person who buys at an auction in the course of business is not covered by the Bill.
Is a sale by auction to a person who is not an ordinary dealer covered by the Bill?
Yes, they are covered by the definition.
Section 3 (2) reads:
On a sale by competitive tender the buyer is not in any circumstance to be regarded as dealing as consumer.
If an offer is made at a public auction, is it regarded as a tender within that definition?
If I go to a public auction and buy goods, who actually decides whether or not I am dealing? There are a lot of people throughout the country who consider themselves experts in, for instance, antique furniture. But that is only their own exaggerated opinion of themselves. An antique furniture sale may be held and ordinary people would go along and buy some items for their own use. There may be substandard items in the sale which are very well set out and glossed up for the day and people who are not in fact experts and not dealers may buy these items and at a later stage may wish to sell them in order to get some other item. How are these people affected under this section?
If a private person, who might or might not consider himself an expert in the field, is not an antique dealer then he is dealing when he buys and if he buys something which is not of good quality because he was conned into buying it or felt it was good, then he has redress under the Bill because he is dealing as a consumer in that instance. On the other hand, a person who buys to restock his shop and with the intention of reselling almost immediately is dealing in the course of a business. A person who buys for his or her own house for their own private use and sells the item again when they buy something else new or another antique to take its place is still dealing as a consumer.
I am only taking furniture as an example.
I will try to make it a little clearer. A person who is buying an item at an antique auction has the same rights he would have if he bought the same item across the counter. He is still dealing as a consumer once he is not in the business of antiques.
Would a court have to decide whether or not he is dealing as a consumer?
The onus of proof in a court of law would be on the seller to show that the buyer was not dealing as a consumer but that he was dealing in the course of business.
Whoever claims that a person is not dealing as a consumer has to prove that he is not.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
I presume that this section also excludes contracts of a service nature which are ongoing. Quite a number of contracts now have provisions for reviews after three, four or seven year periods, particularly contracts of a service nature, and they are growing in number and relate to commodities purchased. I presume that such contracts are excluded from the Act as it now stands.
If it is a continuing contract—in other words, subject to reviews?
Yes, with the right on the part of the consumer to review. Some companies might argue that, if a person has bought an item, he knows he has the right to re-enter into continuing arrangements subsequently. Therefore I would imagine these are excluded from the Act.
Except in the case of the continuing contract which would be reviewed and in this case the review of the continuing contract would be regarded as a separate contract.
I am satisfied with that.
Does this apply only from the date of the signing of the Bill?
It applies from the date of the passing of the Bill.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Will these cases be processed through the Director of Public Prosecutions?
Yes, but the Minister may prosecute summarily. It is down in section 7 when we come to it.
If a person suffers injury how does he go about bringing his remedy? Does he report it to the Department?
He should report it to the Minister first and then go to a solicitor.
Do I take it that there are two separate procedures here? In the first instance the Director of Public Prosecutions proceeds against the person for some offence and then he goes to the Department.
Or to the Director of Consumer Affairs.
The Director of Consumer Affairs then lays the charges before the Director of Public Prosecutions. That is one separate procedure, but does the person go to his solicitor to obtain redress for damages?
This section only deals with penalties.
That would be a matter for himself. That would be the civil law.
Under section 6 (2). There is a need—and perhaps the Minister would provide a future explanatory memorandum on the Bill—to stress subsection (2).
One frequently meets officers of organisations, incorporated and otherwise, who claim they have no knowledge whatsoever of a particular contract and this is often advanced very strongly as a defence in litigation. Frequently bodies facing grave prospects of litigation enter into voluntary liquidation and endeavour to evade prosecution or have it mitigated on that basis. We know this situation is competently covered under section 6 but the Director of Consumer Affairs in the memorandum which will emanate from the Department should strongly stress the collective liability of a large number of persons who may face prosecution. In many cases a number of innocent parties on the contract side are caught. It is a sweeping provision, the implications of which may not yet have dawned on the public.
I agree with Deputy Desmond. The whole Bill certainly deserves a very constructive explanatory memorandum. It is a long legal document and it would be unfair to expect the public to be aware of all the provisions. The director is aware that the explanatory memorandum must be detailed in order to ensure that the public fully realise their rights.
These prosecutions will be of a criminal nature.
Prosecutions are dealt with in the next section.
I am dealing with penalties and they are interwoven to some extent. We are dealing here with a double-edged sword. What protection will be provided for business people who may face charges? It is my function and that of the Minister to protect the consumer but we must also ensure safeguards to protect the goodwill of reputable companies who may face charges brought by people who have a personal gripe or wish to "get at" them. I would ask the Minister to give some assurance that cases will be processed only after great consideration. Until now such cases have been basically of a civil nature, except in certain circumstances, but now criminal charges are involved and people should not be charged unnecessarily.
It would be up to the Director of Consumer Affairs initially and then the Director of Public Prosecutions to ensure that charges are not brought simply because a person has a gripe or wants to "get at" somebody. If a case were to go to court this would be a matter for the court to decide. It would not be my intention or that of the Deputy, unless he were the defending lawyer, to interfere with the courts of the land. A person would not be prosecuted unless there were reasonable grounds for complaint.
I have received representations from different sections of the community in regard to this legislation. I would not expect that all cases would reach the Director of Public Prosecutions. This is very wide-ranging legislation with tentacles reaching in many directions and he would be very busy if he had to investigate all cases. I assume that the Minister's Department will be the initial investigatory body.
That is the procedure we have in mind.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
I take it summary proceedings will be brought by the Minister.
Has the Minister given any consideration to the fact that it might be desirable to provide for a period longer than 12 months? In some circumstances an offence may come to light eight or nine months after the contract has been entered into and invariably there ensues a period of correspondence which may last two or three months. When it becomes apparent that a remedy is not likely to be achieved, the Minister and the consumer are constrained to proceed and the period of 12 months seems to be inordinately short. Has the Minister any second thoughts on this matter? She might consider not spancelling the prosecutory process unduly and extending it to 18 months.
Warranties and guarantees are generally for periods of up to 12 months and if somebody discovers he has been conned the period of time to get the bureaucratic machinery moving may extend longer than 12 months. Perhaps the Minister on Report Stage might consider extending the restrictive period of 12 months.
A period of 12 months was included because that is the time referred to in the Consumer Information Act. Indictment proceedings can be taken at any time but if the Deputy feels strongly about the matter I will look at it between now and Report Stage to see if there are genuine reasons why the period should be extended. While we are trying to protect consumers to the greatest extent possible, it is important that we do not place more severe restraints than are absolutely necessary on manufacturers or on retailers. I think the Deputy appreciates that point but, as I told him, I will have a look at the matter between now and Report Stage.
Question put and agreed to.
SECTION 8.
Question proposed; "That section 8 stand part of the Bill."
