Commercial Law’s Fear of Electrocution – An Analysis of the Law’s Reluctance to be Energetic in Deeming Energy as a “Good”. Is Change a “Good” Idea?

By Luke Gibbons

It is unquestionable that commercial entities, would not function without energy supply. Further, as Bridge outlines, “there is no doubt that energy…[can be] bought and sold”. (Benjamin’s Sale of Goods,9th.edn.2014). Thus, the fact the judiciary and legislator have failed to clarify whether such constitute “goods” under the Sale of Goods and Supply of Services Act 1980, and therefore, accrue heightened remedial availability than “services”, while providing no definition of “services”, and as White states, no principled reason why this protectionism to goods exists, is abhorrent.(White,Commercial Law,2nd.edn.2012).

It is regrettable that a definition requiring tangibility, from a period when energy was not paramount is stifling jurisprudential and legislative development, as “there are …difficulties attributing to energy … legal qualities of… physical objects”.(n1) Consequently, a multijurisdictional solution has developed, distinguishing “bottled” from “flowing” energy, as held in Bradshaw v Bothe’s Marine[1973]35.DLR.(3d)43, with the former being deemed “goods”. Although unfavourable in an already uncertainty area, it is submitted, such may be necessary. This is contended as Part IV of the 1980 Act only implies “terms” akin to “conditions” implied to sale contracts, if a contract is held to be for supply of services, and following Carroll v An Post National Lottery[1996]1I.R 433, a narrow view of  such is proffered. Thus, one contends, if this distinction was not held, there would arguably be no protection for commercial entities who buy “bottled” energy, as such may not be deemed a service, and also, not be subject to the proposed Consumer Rights Bill 2015.

Further, it is argued, the definition’s impact is exacerbated, as energy is considered a “good” in many Statutes such as, the Consumer Protection Act 2007. In spite of such, one must question, to remedy this arbitrary distinction, is it feasible for energy in general to be deemed a “good” under the 1980 Act, now that “services” are offered protections?

It is arguable, the dearth of cases may warrant maintaining the status quo. Furthermore, it is contended, if energy constituted a “good”, s.35 may be invoked, deeming acceptance by “use”, being an act inconsistent with the seller’s ownership. However, it is noted, as such is expressly subject to s.34(1) allowing for reasonable inspection, and as such allows operation, subsequent to Benstein v Pamson Motors Ltd[1987]2.All.ER.220, the “use” of energy uncovering a “latent defect” for instance, may give rise to more favourable remedies to “buyers”.

Nevertheless, a determination that energy is a “good” may arguably detrimentally effect remedial availability. Currently, in energy being a “service”, implied terms are “innominate terms”, warranting damages or termination depending on the breach’s seriousness, as denoted from Hongkong Fir Shipping v Kaawasaki Kisen Ltd[1962]2Q.B..26. However, it is contended, if deemed a “good”, claims would likely be made under s.11(3) of the 1893 Act, arguing; if some energy was consumed prior to rejection, a partial rejection occurred, and thus, implied conditions would be converted into warranties, with damages being the only remedy. Further, although White requests allowance of partial rejection as in the UK, it is argued, such would not assist as energy would likely be subject to the “commercial unit” exception. Thus, the only solution to this quandary may be “freedom of contract” in allowing such, although as monopolised energy suppliers are often the dominant party, this seems unlikely.

Furthermore, retention of title clauses are hallmarks of sales contracts, as such provide remedies for sellers, when “goods” are sold on credit. Although, White contends such are common where “goods” are consumed before credit periods end, the recent case of PST Energy v OW Bunker Ltd[2016]UKSC23 held, in relation to fuel, one cannot obtain title to something that no longer exists, so it cannot be a transaction with such at its heart. Thus, it is argued, in undermining a key remedy when buyers become insolvent, and a foundation of credit arrangements, this holding encapsulates why deeming energy as “goods” is unworkable.

It is submitted, due to the difficulties outlined, the Sales Law Review Group’s recommendation to hold implied terms for services as “conditions” in legislation should be adopted. Although, it is noted, this may not fully remedy the remedial deficit offered to “services”, such would allow commercial users of differing energy forms, seek relatively equal remedies bringing some homogeneity to the law.

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