Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698136158024.pdf (Ireland)
AN BILLE UM DHIOL EARRAJ AGUS SOLATHAR SEIRBII1SI, 1978 SALE OF GOODS AND SUPPLY OF SERVICES BILL, 1978 Mar a tionscnaiodh As initiated ARRANGEMENT OF SECTIONS PART I Preliminary and General Section Interpretation generally.

1.

Short title.

2.

3.

Dealing as consumer.

4.

Saving.

5.

Orders.

6.

Penalties.

7.

Prosecution of offences.

8.

Expenses.

PART II Sale of Goods 9.

Citation and construction of Part II.

Conditions and Warranties 10.

Sale of Goods Act, 1893, sections 11, 12, 13 and 14.
11.

Statements purporting to restrict rights of buyer.

12.

13.

Warranty on sale of motor vehicles.

14.

Liability of finance houses.

Implied warranty for spare parts and servicing.

Guarantees 15.

Definition of guarantee.

16.

Terms of guarantee.

17.

Liability of seller under guarantee.

18.

Exclusion of buyer’s rights under guarantee.

19.

Right of action under guarantee.

Performance of the Contract 20.

Sale of Goods Act, 1893, section 35.

Remedies for Breach of Contract 21.


Sale of Goods Act, 1893, section 53.

[No.

36 of 1978] Supplementary Section 22.

Sale of Goods Act, 1893, section 55.

23.

Sale of Goods Act, 1893, section 55A.

24. International sales.

PART III Hire-Purchase Agreements Implied terms as to title.

Implied undertakings as to quality or fitness.

25.

Citation and construction of Part III.

26.

27.

Letting by description.

28.

29.

Samples.

30.

Statements purporting to restrict rights of hirer.

31.
31.

Exclusion of implied terms and conditions.

32.

Liability of persons conducting negotiations antecedent to hire-purchase agreements.

33.

Application of sections 12,15 to 19 to hire-purchase agreements.

34.

Application of section 13 to hire-purchase of motor vehicles.

35.

Conflict of laws.

PART IV Supply of Services Implied undertakings as to quality of service.

36.

37.

Exclusion of implied terms.

38.

Conflict of laws.

39. International contracts for services.

PART V Misrepresentation 40.


“Contract”.

41.

Removal of certain bars to rescission for innocent misrepre­ sentation.

42.

Damages for misrepresentation.

43.

Avoidance of certain provisions excluding liability for mis­ representation.

PART VI Miscellaneous 44.

Unsolicited goods.

45.

Directory entries.

46.

47.

Power to withdraw acceptance of contract.

48.

Required particulars in contracts, guarantees and related Invoices.

writings.

49.

Notice as to use of standard form of contract.

50.
50.

Size of type in printed contracts and other documents.

51.

Contracts required to be in writing.

52.

Functions of Director of Consumer Affairs.

53.

Consultation with Minister for Finance.

54.

Construction of sections 9 and 18 of the Consumer Information Act, 1978.

2 SCHEDULE Fair and Reasonable Terms Acts Referred to Petty Sessions (Ireland) Act, 1851 Sale of Goods Act, 1893 Hire-Purchase Act, 1946 Central Bank Act.

1971 Consumer Information Act, 1978 1851, c. 93 1893, c. 71 1946, No.
16 1971, No.

24 1978, No.

1 3 AN BILLE UM DHIOL EARRAI AGUS SOLATHAR SEIRBHISI, 1978 SALE OF GOODS AND SUPPLY OF SERVICES BILL, 1978 BILL entitled 5 AN ACT TO AMEND THE LAW RELATING TO THE SALE OF GOODS, HIRE-PURCHASE AGREEMENTS AND CONTRACTS FOR THE SUPPLY OF SERVICES AND TO PROVIDE FOR RELATED MATTERS.

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: 10 PART I Preliminary and General Short title.

1.—This Act may be cited as the Sale of Goods and Supply of Services Act, 1978.

Interpretation generally.
2.—(1) In this Act— 15 “ Act of 1893 ” means the Sale of Goods Act, 1893; “ business ” includes profession and the activities of any State authority or local authority; “ deals as consumer ” shall be construed in accordance with section 3; “ fair and reasonable ” shall be construed in accordance with sub­ section (3); 20 “the Minister” means the Minister for Industry, Commerce and Energy; “ service ” does not include meteorological or aviation services pro­ vided by the Minister for Tourism and Transport or anything done under a contract of service; 25 “ State authority ” means a Minister of the Government, the Com­ missioners of Public Works in Ireland and the Irish Land Com­ mission.
(2) A reference in this Act to the supply of a service includes reference to the rendering or provision of a service or facility and to an offer to supply.

30 (3) Where, under section 13, 31, 37 or 43 of this Act or under section 55 of the Act of 1893 (inserted by section 22 of this Act), a question arises as to whether a term of a contract is fair and reason­ 35 4 able regard shall be had to the criteria set out in the Schedule in deciding it.
3.—(1) In the Act of 1893 and this Act, a party to a contract is said to deal as consumer in relation to another party if— Dealing as consumer.