I take it that the Director of Consumer Affairs will remain an officer in the Minister's Department. Perhaps the Minister will explain what exactly will be his role and how he will fit into the Department.
He will be independent of the Minister and the Department but under the Consumer Information Act in respect of any expenses incurred by him or by his office in the course of his duties as Director of Consumer Affairs the money will be sanctioned by the Minister for Finance and will be part of the Vote for my Department.
Question put and agreed to.
SECTION 9.
Question proposed; "That section 9 stand part of the Bill."
I take it this is for the purpose of joining this section with the Act of 1893?
Question put and agreed to.
SECTION 10.
I move amendment No. 2:
In page 7, lines 12 and 13, to delete "and not known to the buyer".
The recast version of section 12 of the 1893 Act which appears in the Bill is the same as that introduced by section 1 of the UK Supply of Goods (Implied Terms) Act, 1973, expect that the words "or known" after "disclosed" in section 1 of the latter were not included in our Bill. The effect of this omission is that there will now be an absolute obligation on the seller to disclose any charge or encumbrance that there may be on the title to goods which he is passing, that is, he cannot now claim that the buyer knew about the charge and that there was no need for the seller to disclose it. However, in subsection (2) (a) which deals with the passing of a limited title to goods the corresponding change was not carried through in the Bill. Therefore, it is considered that the words "and not known to the buyer" should be deleted from subsection (2) (a) also to strengthen the buyer's position in this case. In other words, we are putting the obligation on the seller.
This amendment is a substantial improvement and the Minister's inclusion of it at this stage is very welcome.
Amendment agreed to.
I move amendment No. 2a:
In page 7, after line 44, to add a new subsection as follows:
"(4) Where a seller or manufacturer advertises goods and a consumer purchases those goods having read the advertisement by the seller or manufacturer, the advertisement shall constitute a sale by description".
This amendment is self-explanatory. This section already deals with sale by description and we are seeking to enlarge the scope of the provision by putting forward this amendment. It is a reasonable amendment. I regret the Minister has not had much opportunity to consider it. We feel that the connotation of the word "description" is unduly loose. The use of the term "advertisement" as a supporting reference in that section would strengthen it greatly and would be of considerable benefit to consumers generally. I do not know what reaction there may be from manufacturers. The section would ensure that the greatest of care would be given in the placing of advertisements and in the descriptions in the advertisements. I should like to hear the views of the Minister.
I support the amendment. It appears to be necessary and desirable. Very often when people purchase goods they find that the goods and the description of them in advertisements do not correspond. This amendment will tighten the situation and will be a safeguard for the consumer.
If the contract is entered into as a result of an advertisement, which I think is what the amendment is concerned with, that would be regarded as a sale by description—I think the Deputy made the point that it probably would be—and the onus would be on the purchaser to show that he made the purchase on the basis of an advertisement. I believe that the intention of the amendment would be covered by section 13 (1) of the Sale of Goods Act.
The general feeling on our side is that, if the Minister between now and Report Stage could perhaps introduce the word "advertisement" into the section, we would be very pleased and relieved. "Advertisement" in the public mind and legal acceptance of the use of the term is fairly clearcut, perhaps more so than the term "description", which could be surrounded with all sorts of connotations. Perhaps the Minister, between now and the Report Stage, would look at the drafting on our part. If the Minister were to introduce the phrase "Where there is a contract for the sale of goods by description or advertisement..." that would strengthen the section. Descriptions may be oral or written but I think that "advertisement" would in the public mind and in most court cases be accepted as meaning precisely what it is intended to mean.
The Deputy will appreciate that the amendment arrived rather late but we shall certainly consider the amendment and come back on it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 2 (b):
In page 7, between lines 44 and 45, to insert the following:
"13.—The producer of an article shall be liable for damage caused by a defect in an article sold to a consumer whether or not he knew or ought to have known of the defect.".
We are suggesting here that between lines 44 and 45 there should be another section to provide that the producer of an article shall be liable for damage caused by a defect in an article sold to a consumer whether or not he knew or ought to have known of the defect. This seems rather harsh at first glance, but since this Bill is fundamentally intended to improve the basic rights of consumers we feel there is some merit in an amendment of that type being considered by the Minister—if necessary on Report Stage. Perhaps the Minister of State, the Minister and the draftsman would consider it.
This is different from the previous amendment in that the Deputy seeks to extend the ambit of the Bill to product liability which has nothing to do with contract law per se. As the Deputy knows, an EEC directive on product liability is being discussed at present. It would be undesirable to pre-empt consideration of this directive at EEC level. Of course, when a decision is reached on the directive we shall be party to it and we shall have to comply with it. Therefore, it would be better to leave this matter of product liability until that directive comes along. The amendment only begins the story of product liability. When the directive and any developments arising from it are at a more advanced stage we shall have to consider all the implications for our own laws here.
I accept what the Minister says and I shall put the point to my colleague, Deputy O'Connell, who is also involved at European Parliament level on that aspect of consumer legislation within the political group in which he sits. I hope that the product liability directive is not too far off from being enacted in this country.
Amendment, by leave, withdrawn.
Section 10, as amended, put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
We are dealing here with the Sale of Goods Act and the differences between conditions and warranties. Would the Minister elaborate somewhat on the basic changes that will take place as regards conditions and warranties?
That section has been disposed of. We are now on section 11.
This is something to which we shall be returning one way or another and I should like to clarify the position.
If the Deputy wishes to ask a further question on section 10, I shall allow him; but we have already got on to section 11—just a brief question.
With regard to sale by description and where items are bought for a specific purpose, how are we amending the Sale of Goods Act? When one buys an item for a specific purpose and it does not quite live up to the specific purpose one has in mind, I should like to know whether the purchaser has any redress against the vendor. If I buy an item at an auction for a specific purpose——
Or go to a shop and buy something for a specific purpose.
Yes, anywhere, and it does not fulfil that purpose, what is the position there?
The Deputy will have full redress under the Bill. On page 8 it is provided:
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 buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment.
We are actually dealing with section 11. The Deputy has three minutes. I allowed the Deputy to go back.
Subsection (4) covers the point.
The section takes away or restricts the rights of the buyer. Would the Minister give some examples of what she has in mind?
Section 11 (2) answers the Deputy's question.
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 statement, 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.
Subsection (3) gives examples, for example that the money will not be refunded, or that there will only be a credit note given for goods returned, or that goods will not be exchanged. Incidentally, that the goods will not be exchanged includes a very popular condition, that goods will not be exchanged without a receipt. This is covered under the terms that goods will not be exchanged.
Does that mean that the receipt will not be necessary?
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Does the Minister have to make an order bringing this into effect?
There will be no effect unless the Minister makes an order under this section.
The Minister will have consultations. How widespread are these consultations going to be?
There would have to be consultations with all interested parties. We can take it that the Minister would not take it on himself to make an order without any consultation. It would be highly unwise to proceed on that basis. Before bringing in legislation as widespread consultation as possible has to take place.
