Digital content and the definition dilemma under the Sale of Goods Act 1979: Will the Consumer Rights Bill 2013 remedy the malady?

• Author: Althaf Marsoof
• Pages: 285-293

JICLT

Journal of International Commercial Law and Technology

Vol.9, No.4 (2014)

285

Digital content and the definition dilemma under the

Sale of Goods Act 1979: Will the Consumer Rights Bill

2013 remedy the malady?

Althaf Marsoof

PhD candidate

The Dickson Poon School of Law

King’s College London

althaf.marsoof@kcl.ac.uk

Abstract. The Sale of Goods Act 1979 (“SGA”) that is in force in the United

Kingdom (UK) is ill suited for the Twenty First Century. Since the term “goods” defined in

the SGA does not extend to the sal e of digital content, buyers of digital content are robbed

of the protection guaranteed by the implied terms found therein. This analysis considers the

recent Consumer Rights Bill 2013 that was presented in Parliament by the UK’s

Government and evaluates its suitability in overcoming the deficiencies in the SGA in

relation to the sale of digital content.

Introduction

The Sale of Goods Act 1979 (“SGA”) became law almost a third of a century ago at a time when

computers and the Internet were still in their incubatory stages. With the effluxion of time, the

commercial world has evolved tremendously leading to novel ways in which sale of goods transactions

are made. Not only did the law have to keep pace with th ese changes, but also provisions that aimed at

protecting consumers were specifically incorporated into the SGA shifting the regime from one of

caveat emptor to one of caveat venditor. Yet, notwithstanding these amendments, the SGA is still a

thing of the past ill suited to deal with certain transactions taking place in the Twenty First Century.

…..This brief analysis aims to critically assess the applicability of the SGA to the sale of digital content

over the Internet, and then goes on to consider whether the Consumer Rights Bill 2013 effectively

overcomes the problematic outcomes the SGA has given rise to.

The sale of “digital content”–are digital content “goods” under the SGA?

Today, the Internet h as become a prominent marketplace where goods that previously comprised

physical characteristics are now sold as digital content. A typical example is eBooks, or electronic

books, that are downloadable into the buyer’s electronic device upon a purchase. But for the lack of

tangibility, the nature of transactions relating to the sale of digital content is in every sense identical to

transactions concerning physical goods. In the circumstances buyers of digital goods ought to be given

the same l egal protection as those who purchase goods bearing physical characteristics. It is in this

context that one must pose the question whether digital content are “goods” for the purposes of the

SGA. Why this question becomes important is because the operation of the SGA is limited to

transactions pertaining to “goods”. This becomes patently clear when s 1(1) of the Act provides:

‘This Act applies to contracts of sale of goods made on or after (but not to those made

before) 1 January 1894.’

And a contract of sale of goods “…is a contract by which the seller transfers or agrees to transfer the

property in goods to the buyer for a money consideration, called the price” (s 2(1)). What is