Law Quarterly Review

2004
Case Comment
Remedying the unfit fitted kitchen
Robert Bradgate
Subject: Sale of goods. Other related subjects: Consumer law
Keywords: Acceptance; Conditions; Consumer protection; Implied terms; Repairs
Legislation: Sale of Goods Act 1979 s.35
Supply of Goods and Services Act 1982
Cases: Clegg v Andersson (t/a Nordic Marine) [2003] EWCA Civ 320; [2003] 1 All E.R.
(Comm) 721 (CA (Civ Div))
Jones v Callagher (t/a Gallery Kitchens & Bathrooms) [2004] EWCA Civ 10; [2005] 1
Lloyd's Rep. 377 (CA (Civ Div))
*L.Q.R. 558 THE statutory terms implied into contracts of sale by ss.13-15 of the Sale of
Goods Act 1979 (SGA) provide a powerful measure of consumer protection. Their
classification as conditions means that in the event of their breach the consumer buyer has
an absolute right to reject the goods, unless he has accepted or is deemed to have accepted
them. In the past, however (notoriously in the case of Bernstein v Pamsons Motors
(Golders *L.Q.R. 559 Green) Ltd [1987] 2 All E.R. 220), the rules on acceptance have
occasionally operated harshly against the buyer. In 1994, therefore, at the recommendation
of the Law Commission (Law Com. No.160 (1987)), changes were made to the rules on
acceptance, to protect buyers, especially consumers, against inadvertently losing the right
of rejection. Section 35 of the SGA now provides that the buyer is deemed to have accepted
goods if (a) he expressly intimates to the seller that he accepts them; (b) after delivery of
the goods he does any act in relation to them which is inconsistent with the seller's
ownership; or (c) after lapse of a reasonable time he retains them without intimating to the
seller that he has rejected them. Section 35(2) provides that the buyer is not to be deemed
to have accepted on the basis of either express intimation or inconsistent act until he has
had a reasonable opportunity to examine the goods to determine whether they are in
conformity with the contract. Acceptance by lapse of time is not subject to s.35(2), but
s.35(5) provides that amongst the factors that are material in determining what is a
reasonable time to retain the goods before rejecting is whether the buyer has had a
reasonable opportunity of examining the goods to determine their conformity with the
contract. Section 35(6) additionally provides that the buyer is not to be deemed to have
accepted the goods merely because he asks for, or agrees to, their repair by or under an
arrangement with the seller. Nothing in s.35 guarantees that a buyer who seeks repair will
not thereby lose the right to reject. A request for repair is still capable of being an act
inconsistent with the seller's ownership and although the buyer will not be deemed to have
accepted merely because he requests or agrees to the goods' repair, there is nothing in the
Act to prevent time taken to effect repair counting against the buyer for the purposes of
calculating what is a reasonable time to retain the goods before rejecting them. In Clegg v
Olle Andersson [2003] EWCA Civ 320; [2003] 2 Lloyd's Rep. 32 (noted (2003) 119 L.Q.R.
544), however, the Court of Appeal held that time taken to effect repair should not count
against the buyer for the purposes of s.35. In that case a yacht was delivered in breach of
contract with an overweight keel. The buyer sought information from the seller as to the
possible effects of the defect and how it might be remedied. That information was not
supplied for over five months. Three weeks later the buyer rejected the yacht. The sellers
argued that they were too late and had accepted the yacht due to the lapse of time between
delivery and rejection. The Court of Appeal (Sir Andrew Morritt V.-C., Hale and Dyson L.JJ.)
unanimously rejected that argument. Until the sellers supplied the required information the
buyers were in no position to decide what to do. The court therefore concluded that time
taken to obtain information necessary to decide whether or not to attempt repair should be
taken into account when deciding what is a reasonable time for the purposes of s.35(5). On
the facts time did not begin to run against the buyer for the purposes of acceptance until
the seller supplied the *L.Q.R. 560 required information. In Jones v Gallagher [2004]
EWCA Civ 10, however, a differently constituted Court of Appeal (Buxton and Thomas L.JJ.)
concluded that Clegg establishes no rule of law that time taken for repair cannot count for
the purposes of s.35(5).
