NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Yearbook of New Zealand Jurisprudence

You are here:  NZLII >> Databases >> New Zealand Yearbook of New Zealand Jurisprudence >> 2002 >> [2002] NZYbkNZJur 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Wilhelmsson, Thomas --- "A green sales law?" [2002] NZYbkNZJur 6; (2002-2003) 6 Yearbook of New Zealand Jurisprudence 83

Last Updated: 12 April 2015

A Green Sales Law?



The relationship between consumer law and environmentalism is much debated.' Depending on the perspective it can be looked at in opposite ways.

One way is the adoption of the "market failure" perspective. If one looks at the protection of consumers and the protection of the environment in the overall structure of the regulation of the market, a picture of similarity emerges. Typical for both types of protection is a certain degree of intervention in what would otherwise be the result of the operation of the market. In this sense consumer protection at least partially can be labelled "interventionist" in the same sense as environmental protection. In this perspective there seems to be a relatively close similarity between the areas, as some of the methods for intervening in the market are similar. It might therefore at least in certain situations seem practical even to combine both types of protection in the same instruments.

However, if one chooses a "substantive goals" perspective, the picture changes. "Consumerism" may be understood as having its main goal in the securing of a problem-free consumption. This may produce rules which, if one draws a caricature, may be said to have the aim of promoting as much consumption of undefective goods and services as possible. Consumer law may obtain the function of supporting consumption. For example, the regulation of marketing increases the trust of the people in marketing as a whole and thereby makes the consumers more defenceless against the creation of needs through such activity. An improvement of consumer rights may also

Professor of Civil and Commercial Law, University of Helsinki.

  1. See Wilhelmsson T, "Consumer Law and the Environment: From Consumer to Citizen"
    Journal of Consumer Policy (1998) 45-70. Some parts of the present paper are based on that article.

lower the hurdle for making decisions concerning new consumption.' In this sense consumer law is apparently in fundamental conflict with environmental interests for which the growth of consumption as such is a negative tendency.

However, despite this very basic contradiction between consumerism and environmental protection, those who emphasise the common paths for the protectors of consumers and of the environment do not focus only on the regulatory proximity of consumer and environmental law in a market failure perspective. They claim that there exist at least some common substantive goals for consumer protection and environmental protection as well. The consumers are said to have an interest in the environment' Because of this it is possible that consumer law under certain circumstances can be used as a tool for promoting environmental interests. As the "consumer interest" does not appear as a homogeneous whole, one may claim that environmental issues in certain situations might be taken into account within consumer law, in spite of its (environmentally unsound) basic commitments to consumerist ideals.

The purpose of my paper is to illustrate this possibility by discussing whether consumer sales law can be used for environmentalist purposes. To limit the contribution sufficiently I here focus only on one central issue, that is whether and under what conditions rules on non-conformity of the goods in consumer sales law may be applied against the seller of environmentally harmful goods'

Even though I think much of my reasoning is general enough to be in some way relevant in most modern systems of (consumer) sales law, for the sake of clarity I have found it important to choose one legal text as a point of departure. I have earlier discussed the same issue

  1. One small example may suffice to illustrate this effect: since the introduction of the right of cancellation concerning post order sales in Finland, the businesses in this field have actively used these rules as a central argument in their advertising practices. Obviously some people who would not have dared to make purchases in this way beforehand do it now — and the right of cancellation poses few risks for the businesses, as the cancellation rate, despite the frequently occurring low quality, is very low.

3 Consumers in Europe Group. "The Consumer Interest in the Environment" CEG 96/12 (London, 1996).

  1. As Meier notes, in German case law concerning environmentally relevant conflicts cases concerning non-conformity are most frequent: Meier K, Okologische Aspekie des Schzildvertragreehts (Berlin, 1995) 17.

from the point of view of Nordic sales law.' In the present paper I will use the new EC Consumer Sales Directive' as a normative basis. This basis of reasoning should be relatively familiar to most private lawyers, even outside the European Union, as the wording of the definition of non-conformity in the Consumer Sales Directive is to a large degree inspired by the UN Convention on Contracts for the International Sale of Goods.'

Before going into detail regarding sales-law regulation I would define the issue by raising a general problem of private law that can set both actual and normative limits to our possibilities of developing an effective green law of contract. Such limitation may result from a fundamental notion of traditional private law, that is, the notion that private law rules are intended to be used by market actors promoting their self-interest in individually determined relationships with other actors.

This point of departure implies that traditional private law is self-implementing in character. Application of the rules is not watched over by any prosecuting or supervising authority; rather, initiative for the process of applying the rules is left to the parties themselves, or rather to the party whose interest has been encroached upon. The party wronged by a breach of contract or by a tort can themselves decide whether to make any claims against the other party or the tortfeasor on this score and whether they wish to employ legal mechanisms in the attempt to have these claims met.

