Supplier’s Guarantee ‘As to Delivery’ of Consumer Goods

POSTED BY Barbara Versfelt
06 September 2013

posted in Transport | Consumer Law | Insurance

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The Consumer Law Reform Bill (Bill) proposes to amend the Consumer Guarantees Act 1993 (CGA) by introducing an additional supplier’s guarantee ‘as to delivery’ in Part I of the CGA. The CGA applies to goods ordinarily acquired for personal, domestic or household use or consumption from a supplier. Suppliers will be familiar with the existing guarantees in sections 5 to 15 of the CGA in relation to price, quality and fitness for purpose of the goods.

The newly proposed section 5A provides for a guarantee as to delivery of the goods, as follows:

"(1)Where a supplier is responsible for delivering, or for arranging for the delivery of, goods to a consumer there is a guarantee that the goods will be received by the consumer—
(a)at a time, or within a period, agreed between the supplier and the consumer; or
(b)if no time or period has been agreed, within a reasonable time.”

This section will have the effect of placing the risk of transport on the supplier who is responsible for ‘delivery’ or ‘arranging for delivery’. The Bill does not provide a definition of ‘delivery’. All suppliers are responsible for ‘delivery’ of goods in some way. The concept of ‘delivery’ has multiple meanings in trade law and practice. Terms commonly used in sale agreements and widely understood internationally are the Incoterms. Under the Incoterms, the word ‘delivery’ is used to indicate where the risk of loss and damage to the goods passes from the seller to the buyer.

Presumably, what is intended in section 5A is ‘delivery to the consumer’s premises’ given that the section mentions goods ‘to be received by the consumer’ and given explanations in the Bill concerning the proposed new section which state that ‘the supplier bears the risk of loss/damage of the goods while in transit.’ However, one cannot be sure. In this regard, we note that the CGA cannot be contracted out of except in limited circumstances. (Incidentally, the Bill also proposes changes to the contracting out provision, which we will discuss elsewhere).

In all circumstances, suppliers should consider appropriate transit insurance. Under the Carriage of Goods Act 1979 (COGA), carriers involved in domestic carriage have a statutory limit on liability of $1,500 per unit. The Bill proposes to raise the limit to $2,000 but otherwise the COGA remains unaffected. In addition, almost invariably, modes of international transport (such as by air or ship) are subject to Conventions which limit or exclude the liability of international carriers.

Image creative commons licensed by lord enfield

POSTED BY Barbara Versfelt
06 September 2013

posted in TransportConsumer LawInsurance

VIEWED 8410 TIMES

PERMALINK

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