May I remind Senators they may speak only once except for the proposer who has the right to reply? Amendments Nos. 1 and 2 are related and may be discussed together.
Sale of Goods and Supply of Services Bill, 1978: Report Stage.
The House will recall that a Government amendment was introduced on Committee Stage to this section to provide that the Act would not come into effect until three months after its enactment. Senators felt that three months was too short a time to enable the business community to revise their documentation and for everyone affected by the Bill to become familiar with its provisions, in particular the motor trade with its international context. Having reconsidered the matter, I have prepared an amendment which proposes to extend the period involved to six months. I am doing this in particular in view of the fact that we are heading into a summer break when it is particularly difficult to redraft very detailed legal documents. It is as well to provide for a specific period, as my amendment does, so that everyone affected by the Bill will know where he stands on its enactment. If the alternative approach, which was proposed by the Opposition, were adopted—in other words giving the Minister an option to fix a date by order—this would lead to uncertainty on the part of all involved. That is the reason I am suggesting six months.
The last point made by the Minister is not a bad one. I sympathise strongly with it. The Minister did not mention something that was mentioned here, either on Committee Stage or more likely on Second Stage, and that was that during this period before the Bill came into force, the Minister was going to produce a booklet which would be available to consumers and the business community alike that would set forth fully the rights, duties and implied terms, commissions and so on.
The Director for Consumer Affaris will introduce it.
And it will be published within this period?
The reason we suggested, in the first instance, that the period of three months was not long enough was that we felt it was important that some booklet explaining the purport of the Bill in layman's language would be produced before the Bill came into effect. I am prepared to withdraw my amendment on the basis of the Minister's amendment, but I would ask that that be done. The original Explanatory Memorandum to the Sale of Goods and Supply of Services Bill now becomes rather dated. Is there a new Explanatory Memorandum produced for the Act?
That is a pity.
The real reason for putting it off for six months was to facilitate mainly the international organisations. Surely the large manufacturers and traders would have their own lawyers and legal men who do not need layman's language. In any case the Director of Consumer Affairs is drafting a booklet in layman's language but the type of people we were talking about, as having the specific problem, were importers dealing with international concerns, who had international rules and regulations and terms of contracts.
I should just like to draw the Minister's attention to the fact that his colleague, Deputy Geoghegan-Quinn, undertook on Committee Stage that that would be done.
We are going to do it.
I am sorry to interrupt. A whole battalion of matters were raised as we went through the Bill in Committee. It was agreed that the matters would be looked at and that we would consider them again on Report Stage. I would ask that we take it reasonably easy as we go along. I would like to ask a question in relation to section 2. The point was raised on Committee Stage whether or not the definition of service was satisfactory. There was a suggestion made that——
The Chair is in a rather difficult situation because this is Report Stage and, unfortunately, we can only deal with the amendments, one by one. We are not dealing with section 2.
I am going to reply to all those points at the end.
Also of course matters like that may be raised at the stage when the Bill is received for final consideration. But the Chair would ask for the co-operation of the House. Certainly as far as the Chair is concerned every opportunity will be afforded to Senators to deal as adequately as possible with the points. But we must deal with the amendments in the order that they are before us. Amendment No. 42 is related to amendment No. 3 and they may be discussed together.
When section 2 and other sections were being discussed on Committee Stage Senator FitzGerald, in particular, made the point that section 2 (3) related to criteria to be used in determining whether a term of contract was fair and reasonable. He went on to point that the fair and reasonable criteria were also used in sections 13, 31 and 43 but that these sections referred not to terms of a contract but to provisions and agreements and so on. The Senator suggested that we should be consistent in the phraseology we use in the Bill. I take the Senator's point and the amendment to section 2 seeks to get over the problem by referring in subsection (3) to all the words involved. The effect of the subsection, as amended, would be that if 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. I think this meets the Senator's point. The amendment to the Schedule is related to the amendment to section 2 and clarifies the meaning to be attached to the words "term" and "contract" where they appear in the Schedule. The aim of this amendment also is to get over the difficulty raised by Senator FitzGerald regarding the use in parts of the Bill of various words involved.
Amendments Nos. 4 and 5 are related and may be discussed together.
This amendment arises from suggestions made on Committee Stage. The Senators maintain that the section as drafted would create difficulties for the pursuit of their duty by such people as receivers and liquidators of companies, personal representatives of deceased persons, official assignees in cases of bankruptcy and so on. It was suggested that it would be more equitable to provide that where such people were disposing of assets by way of auctions, a buyer at such an auction would not be regarded as dealing as a consumer. The present Minister for the Gaeltacht was handling this section of the Bill in the House on Committee Stage and in reply to the points made indicated that she saw no particular need to protect the liquidator except in such circumstances and that, in any event, it was essentially the consumer we were trying to protect through this Bill. She maintained that it would not be right to dilute this protection without compelling reasons.
I agree largely with what the Minister said and, like her, I am not convinced of the need to provide an exception directly in the Bill for sales by such people. If we were to so provide in this Bill there could well be other types of auction sales not mentioned in the debate which would be equally deserving of exceptional treatment.
In all the circumstances, however, I am prepared, as the amendment proposes, to give the Minister power to make an order to provide that in the cases of an auction sale by such a type of person the buyer shall not be regarded as dealing as consumer. This is a reasonable solution which takes account of the points made by the Senators as well as enabling my Department to consider whether there are other cases which also warrant the same treatment.
I take the Minister's point. It is an excellent amendment so far as it goes. It gets over the difficulties that we foresaw in relation to liquidators, receivers and so on. My main concern, which I expressed on Committee Stage, was in relation to certain types of auctions. I refer to bloodstock auctions, livestock auctions and the like. The Minister indicated that she had had contact with the organisers of these auctions and they expressed satisfaction with them. I have taken considerable trouble and discussed this proposal with many people associated with the bloodstock business since Committee Stage and I assure the Minister that all is not rosy in the garden as far as satisfaction with this Bill is concerned. They did not believe that they had any option in regard to acceptance. I accept the Minister's general purpose here. It is sensible, but there are many auctions which it would not be appropriate to include.
The idea behind my amendment was that the Minister, in order to include an auction in the provisions of this Bill, would have to take the positive step of making an order. As it stands, the Minister would have to make no order. All of these would be included from the start. The rights that the sales organisation have in relation to bloodstock sales and the rights that buyers have are very clearly set out in the conditions, which are the most detailed conditions of sale that you will ever get in relation to any auction sales. They have a very special meaning in law, going back over very many decades of evolution of this law. Indeed, over the last couple of centuries this law has developed, and it has developed to suit that particular industry.
We are talking about a very, very big industry—a multi-million pound, very important industry so far as Ireland is concerned. Apart from the expensive bloodstock that we come across—millions of dollars or pounds are paid now for only yearlings—there are many sales in Ireland organised by Bord na gCapall. Catalogues set out in great detail the conditions and the warranties that will apply in relation to sales by auction. It is lunacy to include those automatically because conditions have evolved and people who are in that business understand the conditions and warranties as they apply to those auctions and know they have meaning. We are now introducing a completely different set of conditions that are not designed for horse sales at all. They are designed for general consumer transactions. It is unnecessary that this Bill should intervene at all in this area. If an occasion was to arise in the future where the Minister was dissatisfied—and he has not cause to be dissatisfied and I am certain no complaints have ever been made about this area—he could by order under my amendment say, "Look lads, the bloodstock industry were dissatisfied now and we are including you". That would be a sensible, sane and rational approach. In relation to the livestock industry the same rules apply.
