Pakistan study notes for Matric, Intermediate, B.A, B.COM BSC, M.A, BCS. Free Pakistani Urdu educational school, colleges and University notes.

IMPLIED CONDITIONS

IMPLIED CONDITIONS

In a contract of sale of goods, the law includes implied conditions in respect of the following matters:

a.         condition as to title.

b.         sale by description.

c.         sale by sample.

d.         sale by sample and description.

e.         condition as to quality of fitness.

f.          condition as to merchantability.

g-         wholesomeness.

 

Each of these is discussed in what follows.

 

1. Condition as to title-Section 14(a)

In a contract of sale there is an implied condition on the part of the seller that, (a) in the case of sale he has a right to sell the goods, and (b) in the case of agreement to s&ll he will have a right to sell the goods at the time of passing of property, in other words, the transfer of title can only be made either by the owner himself or by his authorized agent.

 

(a) Seller’s title defective: if the seller’s title is defective the buyer does not acquire any title to the goods purchased and the true owner can recover the goods from the buyer without paying the price.

 

(b)        Infringement of trademarks: If the seller has infringned a trade mark, he has broken the condition that he has a right to sell the goods.

(c)        Title acquired subsequently: Where a seller has no title to the goods at the time of sale but subsequently acquires a title, such title feeds the defective title of both the original buyer and the subsequent buyer.

 

2. Sale by description-Section 15

 

Meaning: A sale by description means a sale where the buyer has not seen the goods being purchased but has relied on the verbal or written representation of the seller as to qualities, characteristics and uses of those goods. There is also a sale by description when the buyer is buying goods displayed before him on the counter. A sale may be a sale by description when the goods are described in a contract.

 

Forms: The term ‘sale by description’ may take any form, such as, (i) labels e.g. Lipton Red Label Tea, (ii) number e.g. 101 soap, (iii) name of maker e.g. Eno’s Fruit Salt, (iv) specification or date and place of shipment, (v) or special features e.g. hot water bottle.

 

Implied condition: Where there is a contract for the sale of goods by description. There is an implied condition that the goods shall correspond with the description, If the description of the goods supplied is different in any respect, it is not the goods bargained and the buyer is not bound to accept it. So if A contracts B to sell peas, B cannot be obliged to accept beans, Bowes v. Shand (1877). The rules as regards sale by description are:

 

Rule 1:  Where the goods are described in a contract and the buyer relies on such description, the goods shall correspond with such description.

Rule 2:  Where the buyer has not seen the goods and relies on their description given by the seller, the goods shall correspond with such description.

 

Rule 3:  Where the buyer has seen the goods but he does not rely on what he has seen but what was stated to him and the goods are apparently according to description, goods must correspond with what is stated in addition to description.

 

Rule 4:  Packing of goods may sometimes be regarded as a part of description.

 

3.         Sale by sample and by description-Section 15

When there is a contract for the sale of goods by sample as well as by description, there is an implied condition that the bulk of the goods shall correspond both with the sample and with description, if the goods supplied correspond only with the sample or only with the description, the buyer can reject the goods.

 

4.         Conditions as to quality or fitness-Section 16

 

General: Normally in a contract of sale there is no implied warranty or condition as to quality or fitness for any particular purpose of goods supplied. The buyer must examine the goods thoroughly before he buys them in order to ensure that the goods shall be suitable for the purpose for which he is buying.

 

Implied condition: Where the buyer informs the seller about the particular purpose for which the goods are required, there is an implied condition that the goods shall be reasonably fit for such purpose. The following conditions must be fulfilled:

 

a.         buyer should expressly or implidly inform the seller about the particular purpose for which goods are required.

b.         buyer should rely on the seller’s skill and judgment.

c.         goods should be of the description in which the seller deals.

 

Exceptions: Following points should be noted:

 

a.         Buyer indicates purpose [Section 16(1)]: Where the buyer, expressly or implidely, makes known to the seller the particular purpose for which the goods are required and depends upon the skill and judgment of the seller who supplies goods of that description, there is an implied condition that the goods shall be reasonably fit for that purpose.

