Articles - Substandard Kit By David Barnes At the end of the low ground stalking season, the stalker fettles his kit. Typically, some items will have withstood the test imposed by regular use better than others. The best examples will only require cleaning and maintenance; the worst will have to be discarded. Between these extremes are articles which will require repair. In this article the writer examines the rights and remedies of the stalker as the buyer of stalking and stalking related goods. The principal Act of Parliament dealing with these is the Sale of Goods Act 1979 ("the Act"). The Act covers agreements under which the seller transfers the property in goods to a buyer for a money consideration ("the price"). It follows that each sale of goods by say a Gunshop or Country Clothing Supplier is subject to the provisions of the Act. The old adage about fishing "that the best place to go fishing is on a river and the next best place is in a fishing tackle shop" is equally applicable to stalking. Stalkers, like anglers, are inveterate buyers of kit. Suppliers, being well aware of the vulnerability in this respect, offer an ever increasing range of rifles, ammunition, stalking equipment, clothing and footwear. The Act serves to protect stalkers not from their own self indulgence as buyers but in both "a sale" and an "agreement to sell" in which the stalker respectively buys and pays for an item, whereupon it becomes his property or else agrees to buy it and to pay for it by instalments only on completion on which the property pass to him. Typically, the purchase of a stalking rifle with the price being paid by way of a 10% deposit and 12, 24 or 36 subsequent monthly payments, as a credit sale or conditional sale agreement, will fall into the latter category. Applying this to items typically brought by stalkers, the purchase of a rifle from the stock of a Registered Firearms Dealer ("RFD") would be covered by the Act as would the purchase of a rifle to be made by or on behalf of the RFD. In the same way both stalking clothes "bought off the peg" and a tailor made suit would be contracts for sale for the purposes of the Act Sales of low value items of equipment are usually completed with a minimum of paperwork, perhaps even by word of mouth. Sales of greater value are likely to be in writing or by a combination of writing and oral. Credit sales must be carried out strictly in accordance with the provisions of the Consumer Credit Act. Stalkers are advised that they can help themselves, first, by retaining receipts and other evidence of their purchases. They will require these to claim refunds for or replacements of even small items that fail. Stalkers should realise that in each sale to them in a gun or country clothing shop there is an implied term that the items supplied are of satisfactory quality. This means they must meet the standard that a reasonable person would regard as satisfactory, taking into account any description of the goods, the price (if relevant) and all other relevant circumstances. The quality of goods including their state and condition and, if appropriate, the following aspects are relevant:- Fitness for purpose Appearance and finish Freedom from minor defects Safety; and Durability Historically, this implied term that goods sold in the course of business are of "satisfactory quality" replaces the former term implying that they were of "merchantable quality" The cases decided under that original term have in many cases been applied to satisfactory quality. The stalker needs his equipment and clothing to be of satisfactory quality. This is as true of the dedicated amateur stalker out in all weathers achieving his winter doe cull as it is for the professional Scottish stalker having a hard season after stags. Poor, sub-standard equipment and clothing is unacceptable and in some cases even unsafe to a stalker. The stalker should therefore be as alert to the ever-present protection afforded by the Sale of Goods Act as he is to the breeze in his face. To reiterate he must keep all receipts and other evidence of purchase. It is sensible to keep all such receipts in a file and also guarantees, conditions of sale and credit sale agreements. The stalker has no need to put up with shoddy or substandard goods and this applies to all his clothing and equipment. In the writer's experience shooting gloves - particularly waterproof ones - are prone to splitting and going off in appearance by de-scaling and becoming dangerous when the velcro fasteners for holding back the trigger finger material lift off and fail. Now there is no need for a stalker to put up with a pair of defective gloves or any other kit. Armed with a receipt, he can seek repair, replacement or refund as the case may be. Turning to higher value items, the stalker who buys a deer stalking rifle from a RFD will expect nothing less than a rifle of satisfactory quality. If his purchase is supported by a Guarantee given by the RFD or the manufacturer or both, then this document can only improve on the rights afforded him by the Act; it cannot detract from them. Random examples of an actionable lack of quality in a stalking rifle with reference to the five point list already referred to above might be as follows:- 1. A rifle incapable of holding zero at 100 metres; (such a rifle would be useless as a stalking rifle). Of course if the buyer has purchased rifle, scope and mounts separately and perhaps mounted the scope himself or by a person other than the RFD who supplied the rifle, then he may very likely encounter problems, which must be overcome, before the RFD will accept the rifle he has sold is not of satisfactory quality. This is a good argument for buying a rifle already scoped from the RFD thereby by-passing a possible argument as to whose responsibility the problem is. Under 