Does this indicate that the Minister will see that where goods are supplied and sold here adequate spare parts will be available for, perhaps, an unlimited period of time?
The biggest problem here today is that there is planned obsolescence. Goods are being manufactured so fast that models are changed and spare parts are not available. I have had numerous requests about this which I have brought to the attention of the Department. Manufacturers are not supplying parts for goods. When a consumer goes back to see about spare parts, or replacement parts, he is told that the model is out of date, sometimes within two years, which is a reprehensible practice. This is an excellent section, if the Minister will ensure that it is implemented.
Where the manufacturer specifics that spare parts will be available he will have to stand over that and have them available. In the case where a manufacturer does not specify any period, that is his hard luck. If he does not specify a period one may take it that there would be an unlimited supply of spare parts. The manufacturer will have to stand over that.
If he indicates that spare parts will be available he will be obliged to provide the spare parts?
No. If the manufacturer does not mention the period for which the spare parts will be available; if he does not specify the time during which they will be available—two years, one year, six months—it can be taken that that means an unlimited period of time. If he specifies that spare parts will be available for a two-year period then he must have them available for two years and the Minister must insist on this.
Would it be possible to include in this Bill a section that manufacturers might be compelled to state in their advertisements and brochures the length of time of availability of spare parts? Ireland is unique in so far as most manufactured goods are imported from abroad. There is an agent here and spare parts often cannot be obtained. Our consumers have been exploited over the years because of this. The Minister might consider, on Report Stage including a section to that effect.
I know it would present problems, but the Minister might consider the point.
In regard to the servicing of items, over what period of time is a person safeguarded in the ordinary simple matter of servicing the machine, vehicles and so on?
That deals with another part of the Bill that we are not discussing and that we shall be discussing later.
That does not arise at this stage.
In connection with what Deputy O'Connell was saying about ample quantities of spare parts and replacement parts being available basically the Minister's reply has been dealing with specific instances, in regard to the length of time that people are told that spare parts will be available.
Normally, when people are buying items, for example, motor cars, television sets and so on, they do not specifically ask how long it will be before the model is changed, or for how long they will be able to obtain spare parts. It is necessary to try to safeguard people who do not ask that question, people who believe in the honesty of the firm they are dealing with, and think that it is a reputable one. Would the Minister consider including a specific period?
That is what Deputy O'Connell asked me to do and I promised to look into it on Report Stage and if I find it desirable, then it will be done.
It would be a broad section covering all events.
Question put and agreed to.
SECTION 13.
I move amendment No. 3:
In page 9, subsection (3), line 34, after "sale" to insert "at second hand".
This amendment will have the effect of confining the certificate requirement of section 13 (3) of the Bill to the sale of secondhand cars. The Society of the Irish Motor Industry have strongly opposed the application of this provision to the sale of new cars in representations that they have made on the Bill. Not only have they made these representations to me but I am sure they made similar representations to all Deputies. Furthermore, at the society's instigation, a substantial amount of representations were made to Deputies and the Department. The argument of the SIMI can be summarised as follows: (1) they consider that there is already more than a reasonable amount of official documentation involved in the sale and registration of a new vehicle; (2) they point to the issuing of a manufacturer's warranty on the sale of a new vehicle and maintain that this practice provides adequate protection for an aggrieved buyer and (3) they state that if the dealer had to issue a certificate as envisaged in the published Bill it would place an undue burden on him. The argument here is that dealers would not feel sufficiently confident to issue such an all-embracing certificate, in respect of the new cars they handle, short of conducting an extensive and impracticable survey of each car they sell.
Furthermore, those arguments are strengthened by the fact that the report of the National Consumer Advisory Council recommends that the warranty of fitness be provided in relation to "all used mechanically propelled vehicles". The origin of this recommendation is a scheme operated in Canada under the Ontario Highway Code which was apparently viewed with substantial approval by the NCAC. The merits of these points have been assessed in some depth at departmental level and it is felt, in addition to the basic points made by the SIMI, that this subsection should be amended as outlined.
I appreciate that the Minister is going some way to meet my point. The SIMI have been in touch with most Deputies about this section, one of the objectives of which is to reduce the number of unsafe vehicles on our roads. The SIMI are anxious that specific road tests be made in regard to the safety of vehicles. They want a proper vehicle-testing scheme introduced. It is their view that the section places too much of an obligation on them. The Minister's amendment may not go far enough. Is it the intention of the Minister to meet representatives of the motor trade to outline in detail the regulations she has in mind?
We can discuss that matter on the section, but at present we are concerned with the amendment.
Will the Minister clarify how encompassing the regulations she has in mind will be?
We must deal with the amendment first and the Deputy may deal with the other questions on the section.
Prior to the Minister's amendment the section was more in the interests of the consumer. I am aware that the Minister is bowing to motor industry interests in introducing the amendment and, perhaps, it may pose problems and serious difficulties for dealers. However, with the massproduction of cars, it is important that a certificate in writing to the effect that a car, new or otherwise, is in perfect mechanical order be given to the purchaser. Lots of new cars are what are called "lemons"— they are defective. It should be possible to have a road test on a new car and a dealer should be in a position to give a certificate to the effect that a vehicle is devoid of any defect which would render it a danger to the public. I am aware of an incident where a man was given a new car without oil in the engine. I accept that the section as originally drafted would pose problems for the motor trade, but the trade should be able to cope with them. It is a retrograde step to amend the section. I recognise the Minister's problem in the fact that the motor trade put up a good case to the effect that such a certificate would be unnecessary in the case of new cars, but the section was better before the amendment.
A new car carries a manufacturer's warranty and, if something goes wrong, safetywise, with the vehicle, a consumer has a right to fall back on the warranty. Deputy Enright suggested the setting up of road-testing procedures to ensure that all vehicles are free of any defects that would render them a danger to the public—something which I would be in favour of—but that cannot be done by my Department; it is a matter for the Department of the Environment. I do not think that we can afford to wait for that situation to arise, because it may take time. It was for that reason that I decided to go ahead with my own provisions.
Deputy O'Connell appreciates that there was great concern in the motor industry to ensure that we did not put those involved in the industry out of business. It was in order to relieve some of their problems, and at the same time provide adequate covering, that I introduced this amendment. In the case of a new car a manufacturer's warranty is available. The NCAC, who investigated this matter, advised the Minister that this should only apply to used vehicles.
The SIMI are in a much stronger position vis-à-vis the manufacturer than the consumer. The motor industry can apply pressure on manufacturers more than consumers. If I had a warranty or guarantee card I would tear it up because it deprives me of my normal rights under common law. I always advise consumers to do that. When one discovers a defect in a car one gets in touch with the manufacturer through the dealer, but one is left without a car for a long time. The dealer could co-operate a lot more with the consumer against the manufacturer. The SIMI and its members are in a much stronger position to apply pressure on the manufacturers than is the consumer. That is why I feel they are taking a wrong approach. They would be acting much more in the public interest were they to co-operate in the operation of this section without this amendment.
