There was an issue whether or not the purchase by the plaintiff of a second-hand car was made ‘in the course of a business’ so as to preclude the plaintiff from relying upon the provisions of the 1977 Act.
Held: Speaking of Lord Keith’s description of the Act in Davies v Sumner: ‘Lord Keith emphasised the need for some degree of regularity, and he found pointers to this in the primary purpose and long title of the Trade Descriptions Act 1968. I find pointers to a similar need for regularity under the Act of 1977, where matters merely incidental to the carrying on of a business are concerned, both in the words which I would emphasise, ‘in the course of’ in the phrase ‘in the course of a business’ and in the concept, or legislative purpose, which must underlie the dichotomy under the Act of 1977 between those who deal as consumers and those who deal otherwise than as consumers.
This reasoning leads to the conclusion that, in the Act of 1977 also, the words ‘in the course of business’, are not used in what Lord Keith called ‘the broadest sense’. I also find helpful the phrase used by Lord Parker C.J. and quoted by Lord Keith, ‘an integral part of the business carried on.’ The reconciliation between that phrase and the need for some degree of regularity is, as I see it, as follows: there are some transactions which are clearly integral parts of the businesses concerned, and these should be held to have been carried out in the course of those businesses; this would cover, apart from much else, the instance of a one-off adventure in the nature of trade, where the transaction itself would constitute a trade or business. There are other transactions, however, such as the purchase of a car in the present case, which are at highest only incidental to the carrying on of the relevant business; here a degree of regularity is required before it can be said that they are an integral part of the business carried on, and so entered into in the course of that business.’
Neill L.J noted that expression similar to ‘in the course of a business’, were used in statutes such as the Sale of Goods Act 1979, the Trade Descriptions Act 1968 and the Supply of Goods and Services Act 1982. He noted that section 1(1) of the Trade Descriptions Act creates a criminal offence, but nonetheless thought that it would be unsatisfactory if, when dealing with broadly similar legislation, the courts were not to adopt a consistent construction of the same or similar phrases. For that reason he thought that the court should follow the guidance given in Davies v Sumner when construing section 12(1) of the Unfair Contract Terms Act.
Dillon LJ, Neill LJ
[1988] 1 WLR 321, [1987] EWCA Civ 3, [1988] 1 All ER 847
Bailii
Unfair Contract Terms Act 1977 12(1), Sale of Goods Act 1979
England and Wales
Citing:
Cited – Davies v Sumner HL 1984
The defendant used his own car almost exclusively in the course of his occupation as a courier. He sold and replaced it with another for similar use. He was charged before justices with the offence of applying, ‘in the course of trade or business’, . .
Cited – Lord Advocate v Lord Lovat 1880
Lord O’Hagan considered the nature of possession as regards land: ‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in . .
Cited – Henry Kendall and Sons v William Lillico and Sons Ltd HL 8-May-1968
The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the . .
Cited – DHN Food Distributors Ltd v Tower Hamlets London Borough Council CA 1976
The business was owned by DHN and the land upon which the business was operated was owned by a wholly owned subsidiary, Bronze. The Council acquired land owned by Bronze on which DHN operated its cash and carry warehouse. The Council submitted that . .
Cited by:
Cited – Stevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
Cited – GE Capital Bank Ltd v Rushton and Another CA 14-Dec-2005
The bank had entered into a master trading agreement with a trader under which the trader bought motor vehicles as agent for the bank for resale. The vehicles belonged to the bank. The defendant bought all the trader’s vehicles. The defendant now . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.187299