Draft Supply of Goods and Services (Jersey) Regulations 200-

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A decision made on 9 November 2009 to approve the draft Supply of Goods and Services (Jersey) Regulations 200-

Decision Reference: MD-E-2009-0193
Decision Summary Title :	Draft Supply of Goods and Services (Jersey) Regulations 200-		Date of Decision Summary:	30 October 2009
Decision Summary Author:	Director of Consumer Affairs & Trading Standards		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	Report to Minister – Draft Supply of Goods & Services (Jersey) Regulations 200-		Date of Written Report:	28 October 2009
Written Report Author:	Director – Consumer Affairs & Trading Standards		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Draft Supply of Goods and Services (Jersey) Regulations 200-
Decision(s): The Minister approved the Draft Supply of Goods and Services (Jersey) Regulations 200- and instructed that the draft Regulations be lodged au Greffe for debate as soon as practicable.
Reason(s) for Decision: On 1st September 2009 the Supply of Goods and Services (Jersey) Law 2009 came into force. The Law introduced new consumer protection measures in the form of statutory rights implied into contracts for the sale of goods or services. The Minister intends to further strengthen consumer protection provisions by the introduction of these draft Regulations.
Resource Implications: There are no financial or manpower implications as a result of this decision.
Action required: The draft Regulations to be lodged au Greffe for debate as soon as practicable.
Signature: Senator A.J.H.Maclean		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Draft Supply of Goods and Services (Jersey) Regulations 200-

Economic Development Minister

Consumer Protection

Draft Supply of Goods and Services (Jersey) Regulations 200-

Report

Background

In September 2008 the States passed the Supply of Goods and Services (Jersey) Law 2009 which came into force on 1st September 2009. This Law heralded a huge advancement in consumer protection in the Island as, for the first time it introduced statutory rights, similar to those enjoyed in the UK. In particular, it provides for additional rights in business to consumer contracts when goods are found not to conform to the contract.

Regulations on Unfair Contract Terms

Article 91 of the Supply of Goods and Services Law deals with the exclusion of rights, duties or liabilities introduced in other parts of the Law. It makes it clear that these rights under contract may be overridden by the express agreement or by other course of dealing between the parties to a contract. This is consistent with allowing two parties to a contract to include or exclude terms as they see fit provided there is agreement.

However, in the course of day to day dealings between business sellers and consumer buyers, there is a need to provide some protection for consumers. This is to ensure that their statutory rights to, for example, expect goods to be of a satisfactory quality cannot be excluded by reference to shop signs or other written terms. In the United Kingdom this is achieved by the Unfair Contract Terms Act and it is essential that some similar protection is introduced in Jersey. In fact, the consumer protection strategy initiated by the former Economic Development Committee had highlighted the need to ensure that once statutory rights had been introduced, they should not be easily excluded by business terms and conditions.

Power to Make Regulations

In drafting the primary Law, it had always been the intention to provide power for the States to make Regulations, particularly in relation to unfair contract terms and for ease of reference Article 94 (1) (2) and (3) is reproduced below:-

94 Regulations

(1) The States may by Regulations make provision for the purpose of carrying this Law into effect and, in particular, but without prejudice to the generality of the foregoing, for or with respect to any matter that may be prescribed under this Law by Regulations.

(2) The States may by Regulations make provision in respect of the terms of contracts, being contracts for the sale of goods, contracts for the supply of services and hire-purchase agreements.

(3) The States may by Regulations –

(a) prevent or restrict the exclusion or restriction of civil liability, being the exclusion or restriction of civil liability by the use of terms in contracts to which paragraph (2) applies or by the use of notices to, or agreements with, parties to contracts to which paragraph (2) applies;

(b) exclude, or restrict the effect of, unfair terms in contracts to which paragraph (2) applies;

(c) specify additional terms to be included in contracts to which paragraph (2) applies and require the inclusion of those terms in those contracts;

(d) limit or exclude the operation of Article 91 in relation to contracts to which paragraph (2) applies; or

(e) amend Article 91.

Draft Regulations

The draft Regulations are based on United Kingdom unfair contract terms legislation and apply to business to business contracts as well as those concluded between a business and a consumer. The main difference in the application of the Regulations is that when dealing as a consumer, it is almost impossible for a business seller to exclude the implied warranties of description and satisfactory quality. The implied warranties in other contracts may only be excluded if fair and reasonable and, in a dispute, it is for a court to decide on the facts what is fair and reasonable.

Recommendation

It is recommended that the Minister authorises the draft Regulations to be lodged as soon as possible.

Director

Consumer Affairs & Trading Standards

28th October 2009