I have the gravest of reservations about the amendment proposed by the Minister. Indeed, the whole purport of the section is now, one might say, dramatically halved. The only strengthening of the section of which I would have been in favour—rather than having the amendment proposed by the Minister whereby it is proposed to have a certificate of condition applicable to secondhand cars—would be the inclusion of a definition specifying that it should apply to every sale of a new or secondhand car so that people would know exactly where they stood. Such is possible for the Minister because she is taking unto herself here the right to prescribe the form of certificate. Therefore, it should be possible for the Minister—in relation to a new motor vehicle, or a new motorcycle, which is also covered here—to devise a certificate for new motor vehicles less onerous than the one which must be provided on the sale of a secondhand car. There is no difficulty in having two forms of certificate.
I totally share Deputy O'Connell's view—and certainly judging from the number of complaints I have received over the past ten years as a Member of this House—new motor cars can be as dicey as a good, so-called secondhand car. Indeed, Deputy O'Connell spoke about a new motor car being delivered without motor oil. I have heard of cases of new motor cars being delivered where the wheels fall off as the consumer drove his first 100 miles. Furthermore, I totally agree with Deputy O'Connell that any consumer foolish enough to sign a manufacturer's warranty deserves a zero mark on the Bunny Carr Show, or something like that.
There is a need for this section. I have had the strongest representations from the Society of the Irish Motor Industry. Indeed the society in their comments to me make all sorts of references to the number of rogue dealers in the Dublin area, when they enclosed extracts from the recent excellent series of articles in The Irish Times on the purchase of used cars. That particular series pointed out that the used car market is littered with dealers who are a law unto themselves. I share the concern of the Society of the Irish Motor Industry about the rogue dealers who operate outside the ambit of their society and, very frequently also, the ambit of the law. But their concern has been used by the society to try and gain an exemption for all motor dealers, an exemption I would not favour. I would point out that we in the Republic of Ireland are one of the costliest purchasers of motor vehicles, new or used. In France, Germany or indeed in the United Kingdom one can buy a secondhand car at a vastly cheaper cost whereas the purchase here of a new motor vehicle, or secondhand car, will amount to several thousand pounds. If that blows up in one's face or is totally defective, that can literally destroy a person's livelihood. Quite apart from perhaps costing them their life, that motor vehicle can cause very considerable financial stress to any one family.
I would strongly urge the Minister to have a second thought on this. I know the political pressures are there for us to amend section 13. I am not in favour of it. The Spring 1979 Information Bulletin published by the Society of the Irish Motor Industry carried an article entitled "SIMI to oppose Consumer Bill"—not a very illuminating caption—in which it reported the President of the Society as saying:
We have great reason to fear that if section 13 is passed in its present form it will have an effect contrary to the intentions of the legislators.
Our intentions are very simple: to give fundamental protection to persons who buy either a new or secondhand car. That is all. Section 13 is strong. Were I in the Minister's shoes I would strengthen it further—in the portion the Minister purports to amend—by the addition of the phrase: "in the case of every sale of either a new or secondhand motor vehicle".
Would the Deputy please give the reference of his quotation?
Yes, it is the Spring 1979 Information Bulletin published by the Society of the Irish Motor Industry, a speech by the President, Mr. Denis Mahony, who was guest at their annual dinner.
And had a good dinner, we trust.
I would strongly urge the Minister to have another look at this section and perhaps introduce a double variation in the regulations. One can have a fairly broad, general certificate for the consumer in relation to a new car, and that is all that would be needed. Those of us fortunate enough to be in a position to buy a new car, and they are becoming increasingly rare citizens—I have never bought a new car in my life; I shall make no further comment on that——
The Deputy never believed in new cars.
It is far better to buy a good secondhand car, provided one knows something about cars, when one can get a far better deal.
Therefore I urge the Minister to vary her intention here, to have another look at the amendment, because I know there are very considerable political pressures being brought to bear in relation to the section. I know there are rogue operators in all parts of the country who work wonders, who flog cars at inflated prices that literally cause people to lose their lives. They can be caught effectively under this section. For example the Minister could respond to the views of the Society of the Irish Motor Industry—they maintain that people have to have business premises and that therefore anybody with business premises will be caught—by amending the section to say "anybody purporting to sell either a new or secondhand car, whether or not it is their principal business, or whether or not it is sold from a private home". Perhaps I might quote from one of those excellent Irish Times articles, a piece of good, investigative journalism by Peter Murtagh in The Irish Times of Tuesday, September 11, 1979 when he referred in one paragraph to:
In one recent issue of an evening newspaper the same phone number occurred 21 times throughout the columns. The placer had no less than 30 cars for sale from the roadside in Kenilworth Square. Another person was selling six cars from his mother's house in Ranelagh. In these cases, however, at least the seller could be found again which is not always the case.
You may call to a house to buy a car and find the seller in the car outside the house waiting for you. It is not his house at all. A number called may be in a pub or phone booth and the seller will meet you in town or at your house. In each case you have no comeback whatsoever, and if you find yourself with a tarted up wreck, forget it.
These practices are quite common and yet cannot be stopped. You might also find yourself buying a hire-company car which has been registered in the name of a secretary with a company. Before you get it this car will have been driven up and down the country by any number of people. "One lady owner," says the ad.
This is commonplace. It is amazing that people will hand out £700 or £1,000 for a secondhand car. Recently I met a young teacher who had taken up her first job at the other side of Dublin. She spent £700 of her parents' money to buy a secondhand car.
She learnt her lesson, I hope.
She found herself with £700 worth of rubbish and was in danger of killing herself each time she went to work.
I suggest that the section be left as it is. If a person wants to buy a car he signs a hire purchase agreement. Most people do not even read those agreements nor do they inquire about their true rate of interest. People buying cars are appallingly neglectful about these things. People also sign the general contract of sale. If they have to have a certificate signed or initialled by the salesman, it will take him precisely half a second to initial or sign the certificate, which was collected from the Department of Industry, Commerce and Energy. I do not think this will cause the Society of the Irish Motor Industry any wakeful nights nor will dealer members of the society find themselves in court. In their representations to me they said that the Bill would have a very serious impact on reputable dealers who would be discouraged from handling used cars which are more than two or three years old and which are not in prime condition in case they subsequently should find themselves facing a criminal prosecution, with all its attendant adverse publicity. If any dealer, who purports to sell a car which is three years old, says it is in prime condition, he is covered by the amendment. That is desirable and necessary but the same should apply to a new car.
The motor manufacturers, on balance, will not object to this. They have 70 years of writing warranties and 70 years of international legal expertise in excluding from any one of their warranties any prospect of a person getting at them if he finds his new car dividing in two as he goes over a humped-back bridge. There is no difficulty facing dealers in this situation. The Minister should leave the Bill as originally drafted and strengthen it by the inclusion of "secondhand cars".