5 (a) he neither makes the contract in the course of a business nor holds himself out as doing so, and (b) the other party does make the contract in the course of a business, and (c) the goods or services supplied under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.
^ 0 (2) On a sale by competitive tender the buyer is not in any circum­ stances to be regarded as dealing as consumer.

(3) Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not.

15 4.—(l) This Act does not apply (except where otherwise expressly Saving.

provided) to contracts made before its passing.

(2) This Act does not affect any exemption from liability conferred by or under statute.
5.—(1) The Minister may by order amend or revoke an order under Orders.

20 this Act including an order made by virtue of this subsection.

(2) A draft of every order proposed to be made under this Act shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.

25 6.—(l) A person guilty of an offence under this Act shall be Penalties.
liable— 30 35 40 (a) on summary conviction, to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprison- ment, or (b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprison­ ment for a term not exceeding 2 years or to both the fine and the imprisonment.
(2) Where an offence under this Act which is committed by a body corporate or an unincorporated body of persons is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person (or any person acting on his behalf) being a director, manager, secretary, member of the committee of management or other controlling authority of any such body or being any other similar officer of any such body, that person or the person so acting as the case may be shall also be guilty of that offence.
7.—(1) Summary proceedings for an offence under this Act may 45 be brought and prosecuted by the Minister.

Prosecution of offences.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.

5 Expenses.

8.
5 Expenses.

8.

—The expenses incurred by the Minister or the Director of Con­ sumer Affairs in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Sale of Goods Citation and construction of Part II.

9.

—(1) The Act of 1893 and this Part may be cited together as the Sale of Goods Acts, 1893 and 1978.

(2) The Act of 1893 and this Part shall be construed as one.
Sale of Goods Act, 1893, sections 11.

12. and 14.

Conditions and Warranties 10.

—For sections 11, 12, 13 and 14 of the Act of 1893 there shall be substituted the sections set out in the following Table : 5 iq When condition to be treated as warranty.
TABLE 11.—(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the 15 buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated.
(2) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to 20 a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, de­ pends in each case on the construction of the con- 25 tract.

A stipulation may be a condition, though called a warranty in the contract.
(3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, the breach of any condition to be fulfilled 30 by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, un­ less there be a term of the contract, express or implied, to that effect.
(4) Nothing in this section shall affect the case 35 of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.
Implied under- [■£•« to 12.—(1) In every contract of sale, other than one to which subsection (2) applies, there is— (a) an implied condition on the part of the 40 seller that, in the case of a sale, he has a right to sell the goods and, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is <0 pass, 45 and (b) an implied warranty that the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not dis­ closed to the buyer before the con- 50 tract is made and that the buyer will 6 Sale by description.
35 40 45 Implied under­ takings as to quality or fitness.

50 55 60 enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or en- cumbrance so disclosed.
(2) In a contract of sale, in the case erf which there appears from the contract or is to be in­ ferred from the circumstances of the contract an intention that the seller should transfer only such title as he or a third person may have, there is— (a) an implied warranty that all charges or encumbrances known to the seller and not known to the buyer have been dis­ closed to the buyer before the con­ tract is made, and (b) an implied warranty that neither— (i) the seller, nor (ii) in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that per­ son, nor (iii) anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed to the buyer before the contract is made, will disturb the buyer’s quiet pos­ session of the goods.
13.

—(1) Where there is a contract for the sale of goods by description, there is an implied condi­ tion that the goods shall correspond with the des­ cription; and if the sale be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

(2) A sale of goods shall not be prevented from being a sale by description by reason only that, being exposed for sale, they are selected by the buyer.
(3) A reference to goods on a label or other descriptive matter accompanying goods exposed for sale may constitute or form part of a descrip­ tion.

14.

—(1) Subject to the provisions of this Act and erf any statute in that behalf, there is no im­ plied condition or warranty as to the quality or fitness for any particular purpose of goods sup­ plied under a contract of sale.
(2) Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition— (a) as regards defects specifically drawn to the buyer’s attention before the con­ tract is made, or (b) if the buyer examines the goods before the contract is made, as regards de­ fects which that examination ought to have revealed.
7 Statements restrict^n*hts of* buyer18 S (3) Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant cir­ cumstances, and any reference in this Act to unmerchantable goods shall be construed accord­ ingly.
5 (4) Where the seller sells goods in the course of a business and the buyer, expressly or by im­ plication, makes known to the seller any parti­ cular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a pur­ pose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgement.
10 15 20 (5) An implied condition or warranty as to quality or fitness for a particular purpose may be annexed to a contract of sale by usage.
(6) The foregoing provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made.
11.—(1) Subsections (2) and (5) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act.
(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (/) refers: (a) to display on any part of any premises a notice that includes any such statement, or (b) to publish or cause to be published an advertisement which contains any such statement, or (c) to supply goods bearing, or goods in a container bearing, any such statement, or (d) otherwise to furnish or to cause to be furnished a document including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (/) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (/).
(4) It shall be an offence for a person in the course of a business to furnish to a buyer dealing as consumer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a state­ ment, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement 8 25 30 35 40 45 50 55 60 12.—(1) The Minister may, after such consultation with such interested parties as he thinks proper, by order apply this section to any class of goods described in the order.
Implied warranty for spare parts and servicing.

