Sale of Goods

Welsh Books Council

Sale of Goods

Matters under this heading concern the relationship between buyers and sellers of goods and in particular the rights of the buyer or consumer. They are covered by a number of acts, including especially the Misrepresentation Act 1967, the Trade Descriptions Act 1968, the Unfair Contract Terms Act 1977, the Sale of Goods Act 1979, the Consumer Protection Act 1987, the Sale and Supply of Goods Act 1994, and the Sale and Supply of Goods to Consumers Regulations 2002 which incorporate a European Directive.

The main areas of concern to the book trade are:

Good Title

This refers to the legal ownership of goods purchased. Transfer of ownership, or title, is covered by a contract of sale, although this contract is often only an implied one. Publishers’ contracts with retailers and distributors are often protected by ‘retention of title’ clauses, which stipulate that goods remain the legal property of the publisher until paid for or until some other condition is met and can therefore be reclaimed should, for example, the other party become insolvent. Such clauses will, in addition, often require the retailer or wholesaler to keep the stock insured and in good condition, to make separate account of sales from such stock, and may reserve the right of access to the premises where the books are kept for the purpose of reclaiming them. Examples of publishers’ retention clauses may be found on the websites of a number of publishing houses.


Sale of Goods by Description

This refers to a consumer’s right to expect goods to ‘conform to contract’ and to seek redress in cases where goods are found not to comply with descriptions of them. In the context of bookselling, such a description may appear on the book itself or on publicity material or may be communicated orally by a bookseller or rep. A book buyer, for example, would have the right to rescind a contract of purchase and return the book in question if it failed to meet the claims of its blurb (e.g. being appropriate for students of History at GCSE level) unless the bookseller – with whom the buyer is legally contracted – explicitly distanced himself or herself from such a description before entering into the contract. It is the seller, not the manufacturer, who is responsible if goods do not conform to contract. The same conditions bind a publisher selling stocks to a retailer or wholesaler, a publisher selling direct over the Internet, or a distributor selling to a retailer. Even where ‘description’ plays no significant part in a contract of sale, a consumer’s rights may still be protected by measures curbing Misrepresentation, whether this be fraudulent, negligent or innocent.

Note, however, that authors and publishers have a duty of care not to make or promote false statements.

Satisfactory Quality

There is an implied legal condition in all business sales (private transactions are another matter) that goods be of ‘satisfactory quality’. ‘Satisfactory quality’ is determined by what a ‘reasonable person’ would find acceptable given the specific circumstances of the case and so is generally a matter of judgement rather than the application of a set of rules. Main considerations are fitness for purpose, appearance and finish, freedom from minor defects, safety and durability. ‘Fitness for purpose’, where it is an explicit part of a contract of sale by a bookseller or supplier, will bind that party in the same way as a ‘description’ (see above). Terms of satisfactory quality will not normally apply when the buyer has examined the goods, or a representative sample of them, before purchase, or his/her attention has been drawn to any defects. There is no liability, either, where no specific purpose is specified or implied.

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There is extensive discussion of the implications of Sale of Goods legislation for publishers in Hugh Jones and Christopher Benson, Publishing Law, 4th Edition (Routledge 2011).

The full Sale and Supply of Goods Act 1994 can be read on-line at http://www.hmso.gov.uk/acts/acts1994/Ukpga_19940035_en_1.htm

Date last updated: 26 Jun 2013