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Benjamin's Sale of Goods 11th Ed.

Mainwork
Part 4 - Defective Goods
Chapter 11 - Terms as to Description and Quality Implied by the Sale of Goods
Act
Section 1. - Correspondence with Description

Sale of Goods Act 1979 s.13(1)

11-001
The Sale of Goods Act ss.13, 14 and 15 lay down implied terms as to the description and quality of
goods supplied under a contract of sale. 1 Originally, they were all in principle excludable by
appropriate provisions, 2 but the power so to exclude them is now considerably limited by statute. 3
The first implied term concerns the conformity of the goods with description. Section 13(1) of the Act 4
reads:

“Where there is a contract for the sale of goods by description, there is an implied term
that the goods will correspond with the description.” 5

Section 13(1A) 6 makes the term implied by this subsection a condition, as regards England and
Wales and Northern Ireland. 7 It should be noted that the subsection applies to all sales and is not
restricted to sales in the course of a business. The case law mixes commercial and consumer
transactions with the former heavily predominating. It does not seem that any particular conclusions
can be drawn from differentiating between the two types of case, though the strictest applications of
the provision are usually to be found in commercial cases.
Historical background of this provision

11-002
Conceptually this is one of the most troublesome provisions of the Act. 8 As is explained later, the
phrase “sale by description” has been interpreted to cover almost all sales. 9 Section 13(1) seems
therefore to do no more than state, for the vast majority of sales, as an implied term something central
to the whole contract, the duty to deliver the contract goods. This is really an express term, or the
spelling out of an express term, 10 and to call it an implied term is an inappropriate diminution of its
status which can cause difficulty, for example where a clause provides for exclusion of implied terms.
It has therefore been suggested that:

“… those responsible for the statute … merely meant to say that the description is not a
mere term or a mere warranty but is a condition of the contract by implication of law.” 11

11-003
It seems, however, that the object of the draftsman of the 1893 Act was not simply to state a duty to
deliver the contract goods. The cases from which he sought to derive this rule were cases making an
antithesis between sales of specific goods and sales by description. 12 In the case of specific goods
the rules as eventually settled were adverse to the buyer: there was no implied term as to quality, 13
and further, when property had passed—which would in the absence of a contrary intention be on the
making of the contract—there was no right to reject even for breach of an express term as to quality,
but only a right to damages. 14 By contrast, where the sale was by description the rules were more
favourable to the buyer: the seller was regarded as promising that the goods supplied conformed with
their description, 15 and also that they were merchantable 16 (though these two requirements, which
now appear in the Act, 17 were sometimes run together 18). Further, in such cases the buyer might
be entitled to reject defective goods even though property had passed, unless they had been
accepted. 19 It was the first of these rules for sales by description that the draftsman sought to
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express here. But in fact, the antithesis between the two types of sale has been largely forgotten, and
the notion of sale by description extended—at least in part in order to increase the scope of the
former provision as to merchantable quality. 20 The result has been that s.13(1) is now taken as a
proposition of almost general application. It has even been suggested that, inasmuch as it simply
states the duty central to most sales, it is superfluous. 21
Situations covered by s.13(1)

11-004
Taken as it stands, however, without reference to the confused evolution of doctrine which produced
it, s.13(1) has been interpreted to cover two types of breach which on their face appear to be of
different magnitude. The first is failure to secure exact conformity to the full contractual description of
the goods where there is one. An example of this would be the supply of goods which are in
substance the goods stipulated for but which are not packaged in accordance with the contractual
requirements. 22 The second type of breach is total failure to perform the contract, e.g. supplying a
second-hand car instead of the new one ordered, 23 where the duty broken, that to supply the
contract goods, is so fundamental as hardly to need stating at all and may seem of a quite different
order from the earlier duty. The putting of the two together is, however, analytically correct, for the
reason why there can be rejection in the first case is that it is assimilated to the second. A buyer can
refuse to receive something which is not what he promised to buy. The description of goods may be
strictly interpreted with the result that a slight discrepancy may be treated as making the goods not
what was stipulated for. Where goods are not what was stipulated for, they can be rejected. 24
Exemption clauses

11-005
In connection with the common law rules regarding exemption clauses more serious difficulties arise,
the solutions to which are still not generally agreed. The problem is that whereas it is not difficult
(though the courts have frequently been reluctant 25) to interpret exemption clauses in a contract of
sale so as to cut down the duty of absolute compliance, the first aspect of s.13(1) referred to above,
there is an understandable unwillingness to allow such a clause to cut down the second duty, that of
performing the main contractual obligation, unless of course the whole contract is cast in terms only
entitling the buyer to something within an extremely vague category. The matter is primarily
considered elsewhere, and it is now clear that it has lost much of its importance since the enactment
of the Unfair Contract Terms Act 1977, which deals more directly with the problem. 26 It has,
however, been suggested that the influence of the exemption clause cases, in establishing minimal
descriptions, liability for non-compliance with which cannot be excluded, has led to cases suggesting
an inappropriate reduction of the duty as to conformity with description in general. 27
“Sale of goods by description”

11-006
The 19th-century cases were vague as to the exact meaning of the term “sale by description”, though
some at least gave the phrase a wide operation, probably with the unexpressed desire of avoiding the
strict rules applicable to sales of specific goods. 28 Although there are indications of a tightening up
towards the end of the century, 29 the cases after the Sale of Goods Act 1893 certainly took a wide
view: thus in the fifth edition of Benjamin’s, Sale of Personal Property (1906) it was suggested 30 that:

“… a less rigid interpretation may perhaps be put upon the term ‘description’ as
applicable to specific goods under the Code than would have been placed on it at
common law.”

No doubt this tendency was influenced by two factors. First, when the sale was not by description, a
descriptive statement, if held to be contractual at all, might well be found to be a warranty and so
merely sound in damages. Secondly, prior to 1973 the condition as to merchantable quality (the
general quality requirement applicable till 1995 31) only applied when goods were bought by
description. 32 Indeed, the majority of cases on the notion of “sale by description” actually relate to
the applicability of s.14(2), the merchantable quality provision. 33
The modern law 34
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11-007
In Joseph Travers & Son Ltd v Longel Ltd, 35 Sellers J. accepted the following passage from
Benjamin’s, Sale of Personal Property 36:

“Sales by description may … be divided into sales (1) of unascertained or future goods,
as being of a certain kind or class, or to which otherwise a ‘description’ in the contract is
applied; (2) of specific goods, bought by the buyer in reliance, at least in part, upon the
description given, or to be tacitly inferred from the circumstances, and which identifies the
goods.”