 

b.         Non-disclosure of peculiarities: The buyer is duty bound to disclose the seller the peculiarities from which he is suffering. If the abnormality is not made known to the seller, at the time of sale, the implied condition of fitness does not apply. The seller should not be expected to assume that an abnormality existed.

 

c.         Purchase under patent name [Section 16(17)]: Where goods are purchased under a patent or trade name, there is no implied condition as to their fitness for any particular purpose.

 

d.         Multi-use of goods: Where goods can be used for a number of purposes, the buyer must inform the seller the purpose for which he requires those goods. In case he does not tell the seller the particular purpose he cannot hold the seller for their n6n-fitness.

 

5.         Condition as to merchantability-Section 16(2):

Where goods are bought by description from a seller who deals in goods of that description (whether he is manufacturer, or producer or not) there is an implied condition that the goods are of merchantable quality. In other words goods shall be of merchantable quality if the>’ are commercially saleable at their full value under the description by which they are known in the market at their full value.

 

(a)        Defect revealed: If the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed.

 

(b)        Defect not revealed: If the examination by the buyer does not reveal the defect and he approves and accepts the goods, but the goods are found to be defective when put to work, there is a breach of condition of merchantable quality. Where cement turned into stone by sea water, silk yarn damaged by white ants, dates contaminated with sewage, hemp damaged by sea water, the condition of mercantability was held to have been broken.

(c)        Packing of the goods is equally a relevant consideration in judging the merchantable quality.

 

(d)        Defect cureable: Even if the defect in the goods could be easily cured, the buyer can avoid the contract on the ground of goods not being of merchantable quality e.g. buy washing an irritant out of a woollen or nylon garment, by making traffing repairs.

 

6.         Condition implied by trade customs-Section 16(3)

The usage of trade may annex an implied condition as to quality or fitness for a particular purpose. So the purpose for which goods are required may be indicated by the nature or description of the article purchased and the buyer need not tell the seller the purpose for which he is buying the goods e.g. purchase of a bottle of milk, or hot water bottle, or garment, artificial teeth.

 

7.         Condition as to wholesomeness

In case of sale of provisions and foodstuff, in addition to implied condition as to merchantability, there “is another implied condition that goods supplied shall be wholesome or sound i.e. fit for human consumption.

 

8.         Sale by sample-Section 17

Meaning of sale by sample [Section 17(1)]: Section 17(1) provides that a contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. So where a seller provides a sample to the buyer for his inspection, it will be a sale by sample if:

 

a.         the contract contains an express provision to that . effect, or

b.         when the written contract is silent on the point: there is evidence to show that the parties intended the sale by sample. the custom or use of trade require a sale by sample.

Implied conditions [Section 17(1)]: When there is a sale by sample there is an implied condition that the goods supplied must be according to sample agreed upon. There are three implied conditions in such a sale by sample:

a.         bulk should correspond with the sample in quality.

b.         buyer shall have reasonable opportunity of comparing the bulk with the sampie.

c.         goods shall be free from any defect rendering them unmerchantable,

 

The defect should not be apparent on a reasonable examination of the sampie, Section 17(2). This implied condition applies only to latent defect not to patent defect.

 

Latent defect means a defect which is not discoverable on a reasonable examination of the sampie. Patent defect means a defect which is visible or discoverable by examination of the goods. In a patent defect there is no breach of implied condition as* to merchantability.

 

Sale by description and sample distinguished

A description has reference only to the intrinsic nature of the goods, while a sample has reference to the inherent quality of the goods. A statement as to description made about an article m-ist be essentia! to its identity as Kashmiri Shawls, while statement as to sample must be essential to its quality.

 

Related posts:




Leave a Reply

Content Protected Using Blog Protector By: PcDrome. & GeekyCube.