The Sale of Goods Act - Essay Example

A The first part of the essay will explain why attributes of quality of goods may not necessarily relate to the of those goods. This partwill first look at the description of goods and then analyze the attributes as to the quality of goods. Section 13 (1) of the sale of goods act provides that where a good is sold by description the good must correspond with the description. The description of the good should be accurate and if the goods do not match the description the buyer is entitled to a remedy. This implied term only applies to goods sold solely by description and does not apply where the buyer inspects the goods before the purchase1. In Harlington & Leinster v Christopher Hull Fine Art2 the buyer obtained a painting for £6,000. The painting was described as the work of a German impressionist Gabrielle Munter. Although both parties were based in London, the buyer specialized in German paintings while the seller was not an expert. Prior to the purchase, the buyer sent an expert to inspect the painting. After purchasing the painting, the buyer discovered the painting was a fake and its value was less £100. The buyer brought an action claiming the good did not match the description. The court in arriving at its decision observed that when the buyer sent an expert to inspect the painting, the sale was no longer by description and the implied term as to description could not apply3. Description of the goods is only concerned with the description and does not apply to its quality. This was highlighted in Arcos v Ranaason4, which involved a contract for the sale of wooden staves used for making barrels. The staves were described as being half an inch thick. When the staves were delivered some were slightly out of the half an inch description given, but the difference did not affect their quality. The buyer nevertheless rejected the goods. The court held that the buyer was entitled to reject the goods. Although the staves were of good quality, they had been sold by description and as such the goods ought to correspond with the description. This was also the position in Re Moore & Landauer5 where there was a contract for the sale of tins of peaches. The peaches were described as packaged in cases of 30 tins. Although the overall numbers of tins delivered were accurate, the peaches were packed in cases of 24 tins instead of the 30 tins described. The court observed that the purchaser was entitled to reject the goods as they did not fit the description provided6. The implied condition as to quality, on the other hand, provides that the goods must be of an acceptable quality. Acceptability in this regard means that a reasonable buyer would have acquired the same quality of goods at the same price. For goods to be of an acceptable quality, they should be fit for the purpose they are intended for, acceptable in appearance, free from defects, durable and safe. In determining the quality of the goods, it is important to take into account the consideration paid, the nature of the goods and the representation of the goods if any7. In Shine v General Guarantee Corp8, the plaintiff bought a used car from a dealer. The car developed constant problems and the plaintiff subsequently discovered tha the car had been in an accident and had been submerged in water. The plaintiff brought an action as to the defective quality of the car. In its determination, the court applied the acceptability test and inquired whether a reasonable buyer would have purchased the car with knowledge of the fault. The court held that a reasonable buyer would not have purchased the car and hence the seller was in breach. In Aswan Engineering v Lupdine9 the plaintiffs acquired waterproofing liquid from the defendant. The liquid was contained in plastic pails, and the pails were described as being heavy duty and, therefore, fit to be stored outside. The plaintiffs kept the pails containing the liquid outside, but since they were located in Kuwait, where the temperature were as high as 70 degrees Celsius, the pails consequently melted and the waterproofing liquid was ruined. The plaintiffs brought an action as to the quality of the goods and the court in arriving at its decision applied the acceptability test. The court inquired whether a reasonable person would have used the product for the purpose they were supplied. The court decided that a reasonable person would have used the product without incurring any loss, and there was no breach as the conditions which had forced the pails to melt were extreme. In Bartlett v Sidney Marcus Ltd10, the plaintiff bought a second hand car from the defendant. The defendant had informed the plaintiff that the cars clutch was defective. The defendant had offered to repair the car and sell it at the full price or reduce the price by £25 if the plaintiff would agree to take the car in its condition. The plaintiff agreed to take the car in its condition with the £25 reduced from its price. The plaintiff subsequently realized that it would cost more to repair it and brought a claim to recover the extra repair costs. Held that the defendant had made the plaintiff aware of the defect and therefore the plaintiff could not assert any rights as to the quality. The attributes of quality, therefore, does not necessarily relate to description of those goods since the test applied in determining the quality of the goods is that of acceptability while, in determining whether the good fits the description, it is only the description and not the quality that is essential11. B The second part of the paper will advise Sarah on remedies available. The issues in this case are whether the goods sold were fit for the purpose they were intended for and whether the exclusion clause in the contract of