The use of private law rules as means of controlling the behaviour of a party to a contract therefore presupposes that the other party sees it as being in his or her interest to make use of the rules. It has been said that control through private law is obviously unsuitable in cases

  1. Wilhelmsson, T "Bidrag till en gr8n kopratt" in Blume & Petersen (eds), Retlig polycentri (Kopenhamn, 1993) 19-36. Parts of the present paper are based on that article, translated from Swedish by Tim Crosfield.
  2. Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.
  3. Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, COM(95) 520 final, 11.

where there is no conflict of interest between the parties.' If both parties have congruent interests the rules of private law are not brought into play. This suggests that environmentally-related contract law arguments would in practice be considered primarily where one party has suffered from the other's environmentally harmful actions.

In German critical writing, analysing private law against the background of modern theories of risk society, the relevance in contract law of different kinds of risk has been discussed.' Even here the focus of attention has been primarily, albeit not exclusively,"' on risks to the individual contractual party (the buyer). The buyer may then naturally have a self-interest, e.g. by referring to the cancellation rules of sales law, to eliminate the risks to him or herself. Self-interest need not apply only to damage that has already materialised.

So, on the basis of considerations of efficiency alone, at a first glance there appears to be little point in asking what possible sales law options buyers have where the goods entail no particular risk to themselves, only to the environment in general." The question of whether the buyer can react if, for example, the buyer discovers that the washing powder purchased is more environmentally harmful than envisaged would lack practical significance, since no direct conflict of interest between seller and buyer arises here.'

In the great majority of cases this view is certainly correct. New knowledge of environmental problems associated with a product would scarcely cause many buyers/consumers to react. The most enlightened would perhaps not buy the product but it would occur to

8 Rodhe K, Obligationsratt (Lund, 1956) 9.

9 See e.g. Schmidt J, "Steuerung `neuer Risiken' mit Hilfe des zivilrechtlichen

Vertragsrechtes" Kritische Vierteljahresschrift Gesetzgebung und Rechtswissenschaft
(1991) 378-385; Hart D, "Sozialschutzbezogene Normbildungsprozesse bei Risikoentscheidungen im Vertragsrecht" Kritische Vierteljahresschrift firr Gesetzgebung und Rechtswissenschaft (1991) 363-377; and Schmidt E, "Effizienzbedingungen fiir

privatrechtlichen Sozialschutz" Kritische Vierteljahresschrift Gesetzgebung und
Rechtswissenschaft (1991).

10 See e.g. Hart (ibid) 376 et seq.

11 In Hart's terminology, "vertragsexteme Risiken": see Hart (ibid) 365.

12 See also Tonner, where he considers the law governing travel agreements ill-suited for solving ecological problems caused by tourism, "well diese keine Beeintrdchtigung einer der Vertragsparteien darstellen, die Vertragsparteien vielmehr von ihnen selbst produzierte Beeintriichtigungen externalisieren. An deren Beseitigung haben beide Parteien kein Interesse, zumindest kein kurzfristiges, so dafi vom Markt und vom Vertragsrecht keine

Losungen zu erwarten Tonner K, "Reiserecht und Umweltschutz" Verbraucher und
Recht (1992) 13-18, at 18.
few to do anything about purchases already made. Traditional retrospective sales law would not be faced with a new challenge.

However, it cannot be excluded that there may be buyers who would be prepared to take individual sales law action in relevant situations if only this were possible. Under favourable conditions such reactions can even have wider effects, particularly if the procedural conditions for this are developed. In a future perspective it may therefore be relevant to analyse the question whether a buyer should be able to link the sanctions of sales law to the general environmentally harmful nature of the product purchased. Do the sales law rules that enable the buyer to implement sanctions against the seller presuppose that the buyer has a self-interest, or can he (or she) also rely on the fact that the product is environmentally harmful]'' in general?' Precisely this question is the subject of my paper.

In what follows the rules concerning non-conformity of the goods in sales law will be analysed with regard to their possible application in the case of the goods being generally harmful to the environment. I will not dwell further on cases where the product involves the buyer in direct risks, as obviously the buyer in many such cases has a remedy under sales law.'

In the light of the problem of self-interest the question of the possibility of recourse to sales law can assume a fairly different character depending on whether the buyer is acting commercially or as a consumer. A business which has purchased a product for resale or use in its own production often has a self-interest in being able to apply sanctions for defects in connection with any threat to the environment that may be discovered. This is because it can expect that the environmental hazard, if generally known, will hamper the sales of the product or of products manufactured with its use. These cases, in which application of sales liability is easy to justify simply for the reason given, will not be further considered here. They fall outside the scope of a paper focusing on cases in which there is no self-interest of the buyer. As I am analysing consumer law and

13 The question of what is to be considered environmentally hazardous must in this context, in the limited space available, be left open.