The discussion on this amendment, in my view, was very healthy. I came into the Dáil without any intention of pushing my views or thoughts on the Bill. This is a complex legal document and it is very important that when it leaves this House, it will be the best legislation to protect consumers we can have. Having listened to Deputy Desmond's arguments in favour of leaving the section as it originally was, I am prepared at this stage to withdraw the amendment and to consider, between now and Report Stage, the possibility of having a two-fold form of certificate—one certificate for secondhand cars and another for new cars. In my view, the industry would be quite prepared to accept that.
In bringing in the amendment we were trying to meet the situation which had been represented to us by the industry—that it would pose very serious difficulties for the people involved in the motor industry. Bringing in the two-fold form of certificate would possibly alleviate the situation.
I am glad the Minister accepted the compromise suggested. That was a very sensible approach. As I see it, this section needs some form of amendment because subsection (3) is very vague.
We are dealing with the amendment.
With regard to amendment No. 3, I would like to know if it——
May I interrupt the Deputy? On the basis that I have withdrawn the amendment, is it appropriate that it be further discussed?
The Deputy is entitled to give his views but if he is in favour of its withdrawal, it will be unnecessary——
I wanted to raise a question of definition. Is "at second-hand" the same as "second-hand", but it does not arise as the amendment has been withdrawn.
Amendment, by leave, withdrawn.
Amendment No. 4. Amendment No. 5 is consequential and we will take amendments Nos. 4 and 5 together.
I move amendment No. 4:
In page 9, subsection (3), line 36, after "certificate in writing" to insert "in such form as the Minister may by regulations prescribe".
This section provides in subsection (3) that a certificate in writing be provided to buyers of motor vehicles 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. It further provides in subsection (5) that the Minister may by regulation prescribe further matters to be included in such certificates.
The Society of the Irish Motor Industry in their submission on the Bill sought to have an amendment made which would ensure that the Minister should, by order, lay down certain reasonable minimum standards because they maintained that the question of whether a car was free from defect would otherwise be a subjective one for the garage concerned, and that regulation by order was essential also to ensure a specific implementation date for the provision of such certificates.
As the section stands the Minister could only prescribe that information additional to the basic certification of freedom from defect be given and the power is, in any event, an optional one. The section is in its present form because it was considered that it would be undesirable that the Minister should be called upon to lay down the basic engineering standards called for in this certificate. However, it is now agreed that subsection (5) is superfluous because it is difficult to envisage further matters which the Minister might require beyond those ensuring freedom from safety defects which subsection (3) already requires.
It is proposed, therefore, to amend section 13 (3) to provide that a written certificate would be given to the buyer "in such form as the Minister may by regulations prescribe". This should meet the argument put forward and ensure a uniform standard of certificate which would be to the benefit of the consumer. This would be a good thing and in fact we discussed it on the earlier Bill.
In regard to the certificate that would be provided under regulation, I take the point that it will encourage people to deal with honest, reputable motor firms and help them to move away from dealers such as those Deputy Desmond referred to in relation to telephone advertisements in Kenilworth Square and other traders he read out from the article.
The difficulty I see is that the Minister is dealing with vehicles that would be a danger to the public. Is that all-embracing and does it cover the situation fully? How long will these regulations that will be prescribed run for? I see the necessity for the regulations but different people will buy secondhand motorcars. One person could buy one and look after it. The car would be perfectly roadworthy in 12 months' time. Another person could buy the same motorcar and through pure carelessness and blackguardism on their part they could damage the vehicle in a much faster space of time. I should like to see the purchaser of a car protected but I would not like to see it over-extended so that the protection would run indefinitely. It should be specifically covered for a period. I hope that the Minister understands what I am getting at.
The length of time for which it would run is all important. We must protect the person who buys the car but this must be reasonable so that he could not have an action against the proprietor of a garage in nine or 18 months' time. There should be a specific period. A person buying a car probably has it inspected and it is then roadworthy for a period. We should stipulate a certain period so that the protection will not run indefinitely.
The amendment to section 13 is badly needed. I am glad the Minister has withdrawn subsection (5) which she deems superfluous as a result of accepting the amendment. Subsection (5), now withdrawn, stated that the Minister may by regulations prescribe further matters to be included in a certificate to be given. That was very sloppy in that nothing had been prescribed and there was mention of further matters being included. It was no harm to withdraw it.
I endorse what Deputy Enright said concerning the danger to the public element in the Bill. One could have a vehicle which would be totally useless to the consumer and far from being a danger to the public. For example, the car may travel at five miles an hour or less or perhaps not at all. It would not be a danger to the public. I presume that would be covered by coming under the purpose for which it was meant. I should like to know if this might be interpreted in a narrow sense. If so, we run the risk of the dealer getting away on this technicality.
If one confines the demand for the issuing of the certificate to a trader, one is letting out another category of salesman who cannot be defined as a trader but who is still selling cars. I refer to the private person who sells one, two or three cars per week, per month, or per year, who is in other employment and merely does this as a nixer. The danger is—the motor trade industry have been very honest about this to me and I am sure to the Minister and others interested—while the vast majority of these traders are honest dealers there are members, despite the control of the SIMI and other agencies, who, because they will not be in a position to stand over the certificate, may offload the vehicle on to the private market and have somebody on the side not registered as a trader who could dispose of the vehicle without issuing a certificate of roadworthiness. This is a regular fear on the part of traders. The vast majority of them would not do that but there are some who would bring the whole trade into disrepute by their action. Could this loophole be closed?
I appreciate the difficulty of the Minister. It would be difficult to implement if it were extended to private sales. In the light of the danger and the risk involved in offloading these cars by certain traders, we should make an effort——
I am not sure that the Deputy is speaking on the amendment. What the Deputy is now discussing can be raised on the section.
I accept what the Chair says.
Amendment agreed to.
I move amendment No. 5:
In page 9, lines 47 and 48, to delete subsection (5).
Amendment agreed to.
Question proposed: "That section 13, as amendment, stand part of the Bill."
I commend the Minister on the ideas in the section and on her general approach to it. The Minister is endeavouring to ensure that there are fewer dangerous vehicles on the road. To achieve this end the Minister is trying to make those involved in the motor trade share the responsibility by providing certificates with new and secondhand cars. It is essential that the Department work in conjunction with the Society of the Irish Motor Industry in the setting up of some type of vehicle inspection scheme. The only way to reduce the number of dangerous vehicles on the road is to carry out regular inspection tests. The number of accidents caused by dangerous vehicles is highlighted daily in the media. A number of Government Departments have already advised the public of the necessity of regular servicing and testing of vehicles. The Minister should make every effort to include in the Bill a provision which would ensure that adequate road and vehicle tests are carried out. We have the resources to ensure that road tests are made. Occasional checks have been made in some of our towns. The number of dangerous vehicles on our roads is nothing short of alarming. The Minister and her Department, in conjunction with the Department of the Environment, on whom the main responsibility for the Bill rests, should endeavour to ensure that safety tests are carried out on vehicles in order to reduce the number of accidents.
