Self-service displays

Another area of difficulty arises in relation to the display of goods in a shop window, or on the shelves of a supermarket, or other shop where customers serve themselves. We commonly talk of such a situation as one in which the shop has the goods “on offer”. This is especially true of attractive bargains which may be labeled “special offer”. Are these “offers” for the purpose of the law of contract? The issue has been addressed in a number of criminal cases where the offence in question was based on there being a “sale” or an “offer for sale”. These cases are taken to establish the position under the law of contract, even though they were decided in a criminal law context. The Court of Appeal has recently suggested that it is not appropriate to use contractual principles in defining the behaviour which constitutes a criminal offence, in this case relating to an offer to supply drugs. This does not, however, affect the contractual rules deriving from older criminal cases where this was done. The first to consider is Pharmaceutical Society of Great Britain v Boots Cash Chemists.

Section 18 (1) of the Pharmacy and Poisons Act 1933 made it an offence to sell certain medicines unless “the sale is effected by, or under the supervision of, a registered pharmacist”. Boots introduced a system under which some of these medicines were made available to customers on a self-service basis. There was no supervision until the customer went to the cashier. At this point, a registered pharmacist would supervise the transaction and could intervene, if necessary. The Pharmaceutical Society claimed that this was an offence under s 18, because, it was argued, the sale was complete when the customer took an article from the shelves and put it into his or her basket. The Court of Appeal disagreed, and held that the sale was made at the cash desk, where the customer made an offer to buy, which could be accepted or rejected by the cashier. The reason for this decision was that it is clearly unacceptable to say that the contract is complete as soon as the goods are put into the basket, because the customer may want to change his or her mind, and it is undoubtedly the intention of all concerned that this should be possible. The display of goods is therefore an invitation to treat and not an offer.

With respect to the Court of Appeal, the conclusion that was reached was not necessary to avoid the problem of the customer becoming committed too soon. It would have been quite possible to have said that the display of goods is an offer, but that the customer does not accept that offer until presenting the goods to the cashier. This analysis would, of course, also have meant that the sale took place at the cash desk and that no offence was committed under s 18. Strictly speaking, therefore, the details of the Court of Appeal’s analysis in this case as to what constitutes the offer, and what is the acceptance, may be regarded as obiter. It has, however, generally been accepted subsequently that the display of goods within a shop is an invitation to treat and not an offer.

The decision in this case was treated by the Court of Appeal very much as a “technical” one on the law of contract. There were, however, several other broader issues which were involved in it. First, there is the issue of the degree of supervision necessary to protect the public in relation to the sale of certain types of pharmaceutical product. Secondly, there was the potential effect on the employment position of pharmacists - the self-service arrangement would probably have the effect of reducing the number of pharmacists which Boots, or other chemists adopting a self-service system, would need to employ. Thirdly, there was the question of whether the law on formation of contracts was to be developed in a way which helped or hindered the growth of the self-service shop. On the first issue Somervell LJ emphasised that the substances concerned were not “dangerous drugs”. The implication is that the system of control operating under Boots’ self-service scheme was sufficient to fulfill the objective of the 1933 Act in protecting the public. The second issue, the effect on pharmacists, was not addressed at all, even though this must have been one of the main reasons for the action being brought by the Pharmaceutical Society. Collins has suggested that the court may not have been impressed “by the desire of the pharmacists to retain their restrictive practices”, but this does not appear from the judgments at all. As regards the final issue, the court noted that theself-service arrangement was a “convenient” one for the customer. It is also, of course, an efficient one for the shopkeeper, enabling the display of a wide range of goods with a relatively small number of staff. The self-service format has become so dominant in shops of all kinds today that it is important to remember that in the early 1950s it was only gradually being adopted. The decision in the Boots case, if it had gone the other way, would have hindered (though probably not halted) its development. The Court of Appeal therefore can be seen by this decision to be making a contribution to the way in which the retail trade developed over the next 10 years.

Дата добавления: 2015-10-30