Franks Stephen: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
Franks Stephen: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
[Volume:609;Page:6905] 
STEPHEN FRANKS (ACT NZ) 
: The bill includes water electricity gas and a number of Acts but Part 4 has a very short and simple change to the Sale of Goods Act. I am always concerned when we fiddle with the Sale of Goods Act. It is one of the finest flowerings of the 19th century English commercial lawyers. It is a wonderful example of how to draft. It is a piece of law that does what English commercial law had a genius for doing. It does not to try to tell people how they should conduct their lives it does not try to tell people—merchants or anyone else— what contracts they ought to enter and it does not second-guess or prescribe in advance but simply writes down in elegantly simple language what the best custom of merchants was. 
So when I see the Sale of Goods Act being tinkered with by a bill that has some economic and legal nonsense in the other parts I am put on guard. I am a little bit baffled and part of it is simply the terms. There is a reference to emblements and I am not sure how one pronounces them; I never came across them in 20 years of practice. I wish we had the advantage of Mr Worth in the Chamber. I suspect that he would be able to help the Committee considerably with a word as mysterious as that. 
However I will have to commend the Minister on a feature I like to see. The definition of goods in the Sale of Goods Act will now have restored a word that I believe the original drafter probably had. Clause 13(a) restores the old legal term “choses in action” instead of “things in action”. We no longer have that discordant sort of mix of the vernacular and the technical. 
Hon Tony Ryall 
: I think it’s called the State school approach. 
STEPHEN FRANKS 
: It probably is but no longer do we have this ugliness and ignorance. We have a term that has been made elegant again however antiquated it may be. On that one feature I do commend the Minister and her officials for restoring a sort of symmetry that was once there in our law that has been so grossly attacked by the law drafters in so many other areas. It is a pleasure to see that there is still a consciousness of barbarism and that the barbarians have not completely won. I thank the Minister for that. 
 I do come back though: I am concerned that what was probably intended as the substantive change in this definition—that is sticking in computer software—was something that the Law Society was so unequivocal in recommending against. However I believe that the Sale of Goods Act is so well drafted that if we abolished consumer guarantees and fair trading and went back to the sale of goods we would be all happier wealthier and wiser. In this case the select committee has included computer software without recognising—or appearing not to recognise—that the sale as it is called is usually a sale of a licence. According to the Law Society we are putting New Zealand consumers at risk of uncertainty. Uncertainty means cost and it means business for the courts and business for the lawyers. In that respect it would be helpful if the Minister were able to elucidate as to why it chose and why the select committee chose to ignore the Law Society’s recommendation. 
I cannot imagine there was anyone with an enormous passion to see computer software put into the Sale of Goods Act particularly as the other parts of this bill had already stuck it into the Consumer Guarantees Act and into the Fair Trading Act. It would be helpful to know just why after such an admirable change to the wording of the definition of “goods” we then went ahead and did something without explaining given that a body as disinterested and presumably as expert as the Law Society recommended against it.