Whilst the main provisions of the Sale of Goods legislation introduced in the 70s remains unchanged, there has since been a steady stream of extending and modifying legislation, increasingly deriving from attempts to harmonise EU consumer regulations.

All those laws and regulations have, hitherto maintained the distinction between commercial contracts, where a supplier of goods or services is acting in the course of a business, and the fullest protection will be afforded to the individual consumer, and private transactions, where the “Buyer Beware” principle largely applies.

This distinction has profound importance for the brokerage industry. Provided that the sale contract is made between a private seller and the buyer, many of the onerous legislative requirements, (not least that the vessel, whether new or second-hand, shall be of satisfactory quality), will neither apply to the agent or transaction.

The fact that the seller’s agent may be acting in the course of a business is immaterial for the purposes of the legislation as it is the seller’s status that is significant. Brokers acting on instructions have consequently not been directly exposed to risk, provided that they have not made misrepresentations about, or applied False Trades descriptions to, the vessels on their books.

By contrast boat retailers, fully exposed to arguably unrealistically onerous statutory obligations, are presently struggling with worryingly high levels of rejection of new and second-hand vessels, often months after the original sale.

Things may change for the worse. EU discussion documents seen by the BMF contemplate changing the law so that the involvement of any commercial party, including a broker or agent, in a private transaction will automatically render the transaction  a commercial one,  exposing both private owner and broker to the same obligations, and risks, as retailers.  Let us hope this idea is quietly ditched, as its adoption will undoubtedly make brokerage a somewhat more perilous occupation.