Chapter 23: Product Liability - Thomson Reuters

163Ch 23: Product Liabilityresponsible source; 252 besides offering the consumer the advantage of a readilyidentified target and thus relieving him or her of the burden of tracing, perhapseven chasing abroad, the retailer’s far off sources of supply.By far the most serious handicap for consumers in the past was the law’stolerance of exemption clauses in form contracts whereby the buyer couldunwittingly sign away his or her protection under the statutory warranties. Thecourts, however strict in their construction of these clauses, 253 in the end provedno match to the drafting ingenuity of sellers, so that eventually legislation had tocome to the rescue. Contracting-out was first severely restricted in the case ofhire-purchase, on the view that the instalment buyer was in greater need ofprotection than the cash buyer because he or she had generally more at stakeand was less able to look after himself or herself. 254 Eventually, in the 1970s,legislation was passed in the United Kingdom 255 and Australia 256 prohibitingcontracting out of the implied warranties in consumer sales.Finally, in 2010, the Australian Consumer Law replaced the traditionalsystem of implied contractual warranties with a new series of statutoryguarantees, thereby at last unhitching consumer protection from the concept ofcontractual privity. The principal statutory guarantee is that goods are of“acceptable quality”, 257 which is extensively defined, the basic idea being thatto be “acceptable”, goods must be “fit for all the purposes for which goods ofthat kind are commonly supplied”. 258 Similarly, the Australian Consumer Lawcreates statutory guarantees of compliance with description (s 56), and repairsand availability of spare parts (s 58). Other guarantees continue to be owed onlyby the supplier of the goods to the consumer: a guarantee as to title (s 51), aguarantee as to undisturbed possession (s 52), a guarantee as to undisclosedsecurities (s 53), a guarantee as to fitness for a purpose disclosed to the supplier(s 55) and a guarantee of compliance with a sample or demonstration model(s 57). None of the statutory guarantees can be excluded by contract. 259Express warrantiesDRAFT[23.190] Express warranties followed much the same rut as implied warranties.In particular, the privity requirement precluded recourse by anyone not privy tothe contract of sale. 260 Only in a few cases was it possible to evade thisrestriction and hold manufacturers directly liable to the retail purchaser byartificially construing their representations as the basis of a “collateral contract”252 See Kasler v Slavouski [1928] 1 KB 78 (involving no less than four successive indemnities ofthe retailer’s liability to the purchaser).253 See also above, [13.xxx] (Ch 13).254 Australian Consumer Law, s 2 defines “acquire” to mean “acquire by way of purchase,exchange or taking on lease, on hire or on hire-purchase” (see previously the definition of“acquire” in Trade PracticesAct 1974 (Cth), s 4).255 Supply of Goods (Implied Terms) Act 1973; Unfair Contract Terms Act 1977 (UK)(applicable to sale, hire purchase and other contracts passing possession or ownership ofgoods; for non-consumers the terms must be “reasonable”).256 Trade Practices Act 1974 (Cth), s 68; Fair Trading Act 1987 (NSW), s 40M; ConsumerAffairs and Fair TradingAct (NT), s 68; Consumer TransactionsAct 1972 (SA), s 8(1); FairTradingAct 1999 (Vic), s 32L; Fair TradingAct 1987 (WA), s 34.257 Australian Consumer Law, s 54.258 Australian Consumer Law, s 54(2)(a).259 Australian Consumer Law, s 64.260 Not so American law: Rest 2nd, s 402B.session: 5 October 28, 2010 page no: 28 folio no: 163@syd-tlrapp-p19/syd-tlrapp-p191/CLS_law/GRP_flemings/JOB_update10/DIV_19PROOF COPY