The number of honest motor traders is high. The Society of the Irish Motor Industry are as anxious as we are to ensure that there are fewer dangerous vehicles on the road. Reputable garage owners service cars as well as selling them. They also sell petrol and oil. There is the danger that people may try to sell defective cars to dealers who do not provide the same service as garage owners. If a reputable garage owner refuses to buy a defective vehicle, the owner of the vehicle may try to sell it to a less reputable dealer, a person who deals in cars as a sideline. As it stands, the section makes no provision for those who are on the fringe of the trade. To make the Bill effective the Minister should include those who are on the fringe of the trade and who deal in secondhand cars in order to safeguard the people who deal with them.
I would like to refer to the section as a whole. It seems that in section 13 (2) this is an implied condition and it deals with public safety more than with consumer protection and is subject to very narrow legal interpretation.
In section 13 (3) there is a grave flaw in that there is an omission; there is no offence if an incorrect certificate is issued, so far as I can see. I would suggest that the Minister of State would apply her mind to the content of this certificate as she has done in section 16 concerning the conditions of a warranty. The minimum content of a certificate should be spelled out when drawing up certificates both for secondhand cars and for new cars.
I will deal with the last points made by Deputy O'Toole. In subsection (4) the last line deals with those points: it provides that the seller shall be guilty of an offence if he issues an incorrect certificate.
Deputy O'Toole will remember when we debated the famous Consumer Information Bill. We had a long drawn out discussion on whether private sales should be included. Houses were talked about at that stage, if I remember correctly. At the time we felt they should not be included.
The point was made by Deputies O'Toole and Enright that very often one can get a person who does not have a business premises as such but who is in fact engaged in the motor trade. The example given was someone dealing in cars who gave the same telephone number for several vehicles in newspaper advertisements or somebody who sells three or four cars every now and then and makes a profit. These would of course be included in the Bill because if a person is engaged in the business of selling cars, whether he is a teacher or a civil servant or, indeed, a politician, he would have to be covered in the Bill if it were proved that he was selling more than just his own car. If he is buying a car and holding on to it for a week and then selling it and making a profit on it, then he is involved in the business of selling cars, regardless of whether or not he has a permanent business premises. That reasonably covers the points made.
The second point is the one which Deputy Enright and I discussed earlier, the question of setting up a facility for testing road worthiness here. I said I was totally in favour of that being done and I represented that fact to the Department of the Environment and the Minister for the Environment on numerous occasions. It is very essential that this be covered in legislation but, as Deputy Enright and I agreed it is not a matter for this Department; it is a matter for the Department of the Environment.
(Interruptions.)
I would be very much in favour of having this in the Bill. There is a test in the United Kingdom at the moment which is similar to the one suggested by the Deputy. I feel it would be desirable, but it is not a matter for this Department.
Deputy O'Toole made the point about what should be included in the certificate which would deal specifically with road safety precautions to ensure that a vehicle would be safe to have on the road. I would say that the requirements on the certificate would be matters which we should not specify in the Bill. I think it would be dangerous to state that a certificate would include (a), (b) and (c) and then find that when we go into the business of having these certificates issued that (d), (e) and (f) should be in it as well. It is better to leave it and, after consultation with the Department of the Environment and interested parties, then the specifications that would be required should be made. If I have left anything out, let the Deputies remind me.
Concerning the interpretation of the danger to the public as against value for money and consumer protection, which after all is what this is all about, it would seem that the consumer could be had up to his eyes as long as the vehicle he is trying to drive is not a danger to the public.
No. Under section 14 of the 1893 Act he is covered. It applies to the merchantable quality of new cars and secondhand cars. We are only including here the extra provision in the case of it being a danger to the public.
It is very courageous of the Minister of State to delete that subsection. I think she is being very sincere about it.
Question put and agreed to.
SECTION 14.
I move amendment No. 6:
In page 9, line 53, after "and" to insert "in relation to the sale".
This section establishes the joint and several liability of a finance house where the finance house pays the price of the goods to the seller and this amount is in turn repaid by the buyer to the finance house. The purpose of section 14 is to remove any doubts which may militate against an effective redress for the buyer where a pre-existing agreement or an arrangement operates as between a particular seller and a particular finance house.
Representations were made by the Joint Credit Card Company Limited to the effect that in their opinion credit card companies would be caught by section 14 as it stood. The Department explained to them that such companies were not intended to come within the ambit of this section. In order to ensure absolutely that credit card transactions are not covered by section 14 it was felt that the section should be amended. The insertion of the words "in relation to the sale" will clarify that section 14 relates to a specific agreement and so cannot cover credit cards because a buyer does not enter into a separate agreement with the finance house on each occasion he buys by credit cards. It is an ongoing procedure.
Is the Minister happy that this section covers the situation sufficiently? Let us take the example of people who purchase property, whether it is combine harvesters, motor cars, televisions and so on. They go to one of the credit houses and obtain money to proceed with the transaction. Does the Minister consider it necessary or desirable that such companies should carry out some inspection of the goods? I appreciate the difficulties which would arise and the feeling of the finance companies that this would curtail their business. I have come across numerous transactions involving people who have bought defective goods and who have been stuck with hire purchase agreements. The contract is between the buyer and the hire purchase company and the vendor manages to escape responsibility. A man wishing to buy a machine may go to a finance company for the money and the vendor steps out of the picture.
This might be discussed on amendment No. 7.
I appreciate that, but I wish to know if the Minister is satisfied that finance houses are discharging their liability sufficiently in transactions such as I have outlined. Any action in such a case would involve the purchaser, the hire purchase company and the vendor and the unfortunate purchaser would be faced with such difficulties that he might decide to cut his losses and take no further action. Is the Minister satisfied that finance houses take sufficient care to ensure that the item purchased is not defective? They may have more expertise than the consumer in checking such matters.
There are 11 sections in this Bill dealing with hire purchase agreements and it would serve only to confuse the matter if we were to discuss it now. For everyone's sake it would be better to leave it to Part III.
Amendment agreed to.
I move amendment No. 7:
In page 10, lines 1 to 3, to delete all words from and including "and shall" in line 1 to the end of the section and substitute "and the finance house and the seller shall, jointly and severally, be answerable to the buyer for breach of the contract of sale and for any misrepresentations made by the seller with respect to the goods.".