14 Cf. e.g. Hart (supra n 9) 374 who, concerning BGB § 243.1, states: "Da sie aber wie das gesanite Vertragsrecht auf die Interessen der Vertragsparteien zugeschnitten ist, scheint sie fur die Bewaltigung vertragsexterner Risiken untauglich".

15 Also such cases may of course be hard cases because of problems regarding the definition of relevant risks and the determination of acceptable levels of risk.
environmentalism my focus will be on the individual consumer's right to claim environmental harmfulness vis-à-vis the seller. I am interested in a grassroots perspective: what legal options are there for green-thinking citizens?

Unfortunately there is not much legal debate to be found concerning this issue.' The issue of non-conformity is almost exclusively analysed with reference to the quality and usefulness of the goods for the self-interested consumer. This might be connected with a perceived lack of practical importance of the issue. The answers to the question may also be felt so self-evident that they do not merit further discussion. But is general environmental harmfulness, which is not connected with the self-interest of the consumer, self-evidently outside or inside the scope of the sales law liability?

In the concluding section of this essay I will return to the question why liability for defects in sales law for environmental harmfulness can have some practical significance after all, even in cases where there is no self-interest of the consumer. I am referring to the possibilities of using private law action as a part of a green legal strategy.


It is a rather self-evident starting point that judgment concerning nonconformity in sales law is always based on the actual sales contract. The assessment is primarily concrete: there is non-conformity if the product supplied does not fulfil the requirements the parties have set out in the contract. If performance deviates from what the seller has undertaken, then the rules regarding non-conformity become applicable. This is expressed also in the EC Consumer Sales Directive, Art. 2(1): The seller must deliver goods to the consumer which are in conformity with the contract of sale.

It is made very clear that this starting point is independent of the presumptions of conformity mentioned in Art. 2(2) of the Directive

16 As to the Consumer Sales Directive 1 can only refer to Briiggemeier G. "Zur Reform des deutschen Kaufrechts - Herausforderungen durch die EG-Verbrauchergiiterkaufrichtlinie" Juristenzeitung (2000) 530 et seq., who very shortly notes that "ouch die komplexen Umweltrisiken eines Produkts unter die kaufvertragliche Fehlerhaftung subsumiert werden mussen". He does not expressly mention, however, whether he wants to include also general environmental harmfulness in the liability.
— to which I will return later — in the sense that breaches of explicit contractual specifications are relevant even though they would not fulfil any of the tests described in the latter paragraph." According to the preamble of the Directive "the goods must, above all, conform with the contractual specifications".

Here it is important to note that the rules on non-conformity can also be referred to when the departure from the contract lacks economic significance and the buyer thus has other grounds for insisting strictly on the terms of the contract. The examples concerning this given in Nordic literature on sales law tend to be very similar: while some note that a person who has bought a red car does not need to be content with a blue one of the same make even if this should be more valuable,' others speak more modestly of a red shirt and a blue one.'9

It is therefore obvious that the parties can also agree on terms regarding the environmental properties of the product so that they gain relevance for the judgment. If it has been expressly provided in the sales contract that the product shall e.g. be free from some environmentally harmful feature or that it shall meet certain environmental requirements, the consumer can use remedies for nonconformity if the goods do not correspond to what has been contracted for. More general statements regarding the environmentally friendly character of the product may also be relevant, even though their effect will naturally depend on interpretation and will therefore be harder to predict.

In this context I would like to note the relevance of the development of the doctrines of interpretation of contracts also for a green sales law. Traditionally in many legal systems the importance of the parties' intentions has been stressed as a central element of interpretation. Interpretation is said to be based on the parties' joint purpose in concluding the contract or, if this cannot be established, on what the parties should be considered to have intended. However, for example some more modern Nordic writers — not only "alternative" scholars, but also commercially oriented ones — have stressed that the goal of contractual interpretation can no longer be to approach as

17 The criticism of Beale H & Howells G. EC "Harmonisation of Consumer Sales Law — A Missed Opportunity?" Journal of Contract Law (1997) 21-46, at 28.

18 Hellner J & Ramberg J, Speciell avtalsrlitt I, Kopriitt, (2nd ed, Stockholm, 1991) 168.

19 Bergem JE & Rognlien S, Kjosloven 1988 og FN-konvensjonen 1980 om internasjonale losorekj0p (Oslo, 1991) 97.
closely as possible the individual intention of the one or the other' and that reasons of legal policy must be given a more prominent position. Social interests may urge other interpretations than what follows from the parties' intentions.' Similar trends in the doctrines of interpretation may be noted elsewhere as well. A more socially oriented method of interpretation can obviously give greater scope for interpreting even relatively general and unclear descriptions of the qualities of a product to mean that an environmental threat later brought to light is assessed as a case of non-conformity. If one at all accepts legal policy reasoning in the interpretation of contracts, the importance of the protection of the environment makes environmental arguments very relevant also in the interpretation of contract terms relevant in determining a seller's liability for nonconformity. Here one could mention that for example German courts in some cases because of environmental reasons seem to have interpreted the liability of the seller more widely than otherwise accepted by German law 22

