Sect. 13.

Sect. 14.

IMPLIED CON

DITIONS AS TO
QUALITY OR
FITNESS.

reservation of the common law in Sect. 61 (2) may not be sufficient to prevent assimilation of the Scottish rule to that of England. This result was certainly not contemplated, and it is submitted that by the Act, not only is the Scottish rule preserved, but the English rule has ceased to exist. The effect of the reasoning of Brett, J., in Randall v. Newson, is to push a theory beyond reasonable limits, and no better illustration of its unsoundness could be found than its effect upon the circumstances of Johnson v. Raylton. It does not, however, seem to have occurred to the Lords-Justices. who decided the latter case, that they were in any way dealing with a question of description.1

(c)

14. Subject to the provisions of this Act (a) and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:(e)

(1.) Where the buyer, expressly or by implication, (5) makes known to the seller the particular purpose 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

(h)

66

1 There is no suggestion of implied description in the judgment. Various words and phrases are used, such as agreement," "obligation," "implied stipulation,' suggested implication," suggested contract." Brett, L. J., who delivered the opinion of the Court in Randall v. Newson, states the question in Johnson v. Raylton thus-" The question is whether, there being no express stipulation that the goods are to be of the manufacture of the manufacturer, there is an implied stipulation that the goods shall be of the manufacture of the manufacturer who is to supply them" (7 Q.B.D. at p. 452); and again, "The question really is whether the suggested contract is to be implied from the fact of the order being given, or contract made, with a person holding himself out to be a manufacturer of such goods, and not holding himself out as otherwise dealing in such goods" (pp. 453, 454). It may further be noted that in Johnson v. Raylton the Court consisted of Cotton, Bramwell, and Brett, LL.-J., and that Bramwell, L. J., strongly dissented.

that the goods shall be reasonably fit for such Sect. 14. 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 condition as to its fitness for any particular purpose:

(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:

(3.) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.(m)

(4.) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.(n)

NOTES.

(a) E.g. Sect. 13 as to sale by description.

(b) "Statute in that behalf." E.g. Chain Cables and Anchors Act 1874, Sect. 4 (implied warranty that cable tested and stamped); Sale of Food and Drugs Act 1875,2 Sect. 6 (penalty on sale of food or drugs not of nature, substance, or quality demanded); Merchandise Marks Act 1887,3 Sect. 17 (warranty that trade mark or trade description genuine); Fertilisers and Feeding Stuffs Act 1893,5 Sects. 1 & 2 (invoice containing specified particulars to act as a warranty).

(c)"Warranty or condition." "Warranty" is defined as to England, Sect. 62 (1). The negative of "warranty" in that

1 37 & 38 Vict. c. 51. 3 50 & 51 Vict. c. 28.: 556 & 57 Vict. c. 56.

2 38 & 39 Vict. c. 63.

4 Section quoted in Appendix I. post, p. 296.

Sect. 14.

definition, and in Sect. 11 (1) (a), is inferentially a definition of "condition." The buyer may waive the condition and treat the seller's breach as a breach of warranty. In Scotland "warranty and "condition are synonymous, and entitle the party not in fault to repudiate the contract. COM., Sect. 10 ante, p. 46.

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

(e) "Contract of sale." Defined Sect. 1 and Sect. 62 (1).

(f) "By implication." This is a new remedy in Scotland, having been previously excluded by the Mercantile Law Amendment Act, Scotland, 1856,1 Sect. 5.

(g) "Description." See Sect. 13, note (a) ante, p. 62.

(h) "Manufacturer." Before the Act a manufacturer in England who sold goods was held to warrant that they were manufactured by himself.2 It was otherwise in Scotland,3 and it would seem that the English rule has now been assimilated to that of Scotland.4

(i) "Reasonably fit." "When a party undertakes to supply an article for any particular purpose, he warrants that it shall be fit and proper for such purpose. If a purchaser himself selects

the article, it has been held that the mere fact that the vendor knew the use for which it was designed, will not raise an implied warranty, because the skill and judgment of the latter are not relied on in making the purchase." 5

(j) "Patent or trade name." Thus the sale of a machine under the name of "patent gas producer of the four cwt. per hour size," was held not to import a warranty that the machine was capable of consuming four cwts of coal per hour. A similar provision is contained in the Sale of Food and Drugs Act 1875 in regard to patent medicines.7

(k) "Description." Compare this sub-section with Sect. 13, and see note (a) ante, p. 62, and Coм. ante, p. 64. The word "description" in this sub-section occurs twice, and seems to illustrate both of the meanings referred to ante, p. 62. In Scotland a small admixture of foreign substance has been held to entitle the buyer to repudiate the contract on the ground that the goods were not conform to description.8

1 19 & 20 Vict. c. 60.

2 Johnson v. Raylton (1881), 7 Q.B.D. 438. 3 West Stockton Iron Co. v. Neilson and Maxwell (1880), 7 Ret. 1055; Johnson and Reay v. Nicoll and Son (1881), 8 Ret. 437.

But see COM., Sect. 13 ante, p. 65.

5 Per Erskine, J., in Brown v. Edgington (1841), 2 M. & G. 279 at p. 292 6 Rowan v. Coats' Iron and Steel Co. (1885), 12 Ret. 395.

7 38 & 39 Vict. c. 63, Sect. 6 (2).

8 Jaffé v. Ritchie (1860), 23 D. 242; Carter and Co. v. Campbell (1885), 12 Ret. 1075.

Perhaps a remedy may also be found under this sub-section Sect. 14. on the ground that the goods are deficient in quality.