sale excludes her claim. In a contract of sale, there are implied conditions as to the merchantability of the goods, conformity to description and samples and fitness for purpose. The condition which is important to the current case is fitness for purpose. Fitness for purpose denotes that where the buyer makes it known to the seller as to the intended purpose of the goods, then the goods supplied must fit that purpose12. Where the buyer makes this purpose known and the buyer relies on the seller’s judgment or skill on the fitness of the good, then there is the implied condition that the items are fit for the purpose they are intended13. In Godley v Perry14, Godley a boy of six years purchased a catapult from Perry. The boy used the catapult in the correct manner, but the catapult broke and ruptured his eye. The catapult broke as it was made in an indifferent manner although a sample had been provided. The issue in this case was whether the boy could recover from Perry and whether Perry could recover from the manufacturer. In arriving at its decision, the court reasoned that since the defect could not be recognized by mere inspection, the catapult was not fit for the purpose it was intended. The court applied the reasonableness test in deciding that the boy could recover from Perry and Perry from the manufacturer. In Frost v. Aylesbury Dairy Co. Ltd15, Aylesbury Dairy supplied milk for consumption to Frost. Although Aylesbury had taken all the necessary measures to ensure the milk was not contaminated, the milk contained typhoid germs which affected Frosts wife who afterwards died, as a result. Frost brought an action for breach, and the court held that Aylesbury was liable. In arriving at its finding, the court stated that the purpose of the milk was made known to Aylesbury. The milk supplied contained germs and therefore not fit for human consumption and a breach as to the fitness for purpose had occurred16. In BSS Group PLC v Makers (UK) Limited17, BSS had supplied materials intended for installation of a plumbing system. Makers made a request for other materials meant to be used in the same project and had made this known to BSS. BSS, however, supplied a different type of the materials which did not fit the intended purpose. The court held that the relevant test for fitness for purpose include whether the buyer had made known to the seller the purpose of the goods, whether the goods supplied were fit for their purpose and whether the buyer had relied on the sellers judgment and skill as to the fitness of the goods. The court held that BSS were aware of the purpose of the goods and by making inquiries Makers were making known the purpose of the goods. The supplies were not fit for the purpose, and therefore BSS were liable for breach18. In Sarah’s case, the purpose of the washer was made known to Harry when Sarah provided the description of the type of washing machine she needed. Her description of the machine was sufficient to make the purpose of the machine known, and she relied on Harry’s judgment to make the purchase decision. The supplied machine makes noise, cannot remove stains at 15 degrees and can only hold up to 9 kg load contrary to Sarah’s requirements. The machine is, therefore, not fit for the purpose as the intended purpose was to remove stains at 15 degrees, hold a load of up to 12 kg and make minimal noise. The condition as to the fitness for purpose is an implied condition which goes to the substance of the contract and failure of its performance is failure to perform the contract, therefore, cannot be excluded by exclusion clauses in the contract of sale as held in Wallis v. Pratt19. In Baldry v Marshall20 the plaintiffs requested the defendant to supply a car that would be used for touring. The defendant made a recommendation which the plaintiff relied upon. The contract of sale contained a clause that excluded the defendants’ liability for guarantees and warranties. The car turned out to be unfit for the intended purpose and the plaintiff sued to recover the sale price. The court stated that the requirement that the car be fit for touring was a condition and the exclusion in the contract did not bind the plaintiff and therefore he could recover the price of the car21. Similarly, since the machine did not fit Sarah’s intended purpose the exclusion clause does not apply and Sarah can successfully bring a claim of breach against Talfords. Cases Baldry v Marshall [1925] 1 KB 260 Bartlett v Sidney Marcus ltd [1965] 1 WLR 1013 Wallis v. Pratt, 1910 2 K.B.1012 BSS Group plc v Makers (UK) Limited (t/a Allied Services) [2011] EWCA Civ 809 Frost v. Aylesbury Dairy Co. Ltd. [1905] 1 K.B. 608 Godley v. Perry [1960] 1 W.L.R. 9 Aswan Engineering v Lupdine [1987] 1 All ER 135 Re Moore & Landauer [1921] 2 KB 519 Shine v General Guarantee Corp [1988] 1 All ER 911 Harlington & Leinster v Christopher Hull Fine Art [1991] 1 QB 564 Arcos v Ranaason [1933] AC 470 Bibliography Beatson J, AnsonR, Burrows S & Cartwright J, Ansons law of contract (Oxford University Press 2010) Ben-Shahar O & Posner E, The right to withdraw in contract law (2011) 40 The Journal of Legal Studies 115 Bepko G, ‘Contracts and Commercial Law’ (2012) 9 Indiana Law Review Archive 132 Crawford F, ‘Fit for Its Ordinary Purpose-Tobacco, Fast Food, and the Implied Warranty of Merchantability’ (2002) 63 Ohio St. LJ 1165. Duhl G, ‘International Sale of Goods’ (2011) 67 Bus. Law. 1337. Gaff Brian, ‘Contracts 101’ (2014) 3 Computer 47 12 Hedley S, ‘Quality of goods, information, and the death of contract’ (2001) Journal of Business Law 114 Houghton M, The Sale of Goods Act 1979 and 2002. (2012) OSullivan J & Hilliard J, The law of contract (Oxford University Press 2012) Poole J, Casebook on contract law (Oxford University Press 2012) Read More