Clause 3 (Hansard, 4 April 1973)

I beg to move Amendment No. 1, in page 3, line 17, leave out 'reasonably'.

We had a long discussion about this during the Committee stage of the Bill and the Under-Secretary was kind enough to say that he would look at the points again. That was why I indicated that on Report I would raise the matter again. I do not think I need go over all the arguments because they were rehearsed reasonably fully in the Committee stage.

The purpose of asking for the deletion of the word "reasonably" is that many people, myself included, take the view that the word is superfluous. Under Clause 3 there is an implied undertaking that the goods supplied are reasonably fit for the purpose for which they are supplied. Since 1893 the word "reasonably" has been included. I do not want to overstate the case and I am not suggesting that any great harm has been done to the consumer as a result of the word "reasonably" being included in the Act. None the less, it would be much more helpful to the consumer if the word were not included because he would then be able to understand exactly what the undertaking is.

The undertaking, as far as the consumer is concerned, is that the goods should be fit for the purpose, and "reasonably" to some extent confuses the consumer as to his actual rights. It is an expression that lawyers and courts are very used to interpreting but it is an expression which the consumer finds some difficulty in understanding.

I am advised that if the word "reasonably" were not included the result would probably be the same as far as the courts are concerned because the courts would put a commonsense construction on the phrase "fit for the purpose". They would 501 not apply a standard of perfection, because, unfortunately, perfection cannot be attained in the manufacture of any goods. They would not, to use the example given by the Minister, say that if somebody supplied a Rolls-Royce and the windscreen wiper were defective the whole transaction would be void if the word "reasonably" were not included. In my view, they would apply a common-sense attitude and, without using the word, say that "fit" meant "reasonably fit".

From the point of view of clarity, even though it has stood the test of time and is included in the 1893 Act—which may be a very good reason for taking it out—the Minister might consider that now, all these years later, we can do without the word, and that the goods should simply be "fit".

I do not press the point but I should be interested to know whether the Minister has had any second thoughts since the long discussion in Committee.

§ The Under-Secretary of State for Trade and Industry (Mr. Anthony Grant)

As the hon. Gentleman has said, and indeed those who were present during the Committee stage of the Bill will remember, I undertook to look again at this whole question of reasonableness in relation to fitness for purpose. I have done this and have found no good grounds for departing from the traditional wording which has been retained in the new Section 14(3) which is to replace the existing section of the 1893 Act.

The concept of "reasonableness" runs throughout our law from the requirement that the prosecution prove its case "beyond reasonable doubt" to the provision enshrined in Magna Carta that a widow should have a "reasonable" part of her deceased husband's estate for her support.

What is reasonable is usually to be decided as a matter of fact as in the case of the Sale of Goods Act 1893. It is true that there is a fashion now for replacing the word "reasonable" with the word "fair" where perhaps before 1965, say, a draftsman would have used the word "reasonable". But the courts have never found much difficulty in handling the notion of reasonableness.

I do not want to take up too much time but I commend to the hon. Gentle- 502 man and any others interested what is probably the most useful recent case, in which this matter was discussed by Lord Denning, the Master of the Rolls— Bartlett v. Sidney Marcus Ltd., 1965. I will not read the whole of the judgment now, but it is very interesting.

The hon. Member for Accrington (Mr. Arthur Davidson) touched upon the main difficulty when moving a similar amendment in Committee and asked whether, after all this time—and we are talking about 100 years or so—there would be any injustice or inconvenience if the word "reasonably" were now omitted so that the Bill merely provided that the goods should be fit for the purpose.

The answer is that, since we are dealing here not with a warranty but with a condition in the first instance, I think that it would. Moreover, it would be a burden on the consumer as well as on the retailer. If the word "reasonably" were to be omitted there would be a very real risk that the courts would hold that a change of meaning in the law had been intended and that in future goods would have to be more than reasonably fit. Nothing, of course, is perfect in this world, and to make it possible for every purchaser to repudiate a contract in circumstances in which a reasonable man would say that the goods were reasonably fit for the purpose for which they were bought would be not only unreasonable but also unrealistic.

The main burden from such a change would fall on the retailer. He might have to accept that any article he sold which was less than absolutely perfect could be returned to him for a refund. It might be no defence to say that the imperfection was so slight that it was unreasonable to say that it affected the article's fitness for the purpose. This would inevitably increase the costs to manufacturers and retailers, and, of course, at the end of the day these costs would be paid by the consumer. If a buyer demanded 100 per cent. perfection most sellers would take the precaution of raising their prices, perhaps inordinately, to cover the additional cost of being certain that they could meet the requirement, or indeed of not supplying at all. In either case I believe that the consumer would suffer in the end.

503 I do not think that this is what the House wants in this Bill, and for these reasons I must reject the amendment.