11-008
It is clear, first, that all contracts for the sale of unascertained goods are sales by description. 37 Most
sales of future goods will likewise be sales by description, albeit not normally the sale of a specific
article seen and requested by the buyer, which is owned by a third party and would require to be
obtained by the seller. 38 But the term is not restricted to unascertained and future goods and has
been extended (probably contrary to the intentions of the draftsman) to sales of specific goods 39
which have not been seen at the time of contract: it has been said that the term “must apply to all
cases where the purchaser has not seen the goods, but is relying on the description alone”. 40 Thus
in Varley v Whipp, 41 it was held that there was a sale by description where the seller met the buyer
at Huddersfield and sold him something described as a “second-hand self-binder reaping machine”,
which was at that time at another place. The term has however been extended even further:

“… it may also be pointed out that there is a sale by description even though the buyer is
buying something displayed before him on the counter: a thing is sold by description,
though it is specific, so long as it is sold not merely as the specific thing but as a thing
corresponding to a description, e.g. woollen undergarments, a hot-water bottle, a
second-hand reaping machine, to select a few obvious illustrations.” 42

Reliance

11-009
It will be noted that both in Varley v Whipp 43 and the passage of Sellers J. quoted above 44 there is
reference to reliance by the buyer. A sale is not by description merely because descriptive words are
used during the negotiations: for it to be by description in respect of any of these words, the buyer
must rely on them in making the contract, in such a way as to indicate that the parties intended the
descriptive words to be a term of the contract. 45 This notion of reliance is reflective of the idea that in
order for a statement or promise to be contractual, it must be such that the other party on entering
into the contract was relying on its being made good, 46 and bears similarities to the reliance on the
seller’s skill and judgment that the goods are fit for purpose under s.14(3). 47
Sale of Goods Act 1979 s.13(3): goods selected by buyer

11-010
Although the original Act was not specific on the point, it was long thought that a sale might rank as
being by description though the buyer had examined or tried the goods, 48 or himself selected them
from stock without anything being said. 49 Thus it was possible that even a sale of goods in a
self-service shop was a sale by description, provided the goods were described in some way on the
shelf, outside packing or by a notice or label. 50 This was, however, put beyond all doubt by the Sale
of Goods Act s.13(3), which was inserted by the Supply of Goods (Implied Terms) Act 1973 and
provides:

“A sale of goods is not prevented from being a sale by description by reason only that,
being exposed for sale or hire, they are selected by the buyer.”

Disputes could still occur as to whether the sale of an easily identifiable but undescribed article (e.g. a
melon out of a pile in a greengrocer’s shop, in relation to which there is nothing but a notice stating
the price) is a sale by description, but in view of the fact that the condition as to merchantable (now
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“satisfactory”) quality is no longer confined to sales by description, it is difficult to see that there would
be much practical significance in the question.
Sale not by description

11-011
It is clear therefore that sales other than by description are comparatively rare. The passage from
Benjamin quoted above continues:

“It follows that the only sales not by description are sales of specific goods as such.
Specific goods may be sold as such when they are sold without any description, express
or implied; or where any statement made about them is not essential to their identity; or
where, though the goods are described, the description is not relied upon, 51 as where
the buyer buys the goods such as they are.” 52

In one case a sale (by the receiver of a motorcycle distributor’s business) of “the stock situated at the
premises 74–78 Wentworth Avenue, Sydney” was held not to be a sale by description. 53 And sales
of works of art may also be held not to be by description where the seller does not guarantee the
attribution of the work. In Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd, for
example, a sale of a picture between dealers was held not to be by description where it was clear that
the buyer relied on his own judgment and that the seller disclaimed knowledge as to the supposed
artist, despite the fact that there were attributions in early negotiations, in an old auction catalogue to
which reference had been made, and in an invoice issued after the sale. 54 Similarly, in Drake v
Thomas Agnew & Sons Ltd, 55 it was held that an art dealer’s attribution of a painting to van Dyck
was an expression of opinion that did not turn the sale into one by description. According to Buckley
J., the statutory implied term as to description does not come into effect merely because “some
descriptive words were used or written”, but only “if the proper conclusion from all the evidence is that
the parties intended the description to be a term of the contract”. 56
What is a “description”? words of description and misrepresentations

11-012
Even where the sale is by description, however, not all descriptive words will necessarily constitute
conditions. Such words may, in principle, fall into any of the categories outlined in the previous
chapter. It is perhaps unlikely that words which are genuinely descriptive, as opposed to qualitative,
will often be treated as mere puffs or the like, so as to ground no liability at all. 57 But it is clear in
principle that statements descriptive of goods may amount only to pre-contractual misrepresentations
inducing the contract, or as non-promissory conditions precedent. 58 Thus in Harrison v Knowles and
Foster, 59 statements as to the deadweight capacity of two ships were held mere representations, as
were statements made by a private seller to a dealer concerning the age of a car in Oscar Chess Ltd
v Williams. 60
Words of description and warranties

11-013
When words of description are held to be incorporated into the contract, it may be asked whether they
can be held to be warranties, i.e. terms the breach of which may give rise to no more than the right to
damages, 61 or whether they are always by virtue of such incorporation part of the description so as
to bring the right to reject for breach of condition into operation. Here again the possibility of a
warranty as to description was accepted in older cases on the Sale of Goods Act. In Harrison v
Knowles and Foster, already referred to, 62 Bailhache J. at first instance 63 suggested a rule that:

“… where the subject matter of a contract of sale is a specific existing chattel a statement
as to some quality possessed by or attaching to such chattel is a warranty, and not a
condition, unless the absence of such quality or the possession of it to a smaller extent
makes the thing sold different in kind from the thing as described in the contract.”

On this basis, he held that a statement as to the deadweight capacity of two ships was a warranty
only and so covered by an exemption clause. But one of the cases cited 64 is prior to the 1893 Act,
and the second, of 1900, actually seems to be contrary 65: the analysis can also be criticised as
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unsound historically. 66 The Court of Appeal 67 indicated that if it had not affirmed the decision on
other grounds, it would have heard further argument on this point. It seems therefore that a more
recent dictum gives a better guide:

“… as a matter of law … every item in a description which constitutes a substantial

ingredient in the ‘identity’ of the thing sold is a condition.” 68

On this basis, statements truly relating to contractual description will rarely be warranties, though
again the possibility remains open. 69 There may, however, clearly be warranties as to quality 70;
and problems of the time at which a statement was made or the fact that the contract was reduced to
writing 71 may sometimes make it appropriate to regard descriptive statements as collateral
warranties. 72
Identification

11-014
The way in which descriptive words are to be understood is a matter of interpretation of contract and
subject to the normal objective principles governing that topic. 73 The following dictum of Lord Diplock
relates to sales of unascertained goods only, but seems relevant to all sales where this problem
arises:

“The ‘description’ by which unascertained goods are sold is, in my view, confined to those
words in the contract which were intended by the parties to identify the kind of goods
which were to be supplied … Ultimately the test is whether the buyer could fairly and
reasonably refuse to accept the physical goods proffered to him on the ground that their
failure to correspond with that part of what was said about them in the contract makes
them goods of a different kind from those he had agreed to buy. The key to s.13 is
identification.” 74