I am not competent to discuss other areas of auctions, but I imagine that auctions of antique furniture in the reputable salesrooms of Ireland are governed by conditions and warranties that are appropriate to that trade. We are talking about a technical trade here. For that reason it is regrettable that the Minister will not do as I suggest, that is let this Bill become law. Let the Minister then look at various types of auctions that go on around the country and say that that and that and that should be included. He will have six months after the passage of this Bill to look at all types of auctions. At least he should leave alone industries that have their own methods and their own reasoning and conditions of sale.
This is the whole object of the amendment. It proposes to give the Minister power to make an order that in the case of an auction sale by such and such a type of person, for example, the type the Senator is talking about, the buyer shall not be regarded as dealing as a consumer. It will cover the point the Senator is making.
Can I take it that the Minister says he will, on the passage of this Bill, exclude the bloodstock sales? Within the six months will the order be made so that they will not be included?
We will look at it and in the light of experience we might decide to make an order.
This is a drafting amendment. With one exception the effect of this subsection is to preserve the sanctity of contracts entered into before the commencement of the Act. The one exception arises in section 43, which restricts the capacity to exclude liability for misrepresentation. The first line of section 43 refers to an agreement as distinct from a contract, the latter word appearing specifically in paragraphs (a) and (b) of section 43. This contemplates the situation in which the exclusion clause is embodied in a general agreement but is intended to exclude or restrict liabilities or remedies in connection with all future specific contracts entered into. To make it clear in section 4 that the one area where the Bill will operate retrospectively will be section 43, it is necessary to insert the words set out in the amendment in section 4 (1), as the amendment does.
Amendments Nos. 7 and 8 are related and may be discussed together.
I move amendment no. 7:
In page 5, line, 43, before "neglect" to insert "wilful".
We discussed this on Committee Stage. It concerns members of corporations or companies if they are neglectful in any way being liable to criminal sanctions. We did not have an amendment down on Committee Stage but we expressed our concern that a member of a board of management or board of directors might fail to look at his minutes or to note a particular remark made at a board meeting and in committing an act of the slightest neglect might involve himself in liability in criminal law and be convicted of committing a criminal offence. We suggested that a test as to whether a criminal offence would be committed should depend on his intentions at the time. Therefore, we suggest that the words "wilful neglect" should represent the appropriate standard rather than mere "neglect".
The Minister for the Gaeltacht, who responded to the debate on Committee Stage on this section, mentioned that this was the way it was done and had been done for years. With every respect, I do not accept that that is a valid reason. For that purpose and to deal with that point I introduced an amendment to the Consumer Information Act that provides for change from mere neglect to wilful neglect. It is an important point, and I ask the Minister not to fear the abandonment of precedent but rather to question it critically, and if wilful neglect ought to be the standard to apply the standard.
Does any Senator second the amendment?
I second the amendment.
The purpose of the word "attributable" to any neglect on the part of a director or responsible officer is to ensure that where his neglect is the real cause of the offence he also should be liable. Subsection (2) is in common form. The provision occurs, for example, in the Merchandise Marks Act, 1970, section 8, the Restrictive Practices Act, 1972, section 22, and the Consumer Information Act, 1978. Many other statutes have gone further in imposing criminal liability on directors and others. They go so far as to impose liability where the offence was merely facilitated by neglect. Examples are the Shops (Conditions of Employment) Act, 1938, section 6, the Auctioneers and House Agents Act, 1973, section 25—which Senator Cooney brought in if I remember correctly—the Employment Premiums Act, 1975, section 7, and the Occasional Trading Act, 1979. It has, however, been accepted that such a provision goes too far and that formula is no longer followed. I have to concede to the Senator that there are precedents for inserting "wilful" before "neglect". They occur always in the context of the phrase "facilitated by", evidently as a concession intended to mitigate the severity of that provision, a provision which has now been dropped. I am, however, advised that the word "wilful" is tautological in this context. Neglect or negligence is in law a breach of a duty to take care, and where that breach of duty is the real cause of the offence primarily committed by the company or firm it is proper that the director or officer who caused it should be liable. It is a matter for the courts to determine the degree of his culpability and the extent of the penalty which should be imposed upon him. Accordingly, I cannot accept the proposed amendment.
The second proposed amendment to section 6 takes account of the fact that the terminology of section 6 (2) has precedent in statute. It seeks to harmonise the Consumer Information Act and this Bill in relation to wilful neglect. However, I must oppose the amendment also because it would affect only the tip of the iceberg and would create inconsistencies of interpretation as between the Consumer Information Act, this Bill and a large number of other enactments.
I am not convinced by the Minister's argument in rejecting the proposal to change the neglect which supports a criminal offence from mere neglect to wilful neglect. In this Act we are now for the first time introducing criminal sanctions into what has been essentially a matter of private contract between two citizens, and in making that significant change and importing the sanction of criminal law into the consumer area we should not go so far as to make mere neglect the factor which can impose criminal liability on such a wide range of persons. This is not confined to directors. All sorts of people can be involved through neglect. A change of this magnitude in principle, should be approached very carefully and the criterion should be stronger than mere neglect. There should be an element of wilfulness or culpability about it. I support my colleague in moving this. It is not a good argument to say that other statutes merely refer to the word "neglect" without the qualifying adjective of "wilful". I do not see the relevance of that argument. It may lead to a certain conformity in legislation but if, as in this instance it will, as I think, produce an unjust situation, it is wrong to rely on precedent. Perhaps a further amendment to amend the Consumer Information Act to bring it into line with this one is desirable, but I support this amendment.
I regret the position adopted by the Minister on this matter. From the number of Acts that he has referred to in his response to it I can understand the reason why it appears here at all. This expression is a stock expression which has been used in Acts down throught the years and we are sticking with it. I accept that the court has the discretion to decide whether to sentence a person to imprisonment or to fine him and in that sense the court can reflect its own reaction to the culpability of someone regardless of whether the offence is severe. I am not talking about that discretion that a court has. I am talking about a situation in which a court will have to express regret and say, "I appreciate that the defendant in this case was merely neglectful but I am obliged by the law to convict him". It is most likely that in these circumstances a court would apply the Probation Act which it is empowered to do, but that is not good enough. We are creating a criminal offence. We have come a long, long way from the days when we regarded criminal offences as matters that had to go beyond reasonable doubt and in respect of which there were very difficult standards of proof. Here we have a situation where a person who fails to read a minute after a board meeting or fails to respond to a question raised at a board meeing may be regarded as attributable. A certain event might have occurred because that person failed to do something. It is mere neglect. It is too low a standard and it is unfair. The question of equity and justice should be the basis upon which we should assess the position here. I regret the Minister's response and I am not seeking to withdraw my amendment.
- Blennerhassett, John.
- Butler, Pierce.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Governey, Desmond.
- Harte, John.
- Howard, Michael.
- Kilbride, Thomas.
- Lynch, Gerard.
- McAuliffe, Timothy.
