In October 1983 the Law Commission and the Scottish Law Commission published their joint Consultative Document on Sale and Supply of Goods. The proposals contained in the paper are not final views but are intended as a basis for discussion. Comments are invited, especially with regard to their implications in the solution of commercial disputes.

The Commissions propose that the statutory definition on merchantable quality should be replaced by one that is sufficiently flexible to cover all types of goods in both consumer and commercial transactions. The new definition should make it clear that “quality” means more than fitness for purpose and includes other matters such as freedom from minor defects, durability and safety.

It is proposed that the implied terms as to the quality and fitness of the goods and the implied terms relating to sales by description and sample should not continue to be classified as conditions and that there should be a flexible remedy for breach of them. Such a change would be in line with developments in the common law, whereby breaches of express terms, which can range from slight and unimportant departures from the contract to important and serious defects, will often be regarded by the courts as giving the buyer a remedy which depends on the seriousness of the breach. The Commissions propose that on breach of these statutory implied terms the general rule should be that the buyer should be entitled to reject the goods unless the seller can show that the nature and consequences of the breach are so slight that rejection would be unreasonable. (A separate regime is proposed for consumer sales.) In all cases of breach the buyer will be entitled to claim damages. This formula is designed to exclude motive, to put the burden on the seller and to make clear that it is only in the exceptional case that this right to reject will not be available. It is accepted that any formulation which incorporates the concept of “reasonableness” will have an element of uncertainty in it but it is thought that most cases will produce the same results as under the present law. It is also thought that in many commercial transactions, such as contracts for the sale of commodities, the parties usually make express provision in the contract for the remedies to which the buyer should be entitled on breach of a particular term.

Copies of the full joint Consultative Document are available, price £3.50, from Government bookshops. Comments should be sent to: Mr O. J. Parker, Law Commission, Conquest House, 37–38 John Street, Theobalds Road, London WC1N 2BQ. (Tel. 01–242 0861, ext. 262.)

The recently appointed Committee on Fraud Trials, whose Chairman is Lord Roskill, is inviting submissions of written evidence to it on possible ways of improving the present system of jury trials for serious fraud cases.