The claimants in Jones contracted with the defendants for the supply and installation of a
hand made fitted pine kitchen to match existing dresser cabinet, cabinets, surfaces etc.
The installation was completed by May 2, 2000 and the claimants paid the price in full. A
week later they wrote raising various complaints about aspects of the installation including
that the colour of the new units did not match that of the existing dresser as required.
There followed a lengthy correspondence during which the Jones raised a number of
complaints. The defendants returned on several occasions to carry out remedial work but,
although the colour problem was not consistently raised, it was never satisfactorily resolved.
On August 3 the Jones wrote that unless the work was completed to their satisfaction within
seven days they would take the matter further. At the beginning of September they
consulted solicitors and obtained an expert's report. On September 27 the solicitors sent
that report to the defendants indicating that the Jones would be stripping out
the kitchen and seeking quotations for its replacement. In July 2001, their solicitors wrote
to the defendants indicating that they had been unable to obtain a satisfactory quotation for
restoration of the units. In October 2001 the Jones commenced proceedings seeking
reimbursement of the price of thekitchen plus damages.
The trial judge found that there had been breaches of the implied condition that the units
should correspond with description and be of satisfactory quality, but that the claimants had
accepted and thus lost the right to reject them by (a) using them for storage and (b) the
lapse of time between installation and initial complaint and subsequent removal of the units.
The claimants were therefore entitled to damages but not to a complete refund. The
claimants appealed.
Counsel for the Jones, who had appeared in Clegg, relied on that case and argued that as a
matter of law a period of time taken to effect repair or to attempt to negotiate a settlement
could not count against the buyer for the purposes of s.35. Dicta in Clegg appeared to
support that position. Thus Sir Andrew Morritt, having noted that what is a reasonable time
is a question of fact and that whether or not the buyer has had a reasonable time to inspect
the goods is only one factor to be taken into account when assessing what is a reasonable
time, said that time taken merely in requesting or agreeing to repairs, and, I would hold,
for carrying them out, is not to be counted (at [63]). Hale L.J., who had been a member of
the Law Commission when it made its 1987 report, having noted that a buyer does not
accept merely because he requests or agrees to repair, concluded that It follows that if a
buyer is seeking information which the seller has agreed to supply which will enable the
buyer to make a properly informed *L.Q.R. 561 choice between acceptance, rejection or
cure, and if cure in what way, he cannot have lost the right to reject (at [75]).
The Court of Appeal in Jones , however, disagreed. Thomas L.J. emphasised that although
when considering what is a reasonable time, regard must be had to the time taken to effect
modifications and repairs (at [19]), what is a reasonable time is a question of fact in each
case (SGA, s.59). Buxton L.J., also a former Law Commissioner, noted that Hale L.J.
in Clegg had emphasised that the sellers in that case were aware of the buyers' complaints
and had agreed to supply the information requested by the buyers to enable them to decide
what to do with the yacht. He concluded There is no absolute rule that a situation in which
information was sought cannot involve the loss of a right to reject: because that would be
inconsistent with the guiding principle that assessment of loss of right to reject is a matter
of fact to be considered in all the circumstances (at [36]). The effect of the 1994 reforms,
he concluded, was merely to confirm that the buyer who requests repair does not
automatically thereby lose the right to reject (at [34]).
Clearly there are crucial differences between the facts of Jones and Clegg. The buyer
in Clegg was waiting for five months for the seller to supply information. During that time
the seller knew that the buyer had not made a final decision. Once the critical information
was supplied the buyer decided promptly to reject. In Jones the buyer complained of a
series of defects, apparently raising new ones as negotiations progressed, and there were
long periods without contact. It was three months after installation before the Jones
threatened proceedings, a further seven weeks before they intimated that they would reject
and almost ten more months before they commenced proceedings. In short, the sellers
in Clegg ought reasonably to have known that the buyers had not finally accepted the yacht,
whereas the suppliers in Jones may perhaps reasonably have believed that the Jones had
accepted theirkitchen.
