Sect. 13. be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.1 or and The principle is a universal one. Si as pro auro veneat, non valet. Thus, where there was a contract to purchase rice to be shipped at Madras in March April, it was held that the buyer was not bound to accept a cargo of rice, part of which was shipped in February, and Lord Blackburn said, "If you contract to sell peas, you cannot oblige a party to take beans. If the description of the article tendered is different in any respect, it is not the article bargained for, and the other party is not bound to take it." 3 "Suppose," says Montague Smith, J., "a contract were made for the sale often casks of spirits' guaranteed to be equal to a sample produced, with a stipulation for an allowance should the quality prove inferior to the guarantee, and the sample being brandy, the bulk tendered were to consist of rum, could the allowance clause be applied?" and he proceeds to show that the same rule must apply to cotton of a different kind (not quality) from the sample.1 Where, however, the article tendered answers to the description, the buyer must, apart from warranty, express or implied, take the risk as to its quality and condition. Where there was a contract for the sale of Calcutta linseed, Willes, J., said, "The purchaser bad a right to expect, not a perfect article, but an article which would be saleable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that description, he did not get what he bargained for. As if a man buys an article as gold, which every one knows requires a certain amount of alloy, he cannot be said to get 'gold' if he gets an article so depreciated in quality as to consist of gold only to the extent of one carat.” 6 1 Nichol v. Godts (1854), 10 Exch. 191 (foreign refined rape oil); 23 L. J. Ex. 314; Azémar v. Casella (1867), L. R. 2 C. P. 677, Ex. Ch.; see at p. 678 (long staple Salem cotton). 2 Cited from Digest, in Kennedy v. Panama Co. (1867), L. R. 2 Q. B., at p. 588 (shares). 3 Bowes v. Shand (1877), 2 App. Cas. 455, at p. 480 (rice). 4 Azémar v. Casella (1867), L. R. 2 C. P., at p. 447 (long-staple cotton). 5 Barr v. Gibson (1838), 3 M. & W. 390 (stranded ship); cf. Ward v. Hobbs (1878), 4 App. Cas. 13 (pigs sold with all faults). • Wieler v. Echilizzi (1856), 17 C. B. 619; 25 L. J. C. P. 89 (Calcutta linseed). Where the parties are agreed on the thing sold, a misdescription of Sect. 13. it in the contract may be immaterial, for falsa demonstratio non nocet.1 This section must be read with sect. 14, which supplements it by dealing with the conditions and warranties implied by law. caveat 14. Subject to the provisions of this Act and of any Rule of statute in that behalf, there is no implied warranty or emptor. condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:- 8 conditions quality or fitness. (1.) Where the buyer, expressly or by implication, Implied makes known to the seller the particular purpose as to for which the goods are required, so as to show that the buyer relies on the seller's skill or 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, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied 1 Budd v. Fairmaner (1831), 8 Bing. 48 (four-year-old colt); Hopkins v. Hitchcock (1863), 32 L. J. C. P. 154 (iron with trade-mark). 2 See, for example, the Chain Cables and Anchors Act, 1874 (37 & 38 Vict. c. 51), s. 4; the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28), s. 17; cf. the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63). 3 Benjamin on Sale, 4th ed., p. 404; Barr v. Gibson (1838), 3 M. & W. 390 (ship sold at sea); Chanter v. Hopkins (1838), 4 M. & W. 399 (smokeconsuming furnace); Ormrod v. Huth (1845), 14 M. & W. 651, 663, Ex. Ch. (cotton); Horsfall v. Thomas (1862), 31 L. J. Ex. 322 (defective gun); Jones v. Just (1868), L. R. 3 Q. B. 197, at pp. 202-204; Ward v. Hobbs (1878), 4 App. Cas. 13, at p. 26 (pigs "with all faults"). Jones v. Bright (1829), 5 Bing. 533 (copper sheathing for vessel); Jones v. Just (1868), L. R. 3 Q. B., at p. 203 (manilla hemp); Randall v. Newson (1877), 2 Q. B. D. 102, C. A., reviewing all the previous cases (carriage-pole specially ordered for plaintiff's carriage). Cf. Drummond v. Van Ingen (1887), 12 App. Cas. 284, at p. 290, per Lord Herschell (worsted coatings). Sect. 14. condition purpose: 1 as to its fitness for any particular (2.) 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 the goods shall be of merchantable quality; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed: 2 (3.) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (4.) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. Illustrations. 1. B. buys a cargo of coal under a written contract. Before the contract is made he informs the seller that the coal is wanted for bunkering steamers. There is an implied warranty that the coal is fit for this purpose.5 1 Chanter v. Hopkins (1838), 4 M. & W. 399 (patent smoke-consuming furnace) followed; Ollivant v. Bayley (1843), 5 Q. B. 288; 13 L. J. Q. B. 34 (patent printing-machine). By sect. 115 of the Indian Contract Act, 1872, "Upon the sale of an article of a well-known ascertained kind there is no implied warranty of its fitness for any particular purpose." 