The fairly obvious premise that sales law liability for environmentally harmful products arises when the contract explicitly or by interpretation provides that the product must not be environmentally harmful is, however, of scant help to the environmentally aware consumer in many cases. In the great majority of cases, when the sale is concluded it is seldom accompanied by any written or even oral agreements on the product's environmental characteristics. There is therefore reason to go further and ask how far a consumer can establish liability in sales law on the basis of environmental harmfulness where the contract does not give any explicit indications to this effect.

What has been said in this section is of importance in the further reasoning, as it shows that there are no theoretical obstacles to seller's liability in connection with environmental harmfulness. The private law requirement of self-interest is superseded by the contract. One may say that it is up to the parties to define their interests in the

20 Gronfors K, Tolkning av fraktavtal (Giiteborg, 1989) 18 et seq. However, also in Swedish doctrine the intention of the parties is still today strongly stressed by some, see e.g. Lehrberg B, Forutsiittningslaran (Uppsala, 1989) 122.
21 Gronfors (ibid) 37.

22 See Micklitz HW & Amtenbrink F, "Legal Guarantees — German Civil Law in the Light of the Green Paper" Consumer Law Journal (1 995) 117-130 at 119 (OLG Koln (1990) NJW-RR 955: a customer ordered a factory-new car, but got a new one of the previous year-model without catalytic exhaust) and at 120 (information on petrol consumption).

90 Yearbook of New Zealand Jurisprudence
Volume 6 Issue 1 2002-2003

contract and interests so defined should not without grounds be questioned by the law. A general interest may with the help of contractual terms be turned into an individual interest as well.

One should note, however, that even when there is a contractual term which provides that the goods should not be environmentally harmful (in some respect), this does not necessarily remove the problem of lack of self-interest altogether. The self-interest may still be relevant in connection with specific remedies, especially damages. If the consumer decides to keep the goods it may be hard to show such damage that would give them a claim for compensation. Here, as well as in the following sections, non-conformity becomes more relevant as a prerequisite for avoidance (rescission) of the contract, and damages connected with avoidance, as well as for repair. Both remedies are mentioned in the Consumer Sales Directive (Art. 3).

However, according to Art. 3(6) of the Directive the consumer is not entitled to have the contract rescinded if the lack of conformity is minor. This might in some cases be used as a defense against a claim for rescission based on environmental harmfulness. The seller could claim that as the poor environmental quality of the goods does not affect the self-interest of the consumer it is of minor importance. However, I do not think the exception concerning minor nonconformity should be interpreted in this way. It rather refers to the relationship of values between the defect and the goods. As soon as a certain type of environmental harmfulness is considered to be a relevant form of non-conformity, the special character of the actual non-conformity should not be brought into play again in the assessment of the extent of the non-conformity.' When asking whether the non-conformity was minor, the right questions concern issues such as how much it would cost to remove it and not the nature of the non-conformity as such.


Not only express contractual clauses but also other materials in connection with the contract may be relevant when assessing the

23 One could also here refer to the fact that it may be that "what appears to the outsider as a minor defect in fact has a major impact on the consumer, undermining his or her confidence in the goods": Howells G & Weatherill S. Consumer Protection Law (Aldershot. 1995) 144.
issue of non-conformity. As marketing information concerning the environmental qualities of products has become very common, the sales law relevance of such materials is especially interesting.

It is slowly becoming more and more accepted today even in commercial sales that the seller may be liable on the basis of sales law, if the goods do not conform with information given in marketing. Even though some national laws still have not developed this far,24 for example the European Principles on Contract Law contain a general provision of this sort." Also Nordic sales law today includes rules on the seller's marketing liability. The product is deemed to be defective if it does not correspond with particulars given during its marketing or otherwise before purchase and that may be assumed to have influenced the purchase."

In the EC Consumer Sales Directive the same idea is hidden in the normal quality rule in Art. 2(2)(d). According to this rule consumer goods are presumed to be in conformity with the contract if they "show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling." The last part of the rule indicates rather clearly that also according to the Directive remedies for non-conformity may at least as a main rule be applied, if the goods do not correspond to the information given in marketing. The question now arises as to whether this rule also applies to marketing information related to the product's environmental properties.

The immediate answer clearly is affirmative. Environmentally relevant information related to the product certainly in most cases in some way refers to its characteristics. It is not a question of such "fringe information" — for example, that the product is used by some

24 This is a point where the Consumer Sales Directive will require changes for example in English law, see Howells, G, "Implementation of the EC Consumer Sales Directive in the United Kingdom" in Grundmann, Medicus & Rolland, Europiiisches-Kaufkewiihrleistungsrecht (Köln, 2000) 161-179 at 177.