- McDonald, Charles.
- Markey, Bernard.
- Molony, David.
- O'Brien, Andy.
- Reynolds, Patrick Joseph.
- Robinson, Mary T.W.
- Brennan, Séamus.
- Brugha, Ruairí.
- Cassidy, Eileen.
- Conroy, Richard.
- Cranitch, Mícheál.
- de Brún, Séamus.
- Donnelly, Michael Patrick.
- Doolan, Jim.
- Dowling, Joseph.
- Ellis, John.
- Herbert, Anthony.
- Hillery, Brian.
- Hyland, Liam.
- Jago, R. Valentine.
- Kiely, Rory.
- Kitt, Michael.
- Lanigan, Michael.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Mulcahy, Noel William.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
Amendments Nos. 9 and 11 are related and may be discussed together.
The point was made on Committee Stage that while we are in this section amending sections 11 to 14 of the 1893 Act and re-enacting the full section involved in table form, we should also take the opportunity to re-enact here section 15 of the 1893 Act dealing with implied conditions in sales by sample. I agree that including section 15 of the old Act here would be beneficial since sections 11 to 15 of the old Act in a sense represent a package of contractual rights for the buyer. It would be convenient for all concerned if the set of provisions involved could be seen at a glance without the need to cross-refer to the 1893 Act. This is the object of these two related amendments which I now propose.
I move amendment No. 10:
In page 8, lines 16 and 17, to delete "for that purpose, whether or not that is a purpose for which such goods are commonly supplied," and substitute "and as durable for that purpose as is reasonable to expect having regard to the purpose for which they were bought, any description applied to them, the price (if relevant) and all other relevant circumstances, whether or not the purpose for which they were bought is a purpose for which such goods are commonly supplied,".
This is a repeat of an amendment which we proposed on Committee Stage. The Minister might take the point that we made in relation to being consistent. We expressed great reservations on Committee Stage about the advisability of introducing into this Bill not just the word but the entire concept of durability. Senator FitzGerald made the point, how durable should be an ice cream or any item that is produced nowadays in the age of planned obsolescence.
Before I make the argument in favour of my amendment, we have reservations about introducing a concept like the concept of durability, desirable and all as it would seem in certain circumstances. Given the fact that the Minister wished to include the concept of durability in relation to the definition and description of merchantable quality, we feel, for the sake of consistency, the concept of durability should also be used in the context of explaining and understanding the meaning of fitness for purpose. It is for that reason we ask that this amendment be accepted.
I second the amendment.
At Committee Stage this was debated at great length and my colleague Minister, Deputy Máire Geoghegan-Quinn, explained at great length why this amendment could not be accepted. We have looked at the question again as promised. Having considered the matter in depth, I would prefer to let the provision involved stand as drafted.
No good reason has been given why that should be the case. The Bill should be consistent. I see no reason why the difference should arise. In the circumstances I would like to let my amendment stand.
Amendments Nos. 14 and 15 are related and may be discussed together.
I undertook on Committee Stage to take a close look at the provisions of this section before the Report Stage with a view to tidying them up in the light of the views expressed by various Senators. This I have done. While the intent and framework of this section remains essentially the same under this proposed amendment, I should comment on the changes it introduces.
Senators will note that the original order making power has been deleted. I am satisfied at this point that this would have added little to the provisions of the section. The new subsection (1) now takes account of a situation where an offer of spare parts and after sales service is made without reference to a specific time limit. In such a situation, the implied warranty will be that the relevant parts and service will be available for a reasonable time. Subsection (2) enables the Minister by order to specify what shall constitute a reasonable time, and this power contemplates a situation where a problem arises in relation to a certain class of goods. It would be appropriate in my view for the Minister to intervene in the consumer's interest to define reasonable in relation to fridges, foodmixers, motor vehicles and so on. The new section provides in subsection (3) that any contractual term attempting to negate an offer made in relation to parts or after sale service shall be void. This provision is self-explanatory and seeks to prevent retailers from giving with one hand and taking away with the other.
I accept that the Minister's amendment is an improvement on section 12 as it stands. As I understand it, it does two things. Firstly, as the original section 12 did, where somebody advertises goods for sale and says that spare parts will be available for 12 months then that becomes an implied term in the contract. Secondly, where a person advertises and states spare parts will be available and does not indicate a period during which spare parts will be available then the court can determine what was a reasonable period within which those spare parts would be available. That is as far as it goes.
This is a benefit in so far as it improves a situation that is hopeless at present. The whole question of spare parts goes to the very root of consumer legislation.
We have already discussed at length on Committee Stage, and it has been mentioned in passing today, the concept of durability. Many Senators have mentioned the difficulty of goods being produced nowadays that are planned to be obsolete within a very short time. Everybody appreciates the difficulties involved so far as manufacturers and suppliers are concerned. At Committee Stage the point was made that one buys cars nowadays that become obsolete. They just cannot stand the pace as cars in the past did. People made the point about television sets, washing machines or whatever that they just do not stand up to the kind of treatment people expect them to stand up to.
The difficulty involved as far as manufacturers are concerned is that if they are to provide, for example, a washing machine at a price that ordinary consumers can afford today, they cannot put in parts that are sufficiently durable to make the machines last as long as we would all like to see them last. We are stuck with the problem of obsolescence and goods being produced that just do not last. That is the difficulty we have over a concept like durability. I can understand the Minister's wishes in introducing that concept. The Minister is being entirely inconsistent when he refuses to do what we want him to do in this amendment. All we ask the Minister to do is, in relation to someone who produces goods and puts them on the market, if he thinks fit and that it is appropriate in relation to a particular item, be it washing machines from Italy or China or any item that a consumer might purchase, that he may consider the matter and say that if the person is going to sell these goods in Ireland we will impose upon him a condition that spare parts will be available. If the Minister takes that power on to himself he is obviously not going to be able to use it every time any particular item of new or old equipment comes on the market. He will have to consider whether it is reasonable in all the circumstances that spare parts should be available.
All we are asking the Minister to do is to take to himself the power to enable him, where he thinks it appropriate, to say to a supplier or a manufacturer or whatever, "If you want to sell this item in Ireland you must make sure that spare parts are available". It will be up to the Minister to say whether spare parts should be available for three months, six months or 12 months. The Minister will have the power, and that is all we want him to take. I was talking to someone today who was not from this side of the House who told me that he purchased a piece of equipment from a Swiss international company. Unfortunately, that piece of equipment has now gone out of order and he cannot get spare parts. It was a deep freeze and should last for a long time. He has only had it in his possession for a year. All he can do now is throw it out. I am sure the Director of Consumer Affairs, particularly in relation to foreign manufactured equipment, would like to think he could examine these items of equipment as they come on the market and say to himself, "This is a deep freeze; we have this American company or Japanese company who want to sell these here and it is only fair and reasonable that if they are going to come on the Irish market they should be able to stay on it for a sufficient length of time to ensure that spare parts and service are available".
Under existing legislation the Minister has no such power. He cannot stop anybody selling a piece of equipment. The only power he has under the section as he proposes it is that if a person says he will provide spare parts, then he can do it. But if the person refrains from saying anything about spare parts then the Minister has no power. This goes to the very root of consumer legislation.
