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favoured specific performance, it has only been permitted Sect. 52. within recent years and to a limited extent.

aggerated.

But it may be questioned if the right to specific imple- Divergence ment in Scotland is much greater than the analogous right may be exin England as now extended by successive legislation, and especially by this section. It ceases on the bankruptcy of the seller, for "the claim then resolves into damage on the maxim in loco facti imprestabilis subsit damnum et interesse.” The opinion has also been expressed that where specific implement would involve a purchase by the seller from a third party at an exorbitant price, it is in the discretion of the Court to turn the claim into one of damages.

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(b)

BREACH OF

53. (1.) Where there is a breach of warranty (a) Sect. 53. by the seller, or where the buyer elects, or is com- REMEDY FOR pelled, to treat any breach of a condition on the WARRANTY. part of the seller as a breach of warranty, the buyer

is not by reason only) of such breach of warranty entitled to reject the goods; but he may

(a) set up against the seller the breach of warranty in diminution or extinction of the price;

or

(b) maintain an action against the seller for damages for the breach of warranty.()

(2.) The measure of damages for breach of warranty) is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(3.) In the case of breach of warranty of quality

1 Bell's Com. i. 480.

2 Moore v. Paterson (1881), 9 Ret. 337, per Lord President Inglis at p. 348, and Lord Shand at p. 351. See, as incidentally bearing on this subject, Allans v. Gilchrist (1875), 2 Ret. 587; Cocker v. Crombie (1893), 20 Ret.

Sect. 53.

such loss is primâ facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.)

(4.) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.

(5.) Nothing in this section shall prejudice or affect the buyer's right of rejection in Scotland as declared by this Act. (m)

NOTES.

(a) "Breach of warranty." "As regards Scotland a breach of warranty shall be deemed to be a failure to perform a material part of the contract" [Sect. 62 (1)]. See also Sect. 11 (2).

(b) "Seller," "buyer." Defined Sect. 62 (1). The claim for damages is only against the seller, not against a sub-contractor under the seller-Blumer and Co. v. Scott and Sons (1874).1

(c) "Elects or is compelled." See Coм. infra, p. 253. (d) Conditions and warranties. See Sects. 10 to 15. (e) "By reason only." The buyer may be entitled to reject the goods on some other ground, such as fraud.

(f) Buyer not entitled to reject the goods. The same result follows from the definition of "warranty" in Sect. 62 (1) (England and Ireland). See also Sect. 11 (1).

(g) Diminution or extinction of price. See COM., Sect. 11 ante, p. 54. If the price has been already paid the buyer may recover it. In Scotland, the action is for repetition (condictio indebiti), while in England, the right to recover is based upon the "consideration" having wholly failed.2

(h) Damages for breach of warranty. Recovery of the price if paid, will not affect the buyer's claim for damages in respect of the seller's failure to implement the contract. Repayment of

1 1 Ret. 379.

2 See Notes on the English doctrine of "Consideration," Appendix III. post, p. 341.

the price and damages may competently be sued for in the same Sect. 53. action. See COM., Sect. 51 ante, p. 242.

(i) "Measure of damages." The ordinary measure of damages

is here applied to breach of warranty. In Sects 50 (2) and 51 (2), it is applied to breach of contract by buyer and seller respectively.

(j)"Quality of goods' includes their state or condition" [Sect. 62 (1)].

(k) Breach of warranty of quality. with Sects. 50 (3) and 51 (3).

Compare this provision

(1) Action for further damage. See COM. infra, p. 254.

(m) Right of rejection in Scotland.

See Sect. 11 (2).

COMMENTARY.

Damages in relation to warranties. Law of England

conditions and

and Scotland compared.

In England or Ireland, a buyer may elect to treat a condition which would give him the right to repudiate the contract as a mere breach of warranty entitling him only to damages [Sect. 11 (1) (a)], or, where he has accepted goods or the property has otherwise passed to him, he may be compelled to treat a condition as a warranty [Sect. 11 (1) (c)].1 In Scotland, the buyer has necessarily a power of election between the alternative remedies of repudiation and damages provided by Sect. 11 (2), and the mere passing of the property will not, as in England, compel a buyer to accept damages where he would otherwise be entitled to reject and repudiate. On the other hand, if a buyer in Scotland does not timeously reject goods which are not in terms of the contract, his remedy of repudiation is gone. Under the former law of Scotland the buyer had no remedy Effect of Act except rejection and repudiation, but now he may elect upon law of between that right and the English remedy of damages. If by neglect to reject the goods, or in any other way, the buyer has lost the right to repudiate, he may still fall back upon his new remedy. There is no provision for notice to the seller of the buyer's intention to claim damages, but

1 In Heyworth v. Hutchinson (1867) L.R. 2 Q.B. 447, there are dicta to the effect that if the goods are specific, even although the property has not passed, the buyer is restricted to an action on the warranty and is not entitled to reject. But see criticism by Benjamin (Sale, p. 936 et seq.).

