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
Journal of International Commercial Law and Technology
Vol.9, No.4 (2014)
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
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.
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

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