writing, evidence of a contemporaneous verbal warranty would not be admissible.1 A representation, anterior to the contract, does not constitute a warranty,2 though it may give rise to an action for deceit if made fraudulently.

Representations made during a contract of sale may be of five kinds :

Sect. 10.

tations

1. The representation may be a mere expression of opinion or mere Represencommendation by the seller of his wares. It is then inoperative, for classified.

simplex commendatio non obligat.3

2. The representation may amount to a warranty.

3. The representation may constitute part of the description of the thing sold, or be an essential term of the contract. It is then a condition going to the root of the contract.4

4. The representation may be false and fraudulent. In that case, even if it only goes to part of the consideration, the contract may be avoided according to the rule Fraus omnia vitiat,5 and the person who makes it may be liable to exemplary damages-in some cases even when the party damnified was not a party to the contract. 5. The representation may create an estoppel.7 11.—(1.) In England or Ireland—

2

(a.) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated.8

1 Harnor v. Groves (1855), 15 C. B. 667; aliter if the writing be a mere memorandum of the contract; Allen v. Pink (1838), 4. M. & W. 140. Hopkins v. Tanqueray (1854), 15 C. B. 130; 23 L. J. C. P. 162; but see Bannerman v. White (1861), 31 L. J. C. P. 28, where the representation constituted the basis on which the parties subsequently entered into the contract. In such case the untruth of the representation may avoid the contract altogether.

3 Benjamin on Sale, 4th ed., p. 610; Power v. Barham (1836), 4 A. & E. 473; cf. Chandelor v. Lopus (1603), 2 Croke 2; 1 Smith, Lead. Cas., 9th ed., p. 186; Budd v. Fairmaner (1831), 8 Bing. 52; Bannerman v. White (1861), 31 L. T. Q. B. 28. See sects. 11 to 15.

5 Cf. Kennedy v. Panama Mail Co. (1867), L. R. 2 Q. B., at p. 587. • Levy v. Langridge (1838), 4 M. & W. 337, Ex. Ch.; and see the note to Pasley v. Freeman, 2 Smith, L. C., 9th ed., p. 74.

"Maddison v. Alderson (1883), 8 App. Cas., at p. 473; see representations classified by Stephen, J., in court below, 5 Ex. D., at p. 596.

Ellen v. Topp (1851), 6 Exch. 424, at p. 431; Behn v. Burnes

When contreated as warranty.

dition to be

Sect. 11.

(b.) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract.1 A stipulation may be a condition, though called a warranty in the contract:

(c.) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.* (2.) In Scotland, failure by the seller to perform any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to reject the goods and treat the contract

(1862), 32 L. J. Q. B. 204, Ex. Ch.; Benjamin on Sale, 4th ed., p. 546; and sect. 53, post, p. 103.

1 Graves v. Legg (1854), 9 Exch. 709; 28 L. J. Ex. 228; Behn v. Burness (1863), 32 L. J. Q. B. 204, at p. 205, Ex. Ch.; Woolfe v. Horne (1877), 2 Q. B. D., at pp. 360, 361.

2 As to severable contracts, see Simpson v. Crippen (1872), L. R. 8 Q. B. 14; Brandt v. Lawrence (1876), 1 Q. B. D. 344; and sect. 31, post, p. 68.

3 Graves v. Legg (1854), 9 Exch. 709, at p. 717; 23 L. J. Ex. 228, at p. 231; Behn v. Burness (1863), 32 L. J. Q. B. 204, Ex. Ch.; Heilbutt v. Hickson (1872), L. R. 7 C. P., at p. 450; Benjamin on Sale, 4th ed., p. 450. Notes to Williams' Saunders ed. of 1871, vol. i. p. 554, cited in Heilbutt v. Hickson, suprà.

4 Bannerman v. White (1861), 31 L. J. C. P. 28.

as repudiated,1 or to retain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensation or damages.

(3.) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.2

See "warranty" defined in accordance with this section by sect. 62, post, p. 120.

The Act throughout, so far as it relates to England, draws a distinction between the terms "condition " and 66 warranty." This distinction has often been insisted on, but seldom observed by judges and text-writers. As used in the Act, "condition" is the equivalent of the old term "dependent covenant," while " warranty" is equivalent to the old term "independent covenant." See the question discussed at length in Note A, post, pp. 171, 175.

In Scotland, no distinction has been drawn between conditions and warranties, and the right of rejection has been much larger than in England. This right is preserved by the Act. On the other hand, the actio quanti minoris has been much restricted in Scotland, and when the buyer could return the goods he has not been allowed to keep them and sue for damages. Now he has this right, but it is safeguarded by sect. 59 (consignation into Court), post, p. 112.

Sect. 11.

A party may always waive a stipulation which is for his own Waiver. benefit. The rule is Cuilibit licet renunciare juri pro se introducto. Where the fulfilment of a condition by one party is prevented by the other the condition is waived.4

12. In a contract of sale, unless the circumstances of Implied the contract are such as to show a different intention, taking as

there is

(1.) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that, in the case of an agreement to sell,

1 Couston v. Chapman (1872), L. R. 2 Sc. App. 254.

2 Hale v. Rawson (1858), 27 L. J. C. P. 189, at p. 191; and see sects. 6 and 7, ante, pp. 19, 20; cf. Baily v. De Crespigny (1869), L. R. 4 Q. B., at p. 185.

