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ments contained in it (Fertilizers and Feeding Stuffs Act, 1906); (4) On a contract for the sale of an anchor exceeding 168 lb. in weight, or of a chain cable, that it has been properly tested and stamped (Anchors and Chain Cables Act, 1899); (5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade (Sale of Goods Act, 1893). The particular custom must be proved by evidence to that effect; and there is, of course, no implied warranty where negatived or varied by the course of dealing or usage binding both parties. There is an exception affecting these implied warranties, where the warranty is excluded if so expressed in writing, signed by or on behalf of the vendor, and at the time of the sale or contract delivered to and accepted by the buyer. Further, it should be noted that if a particular fact is known to the buyer at the time of the sale or might have been so known by him, a warranty will not protect him. For instance, where a horse is warranted sound but is wanting an ear or a tail.

Apart from warranty it is the duty of a seller of goods which he knows to be dangerous and the buyer possibly ignorant thereof, to warn him that special care should be taken; otherwise, as was held in Clarke v. Army and Navy Co-operative Society (1903), he may be held liable in damages if injury should result. If goods are sold with all faults," the buyer cannot sue the seller for any defects unless the seller has used artifice to prevent their discovery.


The Implied Conditions on a sale of goods are as follows:· (1) In the case of a sale, that the seller has a right to sell the goods; and in the case of an agreement to sell, that he will have a right at the time when the property is to pass, unless the circumstances of the contract are such as to show a different intention.

In a purchase from a sheriff or a pawnbroker, if the buyer knows he is such, the transfer is only of such rights as the vendor himself possessed. Sometimes even the question of the right to sell raises a nice point. In Niblett Ltd. v. Confectioners' Materials Co. Ltd. (1920), where, without the knowledge of the buyer or seller, goods were labelled in such a way that they could not in their then condition be resold without infringing the trade mark of a third party, it was held that the provisions of Section 12 of the Act do not entitle the buyer to reject the goods.

(2) In a contract for the sale of goods by description, that the

goods shall correspond with the description. If the sale should be by sample as well as by description, it is not sufficient that the bulk corresponds with the sample if not also with the description.

Thus, in Nichol v. Godts (1854), A contracted to sell to B "refined foreign rape oil, warranted only equal to sample." The oil was equal to sample, but was not "refined foreign rape oil"; and it was decided that the condition was not satisfied.

Where goods are bought by description from a seller who deals in goods of that description, whether he be the manufacturer or not, there is an implied condition that they shall be of merchantable quality. But if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed.

(3) Where the buyer makes known, either expressly or by implication, to the seller the particular purpose for which the goods are required so as to show that he relies on the seller's skill and judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not) there is an implied condition that the goods shall be reasonably fit for such purpose. But if the contract should be for the sale of a specified article under its patent or other trade name, there is no such implied condition. In the case of Randall v. Newson (1877), A supplied to Ba carriage pole which on use proved to be defective and unfit for the purpose intended. It was held that A was liable for the damage caused to B by reason of the defective pole. Similarly, in Priest v. Last (1903), where C bought from D, a chemist, a hotwater bottle which burst and caused damage, D was held liable. In Geddling v. Marsh (1920), the plaintiff bought mineral waters from defendant, who charged a penny on each bottle, which was refundable on return of the empty bottles. One bottle was not reasonably fit for its purpose, and burst on being handled by the plaintiff and injured him. It was held that, even if the bottles were not sold, only hired, they were supplied under a contract of sale within Section 14 of the Act, with an implied condition that they were reasonably fit for the purpose for which required; and that, in the absence of negligence, the plaintiff was entitled to damages. The same rule applies to latent defects, e.g., in Frost v. Aylesbury Dairy Co. (1905), where milk was supplied containing disease germs, the existence of which could only be discovered by prolonged examination, the seller was held liable.

In the case of Drummond v. Van Ingen (1887), A gave an order to B, a cloth manufacturer, to supply worsted coatings equal to sample in weight and quality, and B knew that A in

tended to re-sell the cloth to tailors. The material supplied was equal to sample, but was what is technically known as "slippery " and useless for the purpose intended, being therefore unmerchantable. The defect was not apparent by an ordinary examination of the material, but it was held that A could refuse to accept the material.

(4) In the case of a contract for sale by sample—

(a) That the bulk shall correspond with the sample in quality

(b) That the buyer shall have a reasonable opportunity of comparing the bulk with the sample.

(c) That the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample.