We are not asking the Minister to introduce a blanket law or blanket regulation that could cause difficulties. I accept and appreciate the difficulties that might be caused if that was the proposal. But the proposal is a very limited one. It is only to give the Minister power to introduce an order where he thinks it appropriate in relation to any particular item of equipment that he can say to a person: "If you are going to sell this, you must provide spare parts". The Minister has the right to say whether those spare parts should be available for any particular period of time that he thinks fit. This is vital. I regret that the Minister has not seen fit to agree with it. I would urge him to reconsider the point now.
The Minister will recall that people from all sides of the House supported this idea when we proposed this amendment at Committee Stage. The whole effort of this debate, both through the Dáil and Seanad, has been one where party political differences have not arisen. We are concerned with providing a package for the consumer which is a good and useful one. We now have established a Director of Consumer Affairs. We have a person who will look at the consumer interest in the country. If the Minister would take to himself this power he will ensure that the Director of Consumer Affairs will have power and teeth where the Minister chooses to use it. I urge the Minister to change his view on this and to accept the amendment.
I support what Deputy Molony has said. It is quite reasonable to expect that the consumer would have this added protection. I cannot see why the Minister refuses to meet his wishes in that regard. It can happen that an article purchased can go out of operation after a relatively short time because of a faulty part. It is reasonable to assume that the consumer would be given the right to expect that when he purchases an article spare parts would be available for a reasonable length of time. I join with Senator Molony in asking the Minister to reconsider his decision. To do as we suggest would give him an opportunity of coming to the relief of the consumer on many occasions when he might otherwise be victimised.
This is a matter where, if the Minister looks back over recent years, he will find very serious situations arising with business people who installed vending machines and slot type machines outside their shops. One firm placed about 20 of these outside their premises in the midlands and in the west. There was a court case brought against the people operating the machines. The circumstances were that the guarantee that was given to the person who operated the machines said that everything possible would be done to provide parts and maintain the machines. At one time there were two Circuit Court judges trying cases brought by people against the vendors, who were the shopkeepers, where machines had broken down. The answer given by the people involved, who were Canadians, was that the guarantee said that they would do everything possible to ensure that the machines would be kept in order. People were sued because of the failure of these machines. These were serious impositions on the people and they were involved in hundreds of thousands of pounds. Imagine a person being confronted with 20 or 30 people who went to buy cigarettes and had put in money but got no cigarettes because the machine was not repaired or maintained by the manufacturers. These are circumstances where the Minister would have the means and equipment at his disposal, if he accepts the amendment, to do something. He would not be forced to do it but he would have the option. It is a power the Minister should have to protect the interest of the people. I support the amendment.
I am delighted with the Minister's amendment to section 12, even though I feel that in introducing it at this stage of the Bill we are just getting out of town ahead of the posse. The section as it stood originally was meaningless because it failed to define what an adequate aftersales service should be. The Minister at Committee Stage gave a most sympathetic hearing to the various points of view that were expressed and he has come into the House with this most comprehensive amendment. It defines a reasonable period and he has also ensured that there will be consultation with such interested parties as to what a reasonable period shall be.
The debate in this section generally shows the lack of a well informed housewives' lobby. Senator Molony's contention that the amended section can work only if the manufacturer offers to provide spare parts and an aftersales service could be dealt with if the consumer insisted that a manufacturer should so provide and should refuse to buy from anyone who does not provide such a service. The situation as it is now is that one is not offered any guarantee. If one wants a guarantee one is given something in a plastic envelope which invites one to sign away the rights one already has in common law. Nobody wants to go to court to recover the cost of a washing machine because the legal costs would cost more than the machine. That is our only redress at present because we have no system of a small claims court where there could be arbitration and things could be settled without the expense of going to court.
At the present it is up to the housewife to make her views known. If she is content to remain isolated in her ignorance, if she does not join her local consumers' association whether it is the Irish Housewives Association or the Consumer Association of Ireland or the ICA, this situation will continue. We see in other countries and in this country what an informed consumer lobby can do. The motor traders association were able to put their views forward and their point of view across. In Britain, for example, there is such a powerful consumer lobby that it was recently able to declare that British motor car engineering was inferior to Japanese motor car engineering and get away with it. It is up to the housewife now. The Minister has gone as far as we could reasonably expect him in providing for consultation with interested parties. It is up to her to be one of the interested parties.
I support the amendment because there is an important issue of principle involved. I am in favour of the proposal to have an implied warranty where the seller has given an undertaking in relation to after sales service or the provision of spare parts, and where it is for a stated period that the implied warranty be for that period, and where no period is in fact stated that it be for a reasonable period, and that the Minister have some powers in relation to defining a reasonable period.
The proposed Government amendment to section 12 does not achieve an adequate result as far as ensuring that there is concern for after care and a spare parts service for consumers. The danger is that if there is only an implied warranty where there is express reference in an advertisement or offer to the question of after care and spare parts one could have the possible ill-desired result that manufacturers or sellers would not mention any after care service. If asked by the consumer if there is any after care service they will say: "We will not discuss that at this stage. It is not part of any agreeent with us. We are not warranting out of it, we are just not discussing it at this stage". There may or may not be some availability of spare parts afterwards.
The danger is that the writing into this Bill of a partial security for the consumer, a partial protection in giving the consumer protection where there has been express reference to the provision of a warranty for spare parts and servicing and giving the Minister power to designate what would be a reasonable time for this if no time has been specified, does not cater for the circumstance where no mention has been made in relation to a particular product where it is reasonable and desirable that there be a warranty for spare parts and servicing. I support the argument put forward by Senator Molony that if we have multinational companies distributing their products, they are sometimes very expensive consumer products, in this country they should be directed to include a spare parts and service contract as part of their service to the consumer, and as part of the condition under which they can operate on the Irish' market. The same would apply to Irish manufacturers of these kinds of products.
The Minister should be prepared, in the interests of the protection of the consumer, to take the power in the section to issue regulations directing in relation to what products and under what circumstances would there be a requirement for this implied warranty for spare parts and servicing. I do not think that it will be adequate to argue that this can be left to private competition, that there can be competition between different manufacturers or retailers one of whom is giving an express undertaking in relation to servicing and the provision of spare parts and the other which is not. We do not have that degree of consumer consciousness or that degree of choice for the consumer between products. It is much more desirable that the Minister intervene positively in directing that in certain areas the consumer needs the protection of an implied warranty. There would have to be a certain amount of judgment and discretion exercised in this area. It would have to be in areas where it would be reasonable to provide for an after care servicing and spare parts availability.
The danger of section 12 is that it will be possible for manufacturers and suppliers to avoid the implied warranty and that it will be in their interests to avoid it by not making any reference to a service of that sort. Instead of having, as it says on the side of the section in the Bill, an implied warranty for spare parts and servicing we are very unlikely to have any implied warranties of this sort if they can be simply omitted. In other words, the legal attempt to strengthen the protection may have the unintended result of removing the warranty that would be given at the time so that there cannot be any reading in of an implied warranty and the consumer would be left without that kind of service.
In a Bill of this kind which has very desirable new protection for the consumer, this would form an essential part of it. The appropriate way to extend the implied warranty in relation to servicing and spare parts would be for the Minister to do it in relation to specific products and items on the basis of a specialist knowledge and understanding of the particular field. I do not understand why the Minister should resist the principle behind this. It is important from the point of view of the protection of the consumer. I do not see how it could have undesirable side effects.