2 Jones v. Just (1868), L. R. 3 Q. B. 197 (contract for manilla hemp), reviewing all the previous cases; Beer v. Walker (1877), 46 L. J. C. P. 677 (rabbits); cf. Drummond v. Van Ingen (1887), 12 App. Cas. 284, at p. 290, per Lord Herschell; Jones v. Padgett (1890), 24 Q. B. D. 650 (blue cloth). 3 Benjamin on Sale, 4th ed., p. 652; Jones v. Bowden (1813), 4 Taunt. 847 (sea-damaged drugs); cf. Syers v. Jonas (1848), 2 Exch. 111 (tobacco); Indian Contract Act, 1872, § 110. 4 Bigge v. Parkinson (1862), 31 L. J. Ex. 301 (provisions); cf. Mody v. Gregson (1868), L. R. 4 Ex., at p. 53 (grey shirtings). 2. B. buys a cargo of Cyfartha Merthyr coal. This is not a purchase of a specified article under a "patent or trade name.” 1 See the terms "buyer," "contract of sale," "quality," "seller," and warranty," "defined by sect. 62; and see "condition" and "warranty contrasted by sect. 11, ante, p. 25. As to negativing a condition or warranty implied by law, see sect. 55, post, p. 108. Sect. 14. This section was again and again considered and amended in Com- History mittee, and finally settled by the Law Lords in its present form. The of section. proviso to sub-sect. (2) was originally confined to cases where the buyer had no opportunity of examining the goods." The present narrower proviso was inserted in the Commons, and agreed to by the Lords with a verbal amendment. The clause originally provided in addition that where there was a contract for the sale of goods by a manufacturer, as such, there was an implied warranty that the goods were of the seller's own manufacture. This was the law in England,2 but not in Scotland. This provision was cut out by the Lords' Select Committee, perhaps on the ground that the Merchandise Marks Act, 1887, gave sufficient protection to purchasers. The dicta in the decisions cited below must be carefully considered with reference to the language of the section, which probably narrows somewhat the already restricted rule of caveat emptor. The rule of caveat emptor probably owes its origin to the fact that Caveat in early times nearly all sales of goods took place in market overt.3 emptor. Its policy has been defended on the ground that it tends to diminish litigation, but the distinct tendency of modern cases is to limit its scope. In a case where a ship was bought while on a voyage, and had stranded, though she was not a total wreck, Lord Wensleydale says: "In the bargain and sale of an existing chattel, by which the property passes, the law does not, in the absence of fraud, imply any warranty of the good quality or condition of the chattel so sold.” 5 And in a subsequent case Lord Blackburn gives the following illustration: "Where a horse is bought under the belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as 1 Gillespie Brothers v. Cheney & Co. (1896), 2 Q. B. 59. 2 Johnson v. Raylton (1881), 7 Q. B. D. 438, C. A., Lord Bramwell dissenting (iron ship-plates); cf. Starey v. Chilworth (1889), 24 Q. B. D. 90 (trade-mark). 3 Morley v. Attenborough (1819), 3 Exch., at p. 511, per Parke, B. 4 Mercantile Law Commission, 1855, 2nd Report, p. 10. 5 Barr v. Gibson (1838), 3 M. & W. 390, at p. 399; but now the implied condition of fitness for a particular purpose may apply to specific goods. Ꭰ Sect. 14. Exceptions to caveat emptor. to the horse's soundness, the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may be clear that both vendor and purchaser thought that they were dealing about a sound horse, and were in error, yet the purchaser must pay the whole price unless there was a warranty; and even if there was a warranty he cannot return the horse and claim back the whole price unless there was a condition to that effect in the contract." 1 In Jones v. Just, in 1868, where the previous cases were reviewed and classified, the Court say: "We are aware of no case in which the maxim caveat emptor has been applied where there has been no opportunity of inspection or where that opportunity has not been waived." 2 But note now the wording of sub-sect. (2), ante, p. 32. The most important exceptions to the rule are the implied conditions of fitness for a particular purpose and merchantableness. In the first case in which implied conditions or warranties were distinguished from false representations, Best, C.J., says: "It is the duty of the Court in administering the law to lay down rules calculated to prevent fraud, to protect persons necessarily ignorant of the qualities of a commodity they purchase, and to make it the interest of manufacturers and those who sell, to furnish the best article that can be supplied." . . . “I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable-that is, fit for some purpose. If he sells it for some particular purpose he thereby warrants it fit for that purpose." 193 The implied terms of merchantableness and 1 Kennedy v. Panama Co. (1867), L. R. 2 Q. B., at p. 587 (shares). 3 Jones v. Bright (1829), 5 Bing. 533, at p. 542 (action for deceit, but fraud negatived and warranty implied). |