2 above the stalker is entitled to a rifle of satisfactory appearance and finish. If he is buying a rifle by description then the rifle supplied to him should correspond with that description. Thus an order for the purchase of a rifle of a certain grade would be in breach of the implied term if it was of a lower grade. The same would apply if say the stock of the rifle was varnished when it should have been oiled or indeed if the varnish or oil has been applied in an unsatisfactory manner. In the case of items bought over the counter the stalker should inspect them for minor defects but goods that are ordered and supplied later must be free from minor defects if they are not to fail the satisfactory quality test. In buying a rifle, it really goes without saying that buying a safe rifle is paramount. An unsafe rifle is a perfect example of "goods" that fail to comply with the implied term of satisfactory quality. In the event there is an issue as to whether a rifle is or is not safe then expert evidence is called upon to determine this. In litigation, for example in a personal injury claim the practice is now for one expert to "assist the Court" and his evidence may be crucial to the success or failure of a plaintiff's claim. In the retail sector - particularly in relation to clothing - retailers sometimes refer to articles of clothing returned to them by customers to "independent assessors". Self-regulated schemes such as these have the advantage of avoiding Court costs and the disadvantage that the assessors may not always be as independent as they should be. If the stalker anticipates a serious dispute with his supplier over a costly item such as a rifle or optics then he would be well advised to first check on the description, and second, any written Conditions of Sale under which the item was supplied including the Guarantee. He should also obtain his own Expert's Report. "Durability" as an aspect of the satisfactory quality term is not infrequent bone of contention between the stalker and supplier in connection with clothing and footwear. Failure of these articles through use during stalking outings may be regarded by the stalker as a failure to withstand reasonable use. In contrast the supplier may contend the failure is due to overuse, abuse or both. Just as stalkers know that the geology of a territory affects the rate of wear of the teeth of a deer, they are also aware it imposes different rates of durability on clothing and footwear. Clay, for instance, can dry on coats and trousers and thereby create the equivalent of an abrasive sheet causing heavy wear on the seams of garments in man-made fabrics. The lifetime of boots can be shortened if they are used in areas in which granite is prevalent. In the many promotional brochures and advertisements for such clothing and footwear it is rare to see any qualifications as to the suitability of such items for specific types of terrain. The emphasis is placed on the superiority of the technology and the advanced level of the design. Unless garments or footwear sold in a Country Clothing Star or by mail order are expressly said to be unsuitable for certain conditions then the stalker is entitled to expect them to be reasonably durable. Whilst fair wear and tear leading ultimately to the wearing out of the article are of course to be expected, lack of durability renders it of unsatisfactory quality. Further by S. 14 of the Act, where a stalker buys goods from a store or by mail order which he expressly or by implication makes known are for stalking then there is an implied term in the Contract that the goods supplied should be reasonably fit for that purpose. On that basis a pair of over trousers that fail in their first winter ought to be replaced, as should waterproof boots that leak or a rifle that does not work. The fitness for purpose list applies either when the stalker makes known the particular purpose to the seller or when the item has only one ordinary purpose. The stalker must however rely on the skill and judgment of the seller and a seller's recommendation of (for example) a particular make of rifle, is a case in point. Suppliers are now severely limited in excluding the Act. In law, except in certain circumstances, the implied terms discussed above (and others) simply cannot be excluded. As a stalker is for the purposes of this legislation "a consumer" these implied terms cannot be excluded. Liability in respect of other items can only be valid by restricted if reasonable. Where a seller and stalker fall out over an article which has been sold to the latter the stalker may wish to reject it, and there are detailed provisions in the Act as to when the buyer is deemed to have accepted goods, which acceptance generally deprives him of the right to reject them. Even if the stalker cannot reject the goods, he can in an appropriate case claim damages for substandard or defective goods. Such claims can be inexpensively pursued through the stalker's local County Court under "the small claims" procedure, if an accommodation cannot be made with the supplier Of course litigation is a last resort and reputable suppliers of stalking equipment and clothing will generally deal reasonable with proper legitimate claims to protect their reputations for fair dealing. It is easiest for them to do this when complaints are properly documented and made out and it is evident that remedial action - be it repair replacement or refund - is required. As in stalking itself the key to the successful purchase and maintenance of stalking kit is to go to work in a methodical way and keep good records. Word version of this article < Back Next > David M.B. Barnes B.A. is a Shooting and Countryside law Solicitor Enquiries Tel. 07887 762275 Email: bb@shootinglaw.co.uk
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