Senator Cassidy made the point that competition of guarantees to housewives would encourage them to purchase equipment—if they got guarantees from retailers that spare parts would be available. I do not think that is right. We have to protect people within the State; if we do not, there is no other means of protection. I know from being in the retail business—I said this on the Committee Stage of this Bill—that if a housewife comes in to purchase, say, a cooking range, at the moment she is faced with the fact that the Irish market is flooded with all types of ranges, from Goddens Hamcoves, which come from France, and brands which come from some other country. Against them, we produce here the Stanley range or cooker which in my opinion is as good as if not much better as the imported products.
A housewife may have read one of the famous women's magazines or seen an advertisement on television that has publicised cookers which heat four or five central heating units and naturally she falls for this. There is a guarantee for Stanley ranges that have been sold 10, 15 or 20 years ago: spare parts are still available for them. There will not be spare parts, as far as we can find out, for the other cookers. Not alone are we protecting the housewife by this amendment, but protecting what we are manufacturing within the country, our own manufactures. We are also trying to protect consumers from themselves.
You can take fridges. You get an imported fridge at a given price, anything from £200 to £350. You might pay another £50 for an Irish one but you can get spare parts for it. I do not know whether the people whose fridges we import give guarantees to provide spare parts, but they do not seem to be available. Not alone are we trying to protect the housewife through this amendment, but we are also trying to protect the livelihoods of people who are employed in the manufacture of these articles within the country. The same applies to lawnmowing machines and other items. We must make every effort to protect the housewife and to protect our own industries. We can do this by saying to the people who are flooding our market with this type of stuff: "You will have to give us a guarantee that spare parts will be made available". A period of 12 months is not long enough—you would want to be thinking of years. The Minister and his Department will have to have a very serious look at this.
Before I call on the Minister to conclude on this amendment, I would remind the House that individual brands and firms should not be mentioned, as far as possible.
The Minister will not be concluding on amendment No. 15, which is in my name and that of Senator Cooney.
I support amendment No. 15 tabled by Senators Molony and Cooney. Though accepting that the Minister's amendment goes some way towards relieving the problem, I am afraid it will make the situation worse because in amendment No. 14 to section 12 (1), the statement that the warranty applies only in cases in which the product itself advertises the fact that there is a warranty. This will be a disincentive to manufacturers, because if they see that the Minister is not in the position to use the arbitrary power of suggesting that any product he arbitrarily decides is subject to guarantee, they are prejudiced if they put this on the label or on the documentation that goes on the sale of their product. This will act as an incentive to manufacturers in some cases to delete warranties they may have been giving because by deleting a warranty of after-sales service they cannot be touched by the Minister or by his Department.
That is one of the purposes of amendment No. 15, the latter part of which is the more relevant under paragraph (b), "as the Minister shall by order direct". It gives the Minister the power arbitrarily to decide in which circumstances there should be the type of warranty which we are seeking. It is a reasonable amendment. The Minister's amendment is patently unsatisfactory for the reasons that have been pointed out by a number of speakers. The better interest of the public in this area would be served by the Minister accepting the amendment.
I regret that despite any personal sympathy I might have, which is considerable, for Senator Molony's amendment and the points made by other Senators in the debate, I am unable to accept it. If we were to provide as Senator Molony suggests, the repercussions which such an order might have would be very far reaching indeed for the industrial sector, to the possible long-term disadvantage of the consumer. I sympathise with the consumer, and I include myself in that group, who finds himself with an obsolete washing machine, motor car or deep freeze or whatever.
I can assure the House that when discussion on this problem gets under way at European Community level, Ireland will participate fully to make sure that this problem will be resolved in an equitable manner. The Director of Consumer Affairs would be very interested in pursuing the area of codes of standards generally which would be very appropriate to this area of spare parts and after-sale service. In the United Kingdom similar codes of practice have been worked out with the co-operation of the office of fair trading and the industries that are involved.
With regard to amendment No. 14, I cannot accept that this is not an improvement. I feel that it is a considerable improvement. This has been recognised by Senator Molony and a number of other Senators as a considerable improvement on the original Bill.
On the whole question of spare parts, the offer of spare parts and after-sale service is, of course, a marketing device which a seller decides in his best economic interest to adopt. If he does not advertise it, of course, it is unlikely that the consumer would not be aware of the availability of these spare parts in particular cases. In other words, if there are to be spare parts, the seller will say so—it is in his interest to say so.
The question is that the amendment be made.
I should like to reply to some of the points made by the Minister and some other speakers.
The Minister has concluded on amendment No. 14.
It is my amendment.
When we dispose of amendment No. 14 we will not discuss amendment No. 15. If amendmemt No. 14 is carried, amendment No. 15 will fall.
I regret to hear that. I understood that both were to be discussed together. They relate to each other. Though they are not the same, one is not the direct opposite to the other. I think I am entitled to reply. If I had understood the opposite to be the case I certainly would not have agreed that both would be considered together. They are quite different amendments. I thought it was for the convenience of the House that they were being debated together but if I had thought I would be denied my right to respond to the points that have been made by the Minister in respect of this I would not have agreed to such a thing.
I do not wish to argue with Senator Molony, but amendment No. 14 proposes to delete the lines which amendment No. 15 proposes to amend. If amendment No. 14 is agreed then amendment No. 15 falls because the lines are gone. It was reasonable to debate the two together.
With respect, they do not become law until we have the Fifth Stage. At the moment the Bill is not law at all, it is only a proposition. There is a very fundamental matter of policy involved in this and I think I am being denied a very basic right in relation to proposing any amendment if I cannot reply to the point the Minister has made for rejecting amendment No. 15.
I stress again that I understood that it was for the convenience of the House that both of these were taken together. I would have thought that by any standard rules of procedure we would have the two amendments taken together when one was an opposite to the other, but where they are different amendments with a different purpose, not just different in content, they should be taken separately. I had no objection to them being taken separately at all but I did not agree to this procedure with any intention of abandoning a right that I would normally have to reply to an amendment I myself put down. I ask the Chair to allow me to reply because there are very important points of principle involved in this. It is a major point in relation to this item of consumer legislation. There are points the Minister has made and I am being denied the right to reply to them. I must protest.
The Senator will appreciate that the Chair is entirely constrained by the rules of the House. If the Senator objects to the two being taken together and feels aggrieved, I suppose I can make an exception in this case. I do not know whether the House agrees with that.
I would point to a precedent of a few moments ago when we took two amendments together, and I replied to my amendment despite the fact that the Government amendment was first.
You appreciate that if amendment No. 14 is carried, amendment No. 15 will disappear—it cannot be moved.
I appreciate the Chair's indulgence. I will be very careful in the future in a matter like this. A number of points were made by the Minister in connection with this. He said he had considerable personal sympathy for the position and for my amendment and for the manner in which the arguments were made. I appreciate his reason for saying that.