Descriptive words may identify the goods with varying degrees of preciseness. Thus in Reardon
Smith Line Ltd v Yngvar Hansen-Tangen (The Diana Prosperity), 75 there was a charter and
sub-charter of a ship not yet built, which was described in the sub-charter as “Japanese flag …
New-building motor tank vessel called Yard No. 354 at Osaka Zosen … described as per clause 24
hereof”. The vessel built had been subcontracted to an associated yard, Oshima, in whose books it
was No.004. The House of Lords held on the facts that the sub-charterers must take the vessel, Lord
Wilberforce drawing a distinction between words which identify in that “their purpose is to state
(identify) an essential part of the description of the goods”, and words which merely “provide one
party with a specific indication (identification) of the goods so that he can find them and if he wishes
sub-dispose of them”. 76 Words identifying the goods in the second sense can be more liberally
construed, so that not every element in them need be given contractual force. Although this case was
not one of sale of goods (and indeed Lord Wilberforce expressly doubted the applicability of at least
certain types of sale of goods cases to contracts such as that under dispute 77) it would seem that
this distinction too is general. 78
Form of contract

11-015
The form of any written contract is relevant, but not conclusive, to the establishment of the identity of
the contract goods. Thus where a clause referred to the contract goods as “Goods in bulk U.S.A.
solvent extracted toasted soya bean meal—maximum 7.5 per cent fibre” and was followed by clauses
headed “Quantity” and “Quality”, it was held that “7.5 per cent fibre” was part of the description. 79
And in one case the fact that words appeared outside a formal specification was held relevant to
establish that they did not form part of the description. 80 But in another case an indication that goods
must be of “fair average quality” was held not part of the description of goods sold despite the fact
that it appeared in a clause headed “Quantity and Description”. 81
Statements relating to quality

11-016
In principle, identity and quality are separate notions, and statements as to quality are not to be
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regarded as part of the description of goods. Although the same set of facts can give rise to breaches
both of s.13 and of the provisions as to quality contained in the Sale of Goods Act 1979 s.14, 82 the
two sections are to some extent mutually exclusive. Thus, stipulations may be said not to form part of
the description of goods because they relate to quality 83; and conversely may be said, especially in
the context of an exemption or non-rejection clause as to defects in quality, 84 to relate not to quality
but rather to description. In Arcos Ltd v E E Ronaasen & Son, discussed below, 85 it was held that
goods did not correspond with their description though they were of merchantable quality and entirely
fit for the purpose intended. But the line between the two is not easily drawn: where a defect is as to
composition or analysis it will frequently be regarded as relevant to the description of the goods, and it
is possible for goods to be of such poor quality that they cannot come within the contractual
description at all. 86 And it is certainly possible for words relating to quality to form part of the
description of goods. 87 Thus in Toepfer v Continental Grain Co 88 the Court of Appeal upheld the
decision of commercial arbitrators that in a contract for “Hard Amber Durum Wheat” the word “hard”
related to quality (for the purpose of the finality of a certificate as to quality) but had no doubt that it
could also be a word of description. 89 In the circumstances the certification was final for these
purposes also. 90 And in Toepfer v Warinco AG, 91 it was held that in a sale of soya bean meal the
word “fine-ground” was a word of description, with the result that coarse-ground meal could be
rejected.
Indications of purpose

11-017
Again, a stipulation that goods are suitable for a specific purpose will usually be held not to be part of
the description, for otherwise there would be no need for the Sale of Goods Act s.14(3). 92 But the
general purpose for which goods are to be used may sometimes be an element in their description;
thus it has been suggested that goods described as oysters, but which were not fit for human
consumption, might not conform with their description, 93 and it is submitted that goods described by
such terms as “baby food”, “cough mixture” or “cold cure” would not conform with description if they
proved wholly unsuitable to the purposes indicated by those words. 94
Failure of goods to “correspond with description”: first type of case

11-018
As previously stated, 95 goods have been held not to correspond with their description in two types of
case. The first type comprises cases where although the goods are substantially what is required,
there is some small discrepancy from the contract particulars. Most of the decisions involve
commercial disputes relating to unascertained or future goods, and the discrepancy may appear quite
minor in such cases. Thus, in Arcos Ltd v E A Ronaasen & Son 96 there was a contract for staves of
half an inch thickness. A mere 5 per cent of the staves that were delivered conformed with this
requirement, with the rest being thicker, but only about 15 per cent were more than nine-sixteenths of
an inch thick, and none were more than five-eighths of an inch thick. Despite a finding that the goods
were commercially within, and merchantable under, the contract specification, and that they were
reasonably fit for their purpose (which was the making of cement barrels), the buyers were held
entitled to reject. Lord Atkin emphasised that the implied term as to correspondence with description
was additional to the fitness for purpose requirement, and, as regards compliance with the former,
said that “if the seller wants a margin he must, and in my experience does, stipulate for it”. 97 The
packing of goods may also form part of their description. Thus, in Re Moore & Co and Landauer & Co
98 there was a contract for 3,000 tins of Australian canned fruit packed in cases of 30 tins. The seller
supplied a substantial number in cases containing only 24 tins, though the total number of tins was
correct. It was held that the buyer could reject the whole consignment. Overseas sales where there
are special stipulations as to mode and date of shipment, etc. can be treated under this head also, on
the grounds that the extra requirements are part of the description. 99 An exception to the strict
requirement of correspondence with description is made only in cases of “microscopic deviation”. 100
In Reardon Smith Line Ltd v Yngvar Hansen-Tangen, 101 Lord Wilberforce thought some of the older
cases “excessively technical and due for fresh examination in [the House of Lords]”, and at best was
prepared to accept them as relating to “unascertained future goods (e.g. commodities) as to which
each detail of the description must be assumed to be vital”. 102 The famous decision in Bowes v
Shand, 103 that goods can be rejected because shipment was not completed within the specified
period, has however been reaffirmed by the House of Lords in the leading case of Bunge Corp v
Tradax Export SA 104 and is still clearly valid. 105 It should be noted that remedies for defects in
quantity are more specific and separately dealt with in s.30 of the Act. They do not normally,
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therefore, involve the application of s.13 unless only damages are claimed. 106
Second type of case

11-019
The second type comprises cases where in the absence of detailed commercial description the goods
supplied are to be regarded as not being the goods ordered in a much more general sense. Here the
cases have stressed, and hence required, a more considerable discrepancy; though it should be
noted that their context is often that of holding an exemption clause inapplicable where the goods
supplied are of a different kind. 107 Thus a contract for common English sainfoin seed was not
performed by delivery of giant sainfoin 108; a contract for a new Singer car was not satisfied by
delivery of a second-hand model 109; a contract for a second-hand reaping machine new the
previous year, and only used to cut 50 acres, was not performed by delivery of a very old one which
had been mended. 110 Consumer cases have in the past been more likely to figure in this group than
in the first. Thus it has been held that a contract for a “Herald, convertible, white, 1961, twin carbs.”
was not performed by delivery of a vehicle consisting of parts of two cars (one of which had been
manufactured earlier than 1961), welded together. 111 In a New Zealand case, it was held that a
contract to sell a pure bred polled Angus bull could be treated as discharged for breach when the bull
(which had been inspected and bought at an auction) proved to be “a bull in name only and useful as
such for no purpose, though its carcase may be of value”. 112
Variations of composition

