Implied Terms
Sale of Goods and Supply of Services Act
PART IV
Supply of Services
Implied undertakings as to quality of service.
39.—Subject to section 40, in every contract for the supply of a service where the supplier is acting in the course of a business, the following terms are implied—
(a) that the supplier has the necessary skill to render the service,
(b) that he will supply the service with due skill, care and diligence,
(c) that, where materials are used, they will be sound and reasonably fit for the purpose for which they are required, and
(d) that, where goods are supplied under the contract, they will be of merchantable quality within the meaning of section 14 (3) of the Act of 1893 (inserted by section 10 of this Act).
Annotations:
Modifications (not altering text):
C17
Application of section restricted (2.08.2011) by Communications Regulation (Postal Services) Act 2011 (21/2011), s. 26(3), commenced on enactment.
Limitation of liability of universal postal service provider.
26.— …
(3) Section 39 of the Sale of Goods and Supply of Services Act 1980 shall not apply in relation to the provision of a universal postal service by a universal postal service provider until such date as the Minister for Jobs, Enterprise and Innovation, following consultation with the Commission and the Minister, by order so provides, in relation to the universal postal service or to any part or parts of such service specified in the order in such manner and by reference to such matters, including ensuring the protection of the interests of postal service users, as the Minister for Jobs, Enterprise and Innovation, following such consultation, considers appropriate.
…
Editorial Notes:
E8
Previous affecting provision: application of Act restricted (1.01.1984, vesting date) by Postal and Telecommunications Services Act 1983 (24/1983), s. 88(3), effectively commenced by Vesting Day Order S.I. No. 407 of 1983; repealed (9.04.1999) by Postal and Telecommunications Services (Amendment) Act 1999 (5/1999), s. 3 and sch. 1, S.I. No. 87 of 1999.
E9
Previous affecting provision: application of Act restricted (1.01.1984, vesting date) by Postal and Telecommunications Services Act 1983 (24/1983), s. 64(3), effectively commenced by Vesting Day Order S.I. No. 407 of 1983; repealed (2.08.2011) by Communications Regulation (Postal Services) Act 2011 (21/2011), s. 4 and sch. 1 part 1, commenced on enactment.
40.—(1) Subject to the following provisions of this section, any term of a contract implied by virtue of section 39 may be negatived or varied by an express term of the contract or by the course of dealing between the parties or by usage, if the usage be such as to bind both parties to the contract, except that where the recipient of the service deals as consumer it must be shown that the express term is fair and reasonable and has been specifically brought to his attention.
(2) An express term does not negative a term implied by this Part unless inconsistent therewith.
(3) The reference in subsection (1) to a term negativing or varying a term implied by virtue of section 39 is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any provision of that section, or the exercise of a right conferred by any provision of that section, or any liability of the supplier for breach of a term implied by any provision of that section.
(4) Any reference in this section to a term of a contract includes a reference to a term which, although not contained in a contract, is incorporated in the contract by another term of the contract.
(5) Nothing in this section shall invalidate—
(a) F20[…]
(b) a term of an agreement for the international carriage of passengers or goods by land, sea or air, including an agreement between parties whose places of business or residences are situated in the State.
(6) Section 39 shall not apply to a contract for the carriage of passengers or goods by land, sea, air or inland waterway from one place to another within the State until such date as the Minister, after consultation with the Minister for Transport, by order provides whether in relation to such contracts generally or in relation to contracts of a class defined in the order in such manner and by reference to such matters as the Minister, after such consultation, thinks proper.
Annotations:
Amendments:
F20
Deleted (25.01.1988) by Restrictive Practices Act 1987 (31/1987), s. 31, S.I. No. 2 of 1988.
Statements purporting to restrict rights of recipient of service.
41.—(1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 39 is restricted or excluded otherwise than under section 40.
(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers:
(a) to display on any part of any premises a notice that includes any such statement, or
(b) to publish or cause to be published an advertisement which contains any such statement, or
(c) to supply goods bearing, or goods in a container bearing, any such statement, or
(d) otherwise to furnish or to cause to be furnished a document including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the recipient of the service may be seeking to exercise a right conferred by any provision of section 39.
(4) It shall be an offence for a person in the course of a business to furnish to the recipient of a service goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on the recipient or liabilities to the recipient in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the recipient enjoys by virtue of section 39 are in no way prejudiced by the relevant statement.
Conflict of laws.
42.—Where the proper law of a contract for the supply of a service in the course of a business would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 39 and 40, those sections shall, notwithstanding that term, apply to the contract.
PART V
Misrepresentation
43.—In this Part “contract” means a contract of sale of goods, a hire-purchase agreement, an agreement for the letting of goods to which section 38 applies or a contract for the supply of a service.
44.—Where a person has entered into a contract after a misrepresentation has been made to him, and
(a) the misrepresentation has become a term of the contract, or
(b) the contract has been performed,
or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Part notwithstanding the matters mentioned in paragraphs (a) and (b).
Damages for misrepresentation.
45.—(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.
(2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.
(3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (1), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (1).
Avoidance of certain provisions excluding liability for misrepresentation.
46.—(1) If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict—
(a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or
(b) any remedy available to another party to the contract by reason of such a misrepresentation,
that provision shall not be enforceable unless it is shown that it is fair and reasonable.
(2) Subsection (1) shall not affect any right to refer a difference to arbitration.
SCHEDULE
Fair and Reasonable Terms
Section 2 (3).
1. In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.
2. Regard is to be had in particular to any of the following which appear to be relevant:
(a) The strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;
(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether any goods involved were manufactured, processed or adapted to the special order of the customer.
3. In this Schedule—
“contract” includes “agreement”,
“term” includes “agreement” and “provision”.