It struck me while reading the section that while reasonable care of the goods may sound right——
SECTION 62.
Question proposed: "That section 62 stand part of the Bill."
It sounds cosy.
——what happens if the goods are stolen without negligence on the part of the hirer? Is the company to be left empty handed?
Does the Deputy mean that the goods could be stolen from a person's home?
Let us suppose we are talking about a JCB or other large equipment.
Something which one would have to store in a yard because if it was stored in the house it would be insured?
There is no obligation to insure the goods. What happens if the HP company wants to repossess the goods and the hirer says they were stolen the day before? That worries me.
There was a case recently in the midlands where a combine harvester was stolen.
Was that in Longford?
No. Is the Minister glad she is not attached to that county any more?
Please sing another tune, Deputy. I do not know the answer; it is not covered under the Bill.
It just struck me that reasonable care——
The hirer has to take reasonable care of the goods.
I accept and understand that. It is a good provision as far as it goes. However, does it, by implication, mean that if the hirer has taken reasonable care and the goods disappear from his property, he is not liable to reimburse the owner?
Deputy McDowell is not far off the mark in what he said. I had a case recently for the Employment Appeals Tribunal which involved a new firm of site management which went down for a sum of £1.5 million. In the course of processing the case, the assets of the company were given as £200 in plant and machinery and £2,000 in office furniture. There is obviously something wrong where a building firm only has assets valued at £200. It transpired that all the equipment was leased. This included scaffolding, JCBs, cranes and so on.
It walked?
There is obviously scope for some dishonesty. Where a firm goes into liquidation certain things "walk" of their own volition. The case Deputy McDowell cited is something the Minister should keep in mind. I know the Minister cannot legislate for everything under the sun but there is scope for abuse of the law in this respect.
If the Minister lent me her car and I came back and told her that it was gone, somebody had stolen it, she would say it is too bad but that I will have to get her another one. If we had signed an agreement or there was something to the effect that if I fail to take reasonable care of her car I was liable to pay her damages, it might create the implication, if I could show I had taken reasonable care but the car was still missing, that it would be the end of her remedy against me.
I worry that it tends to suggest the only duty on the hirer is to show that he has taken reasonable care. In circumstances where the goods are gone because they have been stolen by a third party, can the hirer just throw up his hands and say he is sorry, it was not his fault but they are gone?
It may seem strange but I had the experience of a nephew's car being stolen outside my back door. It was completely written off but, fortunately, it was fully covered by comprehensive insurance. Otherwise, it would have been necessary for him to pay off the agreement he signed, although he would have to sign a further agreement to get another car. There was no question of him being released from the agreement he signed, even though it was not his fault.
What alternative provision could be inserted which would not be fair to the hirer in this situation? In terms of reasonable care, presumably the owner could specify in the agreement that he required insurance, if theft was a risk he wished to have insurance against. If the hirer failed to get insurance, he clearly would not have taken reasonable care. Reasonableness is the only test upon which a consumer's behaviour can be judged.
I agree. There is nothing wrong with the section. However, I wonder if it would create an implication in a court's mind that it was the sum total of a hirer's responsibility. Is it possible in certain circumstances, notwithstanding that a person took reasonable care and a car just disappeared from premises without fault on the part of the person, that a court would take the view that terms in a hire purchase agreement, which required the owner to be compensated would be void.
I still do not see what could be inserted. "Reasonable care" is open to interpretation, although it is common coinage in legal terms.
One could insert, for example, that it is without prejudice to any obligations to insure or compensate set out under any agreement, any express terms.
I would have to take advice on that.
Question put and agreed to.