25 Art. 6:101. See Lando 0 & Beale H (eds) Principles of European Contract Law (The Hague, 2000) 299 et seq.

26 See Sec. 18 of the new Nordic Sale of Goods Acts, Sec. 19 of the Swedish Consumer Sales Act and Chap. 5 Sec. 13 of the Finnish Consumer Protection Act.
celebrity or other — which does not affect liability since it does not refer to the product's characteristics!'

However, in many sales laws there is also a general exception to the liability for marketing information which might be referred to in this context. Remedies for non-conformity can usually be applied only if the marketing information has influenced the purchase or such an influence at least can be assumed. As mentioned above, the latter rule prevails in Nordic law. Also according to the EC Consumer Sales Directive Art. 2(4) the seller is not bound by public statements, if he or she shows that the decision to buy the consumer goods could not have been influenced by the statement. This may be used as an argument against granting relevance to claims based on environmental harmfulness of the product. One could fall back on the type of argument described in section 2 above and assert that the information, because of the consumer's lack of self-interest, can be presumed not to have affected the purchase.

Against such a line of argument both empirical and normative reasons can be offered. Even without closer examination it can be taken for granted that some consumers, at least, when purchasing a product, consider's the possible harm it may cause to the environment. There are even good reasons for assuming that this group is now not all that insignificant.' Already on these grounds the presumption ought to be the reverse: incorrect particulars of environmentally relevant characteristics may be assumed to have affected the purchase unless otherwise is shown in the individual case.

This conclusion is reinforced by the normative argument that in other parts of the legal order considerable importance has been accorded to marketing information on products' environmental properties. For example, the Nordic Consumer Ombudsmen in their supervision of marketing have devoted much attention to environmental marketing and the Finnish and Swedish Market Courts have forbidden

27 See, on the example on "fringe information" in Nordic law, Hastad T, Den nva kopriitten (4th ed) (Uppsala, 1998) and Kivivuori A, Schuh& GG, Sevon L & Tala J, Kuluttajansuoja (Helsinki, 1978) 136.

28 In Nordic law this is enough. See e.g. Kruger K, Norsk kj0psren (4th ed) (Bergen, 1999) 150: in general, it is sufficient that the buyer can be assumed to have taken the information into account when contemplating whether to make the contract.

29 See on the research available e.g. Wilhelmsson (supra n 2) 53. Today the interest for such information seems to be growing again for example in Germany, see Imkamp H, "The Interest of Consumers in Ecological Product Information is Growing — Evidence from two German Surveys" Journal of Consumer Policy (2000) 193-202.

marketing that gives the recipient an incorrect picture of a product's environmental characteristics.'" The weight of environmental arguments as a part of marketing has also been recognised through the development of various forms of officially sanctioned environmental labelling systems, such as the Community Eco-label award scheme.' One may also mention, although the issue here is slightly different, that according to the EC Television Directive" Art. 12(e) television advertising may not "encourage behaviour prejudicial to the protection of the environment". Since the influence of environmental information on consumers' purchasing behaviour, as well as other behaviour, has been stressed in these ways within marketing law, it would be exceedingly inconsistent if sales law were to deny the existence of such influence." If a consumer who has bought a rubbish mill because of a claim in the advertisement that it is non-polluting, or a cold degreasing agent when urged by environmental advertising to do so, realises that the mill is polluting, and the degreasing agent is poisoning fish,' it is reasonable that he or she should be able to return the product (cancel the purchase) with the support of the sales law rules.

Thus incorrect or misleading marketing information related to the environmental properties of a product may lead to liability for the seller. This is moreover logical considering that the liability for marketing information is based on a notion that the information forms part of the contract in the same way as explicit particulars of that contract do. I noted already above that such particulars might without doubt imply sales law liability for environmental harmfulness.

30 See e.g. in Finland Market Court 1992:4 (exaggerated details on the positive environmental effects of heating insulation); 1992:5 ("environmentally-friendly" Ecothene plasticbag); 1992:26 ("for a cleaner environment" in advertisements for Opel cars); and 1994:12 ("environmentally-friendly" ovens) as well as in Sweden Market Court 1973:8 (the court prohibited as overly categorical and unbalanced the assertion that a mill for grinding waste products did not contribute to the pollution of lakes and watercourses); 1974:12 (prohibition on using, in the marketing of a cold degreasing product, a description that included the word 'environment', since on its release into a watercourse the product had a certain toxic effect on fish); 1990:20 (prohibition of the word 'environment' in Hydro MiljO Plus and of the claim that a detergent was beneficial to the environment); and 1991:11 (prohibition of an undefined claim that a car was environmentally friendly).
31 Council Regulation No 880/92 on a Community eco-label award scheme.