11-020
As regards substances which contain admixtures of other substances, lack ingredients, or have
undergone deterioration, the question is normally whether the admixture, lack or deterioration is
sufficiently significant to make the basic substance lose its identity from a commercial point of view.
113 Goods may be subject to a defect which is commercially significant in the sense that it reduces
their value in the market without suffering a change of description. 114 Often the test employed is
quantitative. 115 But where the admixture makes the resultant substance toxic, quite a small amount
of foreign matter may prevent the goods from conforming with description. Toxicity is nevertheless to
some extent a relative notion, for substances may be poisonous to certain creatures and not to
others, or in certain quantities and not in others. The extent to which a product should be regarded as
toxic may therefore depend on the description under which it is sold, its normal use and so forth. In
Ashington Piggeries Ltd v Christopher Hill Ltd, 116 herring meal was by a majority held to comply with
its description as such though it had become contaminated by a chemical reaction caused by a
preservative added to it, in such a way as to make it toxic to mink and in some degree to all animals.
Had it been instantly poisonous to all creatures the result would surely have been otherwise. It can
however be argued that some of these cases, because of their context, have set too limited a
standard for compliance with description. 117
Trade custom

11-021
Proof of trade custom and normal commercial understanding is admitted to explain or qualify the
meaning of descriptions. Thus, in Grenfell v E B Meyrowitz Ltd 118 an aviator who purchased in 1932
flying goggles described in a catalogue as fitted with “safety-glass lenses” was held unable to recover
for breach of s.13 where his eye was injured by a splinter from one of the goggles in a flying accident,
because the goggles were made from laminated glass and therefore complied with the meaning of
the term “safety-glass” as understood at the time. And in Steels & Busks Ltd v Bleecker Bik & Co Ltd,
119 the commercial or market standard as to the meaning of “pale crepe rubber; quality as previously
delivered” was applied, the court accepting the finding of the arbitrator that the kind of chemical used
in its preservation was not relevant to the contract description. This principle also applies to trade
usage as to numbers and quantities: for example, evidence could be adduced as to the meaning of a
“baker’s dozen”. Thus, in one case evidence of usage as to permissible excess dimensions of sawn
timber was accepted. 120
Sale of Goods Act 1979 s.13(2): sale by sample as well as by description

11-022
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This reads:

“If the sale is by sample as well as by description it is not sufficient that the bulk of the
goods corresponds with the sample if the goods do not also correspond with the
description.” 121

This provision raises problems as to the extent to which the sample itself provides elements of the
description. They are discussed in connection with sales by sample. 122 There may also be cases
where the sample is given under circumstances which make it the only description of the thing to be
supplied: in such cases of course the buyer stipulates for no more than goods of the same description
as the sample. 123 And even where descriptive words are used they may form no more than a label
for convenience of reference to the subject matter. 124
Related contracts

11-023
Provisions similar to s.13 are implied into other contracts for the transfer of property in goods 125
(e.g. contracts of exchange and for work and materials 126); hire-purchase agreements 127; and
contracts of hire. 128

1. Sale of Goods Act ss.13–15 no longer apply to consumer sales: Consumer Rights Act 2015
Sch.1 paras 12–14. The relevant provisions now are ss.9–11 of the 2015 Act. Sections 9–11
re-enact ss.13–15 in very similar terms, but without making mention of conditions. The
treatment in s.11(4) of the 2015 Act of information concerning the main characteristics of the
goods as a contractual term does not amount to treating such information as a matter of
description, but nothing of practical import seems to turn upon this point.
2. See 1893 Act s.55.
3. See below, Ch.13.
4. This subsection, along with the remainder of s.13, no longer applies to consumer sales:
Consumer Rights Act 2015 Sch.1 para.12. The relevant provision now is s.11 of the 2015 Act.
See below, para.14-075.
5. See also below, paras 18-313 et seq., 20-042 as to international sales. cf. Vienna Convention
(CISG) (above, para.1-024) Art.35(1).
6. The designation of the term as a condition was originally contained in s.13(1) itself. The present
formulation, with the use there of “term” and the addition of s.13(1A), dates from the Sale and
Supply of Goods Act 1994 (s.7 and Sch.2) and was adopted to effect the abolition of the term
“condition” in the English law sense for Scots law.
7. In general, breach of a condition entitles rejection: see above, paras 10-024 et seq., below,
paras 12-022 et seq. In non-consumer cases, a slight breach may, however, not do so (see
s.15A of the Act, below, paras 12-024 et seq., 18-332).
8. See a valuable discussion in McKendrick, Goode on Commercial Law, 5th edn, pp.316 et seq.
9. Below, para.11-008.
10. See Williston, Sales, rev. edn (1948), para.223.
11. Andrews Bros Ltd v Singer & Co Ltd [1934] 1 K.B. 17 at 25 per Greer L.J.
12. For an account of the evolution of the rules in this area, see Stoljar, (1952) 15 M.L.R. 425;
(1953) 16 M.L.R. 174. The starting points for further investigations are the 1st edn of Chalmers,
Sale of Goods (1890), a commentary on the Sale of Goods Bill as it stood at the time, which
contains remarkable differences from the Act as eventually adopted, and the 2nd edn (1894), a
commentary on the Act as passed; Benjamin, Sale of Personal Property, 2nd edn (1873), the
last edited by Benjamin himself, and the 5th edn (1906), the first after the Act; also, Blackburn
on Sale, 3rd edn (1885). As to specific goods see above, paras 1-113 et seq.
13. Barr v Gibson (1838) 3 M. & W. 390 (wrecked ship still a ship).
14. Street v Blay (1831) 2 B. & Ad. 456; Mondel v Steel (1841) 8 M. & W. 858. Unless the goods
 Page 9

were totally worthless: Poulton v Lattimore (1829) 9 B. & C. 259.

