Sale Summary – Fall 2005, Prof. Jobin
INTRODUCTION
A. Evolution of Modern Sales
à The Anglo-Canadian Position
à Sales law is mainly a product of the late 18th & early 19th C developments, prompted primarily by the industrial revolution.
à The Act was “to reproduce as exactly as possible” the existing law of sales, which led to the enactment of the UK Sale of Goods Act, 1893.
à The British Act was copied throughout the common-law Commonwealth, including all common- law provinces in Canada, with Ontario adopting in 1920 although some significant changes came about slowly
à American Sales Law
à The differences between the US and UK acts are mainly the Wide definition of warranty (US), the Unitary classification of terms (US), the Different regime of buyer remedies and the Treatment of documents of title
à All the states eventually adopted the Uniform Commercial Code. The UCC has a much wider scope – the provisions are broader which allows the law to change and not be stuck on details.
à Note on Codification and Sources of Sales Law
à Con codification:
à Incompatible with “free” spirit of common law
à Freezes growth and responsiveness to changing conditions – particularly important for commercial law
à It deals only with sales of goods but not with similar products
à Pro codification:
à Certainty & predictability are as important as flexibility (the c/l was a mess for a non-lawyer)
à busy practitioners shouldn’t need to plough through pages of frequently conflicting decisions to ascertain the law
à The Act provides for default terms so you don’t have to spell out everything in the K.
à In a federal system and on an international level, meaningful uniformity can only be achieved by uniform legislation
à Interpretation
à For what is not touched by the Act, the rules of c/l K apply
à Bank of England v. Vagliano Bros, [1891] AC 107
à Lord Herschell expressed the opinion that case law prior to codification is irrelevant.
à The proper course is to determine the statute’s “natural meaning” without regard to prior law, then assuming that the statute probably intended to leave existing law unaltered, to see if the words of the enactment bear an interpretation in conformity with this view.
à So look at words (regular meaning), then at the case law when ambiguities
à The ratio in Vagliano is more often breached than followed: see Ashington Piggeries, Harwick Game Farm, Cehave NV.
à SGA provisions are presumptive and can be eliminated or modified by express ag
66.
à In 1974, Business Practices Act.
à In QC, 1971 QCPA, amended several times and so comprehensive it is considered a model for the rest of Canada. It falls short of being a code. France actually has a code.
à 1980s there was a stabilization and standardization – consensus on part of businesses (live by the rules) and consumers (we are protected)
à In the 1990s, the crisis in public budgets has caused harm to the QCPA, less money for the enforcement mechanisms. Went from 14-2, now back to 5 inspectors.
à 2 big battles successful – breast implants and cigarettes
1. Problems of market economy
à concentration of industry and distribution chains
à pervasive effects on consumers include loss of bargaining power, K of adhesion and standard form K reduce ability to shop around and compare, tricky advertising, concealing of part of costs of bargaining, repossession by force, conditions for warranty, increased interest rates for low income classes, disparity of resources between consumers and merchants