32 Council Directive 89/552/EEC on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

33 This is not to say that the definition of relevant particulars should be exactly the same in contract law and in marketing law. The differing remedies may naturally justify different judgments of this issue.
34 Cf. Swedish Market Court 1973:8 and 1974:12, supra n 30.

However, the liability for marketing information does not bring us very much further in establishing a sales law liability for environmental harmfulness. The most important and at the same time the most difficult problems emerge when a decision is required regarding whether such liability can be applied where neither the contract terms nor the marketing give any grounds for it. The issue is whether liability for environmental harmfulness can be grounded only in the concrete contract-related decision as to defectiveness, as was done above, or whether the legislative background rules on nonconformity (the application of which is sometimes termed abstract assessment of non-conformity) can lead to this kind of liability as well.

In national laws the tests to be applied in the abstract assessment vary. The EC Consumer Sales Directive, in line with general tendencies in the consumer law material produced within the EC,' employs an expectation test. As stated already in the previous section of this paper the Directive, in Art. 2(2)(d), prescribes that the goods should "show the quality and performance" which are normal in goods of the same type and which the consumer can reasonably expect".

This provision sets the theme of the argument when the issue of a seller's liability for environmental harmfulness is being assessed. The question becomes: does a consumer have any reason to expect anything regarding the environmental quality and performance of a product? If the consumer has, then the acceptance in principle of a seller's liability for environmental harmfulness, where this follows from the contract or marketing information, for reasons of consistency implies that such harmfulness is also accorded relevance in the abstract judgment on non-conformity. It should not be necessary to make explicit references in the contract to expectations concerning the goods being environmentally sound or not being produced by child labour, as long as reasonable buyers in the same

35 The legitimate expectation test is about to develop into a general principle of the consumer law in the EC, see, for example, Micklitz H, Legitime Erwartungen als Gerechtigkeitsprinzip des europaischen Privatrechts, in Kramer, Micklitz & Tonner (eds) Law and Diffuse Interests in the European Legal Order (Baden-Baden, 1997) 245-277, and Howells G & Wilhelmsson T, EC Consumer Law (Aldershot, 1997) 320 et seq.

36 It should be noted that the text of the Directive speaks about both "quality" and "performance". For a formalist who reads the law word by word this could mean that there is more scope for taking into account various elements — such as environmental performance — connected with the goods. when assessing non-conformity, than according to the English Sale and Supply of Goods Act 1994, which uses only the word "quality".
situation would have shared those expectations.' The consumers have a basic expectation of some level of honesty and morally acceptable behaviour in the marketplace, which should be respected.

What this pattern of argument should involve in detail must depend upon many factors. When one refers to what can be "reasonably" expected the requirements can obviously become more stringent in step with rising environmental awareness. Much at this stage must be dependent upon pure speculation, and I shall therefore confine myself to a few brief remarks concerning certain questions connected with the area.

Where public-law norms lay down environmentally relevant minimum requirements for a product, it appears natural also in the assessment of sales law non-conformity to require, at least as a main rule, that the product meet these," even where they do not directly affect the consumer's possibilities of using the product." The consumer can reasonably expect the requirements to be observed. The requirements may also, if one so wishes, be seen as an implied part of the sales contract. Norms of this kind may refer to prohibitions of certain types of substance, maximum permissible content, etc., but they can also concern questions relating to the use of the product and e.g. the way of disposing of it. Norbert Reich even goes as far as claiming that if there are public law provisions on recycling requiring returnable bottles, non-compliance with these provisions by the seller could be considered as a case of non-conformity in sales law.'"

37 See, concerning Swedish consumer sales law, Kihlman, J Fel (Stockholm, 1999) 109.

38 Sec 17(3) of the Norwegian Sales Act contains an express provision to the effect that a consumer product when purchased shall as a rule be considered defective if it does not meet the requirements of public law: "In consumer sales the goods shall equally correspond to public law requirements of the legislation or of public decisions based on the legislation in force when the sales contract was concluded, if the circumstances do not show that the buyer in this respect did not rely on the expertise and assessment of the seller or did not have sufficient grounds for doing so."

39 If a lack of correspondence between the stated norms and the purchased product leads to obstacles to the buyer's possibilities of using the product as he or she had envisaged, the buyer may naturally claim what could be termed a defect of disposition: on this see e.g. Heliner J & Ramberg J (supra n 18) 169 et seq. This situation is not further analysed here since it concerns a case where the buyer has a clear self-interest in being able to claim the defect.