Scotland.

Notice of claim not

statutory requisite.

Sect. 53.

Rejection

infers nondelivery.

unreasonable delay in intimating a claim will form a strong
presumption against its validity.1

Where in Scotland, the buyer's right to reject under where justified Sect. 11 (2) is properly exercised, the seller is in no better position than if he had failed by non-delivery, and the buyer's remedy in damages proceeds under Sect. 51. Under the present section there is no repudiation of the contract. The buyer keeps the goods, but as in Sects. 51 and 53, the true value is to be ascertained as at the time of delivery and put against the contract value.2

This section

does not apply to rejection.

Diminution or extinction of price-further

loss.

Mondel v.
Steel.

Rule as stated by Parke, B.

Under sub-section (4) a deduction from the price, or even its total extinction, will not prevent a claim by the buyer for further loss if such has been sustained. Thus, for example, the failure of a seed crop may extinguish the obligation to pay the price, yet it does not necessarily form the limit of the buyer's damage, for his field may have been rendered useless for other crops, and he may have been at expense in tilling and sowing. Or, again, the subject of sale, when applied to the buyer's goods, may through its bad quality, have caused permanent injury to the goods themselves as in Birnie and Co. v. Weir (1800), and Pontifex and Wood v. Robertson (1876). The subsection is chiefly founded on Mondel v. Steel 5 (1841), where under a contract for a ship to be built, the buyer obtained an abatement in an action at the seller's instance for the price, and after a voyage, which disclosed further defects, he successfully maintained an action against the seller for special damage. But the case largely depended on English rules of pleading as these existed before the Judicature Acts of 18736 and 1875.7 "The rule is," said Parke, B., "that it is competent for the defendant not to set off by a procedure in the nature of a cross action the amount of damages

1 See Coм., Sect. 11 ante, p. 54.

4

2 The price may form the measure of the damages as in Wright v. Black-
wood (1833), 11 Sh. 722. See also Adamson v. Smith (1799), Mor. 14244,
where the buyer in pursuing an action of damages restricted the amount to
the price and interest, and in respect of the restriction, the damages were so
fixed.
3 H.L. 4 Pat. App. 144.

4 Shf. Ct. Glasgow, Guthrie's Sel. Cases, 2nd ser. 508.

5 8 M. & W. 858.

7 38 & 39 Vict. c. 77.

6 36 & 37 Vict. c. 66.

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which he has sustained by breach of the contract, but Sect. 53. simply to defend himself by showing how much less the subject-matter of the action was worth by reason of the breach of contract; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract, and is precluded from recovering in another action to that extent but no more." The more extensive powers of set-off now granted to a defendant under the Judicature Acts and relative Orders,2 do not seem to have affected the buyer's right to split up his claim into two portions, but how far this will apply to Scotland where a different rule of pleading prevails, may be open to question.3

1

Rules of
pleading in

England and
Scotland.

damages may

inconvenience.

In Webster and Co. v. Cramond Iron Co. (1875), iron In Scotland, pipes were not delivered timeously, but they were ultimately be allowed for accepted, and the buyers failed to prove that they could trouble and have profitably used them before the date of their actual delivery, or that they had suffered any specific pecuniary damage. It was, nevertheless, held that they were entitled to moderate damages in respect of the trouble and inconvenience sustained.

SPECIAL

54. Nothing in this Act shall affect the right of Sect. 54. the buyer or the seller to recover interest (") or special INTEREST AND damages in any case where by law interest or DAMAGES. special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

18 M. & W. at p. 872. See also Rigge v. Burbridge (1846), 15 M. & W. 598.

2 Under these Acts and Orders a defendant may now set up by way of counterclaim any claim, whether sounding in damages or not, which he has against the claim of the plaintiff (Order XIX., Rule 3), and he is enabled to recover consequential damages which may far exceed the amount of the price sued for by the plaintiff (Order XXI., Rule 17).

3 See as to Competent and omitted," Stair, iv. 1. 44-50; Ersk. iv. 3. 3; Bank, iv. 36. 16; Bell's Com. ii. 259; Mackay's Prac. (ed. 1893), p. 312. 42 Ret. 752.

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