15. See Chanter v Hopkins (1838) 4 M. & W. 399; Randall v Newson (1877) 2 Q.B.D. 102.
16. Jones v Just (1868) L.R. 3 Q.B. 197; citing Laing v Fidgeon (1815) 4 Camp. 169.
17. 1893 Act ss.13(1), 14(2): though the term “merchantable” has been replaced by “satisfactory”;
below, para.11-026.
18. By the idea of merchantability under the same description. See, e.g. Wieler v Schilizzi (1856) 17
C.B. 619; Randall v Newson (1877) 2 Q.B.D. 102; Mody v Gregson (1868) L.R. 4 Ex. 49; Jones
v Just (1868) L.R. 3 Q.B. 197; Drummond v Van Ingen (1887) 12 App.Cas. 284 at 291. For a
modern example of this reasoning see Speedway Safety Products Pty Ltd v Hazell & Moore
Industries Pty Ltd [1982] 1 N.S.W.L.R. 255 at 262.
19. See Heilbutt v Hickson (1872) L.R. 7 C.P. 438 at 451: as opposed to specific goods, below,
para.12-040. Chalmers, 2nd edn, p.27, quotes from the Digest, 18.1.14, Si aes pro auro veneat,
non valet. The quotation is misleading, as it refers to a contract void for error. The citations of
this and other passages by Blackburn J. in Kennedy v Panama etc Mail Co Ltd (1867) L.R. 2
Q.B. 580 at 587–588 are also inappropriate, at least by modern standards.
20. Now “satisfactory quality”. See below, paras 11-026, 11-031.
21. Coote, Exception Clauses (1964), p.51; Melville, (1956) 19 M.L.R. 26, 29; and see McKendrick,
Goode on Commercial Law, 5th edn, pp.307-308, 317, 324-325.
22. e.g. Re Moore & Co and Landauer & Co [1921] 2 K.B. 519; below, para.11-018.
23. e.g. Andrews Bros (Bournemouth) Ltd v Singer & Co Ltd [1934] 1 K.B. 17; below, para.13-025.
24. See the cases on which the section is founded: Nichol v Godts (1854) 10 Exch. 191 (“foreign
refined rape oil, warranted only equal to samples”—samples and goods delivered both
contained hemp oil—held oil supplied did not answer description of goods sold); Josling v
Kingsford (1863) 13 C.B.(N.S.) 447 (“oxalic acid”—contained 10 per cent sulphate of
magnesium); Azémar v Casella (1867) L.R. 2 C.P. 677 (“long stable Salem cotton”—Western
Madras cotton tendered); Mody v Gregson (1868) L.R. 4 Ex. 49 (grey shirtings, each piece to
weigh 7lb.—shirting contained china clay); Borrowman v Drayton (1876) 2 Ex.D. 15 (sale of
cargo: seller put other goods on board as well—buyer entitled to refuse delivery); Wieler v
Schilizzi (1856) 17 C.B. 619 (“Calcutta linseed tale quale”—not Calcutta linseed at all).
25. e.g. Montague L Meyer Ltd v Kivisto (1929) 35 Ll. L. Rep. 265 (timber); below, para.11-015.
26. As to the common law rules, see below, paras 13-052, 13-053; as to the Unfair Contract Terms
Act 1977 see below, paras 13-063 et seq., esp. para.13-068.
27. See Coote, (1976) 50 A.L.J. 17; criticising Ashington Piggeries Ltd v Christopher Hill Ltd [1972]
A.C. 441; below, para.11-055, on this account.
28. Above, para.11-003; and see Jones v Just (1868) L.R. 3 Q.B. 197.
29. See Heyworth v Hutchinson (1867) L.R. 2 Q.B. 447; criticised by Benjamin, Sale of Personal
Property, 2nd edn (1873), pp.742–746; Kennedy v Panama etc Mail Co Ltd (1867) L.R. 2 Q.B.
580 at 587–588.
30. Benjamin’s, Sale of Personal Property (1906), p.611; discussing Varley v Whipp [1900] 1 Q.B.
513, dicta from which are cited below, para.11-008.
31. See below, para.11-031: the requirement now is one of “satisfactory quality”.
32. See Sale of Goods Act 1893 s.14(2), as it originally stood: below, para.11-025.
33. See, e.g. Grant v Australian Knitting Mills Ltd [1936] A.C. 85; Godley v Perry [1960] 1 W.L.R. 9.
A more recent example is Lockhart v Osman [1981] V.R. 57, where a sale by auction was held
to be by description because of the advertisement of the auction as a “cattle breeders’ sale”.
34. See Feltham, [1969] J.B.L. 16.
35. Joseph Travers & Son Ltd v Longel Ltd (1948) 64 T.L.R. 150. A general discussion appears in
Speedway Safety Products Pty Ltd v Hazell & Moore Industries Pty Ltd [1982] 1 N.S.W.L.R.
255. It is again however in the context of the provision as to merchantable quality, the first
version of the wording of s.14(2) being then operative in New South Wales.
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36. Benjamin’s, Sale of Personal Property, 7th edn, p.641, inaccurately reproduced in the 8th edn,
p.615.
37. Kidman v Fisken Bunning & Co [1907] S.A.L.R. 101 at 107. See, e.g. Wallis, Son and Wells v
Pratt and Haynes [1911] A.C. 394 (seeds). As to unascertained goods, see above, paras 1-117
et seq. But in some cases, the description may be provided by a sample; below, paras 11-022,
11-074.
38. As to future goods, see above, paras 1-102, 1-103.
39. As to specific goods, see above, paras 1-113 et seq.
40. Varley v Whipp [1900] 1 Q.B. 513 at 516. See also Boys v Rice (1908) 27 N.Z.L.R. 1038 at
1048.
41. Varley v Whipp [1900] 1 Q.B. 513.
42. Grant v Australian Knitting Mills Ltd [1936] A.C. 85 at 100, per Lord Wright; see also Taylor v
Combined Buyers Ltd [1924] N.Z.L.R. 626 at 633 et seq.; Morelli v Fitch and Gibbons [1928] 2
K.B. 636; Australian Knitting Mills Ltd v Grant (1933) 50 C.L.R. 387 at 417–418; David Jones
Ltd v Willis (1934) 52 C.L.R. 110 at 118; Godley v Perry [1960] 1 W.L.R. 9 at 14; despite doubts
expressed in Wren v Holt [1903] 1 K.B. 610; and Wallis v Russell [1902] 2 I.R. 585 at 631.
These cases, and most of those in the following footnotes, are actually cases on s.14(2), below,
paras 11-026 et seq., which imposes a condition as to (what was until recently called)
merchantable quality, and prior to 1973 was restricted to cases of goods “ bought by
description”. It is however submitted that there is no difference between the meaning of that
phrase and the meaning of “contract for the sale of goods by description” in s.13: see Grant v
Australian Knitting Mills Ltd [1936] A.C. 85 at 100; Godley v Perry [1960] 1 W.L.R. 9 at 14;
Morelli v Fitch and Gibbons [1928] 2 K.B. 636 at 641. Dicta from Varley v Whipp [1900] 1 Q.B.
513, a case on s.13, are cited in Thornett and Fehr v Beers & Son [1919] 1 K.B. 486, a case on
s.14(2).
43. Above, para.11-008.
44. Above, para.11-007.
45. Drake v Thomas Agnew & Sons Ltd [2002] EWHC 294 (QB) at [28]; see below, para.11-011.
46. Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1991] 1 Q.B. 564:
below, para.11-011.
47. See below, paras 11-054 et seq.
48. Beale v Taylor [1967] 1 W.L.R. 1193 (car); David Jones Ltd v Willis (1934) 52 C.L.R. 110
(shoes); Thornett and Fehr v Beers & Son [1919] 1 K.B. 486 at 488–489 (vegetable glue).
49. H Beecham & Co Pty Ltd v Francis Howard & Co Pty Ltd [1921] V.L.R. 428 (selected timber
proved to be affected by dry rot).
50. See the dicta quoted above, para.11-007.
51. See Taylor v Bullen (1850) 5 Exch. 779 (“the fine teak-built barque ‘Intrepid,’ A1”: held no
breach of warranty when barque proved neither teak-built nor A1, because sale based on
inventory); Joseph Travers & Sons Ltd v Longel Ltd (1948) 64 T.L.R. 150 (war surplus boots
referred to as “waders” for convenience); Leggett v Taylor (1965) 50 D.L.R. (2d) 516 (car: “not a
sale by description but one by inspection”); Marks v Hunt Bros (Sydney) Pty Ltd [1958] S.R.
(N.S.W.) 380 (notice on car windscreen not part of description where contract written); cf. Beale
v Taylor [1967] 1 W.L.R. 1193 (advertisement constituted description though car examined, but
see Koh [1968] C.L.J. 11); M’Ivor v Michie 1953 S.L.T. (Sh. Ct.) 53 (statement as to horsepower
part of description when car inspected in dark with torch).
52. Williston, Sales, rev. edn (1948), para.224, suggested that the term sales by description should
“be confined to cases where the identification of the goods which are the subject-matter of the
bargain depends upon the description”, but thought that “it seems not improbable … that the
English courts may extend the definition of sale by description to every case where the buyer
relies on descriptive words”. The English interpretation went far, however, to counteract the
narrow view taken in the earlier cases of when a statement was a warranty: see above, para.
10-016. Conversely, liberal views in that respect could now enable a stricter view to be taken of
s.13.
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53. Speedway Safety Products Pty Ltd v Hazell & Moore Industries Pty Ltd [1982] 1 N.S.W.L.R.
255. The result was that the merchantable quality provision did not apply. See also Prosser v
Hooper (1817) 1 Moo.C.P. 106. In Hughes v Hall [1981] R.T.R. 430 a Divisional Court held, in
the context of a now repealed provision making criminal the use of certain clauses which are
void under the Unfair Contract Terms Act 1977, that a clause in the sale of a car, “sold as seen
and inspected”, would prima facie negative a sale by description; and (though this is more
questionable) constituted an attempt to exclude s.13. But another Divisional Court in
Cavendish-Woodhouse Ltd v Manley (1982) 82 L.G.R. 376, dealing with a sale of furniture
“bought as seen”, found this a “puzzling decision” and held that the latter words simply indicated
that the buyer had seen the goods, which might be relevant if a dispute arose as to their
condition at the time of sale. See also below, para.13-068.
54. Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1991] 1 Q.B. 564.
Evidence was given that art dealers do not rely on descriptions by sellers. See Brown, (1990)
106 L.Q.R. 561; Bridge, [1990] L.M.C.L.Q. 455.
55. Drake v Thomas Agnew & Sons Ltd [2002] EWHC 294 (QB). cf. Hearn v McLeod Estate [2019]
ONCA 682 (painting falsely attributed to indigenous artist and accompanied by false
provenance statement: sale by description). For similar issues arising in sales of rare cars, see
the discussion in Brewer v Mann [2012] EWCA Civ 246; [2012] R.T.R. 28 (description of a
vintage car); Walker v Sell [2016] FCA 1259; 245 F.C.R. 308 (model of collectable car not part
of description where buyer inspected vehicle and did not rely on seller’s statements).
56. Drake v Thomas Agnew & Sons Ltd [2002] EWHC 294 (QB) at [26].
57. Above, paras 10-005, 10-006. But cf. Budd v Fairmaner (1831) 8 Bing. 48; Anthony v Halstead
(1877) 37 L.T. 433; Marks v Hunt Bros (Sydney) Pty Ltd [1958] S.R. (N.S.W.) 380. And see
below, para.11-014.
58. Above, paras 10-008 et seq., para.10-039.
59. Harrison v Knowles and Foster [1918] 1 K.B. 608; see also Howard Marine and Dredging Co
Ltd v A Ogden & Sons (Excavations) Ltd [1978] Q.B. 574 (similar statements in hire of barges).
60. Oscar Chess Ltd v Williams [1957] 1 W.L.R. 370, above, para.10-018. See also Routledge v
McKay [1954] 1 W.L.R. 615; Johnston v McRae (1907) 26 N.Z.L.R. 299; Boys v Rice (1908) 27
N.Z.L.R. 1038; Taylor v Combined Buyers Ltd [1924] N.Z.L.R. 627 at 638. But cf. Beale v Taylor
[1967] 1 W.L.R. 1193.
61. See above, para.10-023; cf. para.10-015.
62. Above, para.11-012.
63. Harrison v Knowles and Foster [1917] 2 K.B. 606 at 610: followed on this point in Taylor v
Combined Buyers Ltd [1924] N.Z.L.R. 627.
64. Barr v Gibson (1838) 3 M. & W. 390.
65. Varley v Whipp [1900] 1 Q.B. 513; see Stoljar, (1953) 16 M.L.R. 174, 185-186. In Taylor v
Combined Buyers Ltd [1924] N.Z.L.R. 627, the case was doubted: see at 643–644.
66. Stoljar, (1953) 16 M.L.R. 174.
67. Harrison v Knowles and Foster [1918] 1 K.B. 608.
68. Couchman v Hill [1947] K.B. 554 at 559 per Scott L.J., where the test was used to extend what
was a condition. It was however approved by Lord Wilberforce in Reardon Smith Line Ltd v
Yngvar Hansen-Tangen [1976] 1 W.L.R. 989 at 998 (below, para.11-014) as restricting what
was a condition.
69. See Taylor v Combined Buyers Ltd [1924] N.Z.L.R. 627 at 638 et seq.
70. e.g. Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 at 511; Pacific Trading Co
Ltd v Robert O Wiener (1923) 14 Ll. L.R. 51; Total International Ltd v Addax BV [1996] 2 Lloyd’s
Rep. 333 (“usual Dakar refinery quality” not part of description but innominate term); below,
para.11-016. See also RG Grain Trade LLP v Feed Factors International Ltd [2011] EWHC
1889 (Comm); [2011] 2 Lloyd’s Rep.432, where a statement argued to relate to quality was
remitted to arbitrators to determine whether it was a condition, a warranty or an intermediate
term.
 Page 12