(2) In a contract for the sale of goods of a class to which this 5 section applies there shall be an implied warranty that spare parts and an adequate aftersale service will be provided by the seller for such period and in such circumstances as are stated in an offer, description or advertisement by the seller on behalf of the manu­ facturer or on his own behalf.
10 13.—(1) In this section “ motor vehicle ” means a vehicle intended or adapted for propulsion by mechanical means, including— Warranty on sale of motor vehicles.

(a) a bicycle or tricycle with an attachment for propelling it by mechanical power, and (b) a vehicle the means of propulsion of which is electrical or 15 partly electrical and partly mechanical.
(2) Without prejudice to any other condition or warranty, in every contract for the sale of a motor vehicle (except a contract in which the buyer is a person whose business it is to deal in motor vehicles) there is an implied condition that at the time of delivery 20 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 the vehicle, unless— (a) it is agreed between the seller and the buyer that the vehicle is not intended for use in the condition in which it is to be delivered to the buyer under the contract, and 25 (b) a document consisting of a statement to that effect is signed by or on behalf of the seller and the buyer and given to the buyer prior to or at the time of such delivery, and (c) the agreement referred to in paragraph (a) is, in all the 30 circumstances, fair and reasonable.
(3) Save in a case in which the implied condition as to freedom from defects referred to in subsection (2) is either not incorporated in the contract or has been effectively excluded from the contract pursuant to that subsection, in the case of every sale of a motor 35 vehicle by a person whose business it is to deal in motor vehicles a certificate in writing shall be given to the buyer by or on behalf of the seller to the effect that the vehicle is, at the time of delivery, free from any defect which would render it a danger to the public, including persons travelling in the vehicle.
40 (4) Where, in breach of subsection (5), the certificate referred to in that subsection is not given to the buyer, or where, in a case in which such a certificate is required to be given, the vehicle has at the time of delivery any defect of the kind mentioned in that sub­ section of which the seller or his servants or agents are aware or 45 should by the exercise of reasonable diligence have become aware, the seller shall be guilty of an offence.
(5) The Minister may by regulations prescribe further matters to be included in a certificate to be given under subsection (5).

(6) A person lawfully using the motor vehicle who suffers loss as 50 the result of a breach of the condition implied by subsection (2) may maintain an action for damages against the seller in respect of the breach as if he were the buyer.
14.—Where goods are sold to a buyer dealing as consumer and an agreement is entered into by the buyer with another person acting 55 in the course of a business (in this section referred to as a finance house) for the repayment to the finance house of money paid by the finance house to the seller in respect of the price of the goods, the Liability of finance houses.
9 finance house shall be deemed to be a party to the sale and shall be jointly and severally answerable to the buyer for the fulfilment of the contract of sale.

Guarantees Definition of guarantee.

15.


—In sections 16 to 19, “ guarantee ” means any document, notice 5 or other statement, howsoever described, supplied by a manufacturer or other supplier, other than a retailer, in connection with the supply of any goods other than for resale and indicating that the manu­ facturer or other supplier will service, repair or otherwise deal with the goods following purchase.

10 Terms of guarantee.

16.


—(1) A guarantee shall be clearly legible and shall refer only to specific goods or to one category of goods.

(2) A guarantee shall state clearly the name and address of the person offering the guarantee and against whom claims should be directed.

15 (3) A guarantee shall state clearly the duration of the guarantee from the date of purchase but different periods may be stated for different components of any goods.
(4) A guarantee shall state clearly the procedure for presenting a claim under the guarantee which procedure shall not be more 20 difficult than ordinary or normal commercial procedure.

(5) A guarantee shall state clearly what the manufacturer or other supplier undertakes to do in relation to the goods and what charges, if any, including the cost of carriage, the buyer must meet in rela­ tion to such undertakings.
25 (6) It shall be an offence for the seller of goods to supply in connection with the goods a guarantee which fails to comply with this section.

Liability of seller under guarantee.

17.

—(1) Where the seller of goods delivers a guarantee to the buyer, irrespective of when or how it is delivered, the seller shall be 30 liable to the buyer for the observance of the terms of the guarantee as if he were the guarantor, unless he expressly indicates the con­ trary to the buyer at the time of delivery.
(2) Where, however, the seller, being a retailer, gives the buyer his own written undertaking that he will service, repair or otherwise deal 35 with the goods following purchase, it shall be presumed, unless the contrary is proved, that he has not made himself liable to the buyer under the guarantee so delivered.

(3) Sectiotis 16, 18 and 19 shall apply to any such undertaking as they apply to a guarantee.
^ (4) The liability of a seller to a buyer under this section is without prejudice to the rights conferred on the buyer under section 19.

Exclusion of buyer’s rights under guarantee.