Submissions from several groups raised the point that the phrase "for fulfilment of the contract" could give rise to problems. First, it was argued that it might be capable of narrow construction and thereby enable a finance house to avoid liability for a breach of contract. Secondly, it was said there was a basic injustice in requiring the finance house to provide specific performance of a contract in regard to merchandise which it had never owned or seen. The Irish Finance Houses Association maintained in their submission that, should the Minister insist on retaining section 14, it should contain some of the provisions of the United Kingdom Consumer Credit Act, 1974, one of which is that claims can only be for breach of contract or misrepresentation.
The finance house is not at present liable under common law for misrepresentations made to the buyer with respect to the goods. However, section 14 will make it statutorily liable in this respect. This amendment, therefore, can be said to be streamlining section 14 in so far as it makes the section more specific and eliminates any possibility of ambiguity. Furthermore, it strengthens the section by extending the liability of the finance house to misrepresentation. The amended section, therefore, can be viewed as a better provision from the consumer's point of view. This section statutorily reiterates the liability of the seller to the buyer for breach of contract, which is already confirmed by the Sale of Goods Act, 1893. It also gives statutory recognition to the existing answerability of the seller to the buyer for misrepresentations under common law.
Amendment agreed to.
Question proposed: "That section 14, as amended, stand part of the Bill."
I welcome this section as amended. The term "fulfilment of contract" could, as the Minister has stated, be open to misrepresentation in the narrow legal sense and cause certain problems. Spelling out liability in a much more definite approach. Agreements of this nature are in writing. Do we take it for granted that such agreements would include rates of interest, repayments and so on in definitive terms? In many cases the consumer is given a global figure of what the contract would cost without reference to the interest rates being charged. Detailed information is necessary and should be supplied.
Another aspect of sales which will change concerns joint and several liability. The practice has been widespread whereby sellers of certain goods have been in a position after a sale has been transacted to call in the consumer and sign on behalf of the finance house. I assume that from now on finance houses will insist on a much tighter system in the giving of finance to consumers. This is one of the problems. The finance house will not be aware of the quality of the commodity being sold to the consumer. The trader must be taken on trust because the finance house is entering into joint liability. The end result in some cases will be that the facility granted by finance houses to certain traders will be withdrawn. That will be the logical consequence of the section. That will be a good thing and I hope it will redound to the benefit of the consumer in the long run.
This is a very enlightened section and I welcome it. Now the consumer has some protection and the finance house, as happens in all other countries, must accept responsibility. They cannot just grant a loan and then wash their hands of it. The finance house must take a much more responsible role. They will be behind the consumer and will be of considerable benefit to him.
Question put and agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
This section states that "guarantee" means any document, notice or other statement supplied by a manufacturer or supplier. Does this encompass sales by auction?
If a person buys at an auction he has the same rights as if he bought across the counter. If he is given a guarantee they have to stand over that guarantee.
I understand the Minister has received representations from a number of people with regard to this section. Some concern has been expressed with regard to the definition of "guarantee". This relates also to section 16 and, if possible, I should like the Chair to allow us to discuss the two together.
Does the Deputy wish to discuss section 16 with section 15?
He may refer to it but the Chair will have to put the sections separately.
I appreciate that. Section 14 of the 1893 Act imported conditions into every contract for the sale of goods. The important conditions were that in the case of sale of goods by sample the goods should correspond with the samples; in the case of goods sold under a trade name the goods must be of merchantable quality and in the case of goods sold for a specific purpose to a buyer who relied on the skill and judgment of the seller, the goods must be reasonably fit for the purpose for which they were required. One was allowed to contract out of some of the purchases under the 1893 Act. I am dealing here with the sale of bloodstock——
I think the Deputy is confusing section 15 of the 1893 Act and section 15 of this Bill.
In Britain the 1973 Act deals with bloodstock sales——
That is section 3 of this Bill. The section we are discussing now deals only with guarantees.
I appreciate that. With regard to the sale of bloodstock, certain guarantees are given in the conditions of sale and that is why I raised it here. There are certain conditions in the sale of bloodstock——
But not guarantees. The Deputy should have brought up this point under section 3 (2).
I appreciate that it could have been dealt with there——
It should have been dealt with there. I was delighted that the Deputy missed the point and was not going to remind him of it at the time.
At least the Minister appreciates the necessity for discussing it.
We can discuss it on Report Stage.
That cannot be done if it is not dealt with here. Guarantees are included in the conditions of sale. For example, if a person buys yearlings they are purchased for racing——
The Deputy is getting away with murder and Deputy O'Toole knows it.
The Minister is not in the Chair.
The Chair is wondering whether we are dealing with section 15 or section 16 or whether we are down on the Curragh. I understood we were on section 15.
We are also dealing with section 16.
We cannot discuss two sections together.
I got the permission of the Ceann Comhairle to deal with the two sections together.
It is unusual to discuss two sections together.
The Deputy got permission from the Ceann Comhairle to do so.
Very well. My understanding is that when we come to section 16 there will be no further discussion on it.
My point was that Deputy Enright should have brought up the matter of bloodstock under section 3 (2) and when he did not do so I did not remind him of it. Now he is endeavouring to bring it up under this section which deals only with guarantees. With regard to bloodstock sales, there are no guarantees; there are conditions and warranties and I think this is the point that the Deputy was confusing.
I have here the conditions of sale relating to the sale of bloodstock. This is an important matter for a number of people. Will the Minister consider what will be the situation with regard to the sale of yearlings? In such a case a person buys an animal for a specific purpose. The animal may prove to be suitable for the purpose or it may be unsatisfactory or completely useless. In this instance we are trying to have a situation allowed to ensure that a person who buys an animal at a bloodstock auction cannot come back after a period and say that the animal is not fit for the purpose and is useless. There is some concern regarding this section.
There need not be any concern because they are not included at all under the guarantee section. That is the point I am making. I was somewhat confused, just as the Deputy is and as I am sure many people are, about the meanings of "warranty" and "guarantee". People often think the two mean the same thing. They do not; they are totally different. Perhaps on Report Stage we can discuss it.
We are dealing with guarantees in both sections here, as far as I can see. One defines and the other deals with the terms of guarantee.
I have some of the conditions here, descriptions of a loss, soundness and stableness and so on.
A lot is sold as it stands; unless expressly announced at the time of the sale, no guarantee as to soundness is made. They then say this is subject to certain conditions. Basically, I am anxious that the Minister should be aware that concern is being expressed about the Bill as a whole, not just with any one section. That is why I was anxious about the terms in regard to auctions. That is why I asked specifically before I discussed this section if auctions were included under sections 15 and 16. I gathered that auctions are included. Perhaps we can discuss this at the end of the Committee Stage in order to clarify the situation, but I want to ensure that there will be no difference in regard to say, sales of bloodstock here as compared with sales in England. Here we are not really dealing with motor cars or TV sets or with people who are unaware of what they are doing. The people involved here deal with such matters on a regular business basis and they are not consumers in the ordinary sense and there is no need to have them regulated in the same way as is perhaps necessary in the case of other items under consumer protection.
