国际商法教程案例翻译

国际商法教程案例翻译

Pharmaceutical Society of Great Britain v. Boots Cash Chemists

(Sourhern) Ltd.

[1953] 1Q. B.401,[1953] 1 All E.R.482(C.A.)

The

defendants,

Boots,operated

a

self

–

service

part

of

the

store

was

called

the”Toilet Dept.,”and another the”Chemists ?Dept.”One of the shelves in the chemists? department

drugs,including proprietary medicines ,were displayed in individual packages or containers with

an indication of the price of each. One section of the shelves in the chemists

’

deparement was

devoted

exclusively

to

drugs

which

were

included

in,

or

which

contained

substances

included

in ,Part

Ⅰ

of the Poisons Act , 1933;

?

The

defendants?

staff

included

a

manager

,a

registered

pharmacist,

three

assistants

and

two

cashiers, and during the time when the premises were open for the sale of drugs the manager ,the

registered pharmacist,and one or more of the assistants were present in the order to leave

the premises the customer had to pass by one of two exits, at each of which was a cash desk where

a cashier was stationed who scrurinized the articles selected by the customer, assessed the value

and accepted payment .The chemists? department was under the personal control of the registered

pharmacist,

who

carried

out

all

his

duties

at

the

premises

subject

to

the

directions

of

a

superintendent appointed by the defendants in accordance with the provisions of section 9of the

Act.

The

pharmacist

was

stationed

near

the

poison

section,

where

his

certificate

of

registration

was

conspicuously displayed, and was in view of the cash desks. In every case involving the sale of a

drug the pharmacist supervised that part of the transaction which took place at the cash desk and

was authorized by the defendants to prevent at that stage of the transaction , if he thought fit, any

customer

from

removing

any

drug

from

the

steps

were

taken

by

the

defendants

to

inform

the

customers,

before

they

selected

any

article

which

they

wished

to

purchase

,

of

the

pharmacist?s authorization.

On April

13

,

1951,at

the

defendants?

premises,two

customers,following

the

procedure

outlined

above,

respectively

purchased

a

bottle

containing

a

medicine

known

as

compound

syrup

of

hypophosphites,

containing

0.01%

W/V

strychnine,

and

a

bottle

containing

medicine

known

as

famel syrup, containing 0.23%W/V codeine, both of which substances are poisons included in Part

Ⅰ

of the Poisons List

?

The question for the opinion of the court was whether the sales instanced on April 13, 1951, were

effected by or under the supervision of a registered pharmacist , in accordance with the provisions

of section 18(1)( a )(iii) of the Pharmacy and Poisons Act . 1933.

The Lord Chief Justice answered the question in the affirmative [[1952] 2 Q . B .795, [1952] 2 All

E . R. 456 ].The Pharmaceutical Society appealed.

Somervell

L.

J….The

plaintiffs

are

the

Phaimaceutical

Society

,

incorporat

ed

by

Royal

charter .One of their duties is to take all reasonable steps to enforce the provisions of the Act. The

provision

in

question

is

contained

in

section

18.[His

Lordship

read

the

section,

stated

the

facts

,and

continued:]

It

is

not

disputed

that

in

a

chemist?s

shop

where

this

self

-service

system

does not prevail a customer may go in and ask a young woman assistant ,who will not herself be a

registered pharmacist, for one of these articles on the list ,and the transation may be completed and

the article paid for, although the registered pharmacist, who will no doubt be on the premises, will

not

know

anything

himself

of

the

transaction,

unless

the

assistant

serving

the

customer,or

the

customer, requires to put a question to him.

It is right that I should emphasize ,as did the Lord

Chief Justice, that these are not dangerous drugs. They are substances which contain very small

proportions of poison , and I imagine that many of them are the type of drug which has a warning

as to what doses are to be taken. They are drugs which can be obtained, under the law ,without a

doctor?s prescription.

The

point

taken

by

the

plaintiffs

is

this:

it

is

said

that

the

purchase

is

complete

if

and

when

a

customer

going

round

the

shelves

takes

an

article

and

that

therefore,

if

that

is

right,

when

the

customer

comes

to

the

pay

desk,

having

completed

the

tour

of

the

premises,

the

registered

pharmacist, if so minded, has no power to say:”This drug ought not to be sold to this customer.”

Whether and in what circumstances he would have that power we need not inquire, but one can, of

course

,see

that

there

is

a

difference

if

supervision

can

only

be

exercised

at

a

time

when

the

contract is completed,

I agree with the Lord Chief Justice in everything that he said, but I will put the matter shortly in

my own words. Whether the view contended for by the plaintiffs is a right view depends on what

are

the

legal

implications

of

this

layout

–

the

invitation

to

the

customer .

Is

a

contract

to

be

regarded as being completed when the article is put into the receptacle, or is this to be regarded as

a more organized way of doing what is done already in many types of shops

–

and a bookseller is

perhaps the best example

–

namely, enabling customers to have free access to what is in the shop,

to

look

at

the

different

articles,

and

then,

ultimately,

having

got

the

ones

which

they

wish

to

buy ,to come up to the assistant saying “I want this?” The assistant in 999 times out of 1,000 says

“That is all right, ” and the money passes and the transaction is completed. I agree… that in the

case of an ordinary shop , although goods are displayed and it is intended that customers should go

and choose what they want, the contract is not completed until, the customer having indicated the

articles which he needs ,the shopkeeper, or someone on his behalf, accepts that offer . Then the

contract

is

completed .

I

can

see

no

reason

at

all,

that

being

clearly

the

normal

position,

for

drawing any differernt implication as a result of this layout.

The Lord Chief Justice, I think , expressed one of the most formidable difficulties in the way of

the plaintiffs? contention when he pointed out that ,if the plaintiffs are right ,once an article has

been placed

in

the

receptacle

the customer

himself

is

bound

and

would

have

no

right

,

without

paying for the first article, to substitute an article which he saw later of a similar kind and which

he perhaps preferred. I can see no reason for implying from this self

–

service arrangement any

implication other than . . .

that it is a convenient method of enabling customers to see what there

is and choose ,and possibly put back and substitute, articles which they wish to have , and then to

go up to the cashier and offer to buy what they have so far chosen. On that conclusion the case

fails, because it is admitted that there was supervision in the sense required by the Act and at the

appropriate moment of time. For these reasons, in my opinion, the appeal should be dismissed.

Birkett L . J.

[noted that it was the duty of the Pharmaceutical Sociey to enforce this part of the

Act

and

continued:]

The

two

women

customers

in

this

case

each

took

a

particular

package

containing poison from the particular shelf, put it into her basket , came to the exit and there paid.

It is said ,on the one hand, that when the customer takes the package from the poison section and

puts it into her basket the sale there and then take place. On the other hand ,it is said the does not