71. See, e.g. Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978]
Q.B. 574.
72. Above, paras 10-012 et seq. In Couchman v Hill [1947] K.B. 554, a heifer was said to be
“unserved”: this was held to be part of the description, or alternatively a collateral warranty
(above, para.10-012). See also Hodgson v Morella Pastoral Co (1975) 13 S.A.S.R. 51 (“due to
calf Nov./Feb.” part of description).
73. Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 at 502. See also below, para.
18-321.
74. Ashington Piggeries v Christopher Hill Ltd [1972] A.C. 441 at 503–504.
75. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989; followed in Sanko SS
Co Ltd v Kano Trading Ltd [1978] 1 Lloyd’s Rep. 156. See Coote, (1977) 51 A.L.J. 44.
76. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989 at 999.
77. See Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989 at 998.
78. cf. Hopkins v Hitchcock (1863) 14 C.B.(N.S.) 65 (marks on iron immaterial); Joseph Travers &
Sons Ltd v Longel Ltd (1948) 64 T.L.R. 150 (“waders”); cf. Clarke v McMahon [1939] S.A.S.R.
64 (“Kelvinator” word of description).
79. Tradax Export SA v European Grain & Shipping Ltd [1983] 2 Lloyd’s Rep. 100. See below,
para.18-314. See also RG Grain Trade LLP v Feed Factors International Ltd [2011] EWHC
1889 (Comm); [2011] 2 Lloyd’s Rep. 432, where part of a specification was remitted to
arbitrators to determine whether it was a condition, a warranty or an intermediate term; Proton
Energy Group SA v Orlen Lietuva [2013] EWHC 2872 (Comm); [2014] 1 Lloyd’s Rep.100 at
[60].
80. See Montague L Meyer Ltd v Kivisto (1929) 35 Ll. L.R. 265 (timber: “to be properly seasoned”
not part of description); cf. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R.
989, above, para.11-014, where there was a separate clause as to description; Proton Energy
Group SA v Orlen Lietuva [2013] EWHC 2872 (Comm); [2014] 1 Lloyd’s Rep.100 (specification
of crude oil mix went to quality not description). See below, para.18-321.
81. Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 above (claim against third
parties) (where however there were other indications in the form of the contract); see also
Pacific Trading Co Ltd v Robert O Wiener (1923) 14 Ll. L.R. 51; below, para.18-321. As to the
terms “f.a.q.” and the like, see below, para.11-074.
82. Pinnock Bros v Lewis and Peat Ltd [1923] 1 K.B. 690.
83. e.g. Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 at 470, 475; below, para.
11-020. See also Britain SS Co Ltd v Lithgows Ltd 1975 S.L.T. (Notes) 20 (performance
capacity of ship’s engine); Total International Ltd v Addax BV [1996] 2 Lloyd’s Rep. 333 (“usual
Dakar refinery quality”).
84. e.g. Pinnock Bros v Lewis and Peat Ltd [1923] 1 K.B. 690.
85. Below, para.11-018.
86. See the cases cited below, para.11-020; and Marimpex Mineralöl Handelsgesellschaft mbH v
Louis Dreyfus & Cie Mineralöl GmbH [1995] 1 Lloyd’s Rep. 167 at 178 (“normal Russian
gasoil”). But a clause beginning “expected to analyse” may only refer to quality: Ashington
Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441.
87. Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 at 470.
88. Toepfer v Continental Grain Co [1974] 1 Lloyd’s Rep. 11. See also Re North Western Rubber
Co Ltd and Hüttenbach & Co [1908] 2 K.B. 907 (fair quality rubber).
89. See Toepfer v Continental Grain Co [1974] 1 Lloyd’s Rep. 11 at 13, 14, 15.
90. See Gill & Duffus SA v Berger & Co Inc [1983] 1 Lloyd’s Rep. 622 at 626, 628–630, 632–634;
[1984] A.C. 382 at 393–394. cf. NV Bunge v Cie Noga d’Importation et d’Exportation (The Bow
Cedar) [1980] 2 Lloyd’s Rep. 601, where it was held that certificates were final as to analysis
but not as to the description of the goods as “Brazilian crude groundnut oil”; Daudruy v Tropical
Products SA [1986] 1 Lloyd’s Rep. 535 (palm fatty acid distillate).
 Page 13

