The law on sales in Scotland

In general, the Sale of Goods Act (SOGA) has the same effect in Scotland as it does in England and Wales, and provides consumers with broadly similar statutory rights in relation to sales of goods in pharmacies.

All goods sold to customers must be of satisfactory quality, taking into account their price and other relevant factors. They must also be fit for their intended purpose, safe, durable and free from minor defects.

However, there are some distinctions in the application of the SOGA in Scotland that should be noted. Compared with England and Wales, the main differences relate to certain legal concepts and different remedies available in Scotland.

Legal concepts

English law makes the distinction between a condition and a warranty. A condition is a fundamental term of a contract which, if breached, will give rise to a right to treat the contract as repudiated or terminated.

A warranty, on the other hand, is an assurance or promise in a contract, the breach of which may give rise to a claim for damages (and in the majority of cases will amount to a refund or a replacement of the goods in question). Unlike a condition, a warranty cannot give rise to a right to reject the goods or to terminate the contract.

The SOGA in England and Wales provides that, in certain circumstances where a breach of conditions has occurred, the buyer may elect to treat the breach as a breach of warranty and not as a ground for treating the contract as terminated. The SOGA in Scotland does not make such a distinction.

The SOGA as applied in Scotland specifically provides that where any breach, be it a breach of condition or warranty, is considered to be a “material breach” under Scots law (see opposite), the buyer is entitled to reject the goods and treat the contract as terminated as well as seeking damages.

In other words the potential remedies available to a customer in Scotland for material breaches are greater than those in England and Wales.

The remedies available in Scotland

Material breach The SOGA provides that under Scots law the buyer is entitled to claim for damages if the seller has committed a breach of contract. In addition where the breach is said to be a “material breach” the buyer may also reject the goods and treat the contract as repudiated or terminated.

The SOGA does not give a definitive list of the circumstances in which a material breach, as opposed to an ordinary breach, has occurred. However the Act does provide that breaches in respect of the following are deemed to be material breaches:

• The quality or fitness of the goods

• The description of goods, if the description does not accurately reflect the goods being sold on the basis of their description

• The quality of the goods sold, if it does not correspond with the quality of the sample goods previously shown

Remedies for breach In the event that damages are sought, the buyer is entitled to redeem the estimated loss incurred as a result of the breach. For example, if the breach is in relation to the quality of the goods, and the buyer elects to keep the goods, the damages sought will be the difference between the value of goods at the time of delivery and the value they would have been had the seller fulfilled the contract (although in the pharmaceutical industry, it is unlikely that the buyer will accept any goods that are not of suitable quality).

Buyers in Scotland, as in England and Wales, also have the right to require the seller to repair or replace the goods.

Payment into court in Scotland There is an additional provision in Scotland that where a buyer elects to accept the goods (which he might have rejected), and instead decides to seek damages for breach of contract, the court has a discretion to require the buyer to pay into court a reasonable sum as a security for the outstanding payments that may be due by the buyer.

However, in relation to pharmacy sales, it is unlikely that a buyer would accept the goods, which they might otherwise reject.