40 Reich N. "Diverse Approaches to Consumer Protection Philosophy" Journal of Consumer Policy (1992) 257-292 at 285.
What I just said does not imply that one in the sales law context cannot go further than to the level prescribed by public law norms.' In product liability cases such norms have been traditionally viewed merely as giving a minimum level, with nothing to prevent one, in the private law decision, from setting more stringent demands upon the product." There is no reason in the present situation to approach the problem in any other way. Cases may be imagined where the consumer, because of the obsolete nature of the regulations or for other reasons, can reasonably expect that the product fulfils more stringent environmental requirements.

The requirements thus placed upon the product can be translated into
an obligation to info' tn. To avoid liability for relevant environmental
harmfulness the seller before concluding the contract should provide information about the harmfulness. The consumer can in many cases reasonably expect information regarding the harm a product may do to the environment. If insufficient information has been supplied, the product may be considered defective. By thus formulating the liability as an obligation to inform, one brings out the market-compliant character of sales law measures against environmentally harmful goods.'

What has just been said implies another limitation of the seller's liability: the consumer cannot claim as a defect a feature he or she was informed about prior to completion of the contract. But the importance of this limitation for excluding liability in the present case depends largely upon what requirements are made concerning the consumer's knowledge. In many cases the consumer has received at least some particulars of the product's composition etc., perhaps including a statement of e.g. the toxic nature of some components. As opposed to this he or she may lack a sufficiently clear picture of what aggregate environmental effects elements of the product have. Or the

41 See in German law e.g. Hart (supra n 9) 376: "Das Zivilrecht ist nicht gehindert, gegeniiber

dem offentlichen Recht ein hoheres Sicherheitsniveau vertrags - oder deliktsrechtlich zu fordern. Insofern ist es autonom." See also Damm R, "Risikosteuerung im Zivilrecht - Privatrecht und offentliches Recht im Risikodiskurs" in Hoffmann-Riem & Schmidt-Assmann (eds) Offentliches Recht und Privatrecht als wechselseitige Auffangordnungen (Baden-Baden, 1996) 85-142 at 136. For a similar view on Norwegian law, see Kruger (supra n 28) 210.

42 This applies to the EC Product Liability Directive; see e.g. Wilhelmsson, T & Rudanko M, Tuotevastuu (Product liability) (Helsinki, 1991) 111.

43 Hart (supra n 9) 372 states that one can, according to a model based on contract law information obligations, "von... einer wettbewerbskor?formen Konzeption von Dritt - oder Allgerneinschutz sprechen".
consumer realises perhaps that a product that cannot be recycled becomes refuse but has no conception of the aggregate refuse problems this type of product causes. If one considers in these two examples that there has been sufficient knowledge to exclude liability, it is evident that the area for the seller's liability becomes narrowly limited. A more environmentally friendly alternative is to exclude liability only where the consumer also has knowledge on the aggregate effects." The notion of a green sales law would presuppose the latter interpretation.


These rather brief and sketchy considerations are sufficient to show that the liability in consumer sales law may also embrace possible environmental harmfulness of a product. There may doubtless be differing views as to e.g. the requirements that can be placed upon the product in this respect or how the consumer's possible knowledge is to be assessed. The starting point, however, that rules on nonconformity can be applicable, appears in the last instance to be rather self-evident.

Having reached this conclusion, it is time to return to the question of practical relevance. Why bother with the issue of a green sales law at all? In this context I will restrict myself to a few remarks on the kind of situations in which I find the legal possibility of a sales law liability for environmental harmfulness interesting."

It is obvious that the possibility of adducing liability in the situations considered here has hardly at all been used in practice. With regard to what I noted in section 2 of the paper one cannot expect very much to happen in the future either. As a rule the absence of self-interest no doubt raises the threshold for recourse to sales law measures too high even for people who are inclined to make use of them. Where then is the beef?

44 Reich (supra n 40) 286 advocates this alternative in a general overview of the possibilities for an ecological law of contract, without particular reference to German law.

45 In a recently published book I have in greater depth analysed the use of private law as a tool for micropolitics: Wilhelmsson, T Senmodern ansvarsriat: privatratt som redskap fiir mikropolitik (Helsinki, 2001).
One, rather theoretical answer — within a long time frame — lies in the changing relationship between the concepts of "consumer" and "citizen"." As I noted in the beginning, there seems to be a basic contradiction between consumer law as an expression of the consumer society and the need for protecting the environment against the consequences of the consumer society. However, the contradiction between the consumer interest (the self-interest of the consumer in a limited sense) and the environmental interest relates to the short-term interest of the consumer, i.e. the immediate interest attached to an individual act of consumption. If one changes the time frame to a long-term perspective, the conflict between the interests may become less serious or even disappear. This is the case if sufficient segments of the consumer community realise that their long-term interests require a preservation of the environment, even at the cost of their individual consumption habits. In this utopian future the consumer would rather function as a "citizen" who is interested not only in his own consumption but in all aspects of social life." The more conscious the consumers become of the environmental effects of their behavior — the more citizen-like they become — the more self-evident it will become to use also consumer (sales) law as means for promoting environmental goals. The growth of green consumerism" opens up new possibilities in this sense.

