Section 1: Where Part 1 applies
30.The main purpose behind section 1 is to make clear the scope of Part 1 of the Act. Part 1 is concerned with contracts between a trader and a consumer under which a trader agrees to supply goods, digital content or services (or any combination of these) to a consumer. It does not matter whether the contract is written or oral or implied by the conduct of the trader and consumer, or a combination of these. This means that, for the Part to have effect, there must be a contract and the contract must be for a trader to supply goods, digital content or services to a consumer.
31.At its most basic level, for a contract to be formed under the law of England and Wales or Northern Ireland there needs to be an offer and acceptance (i.e. one party must express a willingness to contract on certain terms and the other party must agree to those terms); and there must be ‘consideration,’ which is to say that both sides must offer something to the other (e.g. money in return for goods). In Scots law there is no requirement for consideration but the parties’ agreement must show an intention to be legally bound. As well as using words, a contract could be implied by conduct of the parties, for example, by jumping into a black cab and stating your destination, this conduct would be taken as an agreement that the taxi driver will take you to your destination and that you will pay a price for it.
32.Subsections (4) to (6) set out the position with regard to “mixed contracts”. There are many examples of mixed contracts, for example contracts involving the supply of both goods and services (e.g. a car service where parts are fitted) or digital content and a service (e.g. supplying and installing anti-virus software). In such contracts, under the Act, the service element of the contract attracts service rights and remedies, the goods elements attract goods rights and remedies and the digital content elements attract the digital content rights and remedies. Subsection (3) therefore makes clear that, for such mixed contracts, it will be relevant to look at the rights and remedies for each element of the mixed contract. In most cases it will be relevant to look at the appropriate chapter of the Act (Chapter 2 for goods, 3 for digital content and 4 for services). Subsection (6) sets out that for particular mixed contracts (goods and installation services, and goods and digital content) it may also be relevant to look at sections 15 and 16.
33.Subsection (7) makes clear that consumer contracts are subject to provisions in Part 2 on unfair terms. In addition to the provisions of the Act, some provisions of SGA will continue to apply to trader-to-consumer contracts if they are contracts of sale as defined by SGA (essentially sales of goods for money). The provisions of SGA which continue to cover such contracts are:
Sections 1-10 (certain provisions regarding formation of the contract)
Section 11 with the exception of subsection (4) (when condition to be treated as a warranty)
Sections 16-19, 20A and 20B (certain provisions regarding transfer of property)
Sections 21-28 (provisions regarding transfer of title, duties of seller and buyer and payment and delivery being concurrent conditions)
Section 29 with the exception of subsection (3) (rules about delivery)
Section 34 (buyer’s right of examining goods) – the consumer’s remedies, if the goods are found to breach the statutory requirements under the Consumer Rights Act 2015, are still as set out in the Consumer Rights Act 2015
Section 37 (buyer’s liability for not taking delivery of goods)
Part V (rights of unpaid seller against the goods)
Sections 49-50 (seller’s remedies)
Section 57 (auction sales)
Sections 60-62 (rights enforceable by action; interpretation and savings)