3 Leake on Contracts, 3rd ed., p. 752.

under

to title, &c.

Sect. 12.

he will have a right to sell the goods at the time when the property is to pass:1

2

(2.) An implied warranty that the buyer shall have
and enjoy quiet possession of the goods:
(3.) An implied warranty that the goods shall be free
from any charge or encumbrance in favour of any
third party, not declared or known to the buyer
before or at the time when the contract is made.

See "warranty "and" contract of sale" defined by sect. 62; and as to the distinction between a condition and warranty, see sect. 11, and note thereto, and post, p. 175. As to negativing implied terms, see sect. 55, post, p. 108.

Formerly the rule was stated to be that on a sale of specific goods there was no implied warranty of title, and that, in the absence of fraud, the seller was "not liable for a bad title unless there was an express warranty, or an equivalent to it by declaration or conduct." 3 But as Lord Campbell said, in 1851, "the exceptions have well-nigh eaten up the rule; "4 and Mr. Benjamin, after reviewing the whole of the cases, argues that the true rule is that stated in the text.

The cases in which an implied warranty of title has been negatived appear all to have arisen out of sales by sheriffs or forced sales by public auction, where the circumstances were such as to indicate that the seller was only selling such right as he might have in the goods. A sheriff selling an execution debtor's goods gives no implied undertaking as to title. He is only responsible if he knows that he has no title to sell.6

'According to the Roman law," says Park, B., "and in France and Scotland, and partially in America, there is always an implied contract that the vendor has the right to dispose of the subject which

1 Benjamin on Sale, 4th ed., p. 643; Eichholz v. Bannister (1864), 34 L. J. C. P. 105 (goods sold by job-warehouseman); cf. French Civil Code, arts. 1603, 1625, 1626; Pothier, Contrat de Vente, No. 81; Indian Contract Act, 1872, § 109. 2 Ibid.

3 Per Parke, B., in Morley v. Attenborough (1849), 3 Exch. 500, at p. 512; 18 L. J. Ex. 148, at p. 152 (auction sale of forfeited pledges).

4 Sims v. Marryat (1851), 17 Q. B. 281, at p. 291 (sale of copyright).

5 Ex p. Villars (1874), L. R. 9 Ch. App. 434, at p. 437; cf. Bankruptcy Act, 1883, s. 46 (3).

Peto v. Blaydes (1814), 5 Taunt. 657 (sale by sheriff's auctioneer).

he sells."
991 But, strictly speaking, the implied engagement of the
seller in French and Civil Law is not a warranty of title. It consists
of (a) an obligation to deliver and (b) a guarantee against eviction.
It is the equivalent of a covenant for quiet possession rather than the
equivalent of a covenant for title.2

Mr. Benjamin suggested that in the case of breach of a warranty of title, the buyer might sue for unliquidated damages, and not merely recover the price, if paid, as on a failure of consideration; but there appears to be no decision in point.3 The Act adopts this suggestion.

Sect. 12.

Before the Act there was probably an implied warranty on the part Freedom of the seller that the goods were free from any charge or lien thereon from charges. at the time of sale, but there appears to be no English decision in point.4

In Scotland, France, and Italy, the implied warranty of freedom from encumbrance is clearly recognised.5 "C'est une suite de l'obligation de livrer la chose vendue," says Pothier, que le vendeur doit faire à ses frais ce qui est nécessaire pour satisfaire à cette obligation. C'est pourquoi si la chose vendue se trouvait engagée à quelque créancier du vendeur qui l'eut en sa possession le vendeur serait obligé de la dégager à ses frais pour la livrer." He then proceeds to quote the Civil Law, and to give various other illustrations."

13. Where there is a contract for the sale of goods by Sale by dedescription, there is an implied condition that the goods scription. shall correspond with the description; and if the sale

1 Morley v. Attenborough (1849), 3 Exch., at p. 510, citing Domat, bk. i., tit. 2, s. 2, the French Civil Code, art. 1625; and as to Scotland, Bell on Sale, p. 94.

2 See Pothier, Contrat de Vente, Nos. 48, 82.

3 Benjamin on Sale, 4th ed., p. 631.

Ibid., p. 705; cf. Conveyancing Act, 1881, s. 7, and see passim, Playford v. Mercer (1870), 22 L. T. N.S. 41 (goods to be taken "from the deck"). The stipulation, if implied, is a warranty, not a condition: see per Lord Esher in Sanders v. Maclean (1833), 11 Q. B. D., at p. 337.

5 Bell's Law of Sale, pp. 79, 95; French Civil Code, arts. 1608, 1626, and Italian Civil Code, arts. 1467, 1482.

6 Contrat de Vente, No. 42.

7 Josling v. Kingsford (1863), 32 L. J. C. P. 94 (sale of oxalic acid after inspection and without warranty), approved; Mody v. Gregson (1868), L. R. 4 Ex., at p. 56; Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A. (cargo of petroleum); Randall v. Newson (1877), 2 Q. B. D., at p. 109, C. A. (carriage pole); Bowes v. Shand (1877), 2 App. Cas. 455 (rice); Pollock on Contracts, 4th ed., p. 436.