1®*—(1) Rights under a guarantee shall not in any way exclude or limit the rights of the buyer at common law or pursuant to statute and every provision in a guarantee which imposes obligations on the 45 buyer which are additional to his obligations under the contract -shall be void.
(2) A provision in a guarantee which purports to make the guaran­ tor or any person acting on his behalf the sole authority to decide whether goods are defective or whether the buyer is otherwise en- 50 titled to present a claim shall be void.

Right of action under guarantee.


19.—(l) The buyer of goods may maintain an action against a manufacturer or other supplier who fails to observe any of the terms 10 of the guarantee as if that manufacturer or supplier had sold the goods to the buyer and had committed a breach of warranty, and the Court may order the manufacturer or supplier to take such action as may be necessary to observe the terms of the guarantee, or to pay 5 damages to the buyer.
In this subsection, “ buyer ” includes all per­ sons who acquire title to the goods within the duration of the guarantee.

(2) In any case in which a guarantor is liable to an owner in damages, the Court may at its discretion and on such terms as the 10 Court may deem just afford the guarantor the opportunity of per­ forming these obligations under the guarantee to the satisfaction of the Court within a time to be limited by the Court.
Performance of the Contract 20.—For section 35 of the Act of 1893 there shall be substituted 15 the section set out in the following Table: Sale of Goods Act, 1893, section 35.

Acceptance.
Acceptance.

20 25 TABLE 35.—The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or, subject to section 34 of this Act, when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
Remedies for Breach of Contract 21.—For section 53 of the Act of 1893 there shall be substituted the section set out in the following Table: Sale of Goods Act, 1893, section 53.

30 Remedy for breach of warranty.
35 40 45 50 55 TABLE 53.—(1) Subject to subsection (2), where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may— (a) set up against the seller the breach of warranty in diminution or extinction of the price, or (b) maintain an action against the seller for damages for the breach of warranty.
(2) Where the buyer deals as consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty and the buyer, promptly upon discovering the breach, requests the seller to remedy the breach or to replace any goods which are not in conformity with the condition, then, if the seller refuses to do so or fails to do so within a reasonable time, the buyer is entitled to reject the goods and repudiate the contract or to have the defect con­ stituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him.
The onus of proving that the buyer acted with promptness shall lie on him.

11 (3) The measure of damages for breach of war­ ranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(4) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.
5 (5) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied a breach does not of itself prevent the buyer from maintaining an action for the same breach of warranty if he has suffered further damage.

10 15 Supplementary Sale of Goods Act, 1893, section 55.
22.—For section 55 of the Act of 1893 there shall be substituted the section set out in the following Table: Exclusion of implied terms TABLE 55.—(1) Subject to the subsequent provisions Qf section, where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.
20 25 (2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.

30 (3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 of this Act shall be void.
(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13, 14 or 15 of this Act shall be void where the buyer deals as consumer and shall, in any other case, not be enforceable to the extent that it is shown that it would not be fair and reasonable to allow reliance on the term.
(5) Subsection (4) shall not prevent the Court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13, 14 or 15 of this Act is not a term of the contract.
(6) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
35 40 45 50 55 12 (7) Any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incor­ porated in the contract by another term of the contract.

(8) This section is subject to section 61 (6) of this Act.

23.—After section 55 of the Act of 1893 there shall be inserted the section set out in the following Table : Sale of Goods Act, 1893, section 55A.

Conflict of laws.
TABLE 55A.—Where the proper law of a contract of sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of sub­ stituting, provisions of the law of some other country for all or any of the provisions of sec­ tions 12 to 15 and 55 of this Act, those sections shall, notwithstanding that term but subject to section 61 (6) of this Act, apply to the contract.
24.—In section 61 of the Act of 1893 (Savings) there shall be International sales, inserted after subsection (5) thereof the following subsection— “(6) (a) Nothing in section 55 or 55A of this Act shall pre- vent the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 of this Act.
(b) In this subsection ‘contract for the international sale of goods ’ means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States and in the case of which one of the following conditions is satisfied: (i) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory' of one State to the territory of another; or (ii) the acts constituting the offer and acceptance have been effected in the territories of different States; or (iii) delivery of the goods is to be made in the ter­ ritory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.”.
PART III Hire-Purchase Agreements 25.—(1) The Hire-Purchase Acts, 1946 and 1960, and this Part citation and 50 may be cited together as the Hire-Purchase Acts, 1946 to 1978.

Cons'tniction of (2) The Hire-Purchase Acts, 1946 and 1960, and this Part shall be construed as one.

