CT 2.4D IMPLIED TERMS (DESCRIPTION)
IMPLIED CONDITION AS TO DESCRIPTION.
By Section 13 of the Sale of Goods Act, where goods are sold by description, there is an implied condition that the goods must correspond with the description. Irrespective of the fact that the goods corresponds with a sample.
In Grant V Australian Knitting Mills a buyer went into a shop and asked for a pair of woollen underpants. It turned out not to be woollen and the material gave him rashes. Lord Wright noted that where goods are sold answering (corresponding) to a description, the buyer buys by description.
Lord Diplock in Ashington Puggeries V Christopher Hill noted that where goods are sold by reference to a description, this section applies. In this case; the buyers requested “Norwegian herring meal” got same. Notwithstanding the fact that a chemical in the meal killed their animals, this condition had not been contravened. Thus the defect in the goods was irrelevant in deciding whether it corresponds to its description.
In Valley V Whipp, the seller sold a second-hand reaping machine which he described as “new the previous year”, the buyer relied on this description and purchased it. The machine was discovered to be very old. Held that the buyer was entitled to reject the machine.
*** Where the buyer relied essentially on the description, the sale is one by description.
In Nicholson and Venn V Smith Marriot, the defendant had displayed napkins for sale described as being from the 17th century. The buyers saw the napkins and bought them. They later found that they were from the 18th century. It was held that there was reliance on the description irrespective of the fact that the defendants had seen the napkins before buying.
In Priest V. Last, The buyer asked for (and bought) a “Hot water bottle”. It burst on the 5th day of use due to its incapacity to retain hot water. The court held that there was a breach of Section 13.
In Beale V. Taylor, The defendants advertised for sale: a “Herald Convertible; white, 1961”. The plaintiff examined and bought the car. It turned out that the car was a combination of two parts welded together, only one part being the herald convertible 1961. The defendants argued that the seller did not buy by description because he examined the car. The court rejected this argument and held that since the car did not correspond with the description, the sellers were in breach of Section 13.
:: The more specific the description, the more thorough the seller is expected to be.
In Arcos V. Ronaason, the buyers contracted to buy staves ½ inch thick. Some of the staves that were supplied were 9/16 inch thick. Lord Atkin (delivering the lead judgment) held; “Conditions must be strictly complied with”. “A ton does not mean about a ton, a yard does not mean about a yard… does half inch mean about half inch” The condition of the contract must be strictly performed. If a condition is not performed, the buyer has a right to reject.
In Re Moore and Landauer, the court held that delivery of 3,000 tins of tomato, 24 to a case was not the same as the agreed delivery of 3,000 tins of tomato 30 to a case.
In Olajide Stores and Sawmill V Omotayo Agencies Nig Ltd, the court held that there was a breach of description when the defendants supplied planks which were only grooved and finished instead of the agreed planks to be “seasoned wood, grooved and finished”
In Boshalli V Allied Commercial Exporters Ltd, the court held that descriptions must be strictly adhered to, else the innocent party is entitled to repudiate or claim damages.
In Nichol V. Godts there was an agreement to supply “foreign rapeseed oil” and a sample was checked. The bulk corresponded only with the sample but not with the description. The court held that ***where there is a sale by sample with description, the bulk must correspond not only with the sample but also with the description-Section 13 of the Sale of Goods Act.
In practice, sellers usually evade the responsibility imposed by Section 13 by using qualifying words like; approximately, nearly, and so on in the description.