I was very disappointed to hear Senator Cassidy say what she said. She laid it squarely on the line that one of the problems we have is that housewives are not educated and that we have not a strong consumer lobby. That is the reason why this amendment is necessary—because they are not educated. They do not demand from a retailer: "Where is the guarantee, what is the position about spare parts." They do not think of it. I agree with her. I was particularly disappointed that Senator Cassidy on Committee Stage described this as a rather cynical exploitation of a very vulnerable consumer and asked the Minister to take the power I proposed. She actually spoke in favour of my amendment at Committee Stage.
This is the nub of the whole problem. The Minister himself in his arguments knocking my amendment made the point that advertisements for spare parts are a marketing device. That is exactly what they are. What we are doing here is stopping manufacturers advertising spare parts. They will no longer advertise spare parts and what will happen now is that people will not think of spare parts at all. It is because we have an uneducated consumer lobby, and I do not blame the housewives because we have not begun in this country to think like that. Perhaps with the Director of Consumer Affairs and with all of this legislation we may succeed in building up a concern among housewives, a concern among consumers generally, and that in itself will bring us ultimately to the situation where one hopes consumers, when they are presented with an article will say to the retailer: "What is the position over spare parts? How long will spare parts be available to me? Will you give me that in writing?" In that way they can guarantee and galvanise their position.
I must refer to something Senator Cranitch said on Committee Stage. He specifically asked the Minister to describe what the position was. The Senator asked:
Suppose that no description, offer or advertisement is forthcoming, does not that mean that the manufacturer is under no obligation, good, bad or indifferent about any further service in so far as spare parts are concerned?
The answer had to be yes. It still is. The Senator went on:
That is positively alarming. I appeal to the Minister to examine that again and see if some protection for the consumer or the buyer could be incorporated in this subsection.
That is what we are here about. That is all we seek to do. Anything the Minister has said has not knocked any of the arguments we have raised. He made the point that it could have great repercussions for the industrial sector. I agree that it could have great repercussions for the industrial sector. I agree that it could have if the Minister by blanket order insisted that everybody had to supply spare parts or if he said that everybody who sells washing machines must supply spare parts for five years, that could have such an effect. It is for that very reason that we did not propose such an amendment.
What we asked the Minister to do was to take the power to himself to decide, if he thought it appropriate having considered the circumstances, having considered the likely consequences so far as the economic industrial sectors were concerned to introduce this. He has no such power at the moment and that is all we sought to do. I accept that the Minister's amendment is a considerable improvement on the original section, but the original section amounted to nothing. It amounted to this, that if somebody came out and said "I will give you spare parts for 12 months," he would have to give you spare parts for 12 months. I do not consider that to be anything to anybody. It is a technical change. It means that instead of it being something you might be able to sue someone on by way of agreement that it becomes an implied term under the Bill. It is a legal consequence. It is no more than that.
The Minister's proposal is certainly an improvement, but it does not in itself do anything to improve the lot of the consumer in any real way. The reality is that we will not hear much about spare parts in television or newspaper advertisements in the future.
If our amendment is not accepted the consumer will be in no better position so far as manufacturers and retailers are concerned who chose to exploit people by throwing goods at the market that they know well themselves they will never have spare parts for any period of time. If the Minister had some point that I was convinced about, I would have given in on it. There has been a lot of exchange over this Bill and we have had a lot of agreement on it. I know that our intentions are all at one, but in relation to this section I am obliged to say that there seems to be some reluctance, there is some hold on the Minister. I do not know what it is—I wish I knew. There is some other reason that we are not hearing about. There must be, because no logical reason has been given. It is not a matter of law but a matter of policy. The Minister is refusing to take this right unto himself. You can take it that from our side of the House we consider it a matter of policy and we consider it a retrograde step that a Minister responsible for consumer affairs will not take this power unto himself. I do not know what is wrong. I do not know what he fears. No good reason has been given. It is something that we will look for and seek in the future.
- Brennan, Séamus.
- Brugha, Ruairí.
- Cassidy, Eileen.
- Conroy, Richard.
- Cranitch, Mícheal.
- de Brún, Séamus.
- Donnelly, Michael Patrick.
- Doolan, Jim.
- Dowling, Joseph.
- Ellis, John.
- Herbert, Anthony.
- Hillery, Brian.
- Hyland, Liam.
- Kiely, Rory.
- Kitt, Michael.
- Lambert, C. Gordon.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Mulcahy, Noel William.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
- Blennerhassett, John.
- Butler, Pierce.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Governey, Desmond.
- Harte, John.
- Howard, Michael.
- Kilbride, Thomas.
- McAuliffe, Timothy.
- McDonald, Charles.
- Markey, Bernard.
- Molony, David.
- O'Brien, Andy.
- Reynolds, Patrick Joseph.
- Robinson, Mary T.W.
- Staunton, Myles.
I move amendment No. 16:
In page 9, line 19, after "vehicles" to insert "and in respect of which contract the parties have entered into a written agreement".
This amendment arises out of a comment that Senator FitzGerald made on Committee Stage. Subsection (2) provides an "out", in fact, for a motor dealer under section 13 where there is an agreement between the parties at the time of delivery and the person who is purchasing is in the business of motor dealing that the implied condition will not apply. The amendment seeks to alleviate difficulties that might arise later in respect of proving that if a dispute arises and the matter goes to court, and seeks to add to the section "and in respect of which contract the parties have entered into a written agreement". Concern was expressed that dealers or indeed purchasers could allege afterwards that an agreement was made about something when in fact an agreement may not have been made. In this subsection an exemption from section 13 applies—that in every contract for the sale of a motor vehicle, except in contracts in which the buyer is a person whose business is to deal in motor vehicles—there is an implied condition that at 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 it. We seek to add to that "and in respect of which contract the parties have entered into a written agreement." Amendment No. 17 arises on the same section and again it is with a view to clarifying the position under the section.
Amendment No. 16 seeks to extend the scope of section 13 (2) to protect certain buyers of vehicles whose business it is to deal in motor vehicles. As I understand it, the Senators want the implied condition of freedom from dangerous defects applied to sales of vehicles from motor dealers where no written agreement exists. I see absolutely no merit in this proposal. I would like to remind the House of the rationale for the exception in brackets in subsection (13 (2). I consistently held the view that when a motor dealer buys a vehicle the expertise inherent in his occupation is such that the principle of caveat emptor can apply without a need for statutory protection. In addition, it is normally an imported, distributor or a private individual who would sell a vehicle to a motor dealer. In the former case a written agreement would normally exist in any event whereas in the latter it may or may not. I see no reason in this situation to place liability on a private person trading in a vehicle in a buyers' market with defects which an expert examination by the buyer should reveal. Accordingly, I cannot accept the proposed amendment.
I move amendment No. 17:
In page 9, line 22, to delete, "unless" and substitute a full-stop and between lines 22 and 23 to insert:
"(3) Subsection (2) of this section shall not apply where”.
This amendment proposes to remove from subsection (2) paragraphs (a), (b) and (c) and put them in a separate subsection.
I will accept it.
Amendments Nos. 18, 25, 26, 29 and 35 are related and may be discussed together.
