Individualism enshrined: the state and the consumer in the 1960s

Abstract

Much of the history of the common law could be read as a history of consumer protection. Every first-year university law student is familiar with a series of landmark cases in which the consumer's rights under tort and contract have been redefined, extended and made more precise. If one wants to find a history of the changing concept of individual rationality, one could look no further than the definition of the ‘reasonable man’ found throughout common law judgements. In the nineteenth century, this rationality was attached to a broader ‘rugged individualism’, generally enforced by judges who adhered to the view enshrined in the principle of ‘caveat emptor’ – ‘let the buyer beware’ – in which it was up to the customer to protect his own interests. Yet there were nevertheless important developments in consumer protection throughout the century. In Gardiner v. Gray (1815), ‘caveat emptor’ was held not to apply when the buyer was unable to inspect the goods prior to purchase. In Jones v. Bright (1829), the legal principle was established that goods sold for a particular purpose must be fit for that purpose. Other cases followed relating to the freedom of contract, misrepresentations, exemption clauses, negligence and the duty of care owed by sellers and manufacturers. Most famously, the case of Carlill v. The Carbolic Smoke Ball Co. (1893) established that rewards offered in advertising amounted to specific contractual offers, enabling Mrs Carlill to claim her £100 compensation for an unsuccessful influenza treatment.