Goods and Defect

In one line

A defect is a fault, imperfection or shortcoming in the quality of goods measured against what the law, a contract or the trader's own claim required.

In the wording a student can write in an exam: section 2(10) of the Consumer Protection Act 2019 defines a defect as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force, or under any contract express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods or product; the word "defective" is construed accordingly.

The three standards a defect is measured against

Read the definition slowly, because it contains three separate yardsticks and a problem question usually turns on which one applies.

1. What the law requires. A standard fixed by or under any law in force, for example a quality standard prescribed for a food product or a safety standard for a helmet.

2. What the contract requires. Express terms, and implied terms.

3. What the trader claimed. "As is claimed by the trader in any manner whatsoever" is the widest limb: an advertisement, a brochure, a label, a sales representation. A trader who claims more than the law requires is held to his claim.

The definition is about the goods, not about the seller's conduct. A defect exists or it does not, whether or not anybody was careless.

Goods, product, and the related definitions

Goods, in section 2(21), means every kind of movable property and includes food as defined in the food safety law.

Product, in section 2(33), means any article, goods, substance or raw material, or any extended cycle of it, which may be in gaseous, liquid or solid state, possessing intrinsic value, capable of delivery either as wholly assembled or as a component, and produced for introduction to trade or commerce; it excludes human tissues, blood, blood products and organs.

Spurious goods, in section 2(43), means goods which are falsely claimed to be genuine.

Product liability and its associated definitions carry the further scheme in Chapter VI, which chapter [Product Liability] works out.

How a defect is proved: sections 38 and 39

This is the part students omit, and it is the part that answers "what will the Commission actually do".

Section 38 governs the procedure on admission of a complaint. Where a complaint relates to goods, the Commission refers a sample of the goods to an appropriate laboratory for testing where it is necessary to determine whether they suffer from any defect; the complainant deposits the fees for the analysis; the report is sent to the parties, who may object to it; and the Commission decides the complaint after hearing the parties on the report. Where the defect can be determined without analysis, or the complaint relates to services, the Commission proceeds on the evidence brought by the parties.