13 Implied terms as to title.
26.—(1) In every hire-purchase agreement, other than one to which subsection (2) applies, there is— (a) an implied condition on the part of the owner that he will have a right to sell the goods at the time when the pro­ perty is to pass, and 5 (b) an implied warranty that the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the hirer before the agreement is made and that the hirer will enjoy quiet possession of the goods except so far as k may be disturbed by any person entitled to the benefit erf any charge or encumbrance so disclosed or known.
10 (2) In a hire-purchase agreement, in the case of which there appears from the agreement or is to be inferred from the circum­ stances of the agreement an intention that the owner should transfer only such title as he or a third person may have, there is— 15 (a) an implied warranty that all charges or encumbrances known to the owner and not known to the hirer have been dis­ closed to the hirer before the agreement is made, and (b) an implied warranty that neither— 20 (i) the owner, nor (ii) in a case where the parties to the agreement intend that any title which may be transferred shall be only such title as a third person may have, that person, nor (iii) anyone claiming through or under the owner or that third person otherwise than under a charge or en­ cumbrance disclosed or known to the hirer before the agreement is made, 25 will disturb the hirer’s quiet possession of the goods.
(3) Nothing in this section shall prejudice the operation of any other enactment or rule of law whereby any condition or warranty is to be implied by a hire-purchase agreement.

30 (4) Section 9 of the Hire-Purchase Act, 1946 (which provides for implied terms) is hereby repealed.
27.—(1) Where under a hire-purchase agreement goods are let by description, there is an implied condition that the goods will corres­ pond with the description, and if under the agreement the goods are let by reference to a sample as well as a description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
35 40 (2) Goods shall not be prevented from being let by description by reason only that, being exposed for sale or hire, they are selected by the hirer.

Letting by description.

28.—(1) Except as provided by this section and subject to the Implied under- qualify or fitness, provisions of any other enactment, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods let under a hire-purchase agreement.
45 (2) Where the owner lets goods under a hire-purchase agreement in the course of a business, there is an implied condition that the goods are of merchantable quality within the meaning of section 14 (3) of the Act of 1893 as set out in the Table to section 10 of this Act, except that there is no such condition— 50 14 (a) as regards defects specifically drawn to the hirer’s attention before the agreement is made, or (b) if the hirer examines the goods before the agreement is made, as regards defects which that examination ought to have revealed.
5 (3) Where the owner lets goods under a hire-purchase agreement in the course of a business and the hirer, expressly or by implication, makes known to the owner or the person by whom any antecedent negotiations are conducted, any particular purpose for which the 10 goods are being hired, there is an implied condition that the goods supplied under the agreement are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the hirer does not rely, or that it is unreasonable for him to rely, on the skill or 15 judgement of the owner or that person.
(4) An implied condition or warranty as to quality or fitness for a particular purpose may be annexed to a hire-purchase agreement by usage.
(5) The foregoing provisions of this section apply to a hire-purchase 20 agreement made by a person who in the course of a business is acting as agent for the owner as they apply to an agreement made by the owner, except where the owner is not letting in the course of a business and either the hirer knows that fact or reasonable steps are taken to bring it to the notice of the hirer before the agreement is 25 made.
(6) In this section “ antecedent negotiations ”, in relation to a hire- purchase agreement, means any negotiations or arrangements with the hirer whereby he was induced to make the agreement or which other­ wise promoted the transaction to which the agreement relates; and 30 any reference to the person by whom any antecedent negotiations were conducted is a reference to the person by whom the negotiations or arrangements in question were conducted or made in the course of a business carried on by him.
(7) For the purposes erf this section any negotiations conducted, or 35 arrangements or representations made by a servant or agent, if conducted or made by him in the course of his employment or agency, shall be treated as conducted or made by his employer or principal; and anything received by a servant or agent, if received by him in the course of his employment or agency, shall be treated as received 40 by his employer or principal.
In this subsection “ representations ” includes any statement or undertaking, whether constituting a condition or a warranty or not, and references to making representations shall be construed accord­ ingly.
45 29.—Where under a hire-purchase agreement goods are let by Samples, reference to a sample, there is an implied condition— (a) that the bulk will correspond with the sample in quality, and (h) that the hirer will have a reasonable opportunity of compar­ ing the bulk with the sample, and 50 (c) that the goods will be free from any defect, rendering them unmerchantable, which would not be apparent on reason­ able examination of the sample.
30.—(1) Subsections (2) and (5) apply to any statement likely to be statements 55 taken as indicating that a right or the exercise of a right conferred purporting to by, or a liability arising by virtue of, section 26, 27, 28 or 29 is f^lct nghts of restricted or excluded otherwise than under section 31.
15 (2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (/) refers: (a) to display on any part of any premises a notice that includes any such statement, or 5 (b) to publish or cause to be published an advertisement which contains any such statement, or (c) to supply goods bearing, or goods in a container bearing, any such statement, or {d) otherwise to furnish or to cause to be furnished a docu­ 10 ment including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (/) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the hirer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (7).
(4) It shall be an offence for a person in the course of a business to furnish to a hirer who deals as consumer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a hirer or liabilities to the hirer in relation to the goods or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declara­ tion that the contractual rights which the hirer enjoys by virtue of section 26, 27, 28 or 29 are in no way prejudiced by the relevant statement.
Exclusion of implied terms and condition or warranty implied by this Act unless inconsistent there- conditions.

31.—(1) An express condition or warranty does not negative a J r .

, with.

