According to the Sale of Goods Ordinance No 11 of 1896, a ‘contract of Sale of Goods’ is,
‘a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called “the price”’
Sale of goods contracts can be absolute contract or conditional contract.
According to the Sale of Goods Ordinance No 11 of 1896 elaborates that laws relating to Sale of Goods. So, according to that, part I of the Ordinance elaborate Conditions and Warranties of the Sale of Goods Contract. Section 15 of it; add that implied conditions as to quality or fitness. There included two implied conditions.
- Reasonably fit for the intended purpose
♦ Expressly or by implication, makes known to the seller the particular purpose for which goods are required.
♦ Show that the buyer relies on the seller’s skill or judgment.
♦ The goods are of a description which it is in the course of the seller’s business to supply (whether he manufacture or not).
- Merchantable quality
Accordingly, buyer intends to sue against the seller, must prove above three elements in Section 15 (1) of the Ordinance. [this provision is similar to Section 14 (a) of South Australian Sale of Goods Act 1895 and Section 16(1) of Indian Sale of Goods Act 1930 ]
So, the buyer should show that he relies on seller’s instructions. Yet, if buyer act contrary to the instruction which has been given by seller, there is no liability on seller. Also, buyer cannot claim that goods did not fit for the purpose. In Dixon Kerly Ltd v Robinson case, also held that plaintiff had not been given any guarantee regarding that particular purpose which was defendants expected. So, defendants had liability.
In Grffiths v Peter Conway Ltd elaborated; seller doesn’t have liability regarding its fit for the purpose due to seller didn’t aware about the abnormality of buyer (purpose). So, buyer has responsibility to clearly mention his purpose to the seller. Otherwise there’s no responsibility on seller regarding fitness for the purpose.
Section 15 (2) of Sale of Goods Ordinance No 11 of 1896 elaborates that,
“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.”
[Section 14 (b) of South Australian Sale of Goods Act 1895, Section 16 (2) of Indian Sale of Goods Act 1930 are similar to above.]
According to that, buyer has to rely on seller’s description to get his damages. Proviso of the section of sale of goods ordinance no 11 of 1896 says, ‘if buyer has examine’ it means buyer doesn’t rely on seller’s description. In Aswan Engineering case , court added that goods were merchantable quality, but goods were become useless due to their stowage were not appropriate. Hence, buyer has to accord to instructions of the seller. Otherwise he can’t claim that goods do not have merchantable quality.
Hendry Kendall Ltd v William Lillico& sons , case also added that if it’s noticed in goods that its recommendations for use, then it’s not recognize as goods with low merchantable quality,even though buyer use it opposing to the recommendations. If there’s notice ‘it’s recommend to Pheasant and Partridge chicks’ too, after use it if those animals were death then can claim as those foods were not in merchantable quality. If seller gives wrong instructions and buyer fails to success his purpose then buyer can claim on low merchantable quality of the goods. It can prove with Kendall v Marshal Stevens & co Ltd case, there was animal food for both chicks and cattle. Yet, after feeding them to animals they were death. The seller was liable in that case.
Also, in Wormell v RHM Agriculture Ltd case, court held that, it was not wrong with quality of weed-killer. If he accorded with instructions had been given it then, he may success to get good harvest. In Heil v Hedges case, also held that, the chop was of merchantable quality: there would have been no danger if it had been cooked properly before eating it, and the importance of cooking pork properly was well known. So that if the buyer should do something to the goods the fact of doing it incompetently will not render them un-merchantable. Accordingly,buyer cannot say goods are not merchantable quality; without used goods in proper way.
Section 12 of the Sale of Goods Ordinance No 11 of 1896 elaborated that, breach of condition can repudiate contract and get the damages. But if it’s implied condition consider as breach of warranty. Then, cannot repudiate contract, only thing is, it can be get the damages. Clearly it elaborates section 59 of the above Ordinance as well. If buyer could prove that implied conditions (goods are not fit for the purpose, they are not merchantable quality…etc.) are breached by seller, then buyer has right to claim remedy from the seller.
In Baker v Burlington Coat Factory Warehouse case, court held that
“Burlington breached the implied warranty of merchantability by selling Baker a defective product and under section 2-714 of the Uniform Commercial Code, Barker is entitled to the return of the purchase price in cash.” 6
There’s a maxim by saying,
“Caveat emptor, quiaignorare non debuit quod jus alienum emit”
It means that; Let a purchaser beware, for he ought not to be unaware of the nature of the property which he is buying from another party. It is assumed that buyer will either examine or ensure that he is confident with the integrity of the product before finalizing a contract. In Stambovsky v. Ackley case, court held that ‘the caveat emptor doctrine only acts against those who do not exercise their rights and who fail to take due care. In this case there was no clue or objective standard for determining how a buyer could discover that a house is haunted.’ Hence, responsibility is to beware about goods on buyer. Buyer cannot say he didn’t have any opportunity to get the information about goods, as seller had been already described. So, take due care is responsibility of himself. seller might not held responsible for that.
Considering all, without performing responsibilities of buyer himself he cannot claim his rights successfully. As a buyer he has to accord with instructions of goods which has been given by seller plus he has to due care in the transaction.
Barness.A.J, Dworkin T.M, & Richards E.L. LAW FOR BUSINESS. 7th edition. Irwin Mc Graw-Hill publication.