But why was acceptance in issue in Jones at all? The contract was one to supply and fit
a kitchen, a contract for work and materials, not a contract of sale. This was recognised by
the court, which held that the supplier was in breach of conditions implied by ss.3 and 4 of
the Supply of Goods and Services Act, 1982 (SGSA). The SGA and SGSA are mutually
exclusive. The SGSA has no application to a contract of sale. On the other hand, the
doctrine of acceptance has no application to contracts other than sale. It is not clear that
the customer under a contract for work and materials is entitled to reject after completion
of performance. Although the implied terms relating to goods supplied are classified as
conditions, there is no mention of rejection in the SGSA. But even if such a right exists, that
right is subject not to the doctrine of acceptance but to the general common law doctrines
of affirmation and waiver, according to which the right to terminate for breach cannot be
lost unless the party seeking to terminate, *L.Q.R. 562 with full knowledge of the breach,
does some act indicating an intention to continue with performance. The position is
anomalous, but the Law Commission in 1987 (Law Com. No.160, paras 5.9, 5.45) and the
DTI in its consultations on implementation of the European Guarantees Directive recognised
the anomaly and declined to remove it.
Assuming that the Jones initially had a right to treat the contract as repudiated on the
grounds of the suppliers' breaches of condition, could they be said to have affirmed the
contract? Typically, affirmation involves some positive act, such as tendering or accepting
further performance of the contract, by the party seeking to terminate. Silent inactivity does
not normally constitute affirmation but can do so if it prejudices the party in breach or is
such as to lead to the reasonable inference that the contract is being affirmed. This principle
is normally applied in the context of ongoing contracts (see, e.g. Allen v Robles [1969] 1
W.L.R. 1193). On the present facts, however, it would be possible to conclude that the
Jones' conduct as a whole, and the failure to take steps to pursue their threat to reject
the kitchen, amounted to affirmation of the contract. It is common, under contracts both of
sale and for work, for the customer to make complaints and threaten rejection as a
bargaining counter but not to pursue the threat. If such a threat is made and not pursued,
especially as here, in the context of a long-running series of varying complaints, it is
reasonable for the supplier to infer that the contract is being affirmed.
Jones is therefore doubly problematic. It puts in doubt some of the apparent clarification of
the law on acceptance in Clegg , resurrecting uncertainty about whether a buyer who
requests or agrees to repair may nevertheless be held to have accepted the goods by lapse
of time during the period taken to effect repair. This may be especially important in the
consumer context, where the customer now has a statutory right to demand repair derived
from the EC Consumer Guarantees Directive (99/44). At the same time it may create some
confusion in respect of the law governing non-sale supply contracts. Whilst there may be
much to be said for assimilating the law governing sale and other types of supply contract,
Parliament and the Law Commission having deliberately decided not to extend the rules on
acceptance to contracts other than sale, those rules should not be so extended by the
court sub rosa.There is, however, one further point to note. If similar facts to those
of Jones were to arise today the customer would be able to rely on the additional remedies
provided by the Sale and Supply of Goods to Consumers Regulations 2002, implementing
the EC Consumer Guarantees Directive, and thus be able to demand repair or replacement
of the goods supplied (SGSA, s.11N) or, ultimately, in default thereof, rescission of the
contract (SGSA, s.11P). Those remedies are available under both contracts of sale and
contracts for work and materials, and although rescission is only available if other
remedial*L.Q.R. 563 options have failed, the right is available for up to six years from the
date of performance and neither affirmation nor acceptance is a bar.
ROBERT BRADGATE.
1

L.Q.R. 2004, 120(Oct), 558-563