15 20 25 30 (2) A term of a hire-purchase agreement or any other agreement exempting from all or any of the provisions of section 26 shall be void.
(3) A term of a hire-purchase agreement or any other agreement exempting from all or any of the provisions of section 27, 28 or 29 shall be void where the hirer deals as consumer and shall, in any other case, not be enforceable to the extent that it is shown that it would not be fair and reasonable to allow reliance on the term.
35 (4) Subsection (3) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 27, 28 or 29 is not a term of the hire-purchase agreement.
40 (5) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the pro­ visions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the owner for breach of a condition or warranty implied by any provision of that section.
45 (6) Any reference in this section to a term of an agreement in­ cludes a reference to a term which although not contained in an agreement is incorporated in the agreement by another term of the agreement.
50 16 32.—Where goods are let under a hire-purchase agreement to a hirer dealing as consumer, the person, if any, by whom the antecedent negotiations (as defined in section 28 (6)) were conducted shall be deemed to be a party to the agreement and shall, jointly with the 5 owner and severally, be answerable to the hirer for the fulfilment of the agreement.

Liability of persons conducting negotiations antecedent to hire- purchase agree­ ments.
33.—Where goods are let under a hire-purchase agreement section 12 (which relates to warranties for spare parts and servicing) and sections 15 to 19 (which relate to guarantees and undertakings) 10 shall have effect as if a contract for the sale of goods were a hire- purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations (as defined in section 28 (6)) were conducted were the seller.

Application of sections 12, 15 to 19 to hire- purchase agreements.
34.—Where a motor vehicle is let under a hire-purchase agreement, 15 section 13 (which relates to warranty on sale of motor vehicles) shall have effect as if a contract for sale were a hire-purchase agree­ ment, the buyer were the hirer and the person by whom the ante­ cedent negotiations (as defined in section 28 (6)) were conducted were the seller.

Application of section 13 to hire-purchase of motor vehicles.
20 35.—Where the proper law of a hire-purchase agreement would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such agreement contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for 25 all or any of the provisions of sections 26 to 29 and 31, those sec­ tions shall, notwithstanding that term, apply to the contract.

Conflict of laws.
Conflict of laws.

PART IV Supply of Services 36.—Subject to section 37, in every contract for the supply of a 30 service where the supplier is acting in the course erf a business, the following terms are implied— Implied under­ takings as to quality of service.
(a) that the supplier has the necessary skill to render the service, (b) that he will supply the service with due skill, care and dili­ gence, and 35 (c) that, where materials are used, they will be sound and reason­ ably fit for the purpose for which they are required.
37.—(1) Subject to the following provisions of this section, any term of a contract implied by virtue of section 36 may be negatived or varied by an express term of the contract or by the course of 40 dealing between the parties or by usage, if the usage be such as to bind both parties to the contract, except that where the recipient of the service deals as consumer it must be shown that the express term is fair and reasonable and has been specifically brought to his atten­ tion.
45 (2) An express term does not negative a term implied by this Act unless inconsistent therewith.
(3) The reference in subsection (/) to a term negativing or varying a term implied by virtue of section 36 is a reference to a term which purports to exclude or restrict, or has the effect of excluding or 50 restricting, the operation of any provision of that section, or the exercise of a right conferred by any provision of that section, or any liability of the supplier for breach of a term implied by any provision of that section.

17 Exclusion erf implied terms.
(4) Any reference in this section to a term of a contract includes a reference to a term which, although not contained in a contract, is incorporated in the contract by another term of the contract (5) Nothing in this section shall invalidate— (a) a term of an agreement for the supply of electricity exempting 5 the supplier from liability (arising otherwise than from his negligence) for an interruption, variation, or defect of supply; (b) a term of an agreement for the international carriage of passengers or goods by land, sea or air, including an 10 agreement between parties whose places of business or residences are situated in the State.
(6) Section 36 shall not apply to a contract for the carriage of passengers or goods by land, sea, air or inland waterway from one place to another within the State until such date as the Minister, after 15 consultation with the Minister for Tourism and Transport, by order provides.

(7) This section is subject to section 39.

Conflict of laws.

38.
—Where the proper law of a contract for the supply of a service in the course of a business would, apart from a term that it should 20 be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 36 and 37, those sections shall, notwithstanding that term, 25 apply to the contract International contracts for services.
39.

—(1) Nothing in section 37 or 38 shall prevent the parties to a contract for the international supply of a service from negativing or varying any right, duty or liability which would otherwise arise by implication of law under section 36.
^0 (2) In this section “contract for the international supply of a service ” means a contract for the supply of a service made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States and in the case of which one of the following conditions is satisfied: 35 (a) the contract involves the supply of materials which are at the time of the conclusion of the contract in the course cff carriage or will be carried from the territory of one State to the territory of another; or (b) the acts constituting the offer and acceptance have been 40 effected in the territories of different States; or (c) delivery of the materials is to be made in the territory of a State other than that within whose territory the acts con­ stituting the offer and the acceptance have been effected.
PART V 45 Misrepresentation “ Contract 40.

—In this Part “ contract ” means a contract of sale of goods, a hire-purchase agreement or a contract for the supply of a service.

Removal of certain bars to rescission for innocent misrepresentation.