The reference to green consumerism hints at another answer to my question. This answer, which is basically in the same line as the first one, but given from a more sociological and present perspective, would connect the relevance of a green sales law to its use as an instrument in green "micropolitics".

As is well known, many have recorded a change in the ways social influence is exerted in the late modern (postmodern) society. Various kinds of small groups, minorities and social movements are taking new places on the social scene. Our time has even been characterised

46 This is what I propose in the abovementioned article: Wilhelmsson (supra n 1). For a very interesting general analysis, see Hutchinson, AC, "Life After Shopping: From Consumers to Citizens, in Ramsay (ed) Consumer Law in the Global Economy (Aldershot, 1997) 2546.

47 The "citizen" sought for here is not the liberal citizen focusing on his rights, but rather the classical citizen, who is interested not only in his own affairs but also in the affairs of the state and the civil society, see Oliver D, "What is happening to relationships between the individual and the state?" in Jowell & Oliver (eds) The changing constitution (3rd ed) (Oxford, 1994) 442-443.

48 See Gabriel Y & Lang T The Unmanageable Consumer (London, 1995) 164 et seq.

A Green Saks Law? • 99


as an era of "micropolitics'49 or "sub-politics"". The development of the information society seems to have strengthened this tendency. It is not surprising that the leading "guru" of the information society, Manuel Castells, both emphasises new forms of grassroots activism as one of the important features of the new society and connects his hope for change to this kind of activism.' In this context he especially emphasises the importance of the various forms of the environmental movement, which in the last quarter of this century "has earned a distinctive place in the landscape of human adventure".' Later, the events in Seattle and Prague have confirmed the theses concerning the new role of micropolitics even on the global scene.

In the consumer area micropolitics has often taken the form of consumer boycotts and similar campaigns." However, in the current media society, litigation can also be used as a tool for bringing environmental concerns onto the public agenda. Litigation can form one aspect of the strategies by which environmental groups and green consumers practice their micropolitics. In such cases the outcome is often of less importance than the possibility of presenting the arguments seriously and in public.

Among others, sales law may be used as a gate for making various small group environmental claims generally known. Such use of a sales law liability for environmental harmfulness would, in other words, hardly follow from its function as a dispute-solving rule since such disputes seldom come up "of their own accord". The issue is one of an instrumental usefulness. Seller's liability may offer a basis for introducing a legal component even into private grass-roots actions directed against product-related environmental issues. Environmental organisations can for example develop publicity strategies by sponsoring selected pilot cases. Through such cases it is also possible to compel a decision from the legal order regarding new problems in which the public authorities have not wished to intervene.

  1. Jameson F, Postmodernism, or the Cultural Logic of Late Capitalism (London, 1991) 318 et seq.

50 Beck U, "The reinvention of politics: Towards a theory of reflexive modernization" in Beck, Giddens & Lash Reflexive modernization (Cambridge, 1994) 16, 18.

  1. Castells, M The Power of Identity, The Information Age: Economy, Society and Culture (Volume II) (Massachussetts, Oxford, 1997) for example at 354 et seq.

52 Castells (ibid) 110.

53 A good overview of various forms of consumer boycotts is given by Friedman M Consumer Boycotts: Effecting Change Through the Marketplace and the Media (London, 1999).
Sales law liability can be used as a part of multi-measured collective campaigns. Consumer boycotts of environmentally hazardous products could, for example, be supplemented with campaigns to get consumers who had already bought the product to lodge claims and demand cancellation of the purchase.

Finally, looking to the future there is also reason to consider that the emergence of various new types of collective procedure for promoting mass interests of this nature can bring with it substantial new possibilities for private law strategies. The introduction in the Nordic countries as well as in the EU of class action in the consumer area is being seriously discussed.' Such a procedure could conceivably be a useful tool in cases of the type treated here. One could also, e.g. consider extending the scope of such procedures for recall as exist in the area of product safety" to the cases discussed in this paper. Other methods of achieving the required procedural collectivisation of disputes are also conceivable.

One condition for being able to use such new mechanisms against environmentally harmful products is that substantive law affords possibilities of doing so. In a perspective such as this the question of a "green sales law" perhaps does not seem entirely impractical after all.

54 For the Nordic countries, see NEK-rapport 1990:7 Grupptalan i konsumentmed, Rapport Iran ett nordiskt seminarium (Kiipenhamn, 1990) as well as the proposals SOU 1994:151 (in Sweden) and LJ 1/1995 (in Finland). A good overview of the "world situation" is given by Lindblom, PH, Progressiv process (Uppsala, 2000) 427 et seq.

55 In the EC. see Council Directive 92/59/EEC on general product safety, Art. 6(1)(h).

A Green Sales Law? tm

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback