Britvic Soft Drinks Ltd v Messer UK Ltd
Encyclopedia
Britvic Soft Drinks Ltd v Messer UK Ltd [2002] EWCA Civ 548 is a notable English contract law
case, concerning the application of the Unfair Contract Terms Act 1977
in the context of consumer protection and a supply chain.
with carbon dioxide for its drinks. It was contaminated with benzene, a carcinogen. Britvic had to recall its products and it sued Messer to recover its costs, arguing that it was in breach of contract. A term in the contract limited liability of Messer under s 14 of the Sale of Goods Act 1979
(which by virtue of UCTA 1977 can only be limited as it satisfies the requirement of reasonableness).
The judge found that the only relevant express term in the supply agreement was that the carbon dioxide would conform with British Standard 4105. But the implied term under Sale of Goods Act 1979 s 14 also applied. Breach of both terms allowed the recovery of damages. Messer appealed, arguing that BS 4105 could not be regarded as containing an express term that gave rise to damages and that the term limiting s 14 did in fact satisfy the reasonableness test.
But the judge had been right that Messer's exclusion of liability for s 14 SGA 1979 was unreasonable. As a supplier, rather than manufacturer, this represented that it complied with BS 4105, the required purity level at the time. Although you could comply with BS 4105, this did not mean the carbon dioxide was suitable for use. The exclusion was unreasonable because it contradicted the assumption that manufacture and supply would exclude introduction of foreign elements. Buyers could not be expected to test for elements they had no reason to suspect. So it must be the responsibility of Messer, and ultimately the manufacturer. Mance LJ concluded as follows.
Thorpe LJ and Neuberger J concurred.
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
case, concerning the application of the Unfair Contract Terms Act 1977
Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of...
in the context of consumer protection and a supply chain.
Facts
Messer UK Ltd supplied BritvicBritvic
Britvic plc is a British producer of soft drinks. It is the number two soft drinks producer in the UK. It is listed on the London Stock Exchange and is a constituent of the FTSE 250 Index...
with carbon dioxide for its drinks. It was contaminated with benzene, a carcinogen. Britvic had to recall its products and it sued Messer to recover its costs, arguing that it was in breach of contract. A term in the contract limited liability of Messer under s 14 of the Sale of Goods Act 1979
Sale of Goods Act 1979
The Sale of Goods Act 1979 is an Act of the Parliament of the United Kingdom which regulates English contract law and UK commercial law in respect of goods that are sold and bought. The Act consolidates the original Sale of Goods Act 1893 and subsequent legislation, which in turn had codified and...
(which by virtue of UCTA 1977 can only be limited as it satisfies the requirement of reasonableness).
The judge found that the only relevant express term in the supply agreement was that the carbon dioxide would conform with British Standard 4105. But the implied term under Sale of Goods Act 1979 s 14 also applied. Breach of both terms allowed the recovery of damages. Messer appealed, arguing that BS 4105 could not be regarded as containing an express term that gave rise to damages and that the term limiting s 14 did in fact satisfy the reasonableness test.
Judgment
Mance LJ dismissed the appeal and held in favour of Britvic. The judge had in fact been wrong on the first point, that BS 4105 contained an express term relevant to benzene and giving rise to damages, because it could not be read as a general undertaking of suitability.But the judge had been right that Messer's exclusion of liability for s 14 SGA 1979 was unreasonable. As a supplier, rather than manufacturer, this represented that it complied with BS 4105, the required purity level at the time. Although you could comply with BS 4105, this did not mean the carbon dioxide was suitable for use. The exclusion was unreasonable because it contradicted the assumption that manufacture and supply would exclude introduction of foreign elements. Buyers could not be expected to test for elements they had no reason to suspect. So it must be the responsibility of Messer, and ultimately the manufacturer. Mance LJ concluded as follows.
Thorpe LJ and Neuberger J concurred.