These four amendments arise from discussions which we had at Committee Stage on the question of fair and reasonable exclusion clauses. The general thrust of the provisions in the Bill on such a clause follows the model of the United Kingdom Supply of Goods (Implied Terms) Act, 1973 which in general terms places the onus of proof in any dispute as to the reasonableness of an exclusion clause on the person at the receiving end of the clause, in other words the customer. It was rightly pointed out to the House, however, that the United Kingdom Unfair Contract Terms Act 1977 reversed the onus of proof in such cases, placing it instead on the person seeking to use the exclusion clause. I agree that it would be worthwhile to follow the line in this Bill, and these amendments positively place the onus of proof in such cases on the person seeking to use the exclusion clause. It is not necessary to amend section 38 in the same way as the onus of proof in that section is already on the person using such a clause.
Agreed. Amendments Nos. 18, 25, 26 and 29 were mentioned. All are being agreed.
I move amendment No. 19:
In page 9, line 36, to delete "regulations" and substitute "order".
I resisted the temptation, with reasonably good cause, not to discuss in any general way section 13 again on this Stage because we have clearly come to a full stop as regards making any inroads on the view that the Minister had in relation to section 13. It was not only for that reason that we did not dispose of them here; if we had the flexibility that we would like to have to have another go and oppose of some sections, we would have done so, but it would have denied us an opportunity to change a subsection if the Minister insisted that the subsection remain. I would preface my remarks by saying again that we are opposed to the criminal liability in section 13. It is still there, because so long as the certificate is there criminal conviction is quite possible under the Consumer Information Act. I have gone through Committee Stage debate again. I still say that where the certificate itself contains words that are found offensive under the relevant section of the Consumer Information Act criminal liability may ensue and that if there was no certificate criminal liability would not ensue.
With regard to the other points, we do not believe the motor industry should be separated for this sort of treatment. This is a matter which should be dealt with by an enactment from the Department of the Environment, whereby all motor vehicles after they reach a certain age would be tested for their road worthiness. We also saw difficulties in relation to the onus of proof.
I want to make it quite clear that simply by our not tabling amendments to that section opposing those subsections is not in any sense to say that we accept those subsections. We do not; we oppose them, but we have to take the practical approach that if we did oppose them here we would be voted down as we have been on other sections. We take that as best we can take it in the circumstances.
The purpose of this particular amendment is to ensure that when the Minister sets about drafting the certificate and the matters to be contained in the certificate the Houses of the Oireachtas be given an opportunity to consider them. This is the only single instance in this entire Bill—which is full of sections empowering the Minister to introduce regulations or orders—in the matter of delegated legislation that arises under this Bill where the Minister has chosen not to put his delegated legislation before the House. In every other instance the Minister will, by order, introduce his regulations. I accept that may be an incorrect description but he will by order direct in what detail powers and sections are to be applied. In this instance the Minister retains to himself the power to introduce legislation, which means that the Matter will not come before the Houses.
I put it to the Minister, through the Chair, that this section has proved so contentious—and it has proved contentious because so many people in this community are concerned about it—that he should respect the difficulties that people have and at least ensure that these regulations or these conditions that he intends to impose upon motor traders in respect of what goes into these certificates be brought into this arena so that Members of this House and of the Dáil would be able to comment and discuss the proposed certificate and the contents of it. That is the only purpose of the amendment. I am sure the Minister would be anxious that everybody who has expressed concern—and many people have expressed concern about this section—would have an opportunity to consider the contents of the certificate and the detailed obligations that will be imposed on motor traders. I have no doubt that the Minister's Department will consult with other people before they draft these regulations. I should like to use this opportunity to compliment those trusted warriors the Minister has behind him in this House. I think they have been very helpful to everybody interested in this Bill, whether they are outside interests, lobbies or Members of these Houses. We, as Members have an obligation to consider the contents of the certificate and the obligations that will be imposed on motor traders in view of the representations that have been made to us. I would ask him to accept the amendment.
I support this amendment. I would reiterate what Senator Molony said. This is a novel procedure, and it is one with consequences which have been spelt out in the debate on the section as a whole. Because of the potentially serious consequences, the novelty of the procedure and the amount of controversy that has surrounded this section and particularly the certificate provision, I would urge the Minister to accept the amendment which asks him that when he comes to drafting the certificate he will come to the House to do it by way of order so that others can look at it and, if the fears which have been expressed turn out to be misplaced, let them be seen to be publicly shown to be wrong. It will be in great ease of the trade to know that the original fears were misplaced. That would be the better way to deal with it.
I hope I misunderstood Senator Molony. I hope he is not suggesting that it is unreasonable to expect that when you go to buy a new car from a dealer he ought to be obliged to earn his substantial commission by being prepared to roll up his sleeves and get down under it to see that all the parts are there. As to the question of a certificate surely it can be resolved in a simple matter. A very simple certificate such as is required by an insurance company when one is insuring a car that is over a certain age should suffice. If one wants to insure a car that is over a certain age one is required to provide a certificate from a reputable garage that it is safe. This is a very simple certificate, a sentence or two. I do not think there should be any difficulty or any fears in this regard.
This amendment, I appreciate, reflects a fear among Senators that the Oireachtas will not have an opportunity to vet what Senator Molony referred to on Committee Stage as delegated legislation. I must point out that the power to make regulations under section 13 is an administrative power in effect because the policy in relation to certificates is firmly enshrined in the section itself. If the section had read "The Minister may make whatever regulations he considers appropriate in relation to defects in motor vehicles" I could see the merit in the Senator's amendment. We would then be clearly dealing with delegated legislative power. To reiterate what I said on the Committee Stage, the regulations under section 13 will be matters of detail concerning the form of the certificate and will be made following consultation with the Department of the Environment, the motor trade and other relevant bodies. It would be most inappropriate, therefore, to consume the valuable time of the Oireachtas for the purpose of discussing the ultimate form of the certificate when the Oireachtas will have agreed to a certificate of freedom from dangerous defects being given in accepting section 13 (3) in this Bill.
The mechanical and technical aspects of these regulations and the test to be applied before certification are matters in relation to which it would, in my view, be inexcusable to clog up the programme of either or both Houses. I am obliged, therefore, to reject this amendment and reiterate that the legislating in relation to the certificate is being done now and that the administration will follow with consultation with all parties and eventual regulations.
Before sitting down I would like to thank Senator Molony and join with him in expressing appreciation of the efforts of the officials of the Department of Industry, Commerce and Tourism who have been deeply involved in the drafting and at all stages of discussion in this complex piece of legislation. I would also like to thank the Parliamentary draftsman and legal advisers who have also been very helpful. I would like to express thanks to Senator Molony for his comments in regard to the approach that has been taken to this Bill. I feel certain hope in so far as this can be done with the co-operation of both sides of the House and with all interested parties and—it is appropriate at this stage to mention them—the representatives of the motor industry whom I and my officials met on a number of occasions.
Very briefly, I would like to straighten our Senator Cassidy on her doubts about my wishes. I have no objection at all to the implied terms and conditions. It was just the certificate. So, she can be reassured that it is not my intention in any sense that the consumer should be denied anything. This, in fact, adds nothing to the consumer; it is a separate matter as I argued on Committee Stage. In relation to what the Minister said it is simply because people on this side of the House, members of the motor trade who have been here right throughout this debate and other people who have expressed concern about section 13, are concerned about the content of those certificates that I ask that this amendment be accepted.
I have already negotiated at all stages.
