CT 2.4F IMPLIED TERMS (SALE BY SAMPLE)
SALE BY SAMPLE.
Section 15(1) provides that for a sale to be one by sample, there must be a term in the contract to that effect. Thus, merely showing a sample of the goods during negotiation does not make the contract a sale by sample. In Gardiner V Gray the parties contracted to sell waste silk and a sample was shown. The court held that it such display did not make it a sale by sample.
Where there is a sale by sample, Section 15(2) of the Sale of Goods Act implies the following conditions:
- The bulk must correspond with the sample in quality. (WA import and Export V Paul Jasser).
- The buyer shall have reasonable opportunity of comparing the bulk with the sample.
- All unmercahntable defect must be apparent on reasonable examination. In Godley V Perry, the court held that the plaintiff could recover for a defective catapult he got from the defendant because the defect could not reasonably have been discovered by him.
Drummond V Van Ingen per lord Machaghlen. E and S Ruben V Faire Bros. Hookway V Alfred Isaac.
EXCLUSION OF LIABILITY.
Section 55 provides that the parties can negative or vary rights and duties which arise under the contract.
As such, terms and conditions can be excluded by both parties, by the course of dealing between them or by usage of the trade. The courts are usually reluctant to allow exclusions of fundamental terms in certain justified situations. The Unfair Terms Act has been enacted in some other common-wealth jurisdictions to ensure that important terms which go to the root of the contract may not be excluded.
