In the course of acquisitioning the ‘object’ desired, risks of getting manipulated or

deceived is always apparent and present. An irresponsible individual will, without any
doubts, to take advantage of another when he is involved in fraudulent transactions. As a
result, the term ‘consumer protection’ has been explicitly enforced and discussed as to ease
mind of the buyers when transacting. 
The concept and principle of ‘merchantable quality’ in the sales of goods contract can
be seen from different perspectives. It can be seen from the perspectives of legal journal or
articles written by scholars, statutory provisions, and from decided cases related to the
concept of ‘merchantable quality’. Adams & MacQueen (2010) described the concept of
‘merchantable quality’ as vital in sales of goods as it is one of the requirements to the goods
sold. In their books entitled Atiyah’s Sales of Goods, they explained that the goods sold must
comply with the requirement of merchantable quality.
Meanwhile, W.C.H Ervine (2004) described ‘merchantable quality’ as ‘satisfactory
quality’. Based on his journal article, the term ‘merchantable quality’ and ‘satisfactory
quality’ can be interpreted as synonymous. He further stated that the said concept and term is
only applicable to sales in the course of business. However, in the case of Stevenson v
Rogers, the court had widened the definition of the term so that it can be applied to all sales
in business. He further pointed out that the application of the term ‘satisfactory quality’ is
strict.
According to William L. Proser (1943 the term can be defined as genuine according
to name, kind and description.  On top of that, he pointed out that the term refers to the
quality which is saleable in the market under the designation. This means that the quality of
the goods sold to a buyer must match the quality of the goods which are commonly sold in
the market. Hence, any defect in the quality of the goods sold to a buyer will give rise to the
breach of implied warranty of merchantable quality of the goods. 
The element in which the quality of the goods sold is a merchantable quality is that
the buyer must ensure that the goods bought are saleable in the market the same way he
bought it. The goods must also fit for the ordinary uses and purposes of such goods. It is to be
noted that once a seller sells a goods to a buyer, the goods must conform to the ordinary use
and purpose as requested by the buyer. Goods which cannot be used and broken are
considered unmerchantable. Thus, if the goods are not fit for its ordinary purpose then the
seller has been deemed to breach its implied warranty of merchantable quality. 
In discussing it under the law’s purview, it has been realized that there needs to be
some sort of benchmarking of what goods are suitable to be marketed and a set of designated
recourse must be established for the buyers who have been hampered with deceitful attempts
of sellers. Hence, the role of establishing those criteria falls within the matters governed by
the Sale of Goods Act 1957 (hereinafter mentioned as SOGA 1957).
Section 16 (1) of the SOGA 1957 lays down the law that there is no implied warranty
or condition with regards to the fitness or quality of the goods being involved with the
contract of sale. From an instance, this could be used to adversely affect the buyers.
However, pursuant to Section 16 (1) (a) of the Act, protection will be given if the buyer has
satisfied four elements. Buyer must make known to the seller as to why he was looking to
acquire the goods. This will give the impression that when the buyer relied on the seller’s
skill and judgement, seller must be accorded with good faith. The goods sold must be in the
course of the seller’s business to supply and that goods are not bought under any patent or
trade name. There are several cases that can make our understanding of this law better. 
In Khong Seng v Ng Teong Kiat Biscuit Factory Ltd, the plaintiff had supplied 219
tins of tallow to the defendant which he denied and stated that they only ordered 100 tins.
They claimed that the tallow supplied was of inferior quality and not fit for the purposes it
was supplied. The plaintiff had a verbal agreement expressly warranted that the tallow would
be of a quality fit for the manufacture of biscuits and free from faults and defects. There was
an implied condition (within the meaning of section 16(1)(a) of SOGA) in the contract
between the parties that the tallow supplied would be reasonably fit for the manufacture of
biscuits. From the evidence, the purpose for which the tallow was required was made known
to the plaintiff that the tallow was required for the manufacture of biscuits. The plaintiff
understood to which he agreed that if the tallow was not suitable, he would replace with good
tallow. It then follows that the purchasers relied on his skill and judgment. The tallows sold
was indeed in the ordinary course of seller’s business as plaintiff himself extracted the fat
from the beef and turned it into tallow. Besides, he supplied more tallow than the amount
ordered.
In an English case, Frost v Aylesbury Dairy Co, the defendant supplied milk to the
plaintiff to be consumed. A book in which the daily supply was entered was interleaved with
a printed notice of the precautions taken by defendants to supply milk pure and unadulterated
and free from the germs of disease. The milk supplied, however, contained germs of typhoid
fever to which infected and killed the plaintiff's wife. The existence of the germs could only
be discovered by prolonged investigation. The plaintiff alleged that the infection was
contracted to his wife due to consuming the milk. He brought this action under Sale of Goods
Act 1893 section 14(1) - which was in pari materia to our Malaysian SOGA 1957 under
section 16 (1), to recover damages in respect of the expenses to which he had been put by her
illness and death. The court of appeal upheld the decision of the learned trial judge that there
was an implied condition and dismissed the appeal. There was an implied condition that the
milk was reasonably fit for consumption. The purpose for which the milk was supplied was
sufficiently made known to the sellers by its description. The milk here was to be used and
supplied in the ordinary way which is for consumption. The printed notice indicates the
seller’s assurance that the milk was reasonably fit for consumption which has made the buyer
to rely on the seller’s skill. The defect was not discoverable at the time of the sale and only
discovered through a prolonged investigation. 
Section 16(1)(b) also provides that there exists protection for a buyer in that the seller
must ensure that the goods transacted must be of a ‘merchantable quality’ if it is sold on the
basis of a description and that the seller must have actually dealt with the goods. This
exception does not apply when the buyer has already inspected the goods reasonably. This
was illustrated in the case of Khong Seng v Ng Teong Kiat Biscuit Factory Ltd. From the
evidence given, the purpose for which the tallow was required was made known to the
plaintiff and he admitted that it was known to him. The defendant could not determine
whether the tallow supplied was suitable just by examining the tins except by looking at the
results of the biscuits. Defendant also felt that he could trust the plaintiff’s skill and judgment
as to the right type of tallow for the manufacture of biscuits because the plaintiff has supplied
tallow to the defendant four or five times previously. 
In furtherance of discussing what is ‘merchantable quality’, Section 17(2)(c) of the
Act states that when a sale is by sample, there exists an implied condition that the goods must
be free from any defects as to render them ‘unmerchantable’. Hence, there needs to be a
further explanation with regards to the term ‘merchantable quality’ and thus will be further
discussed below. Under SOGA 1957, there are no definite definition of merchantable quality.
Thus, combination such as description, purpose, condition, and price will be taken into
consideration when considering whether the goods are merchantable or otherwise. A good
case that provides a description of merchantable quality is Henry Kendall & Sons v William
Lillico and Sons Ltd. In this case, it was said that merchantable quality simply means
commercially saleable. Therefore, not merchantable means goods that are of no use for any
purpose for which they are bought. If goods can be used for several purposes, then they are
merchantable if they are suitable for any of those.
 In a nutshell, interpretation of a merchantable quality can be seen in many different
perspectives. Although the act does not define the term merchantable quality, supplied or
seller must reasonably provide merchantable quality goods.