First of all, I accept the Minister's goodwill in what he said. The reality is that with politics as they are and the fact that Governments can come and go, and how elections can change things that——
I can assure the Senators that I will keep an eye on it for the next ten years or so.
I thought the Minister if he was in power might have his eyes on more advanced positions than the one he is in. If he is in power I wish him well in that respect.
I have my eyes on more positions than the position I am in.
I accept the Minister's assurance but that is not what we are about here; we are here about the legislation. There is no obligation on the Minister to consult with anybody and this is the only instance—I did not count the instances, but there are dozens of instances of orders that the Minister will introduce under this Bill—that is being separated. On Committee Stage I pointed out one or two, if not more instances, where the matters to be introduced by order were of a very technical nature, were uncontentious and nobody was quibbling about them. This is then the most contentious section, in so far as the business community and also in so far as this House is concerned, in this Bill. It certainly was contentious in the Dáil; it is also contentious here. I urge the Minister to be conciliatory in his approach to the amendment and to accept that we, too, as Members of this House, because of all the representations that we have received over this, are concerned to know what will be in that certificate and to have the opportunity of voicing opinions on it when it comes to pass.
There was very little discussion during Committee Stage debate on the section as to the meaning and implications of subsection (6) and in particular to whom the phrase "a person lawfully using a motor vehicle" was intended to relate, Senators Molony and FitzGerald held the view that the phrase could cover any subsequent buyer in the chain of buyers of the vehicle. My position was and still is that each sale of the vehicle involves a separate contract between, in most cases, one seller and one buyer. In each such contract subsection (2) implies a condition that the vehicle is free from dangerous defects at the time of delivery. What subsection (6) does in each of those separate contracts is to extend the right of action under that contract to any lawful user of the car, in other words, someone using the car with the owner's consent. To avoid any further confusion in the matter, however, and to make assurances doubly sure I propose to spell out, as the amendment does, that the right of action in contract under subsection (6) extends only to a person using the vehicle with the consent of the buyer of the vehicle.
I am pleased that has been clarified.
I have considered the scope of this section further and I am satisfied that a doubt exists as to whether the seller of a motor vehicle could exclude his liability for breach of the implied condition created by section 13(2). While it could be argued that since section 13 does not allow for the type of exclusion clause I have in mind, such a clause could not be used nevertheless, it is possible that the court would hold that section 55(1) of the 1893 Act, as amended by section 22 of this Bill, would enable to seller to evade his responsibility in this way. What it boils down to is that where there is doubt about the matter and in order to avoid any future misunderstanding I propose in this amendment to provide that any term of contract excluding liability for all or any of the provisions of this section shall be void. I should mention though, that this amendment will not affect an agreement of the kind referred to in paragraphs (a) to (c) of section 13(2). In such a case it the parties make such an agreement there is, therefore, no implied condition and no need to legislate against its exclusion.
I move amendment No. 22.
In page 10, line 43, after "guarantee" to insert "(except a provision for referral to arbitration)".
This relates to a reservation we expressed in relation to rights under a guarantee. Section 18, which we propose to amend, provides that exclusion clauses in certain circumstances will be void and we expressed fear in relation to this and other sections that there is the possibility that this would affect the legal validity of a clause that merely referred a dispute to arbitration. I think the Minister took the point in relation to some other sections, if I judge some later amendments correctly, and in the circumstances I ask him to accept this amendment.
Am I right in thinking that the reasoning behind this proposed amendment is that expressed by Senator FitzGerald, in particular on Committee Stage, that whatever we are doing in section 18, we should not exclude a proper provision for referral to arbitration in the event of a dispute arising out of a guarantee? My argument was then and still is that there is nothing in section 18 which would prevent or restrict the referral of such a dispute to arbitration. We are, in this section, making two separate provisions. Subsection (1) lays down the general rule that whatever else a guarantee does, including possibly providing for the referral of disputes to arbitration, it nevertheless cannot take away a persons right under common law or under this Bill. The buyer retains these rights whether the matter is referred to arbitration or brought to court or whatever. Subsection (2), on which Senator FitzGerald raised this point on Committee, merely sets out to prohibit the guarantor or anyone acting on his behalf from setting himself up as a judge in his own case. The Senator, in tabling his amendment, may have felt that an arbitrator might in certain circumstances be acting on behalf of the guarantor. I do not think, however, that such a construction can be put on the role of an arbitrator. An arbitrator is simply a person appointed by both sides to decide between them as to a dispute and not to act on behalf of one or both. I am, therefore, satisfied that there is no need to amend the section as proposed. I would also point out that if the amendment were accepted the effect would be that a guarantee could, in effect exclude a person's common law or statutory rights and this, in my view, would be clearly undesirable.
I accept the Minister's point in relation to subsection (2). My amendment does not seek to alter subsection (2). I considered the arguments that he made on Second Stage and I accept them. I believe that a right, or at least a clause, referring a dispute to arbitration is a limitation of the right of a buyer at common law or pursuant to statute and it is for that reason that I suggested that this should go in. Certainly, where one is obliged to refer to arbitration before one goes to the court it is a limitation or a restriction on one's ordinary rights at law. In relation to many guarantees it is more desirable from everybody's point of view—the manufacturer, retailer and the consumer alike—that they choose a cheaper form of dispute resolving forum and arbitration has that advantage. I think the fact that the amendment we make accepts provision for referral to arbitration does not in any way affect the type of exclusion clause that the Minister would be concerned with and for that reason I would ask him to accept the amendment.
These are analagous to the amendments to section 10 of the Bill which we have already discussed. Senator FitzGerald suggested on Committee Stage that it would lead to convenience of operation if in this section we re-enacted section 34 of the Sale of Goods Act, 1893 alongside the amended section 35 of that Act. I said I saw no objection to this proposal and the proposed amendments provide accordingly.
Senator FitzGerald made the valid point on Committee Stage that the use of the word "unmerchantable" in this section hung in mid-air as it were, since, unlike part 2 dealing with the sale of goods, the reference to merchantable quality in section 28 does not extend at present to unmerchantable goods referred to in section 29. What the amendment does, therefore, is to extend the meaning of "merchantable quality" as defined in section 10 to the term "unmerchantable" which appears in section 29. I am grateful to the Senator for drawing this point to my attention.
I move amendment No. 30:
In page 17, lines 1 and 2, to delete "to a hirer dealing as consumer".
Does the Minister accept the point that we made in relation to this general approach to some of these sections in amendment No. 28? This is another instance where a protection given is limited to people who deal as consumer. We have made the point on a great number of occasions on Second Stage and Committee Stage of this Bill that one big problem involved is the very narrow definition given to a consumer. We feel that there are new rights given to consumers as defined by this Bill that could easily be extended to people other than consumers. The right we are talking about under section 32 is a very major one. It is the liability of persons conducting negotiations antecedent to hire purchase agreements. The circumstances that I am concerned about occur very regularly in relation to hire purchase transactions. Where a retailer of goods is anxious to complete a deal with a consumer, for example a person who wants to buy a motor cycle and cannot afford to buy it by paying the full price, then the hire purchase company are introduced. The hire purchase company buy the motor cycle from the supplier and they hire it, to the consumer. In these circumstances the position has been to date that if the consumer's motor cycle went wrong he had no right of access in terms of seeking legal address.