It is important to spell out the guarantee. Over the years we have seen this word abused very often. I bought a thermometer a year ago and it says: "Guarantee; made in Japan"—nothing else. What would you do about that? There has been tremendous abuse. I am delighted to find spelled out exactly what a guarantee means. I hope we shall see an end to this irrelevant use of the word and that consumers are protected. A certain type of sheet was guaranteed for five years—I do not see it advertised now—which was well advertised but there was no indication on it of the actual guarantee and I wondered how people would know from the sheet that it was bought five years previously. I felt this was an abuse.
Although it may present enormous problems I should like the Minister to consider including a provision that a guarantee provided by the manufacturer will not deprive a consumer or purchaser of his rights under common law. This may be somewhere in the Bill without my seeing it. At present in many cases a person by signing a guarantee form is deprived of his rights under common law. I consider that is an injustice. Also, many of these guarantee forms provide that unless they are returned within 21 days the guarantee does not apply. That should be removed. The fact that the date of purchase is put on it by the retailer should be sufficient. People frequently find they have forgotten to return the card. The Minister might consider putting in another subsection providing that the terms of the guarantee shall not deprive a consumer of his right to sue under common law. That might strengthen the Bill and ensure that people were not deprived of their rights, which is what normally happens with guarantee cards at present.
That would probably be superfluous as the Deputy will see if he looks at section 18 (1). I think that covers his point.
I take it we are discussing sections 15 and 16?
Yes. We can conclude the discussion on section 15 and just put section 16.
Guarantee means "any document, notice or other statement". In other words, the definition covers other than written documents. We then come to the terms of guarantee where it is said that the guarantee should be clearly legible and should refer only to specific goods. How can a non-written statement be legible?
It has to be a written statement.
Speaking as a layman, not one with any legal training, section 15 would mean both written and other statements. The word "statement" can be interpreted as oral or written.
No, a written statement only.
Unless that is so, section 16 would not make sense because a statement has to be legible and obviously an oral statement would not be legible. Can this definition be tightened up more as otherwise it would not make sense? Written guarantees are to be found in all sort of places accompanying the goods purchased. Normally the guarantee card is found inside the box or package is cannot be read until the package is opened. If the goods purchased are in a sealed container you cannot scrutinise the contents of the guarantee. This poses problems. For example, I can visualise such a guarantee being in a sealed container and the breaking of the seal could render the commodity useless unless it is used immediately.
There are many cases I would conceive of where it would be literally impossible for the purchaser to scrutinise the contents of the guarantee at the point of purchase. In those cases the consumers are not being allowed to exercise their full rights under the provisions outlined in the Bill. Would it be desirable for retailers to be required to make copies of contracts, supplied I would hope by the manufactures, for consumers? Could this be included in this section? For example, after the seal is broken, there are many foodstuffs which must be used almost immediately or, as regards carriage, the goods cannot be easily brought home by the consumer. I want to stress that point. I want to reiterate my innocence so far as section 15 is concerned. To me it could be constructed that a guarantee need not be written. Is it accepted universally that a guarantee has to be written? For example, in the Consumer Information Act, oral statements made by a vendor can be held against him, even if it is in the form of a promise. If a retailer guarantees verbally, can that guarantee be upheld? Can he be held liable for what he said? As far as I recall, in the Consumer Information Act this is so. This is one area where we must be very careful.
Section 15 which outlines in details the minimum requirements of a contract is acceptable and will alleviate a great deal of hardship on many consumers.
Section 17 (1) covers the point made by Deputy O'Toole when he spoke about a guarantee being in the oddest places. He said that if one had to get at the guarantee one would probably break the seal. Section 17 (1) covers that point. Regardless of when or how the guarantee is delivered, the person has the same rights. Therefore, it would not be necessary to include a separate subsection.
That makes a mockery of section 16 which says that a guarantee will be clearly legible. If a guarantee is in the oddest of places it can hardly be legible, never mind "clearly legible".
"Clearly legible" means when one can take it in one's hand and read it.
It may be clearly legible to the Minister, but I am talking about the legibility of the guarantee which is at the bottom of a sealed box. How can that guarantee be clearly legible to the consumer?
When he opens the box he will then see it.
I do not want to be awkward about this, but we can all conceive of cases, such as processed foods and many other commodities, which can be bought in delicatessens and shops where the guarantee is anything but legible, and in many cases it cannot even be seen. The Minister says that section 17 covers that point, but I do not think it does. Section 16 says it should be clearly legible. I know what that means but that does not make it easier for a consumer to read a document which is out of sight at the time of purchase.
Does the guarantee apply to the goods or the person? Unfortunately too often guarantees are not transferable. If one buys an appliance is the guarantee in respect of the appliance rather than the person?
Section 15 where it reads "in connection with the supply of any goods".
Could I get a reply to my question as to whether a guarantee must be at all times in written form?
My advice from the Attorney General's Office is that for the purposes of section 15 "guarantee" means any document, notice or other statement. When we say "other statement" we clearly mean a written statement.
Would the Minister consult the legal experts about covering the point made by Deputy O'Toole by including the phrase "or other written statement"?
I will consider that between now and Report Stage.
Question put and agreed to.
SECTION 16.
Question proposed: "That section 15 stand part of the Bill."
I will allow the Deputy one question. When we were discussing the two sections together we agreed that when the discussion was over we would put both sections.
I would like to get the Minister's interpretation of section 16 in the light of what we have been saying about the curious places we find guarantees. What sense does that make in relation to what we have been discussing?
Section 17 (1) covers that, irrespective of when or how the guarantee is delivered, whether it is on top or at the bottom of the object bought.
I suggest we debate that point on section 17.
The Minister is bringing me on to section 17. While I take the point she makes about section 17, section 16 lays down that it must be clearly legible.
We have decided that "clearly legible" means that one must be able to take it in one's hand and read it.
I am making the point that this is not a practical provision because there are umpteen cases where one cannot take it in one's hand and read it. As the Minister said, the guarantee can be found in the middle of a mechanism——
A person would not know there was a guarantee unless he could take it up and read it.
If a person finds a guarantee in a sealed container——
——I accept that section 17 makes the vendor liable for what is contained in the guarantee, but the fact is that under section 16 a person does not have his rights because he cannot read the guarantee.
When he picks it up he can read it.
The simple fact is that if it is upside down or if the blank side is turned outward, a person cannot read it. What is the point of having a section which cannot be applied universally?
It cannot. If the seal of a container of some exotic food is broken, it must be used quickly. A very simple packing error could have the blank side of the warranty facing outwards. One would have to consume the commodity before the guarantee could be read and this might be too late.
Deputy, we must move on. Is section 16 agreed? We have already debated it.
I think that is very unfair.
The Deputy is entitled to his opinion.
Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."
Would Deputy O'Toole move to report progress on section 17?
Progress reported. Committee to sit again.