The case of Drummond v. Van Ingen, cited above, is apposite under this heading also. It should be borne in mind that a sale by sample does not necessarily take place whenever a sample is shown; there must be a term in the contract, express or implied, to that effect.

When Breach of Condition is treated as Breach of Warranty.Unless there is a contrary expression in the contract, the breach of a condition must be treated as a breach of a warranty in the following cases

(1) Where the contract is not severable and the buyer has accepted the goods or part of them.

(2) Where the contract is for specific goods and the property in them has passed to the buyer.

Transfer of Title.

There is a legal maxim-Nemo dat quod non habet (no one can give what he has not got), so that where goods are sold by a person not the owner of them, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless

(1) They are negotiable instruments. (i)

(2) The owner is, by his conduct, precluded from denying the seller's authority to sell.

(3) The transaction falls under the provisions of the Factors Acts or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner. (4) The sale is under the order of a court of competent jurisdiction.

(5) The goods are sold in market overt, according to the usage of the market, and the buyer buys in good faith and

(i) See ante, p. 92.

without notice of any defect or want of title on the part of the seller.

(6) When the seller has a voidable title to the goods, but his title has not been avoided at the time of sale, the buyer acquires a good title, provided he buys the goods in good faith and without notice of the seller's defect of title.

(7) Where a person who has sold goods continues or is in possession of the goods, or of the documents of title thereto, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition thereof to any person receiving in good faith and without notice of the previous sale, has the same effect as if the person who makes the delivery or transfer were expressly authorized by the owner of the goods to make the


(8) Where a person has bought or agreed to buy goods and he obtains, with the consent of the seller, possession of the goods or the documents of title thereto, the delivery or transfer by him, or by a mercantile agent acting for him, of the goods or the documents of title, under any sale, pledge, or other disposition thereof, to any person receiving them in good faith and without notice of any lien or other right of the original seller in respect of the goods, has the same effect as if the person making the delivery or transfer were a mercantile agent as defined by the Factors Acts in possession of the goods or documents of title with the consent of the owner. Where the goods have been stolen, and the offender is prosecuted to conviction, the property in the goods revests in the person who was the owner, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. But if the goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in them does not by reason only of the conviction of the offender revest in the person who was the owner of the goods.

As against the offender himself, the owner, where the fraud does not amount to larceny, can recover the goods; but as against anyone acquiring subsequently, he must show that he took them with notice of the fraud or otherwise in bad faith.

Sales in Market Overt.

By market overt is meant selling goods between the hours of sunset and sunrise in an open and legally constituted market,

instead of selling them privately. In the country, the market place or the place set apart by grant or custom for the sale of goods is usually the only market overt, but the term includes a modern market established under statutory powers.

In the City of London, however, a sale in market overt is any sale (except on Sundays) by a shopkeeper in an open shop of only such goods as the shopkeeper professes to trade in. The advantage of such a sale is, as mentioned above, that the seller can confer a title to goods which he could not have given by selling privately. But the advantages of market overt only apply where the buyer acts in good faith and without knowledge of any defect in the seller's title and the transaction fulfils all the conditions referred to above. In such a case, therefore, as that already mentioned, he obtains a title good against the whole world, with the exception that if the goods have been stolen and the thief is prosecuted to conviction, the property in the goods reverts to the true owner.

But this rule does not apply to the sale of horses, unless the horse shall have been exposed for sale for an hour between ten in the morning and sunset, and its accurate description, and that of the buyer and seller, entered in a book by the toll-keeper; and even then if the horse has been stolen the owner may, within six months after the sale, recover it by paying to the buyer the amount the latter had paid for it.

The following are, therefore, exceptions to the application of market


(1) In Hargreave v. Spink (1892) A had stolen some pearls which he offered to B for sale. B invited him upstairs to a showroom over the shop and there purchased the pearls. It was held that the transaction must not take place in a room above or behind the shop or behind a curtain, and it was stated that the shopkeeper must be the seller and not the buyer of the goods.

(2) In Crane v. London Dock Co. (1864), it was held that a sale by sample does not come within the rule. The bulk must be exposed, sold and delivered in the open market.

(3) Where goods are not of the nature usually traded in. (4) Where goods belong to the Crown.

(5) Where the buyer knows the goods do not belong to the seller.

(6) Transactions in Scotland.

(7) Sales in auction rooms that are not open to public


(8) Stolen goods when the thief is prosecuted to conviction. (9) The sale of horses.

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