91. Toepfer v Warinco AG [1978] 2 Lloyd’s Rep. 569. cf. Tradax Internacional SA v Bunge SA
[1977] 2 Lloyd’s Rep. 604 at 612 (barley: provision as to impurities not part of description).
92. Ashington Piggeries Ltd v Christopher Hill Ltd [1969] 3 All E.R. 1496 at 1512 (affirmed on this
point [1972] A.C. 441).
93. Ashington Piggeries Ltd v Christopher Hill Ltd [1969] 3 All E.R. 1496 at 1512.
94. See also the cases on “breeding cattle”: Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2
N.S.W.L.R. 631; Handbury v Nolan (1977) 13 A.L.R. 339; Lockhart v Osman [1981] V.R. 57.
95. Above, para.11-004.
96. Arcos Ltd v E A Ronaasen & Son [1933] A.C. 470. See also Vigers Bros v Sanderson Bros
[1901] 1 Q.B. 608 (timber); Wilensko Slaski Towarzystwo Drewno v Fenwick & Co (West
Hartlepool) Ltd [1938] 3 All E.R. 429 (timber); Wimble, Sons & Co v Lillico & Son (1922) 38
T.L.R. 296 (cotton cake: specified percentage of oil and protein content not met); Ballantine &
Co v Cramp and Bosman (1923) 129 L.T. 502 (carcases of meat: “average not to exceed 60
lb.”); Rapalli v K L Take Ltd [1958] 2 Lloyd’s Rep. 469 (“medium onions”: 6–7 per cent
undersized). Contrast Montague L Meyer Ltd v Vigers Bros Ltd (1939) 63 Ll. L.R. 10, below,
para.11-021 (timber); Trasimex Holding SA v Addax BV (The Red Sea) [1999] 1 Lloyd’s Rep.
28 (aviation fuel specification). See also below, paras 18-314, 18-322 et seq. as to international
sales. See also below, para.11-088 as to a (rejected) argument that there could be an implied
term that the goods would remain within their specification over a period.
97. As to the word “about” as qualifying the duty, see Vigers Bros v Sanderson Bros [1901] 1 Q.B.
608; Joseph Green v Arcos Ltd (1931) 39 Ll. L.R. 229 at 231; see also Canada Law Book Co v
Boston Book Co (1922) 64 S.C.R. 182 (“150 vols. more or less”); above, para.8-047; below,
para.11-021.
98. Re Moore & Co and Landauer & Co [1921] 2 K.B. 519, a case on the Sale of Goods Act s.30(4)
(below, para.12-030). See also Manbré Saccharin Co v Corn Products Co [1919] 1 K.B. 198 at
207 (size of bags); Makin v London Rice Mills Co Ltd (1869) 20 L.T. 705 (rice in double bags);
Smith Bros (Hull) Ltd v Gosta Jacobsson & Co [1961] 2 Lloyd’s Rep. 522 (marks on timber part
of description); cf. Parsons v New Zealand Shipping Co [1901] 1 Q.B. 548 (marks on lamb
carcasses irrelevant).
99. See cases cited below, paras 18-314 et seq., 20-032, 20-042. cf. however J Aron & Co (Inc) v
Comptoir Wegimont [1921] 3 K.B. 435, where such a term was treated as independent of
description, so that an exemption clause relating to errors of description did not apply to it.
100. Arcos Ltd v E A Ronaasen & Son [1933] A.C. 470 at 479; as to which see Easterbrook v Gibb
(1887) 3 T.L.R. 401 (vices); Wilensko Slaski Towarzystwo Drewno v Fenwick & Co (West
Hartlepool) Ltd [1983] 3 All E.R. 429; Rapalli v K L Take Ltd [1958] 2 Lloyd’s Rep. 469;
Margaronis Navigation Agency Ltd v Henry W Peabody & Co [1965] 1 Q.B. 300 at 319–320
(loading of cargo); cf. Moralice (London) Ltd v E D and F Man [1954] 2 Lloyd’s Rep. 526 (where
sale financed by bankers’ credit, documents and hence goods must correspond exactly: on
contract for 5,000 bags buyer can refuse bill of lading for 4,997); below, paras 23-101 et seq.
101. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989; above, para.11-014.
102. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 W.L.R. 989 at 998. See also at
1000–1001 and Ashington Piggeries Ltd v Christopher Hill Ltd [1972] A.C. 441 at 489. The rule
of strict compliance seems to have been introduced in the teeth of findings by commercial
arbitrators, especially in the timber trade: see Re Moore & Co and Landauer & Co [1921] 2 K.B.
519 at 524; Montague L Meyer Ltd v Osakeyhtio Carelia Timber Co Ltd (1930) 35 Com.Cas. 17
at 19; Hillas & Co Ltd v Arcos Ltd (1931) 40 Ll. L.R. 307 (decision reversed (1932) 43 Ll. L.R.
359); E A Ronaasen & Son v Arcos Ltd (1932) 43 Ll. L.R. 1 at 4–6 (affirmed [1933] A.C. 470);
Joseph Green v Arcos Ltd (1931) 39 Ll. L.R. 229 at 231. But some of these cases might now be
affected by the Sale of Goods Act s.15A: below, paras 12-024, 12-025, 18-332.
103. Bowes v Shand (1877) 2 App.Cas. 455.
104. Bunge Corp v Tradax Export SA [1981] 1 W.L.R. 711 at 724–725.
105. It probably survives the introduction of the Sale of Goods Act s.15A: below, paras 12-024,
12-025, 18-332.
 Page 14