(1) "Has examined." In the original bill the exclusion of implied warranty did not depend on the fact of examination by the buyer, but upon his having had an opportunity of examination. The alteration was made in Select Committee of the Commons, and probably widens the previous English remedy.

(m) "Usage of trade." COM. infra, p. 72.

(n) "Express"-"implied." See Sect. 55, which expresses the converse of this sub-section. The law of Scotland is not altered.1

COMMENTARY.

This section expresses what remains of the rule of Caveat emptor. "caveat emptor," but the rule itself is now subordinated to the exceptions.

The original principle of Scottish law was that a sound price implied a sound article, irrespective of the buyer's object in buying, or the knowledge of the parties regarding the condition of the goods. Even in England there was at one time " a current opinion that a sound price was tantamount to a warranty 3 of soundness," but the older law of "caveat emptor" was re-affirmed by Lord Mansfield in 1778,6

4

1 Cooper and Aves v. Clydesdale Shipping Co. (1863), 1 Macp. 677. The English law has been stated otherwise [Bell's Com. i. 470, M'Laren's note (3)], but correct by Bigge v. Parkinson (1862), 7 H. & N. 955; Nichol v. Godts (1854), 10 Ex. 191.

2 The principle of the law of Scotland is that every man selling an article is bound, though nothing is said of the quality, to supply a good article without defect unless there are circumstances to show that an inferior article was agreed on."-Per Lord Justice-Clerk Hope in Whealler v. Methuen (1843), 5 D. 402 at p. 406. See also Ralston v. Robertson (1761), Mor. 14238; Baird v. Pagan (1765), Mor. 14240; Lindsay v. Wilson (1771), Mor. 14243; Adamson v. Smith (1799), Mor. 14244; Campbell v. Mason (1801), Hume 678; Ralston v. Robb (1808), Mor. Sale, App. 6; Dickson and Co. v. Kincaid (15th December 1808), F.C.; Gilmer v. Galloway (1830), 8 Sh. 420; Paterson v. Dickson (1850), 12 D. 502; Fulton v. Watt (1850), 22 Sc. Jur. 648. But, on the other hand, see Stewart v. M'Nicol (1814), Hume 701, where it was held that there was no implied warrandice in the case of a large lot of cattle purchased for a slump price. It seems to have been held that the bad must be taken with the good, as in the case of the sale of a draught of fishes.

3" Warranty" is here used in the sense of "condition."

Per Grose, J., in Parkinson v. Lee (1802), 2 East 314 at p. 321.

5 See, for example, Chandeler v. Lopus (1603), Cro. Jac. 4; and Fitzherbert's Natura Brevium (1537), p. 94 C.

6 Stuart v. Wilkins, 1 Douglas 18.

Sect. 14.

Divergences

between law of England and

Scotland.

and still more emphatically in the judgment in Parkinson v. Lee1 (1802). Subsequent cases show the development in English law of the exceptions now embodied in this section.2

3

The exceptions in England to the rule of "caveat emptor are so numerous that Scottish text-writers perhaps exaggerated the effect of the rule in producing divergence between the laws of the two countries. Bell, writing in 1843, called the difference between the rules a "remarkable distinction," but when taken in connection with the exceptions in each case the divergence is comparatively trifling. Bell himself excepts from the Scottish rule of implied warranty" the case of faults so obvious that they cannot be supposed to escape ordinary observation," while, speaking of English law, notwithstanding the general rule of caveat emptor, he excepts (1) warranty implied from trade usage; (2) implied warranty" that the article sold shall answer its description as understood in the trade"; and (3) implied warranty "in regard to an article ordered from a manufacturer that it shall be fit for the avowed purpose. 195 In 1855 the Royal Commission appointed with a view to the assimilation of the laws of the United Kingdom, reported that the divergence should be removed, and that the Scottish rule should be assimilated to that of England and Ireland. Upon this Report was based the Mercantile Law Amendment Act, Scotland, 1856, which provided that where the seller was without knowledge that the goods were defective or

1 2 East 314. See also La Neuville v. Nourse (1813), 3 Camp. 350 Barr v. Gibson (1838), 3 M. & W. 390; Chanter v. Hopkins (1838), 4 M. & W. 399; Ormrod v. Huth (1845), 14 M. & W. 651; Ollivant v. Bayley (1843), 5 Q.B. 288; Burnley v. Bollett (1847), 16 M. & W. 644; Emmerton v. Matthews (1862), 7 H. & N. 586; Smith v. Baker (1878), 40 L.J. N.S. 261.

2 Laing v. Fidgeon (1815), 4 Camp. 169; Jones v. Bright (1829), 5 Bing. 533; Brown v. Edgington (1841), 2 M. & G. 279; Shepherd v. Pybus (1842), 3 M. & G. 868; Beer v. Walker (1877), 46 L.J. C.P. 677.

3 Bell on Sale, p. 96. See also M. P. Brown, pp. 285 et seq.; Bell's Prin., Sects. 96, 97.

4 Bell on Sale, p. 96. Muil v. Gibb (1840), 2 D. 1227.

5 Bell on Sale, p. 99. The English authorities cited are Jones v. Bowden (1813), 4 Taunt. 847 (trade usage); Gardiner v. Gray (1815), 4 Camp. 144 (description" waste silk "); Bridge v. Wain (1816), 1 Stark 504 (description-scarlet cuttings"); Laing v. Fidgeon (1815), 6 Taunt. 108 (avowed purpose-saddles for export); Jones v. Bright (1829), 5 Bing. 533 (avowed purpose-copper sheathing for ship).

62nd Report, p. 10. See also Appendix to Report, p. 130.

;