41.—Where a person has entered into a contract after a mis­ representation has been made to him, and 30 (a) the misrepresentation has become a term of the contract, or 18 Damages for misrepresentation.
(b) the contract has been performed, or both, then, if otherwise he would be entitled to rescind the con­ tract without alleging fraud, he shall be so entitled, subject to the provisions of the Act of 1893 and this Act notwithstanding the matters 5 mentioned in paragraphs (a) and (b).
42.—(1) Where a person has entered into a contract after a mis­ representation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof 10 had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.
15 (2) Where a person has entered into a contract after a mis­ representation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract that the contract ought to be or has been 20 rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrep­ resentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to 25 the other party.
(3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (/), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (/).
30 43.—If any agreement (whether made before or after the passing of this Act) contains a provision which would exclude or restrict— (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or Avoidance of certain provisions excluding liability for misrepresenta­ tion.
35 (b) any remedy available to another party to the contract by reason of such a misrepresentation, that provision shall be of no effect except to the extent (if any) that, in any proceedings arising out of the contract, the Court may allow reliance on it as being fair and reasonable in the cir- 40 cumstances of the case.

PART VI Miscellaneous 44.—(1) Where— Unsolicited goods.
(a) unsolicited goods are sent to a person with a view to his 45 acquiring them and are received by him, and (b) the recipient lias neither agreed to acquire nor agreed to return them, and either— 50 (i) during the period of six months following the date of receipt of the goods the sender did not take posses­ sion of them and the recipient did not unreasonably refuse to permit the sender to do so, or 19 (ii) not less than 30 days before the expiration of that period the recipient gave notice to the sender and during the following 30 days the sender did not take possession of the goods and the recipient did not unreasonably refuse to permit the sender to do so, then the recipient may treat the goods as if they were an unconditional gift to him and any right of the sender to the goods shall be extin­ guished.
(2) The notice referred to in subsection (/) shall be in writing and shall state— (a) the recipient’s name and address and the address at which the sender may take possession of the goods (if not the same) and (b) that the goods are unsolicited.
5 10 (3) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business, makes a demand for payment, or asserts a present or prospective right to payment for what he knows are unsolicited goods sent to another person with a view to his acquiring them, shall be guilty of an offence.
15 (4) A person who, not having reasonable cause to believe there is a right to payment in the course of any business and with a view to obtaining any payment for what he knows or ought to know are unsolicited goods— 20 (a) threatens to bring any legal proceedings, (b) places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so, or 25 (c) invokes or causes to be invoked any other collection pro­ cedure or threatens to do so, shall be guilty of an offence.
(5) In this section— “ acquire ” includes hire, “ send ” includes deliver, 30 “ sender ” includes any person on whose behalf or with whose consent the goods are sent and any other person claiming through or under the sender or any such person, 35 “ unsolicited ” means, in relation to goods sent to any person, that they are sent without any prior request by him or on his behalf.
45.—(1) A person shall not be liable for any payment and shall be entitled to recover any payment made by him by way of charge for including or arranging for the inclusion in a directory of an entry relating to that person or his trade or business, unless an order or note complying with this section has been signed by him or on his behalf and, in the case of a note of agreement to the charge, a copy was supplied to him for retention before the note was signed.
40 (2) An order for an entry in a directory must be made by means of an order form or other stationery belonging to the person to whom, or to whose trade or business, the entry is to relate and bearing in print the name and address (or one or more of the addresses) of that person, and the note of a person’s agreement to a charge must state the amount of the charge immediately above the place for signature, and (a) must identify the directory or proposed directory and state— 45 50 20 Directory entries (i) the proposed date of publication of the directory or of the issue in which the entry is to be included and the name and address of the person producing it, (ii) if the directory or that issue is to be put on sale, the price at which it is to be offered for sale and the minimum number of copies which are to be available for sale, and (iii) if the directory or that issue is to be distributed free (whether or not it is also to be put on sale) the mini- mum number of copies which are to be distributed and ^ 10 (b) must give reasonable particulars of the entry in respect of which the charge would be payable.
(3) A person shall be guilty of an offence if he demands payment, 15 or asserts a present or prospective right to payment, of a charge referred to in subsection (7), or takes any action in furtherance of a demand for payment, without knowing or having reasonable cause to believe that the entry to which the charge relates was ordered in accordance with this section or that a proper note of agreement has 20 been duly signed.
(4) In this section “ directory ” does not include the alphabetical telephone directory issued by the Department of Posts and Tele­ graphs.

46.

—(1) Any invoice or similar document, indicating a sum of Invoices.

25 money as if it were due, shall be regarded as asserting a right to payment.
(2) The Minister may by order require that any invoice or similar document stating the amount of any payment shall bear a statement, in a prescribed manner and of a specified minimum size, that no 30 claim is made to the payment.

47.
—The Minister may by order provide that, subject to such conditions as may be specified in the order, in the case of a contract of sale of goods or for the hire of goods under a hire-purchase agreement or for the supply of a service of a class specified in the 35 order entered into by a person in the course of a business elsewhere than at his place of business or in other specified circumstances, there shall be a specified period within which the customer shall be entitled to withdraw his acceptance of the contract.
Power to withdraw acceptance of contract.

