A Note on the Civil Remedies of Injured Consumers

Abstract

From the beginning of the common law, the problem of protecting the consumer from losses caused by defects in food and drugs has faced the courts. While customers have cried to them for protection, business men, probably from the beginning of trade, have lamented that such liability would ruin their business. In dealing with this problem the courts have reflected the spirit of their times. The result has been a changing body of law, and the struggles are not wholly over, because the confusion partly still persists, the study of this history has peculiar present value.' The first approach to the problem in English law was preventive rather than remedial. In medieval times markets were strictly regulated in the interests of the consumers. Regulations extended even to price. They were local and enforced in the local courts. The proceedings were criminal in nature, designed not only to prevent impure foods but unworthy products of all kinds from coming to the market.2 There were in addition extra-legal penalties which must have been a powerful deterrent to selling defective goods. The butcher's, the greengrocer's and the apothecary's shops were strictly neighborhood institutions, and the sickness of a customer, whose illness, as all the customers knew, was caused by something purchased at a local shop, would lead to financial losses more terrifying to the proprietor than a judgment for damages. However, the dealer had a real opportunity for knowing what he was selling. His goods were purchased locally and in bulk. These extralegal safeguards have almost entirely disappeared today. A sick customer means little to a national chain store, or to a national manufacturer of food or drug products, unless and until his lawyer appears. And the dealer, in so far as his stock comes in packages or cans, has no more opportunity than the customer to know what he is selling. The older local regulations broke down with the decline of the social system in which they were born and the decay of the local courts in which they were enforced, but as early as the reign of Henry III3 Parliament began passing Statutes of the Realm