Sales Law Review Group

Sales Law Review Group

In November 2008, the Tánaiste and Minister for Enterprise, Trade and Employment, Mary Coughlan T.D. announced the establishment of an expert group, chaired by Professor Robert Clark of UCD, to review the legislation governing the sale of goods and supply of services. This legislation provides the statutory framework for the regulation of business-to-consumer and business-to-business contracts and is a cornerstone of both Irish consumer and commercial law. The statutes under review include the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act 1980.

Sale of Goods Act 1893 and Part II of 1980 Restatement

The Tánaiste said that she had initiated the review for two main reasons. “Firstly, the proposed EU Directive on Consumer Rights, published on 8 October 2008, will have a profound long-term effect on consumer rights and law in Ireland. It is vital that we are in a position to understand fully the provisions and implications of the proposed Directive and the Review Group will have a central role to play in the formulation of our response to the Directive”.

“Secondly, the current body of legislation is a mix of the 1893 pre Independence legislation and the 1980 Act together with secondary legislation deriving from EU Directives. This has made it difficult for consumers and businesses to understand their rights and obligations. There is clearly a need for modernisation and consolidation of the law in line with the objectives of the Government’s Better Regulation programme”.

The Sale of Goods Act 1893 was a pioneering piece of legislation in its day but does not provide an adequate legislative basis for commercial transactions in the twenty first century” the Tánaiste added.

Terms of Reference of the SLRG

The terms of reference of the Sales Law Review Group are:

1. To review the general sales law provisions of the Sale of Goods Acts 1893 and1980 and to make recommendations for a scheme of legislation capable of providing a statutory sales law framework appropriate to modern-day conditions and needs.
2. To examine the provisions of the proposed EU Directive on consumer contractual rights in the light of existing Irish consumer law and assess its implications for Irish consumer rights and law, to contribute to the development of the Irish response to the proposed Directive, and to consider and make recommendations as to how the Directive and Irish contract sales law may best be integrated.
3. To consider and make recommendations on other matters related to Irish sales law and the common law and statutory framework of that law, including dispute resolution mechanisms in Ireland. The Report on the Legislation Governing the Sale of Goods and Supply of Services was published on the 18^th October 2011.

Membership of the SLRG

Robert Clark, Chair, is an associate professor in the School of Law, University College Dublin. He is a barrister and a consultant to Arthur Cox, Solicitors, where he specialises in commercial law, technology and life sciences issues. His textbook, Contract Law in Ireland, has recently appeared in a sixth edition and he has published many articles on contract law and intellectual property in Irish and international legal journals. Professor Clark has served on a number of Irish Government and European Commission Advisory Bodies.

• Tony Burke, nominee of the Irish Exporters' Association, Head of Commercial Department Mason, Hayes and Curran Solicitors.

• Caterina Gardiner LL.B (Dub.), LL.M (NUI), lecturer in law NUI Galway.

• Michael Kilcoyne, nominee and Vice-Chairman of the Consumers' Association of Ireland. 

• Roderick Maguire LL.B., LL.M. (Lond.), M.A., B.L., nominee and Honorary Secretary of the Bar Council of Ireland.

• Sean Murphy, Legal Adviser to, and nominee of, the National Consumer Agency.

• Richard Nesbitt S.C., Chairman of Arnotts Limited, nominee of IBEC.

• Kevin O'Higgins, Solicitor, nominee of the Incorporated Law Society.

• Nathan Reilly LL.B (Dub.), LL.M. (Cantab.), Barrister.

• Fidelma White, B.C.L., LL.B., LL.M (NUI), LL.M (Lond.), Senior Lecturer in Law University College Cork.

Proposed EU Consumer Rights Directive

The proposal for a Directive on Consumer Rights, entitled “Directive of the European Parliament and of the Council on Consumer Rights” published in October 2008 was described by the European Commissioner, Meglena Kuneva, as ‘the most far reaching overhaul of consumer rights in 30 years’. Its publication followed a review of the Consumer Acquis (the main Directives aimed at protecting consumer rights) launched by the European commission in 2004 and the publication of a Green Paper on the Review of the Consumer Acquis in 2007.

The proposal involves the review of the following four Directives:

• Directive 85/577/EEC on contracts negotiated away from business premises (transposed into Irish law in S. I. No. 224 of 1989),

• Directive 93/13/EEC on unfair terms in consumer contracts (transposed into Irish law in S. I. No. 27 of 1995 as amended by S.I. No. 307 of 2000),

• Directive 97/7/EC on distance contracts (transposed into Irish law in S. I. No. 207 of 2001 and

• Directive 1999/44/ECon consumer sales and guarantees (transposed into Irish law in S. I. No. 11 of 2003).

It is proposed that these four Directives be amalgamated into one instrument which will deal with almost all aspects of contracts between business and consumers. The proposed new Directive aims to establish a common EU-wide set of rules so that consumers can shop with confidence across the European Union and traders can offer goods for sale on a cross-border basis without the impediment of a host of different national regulations. The proposed Directive is a maximum harmonisation measure which would mean that member states would not be able to provide greater or lesser rights in any field falling within its scope. There will, however be departures from the existing Irish law on some matters. For example the right to reject faulty goods will no longer be the first remedy available to an Irish consumer. The draft Directive will stipulate that repair or replacement of a faulty product is now the first remedy available. There will also be changes for business. For example the type of information requirements that businesses have to provide to consumers under distance contracts legislation may now have to be provided in respect of all consumer sales.

The Group has prepared an analysis and evaluation of the proposed Directive entitled: Position Paper on the proposal for a Directive of the European Parliament and of the Council on Consumer Rights (PDF 857KB).