48.

—(1) The Minister may, by order, following such consultation 40 as he considers necessary, require that a seller of a specified class of goods or a supplier of a specified class of service shall include such particulars as are specified in the order in any specified class of contract or in any guarantee, notice or other writing in relation to such contract.

45 (2) A person who contravenes an order under subsection (7) shall be guilty of an offence.

49.
49.

—(1) The Minister may by order require, in relation to any person acting in the course of a business carried on by him for the supply of a service or any specified class of service who makes use 50 of a standard form of contract for the supply of the service, that he shall give such notice to the public as the order may specify as to his use of such standard form and as to whether he is or is not willing to contract on any other terms.
(2) A person who contravenes an order under subsection (7) shall 55 be guilty of an offence.

21 Required particulars in contracts, guarantees and related writings Notice as to use of standard form of contract.

Size of type in printed contracts and other documents.
50.—(1) The Minister may by order prohibit, in relation to goods or services generally or in relation to any specified class of goods or services, any seller of such goods or supplier of such services in the course of a business from making use of any printed contract, guaran­ tee or other specified class of document unless it is printed in type 5 of at least such size as the order prescribes.
(2) In subsection (7) references to printing include type-writing, lithography, photography and other modes of representing or repro­ ducing words in visible form.

(3) A person who contravenes an order under subsection (/) shall |q be guilty of an offence.

Contracts required to be in writing.


51.—The Minister may by order provide, in relation to goods or services of a class specified in the order, that a contract for the sale of any such goods or the supply of any such service shall be in writing and any contract of such class which is not in writing shall be 15 unenforceable.

Functions of Director of Consumer Affairs.
52.—(1) The Minister may by order confer on the Director of Consumer Affairs the following functions or any of them— (a) to keep under general review practices or proposed practices in relation to any of the obligations imposed on persons 20 by or under any provision of this Act, (b) to carry out examinations of any such practices or proposed practices where he considers that, in the public interest, such examinations are proper, (c) to request persons engaging in or proposing to engage in such 25 practices as are, or are likely to be, contrary to the obliga­ tions imposed on them by or under any provision of this Act to discontinue or refrain from such practices, (d) without prejudice to the powers or functions of any other prosecuting authority, to bring or prosecute summary 30 proceedings for an offence under this Act.
(2) The Minister may by order confer on the Director of Con­ sumer Affairs such further functions as he considers appropriate for the purposes of this Act.

Consultation with Minister for Finance.


53.—The Minister shall not make an order under section 48, 49, 35 50, 51 or 52. except after consultation with the Minister for Finance, where the order would affect the business authorised by a licence to carry on banking business for the time being in force under section 9 of the Central Bank Act, 1971, or any business exempted by section 7 (4) of that Act.

40 Construction of sections 9 and 18 of the Consumer Information Act, 1978.
54.—Sections 9 (6) (h) and 18 of the Consumer Information Act, 1978 (which relate to the prosecution of offences by the Minister, a local authority or the Director of Consumer Affairs) shall be con­ strued as referring to summary proceedings only.

22 SCHEDULE Fair and Reasonable Terms Section 2 (3).

1.
1.

In determining for the purposes of section 13, 31, 37 or 43 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the cir­ cumstances whioh were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.

2.
Regard is to be had in particular to any of the following which appear to be relevant: (a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met; (b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term; (c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); id) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that com­ pliance with that condition would be practicable; (e) whether any goods involved were manufactured, processed or adapted to the speciaf order of the customer.
23 AN BILLE UM DHIOL EARRA1 AGUS SOLATHAR SEIRBHISI, 1978 SALE OF GOODS AND SUPPLY OF SERVICES BILL, 1978 BILLE (mar a tionscnaiodh) dd ngairtear BILL (as initiated) entitled Acht de leasu an dll' a bhaineann le diol earraf, le comhaontuithe fruil cheannaigh agus le conarthal chun seirbhfsf a shol&thar agus do dhdanamh socru i dtaobh nithe gaolmhara.
An Act to amend the law relating to the sale of goods, hire-purchase agreements and con­ tracts for the supply of services and to pro­ vide for related matters.

An tAire Tionscail, Trdchtdla agus Fuinnimh a thiolaic, 7 Samhain, 1978 Presented by the Minister for Industry, Commerce and Energy, 1th November, 1978 BAILE ATHA CLIATH: ARNA FHOILSlO AG OIFIG AN tSOLATHAIR.
DUBLIN: PUBLISHED BY THE STATIONERY OF PICE Le ceannach direach 6n Oifig Dhiolta Foilseachin Rialtaia, An Stuara, Ard Oifig an Phoist, Baile Atha Cliath, n6 tri aon dioltdir teabhar.

To be purchased through any bookseller, or dhectly from the Government Publications Sale Office, G.P.O.

Arcade, Dublin.

Cahill Printers Limited a chid bhuail.

Printed by Cahill (Printers) Limited.

40p 40p WL 122096F/11.

1,000.

11/78.

CahilL (6780).

G.16.