106. Above, paras 8-045 et seq.; below, paras 12-030, 12-031 et seq. See however Canada Law
Book Co v Boston Book Co (1922) 64 S.C.R. 182 (English Reports: “150 volumes more or less”
held a description: damages claim).
107. See above, para.11-005; below, para.14-015 (suggesting that the standard may have been set
too low).
108. Wallis, Son & Wells v Pratt & Haynes [1911] A.C. 394. See also Payne v Minister of Food
(1953) 103 L.J. 141.
109. Andrews Bros Ltd v Singer & Co Ltd [1934] 1 K.B. 17; see also Armaghdown Motors Ltd v Gray
Motors Ltd [1963] N.Z.L.R. 5 (statement that car had not been used as taxi part of description).
As to the meaning of “new car” see Morris Motors Ltd v Lilley [1959] 3 All E.R. 737; Phillips v
Cycle and General Finance Corp [1977] C.L.Y. 364; R. v Ford Motor Co Ltd [1974] 3 All E.R.
489; Raynham Farm Co Ltd v Symbol Motor Corp (1987) 6 Tr.L.Rep. 143. See also Anderson v
Scrutton [1934] S.A.S.R. 10 (“new engine”); and in a different context, Annand & Thompson Pty
Ltd v Trade Practices Commission (1979) 25 A.L.R. 91.
110. Varley v Whipp [1900] 1 Q.B. 513; cf. Chalmers v Harding (1868) 17 L.T. 571.
111. Beale v Taylor [1967] 1 W.L.R. 1193 (private buyer and seller); as to cars see also M’Ivor v
Michie 1953 S.L.T. (Sh. Ct.) 53; but see Koh, [1968] C.L.J. 11; and compare Leggett v Taylor
(1965) 50 D.L.R. (2d) 516; Marks v Hunt Bros (Sydney) Pty Ltd [1958] S.R. (N.S.W.) 380; and
Oscar Chess Ltd v Williams [1957] 1 W.L.R. 370. See also Ojjeh v Waller [1999] C.L.Y. 4405
(purple Lalique glass car mascots not genuine); cf. Brewer v Mann [2012] EWCA Civ 246;
[2012] R.T.R.28 (hire purchase: car sold as “1930 Speed Six Bentley” actually contained 1927
reconstructed standard 6.5 litre engine: still complied with description (see at [307]); Russo v
Belcar Pty Ltd [2011] SASCFC 151 (meaning of “new” car); Chan Chee Kien v Performance
Motors Ltd [2015] SGHC 154 (“general advertising puffs” in glossy catalogue not part of
description of BMW car).
112. Cotter v Luckie [1918] N.Z.L.R. 811; but cf. Dell v Quilty [1924] N.Z.L.R. 1270. See also as to
cattle Handbury v Nolan (1977) 13 A.L.R. 339 (cow in calf); Elder Smith Goldsbrough Mort Ltd v
McBride [1976] 2 N.S.W.L.R. 631 (bull sold as breeding bull); Lockhart v Osman [1981] V.R. 57
(cattle infected with brucellosis sold at auction advertised as “cattle breeders’ sale” did not
comply with description). See further Gorton v Macintosh & Co (1883) W.N. 103 (india rubber
thread useless); American Can Co v Stewart (1915) 50 I.L.T. 132 (American adding machine
did not work for British currency without slight mental operation on part of user); Nicholson and
Venn v Smith Marriott (1947) 177 L.T. 189 (table linen “the property of Charles I” actually
Georgian); Pine Valley Enterprises Inc v Earthco Soil Mixtures Inc 2020 ONSC 601 (soil was
not type of topsoil agreed by parties).
113. British Oil and Cake Co Ltd v J Burstall & Co Ltd (1923) 15 Ll. L.R. 46; Pinnock Bros v Lewis
and Peat Ltd [1923] 1 K.B. 690 (copra cake containing castor seed held not to be copra cake);
Robert A Munro & Co Ltd v Meyer [1930] 2 K.B. 312 (cocoa husks in bone meal); Bostock & Co
Ltd v Nicholson & Sons Ltd [1904] 1 K.B. 725 (“sulphuric acid commercially free from
arsenic”—contained arsenic); see also Bakker v Bowness Auto Parts Co Ltd (1977) 68 D.L.R.
(3d) 173 (ethanol-ethylene glycol anti-freeze: contained very little ethylene glycol, but kerosene,
methanol and water); and in a different context (entitlement to freight) Montedison SpA v Icroma
SpA (The Caspian Sea) [1980] 1 W.L.R. 48 (impurities in oil). For an old example of bad quality
leading to difference of identity, see Osborn v Hart (1871) 23 L.T. 851 (“Can it be said that a
contract for the supply of superior old port wine is fulfilled by supplying wine which is described
by witnesses as almost undrinkable?”).
114. Gill & Duffus SA v Berger & Co Inc [1981] 2 Lloyd’s Rep. 233 at 236 (beans) (for subsequent
proceedings see [1984] A.C. 382).
115. Rapalli v K L Take Ltd [1958] 2 Lloyd’s Rep. 469 (5–6 per cent of onions defective in quality);
Glass’s Fruit Markets Ltd v Southwell & Son Ltd [1969] 2 Lloyd’s Rep. 398 (potatoes not
“sound” if more than negligible amount of blight).
116. Ashington Piggeries v Christopher Hill Ltd [1972] A.C. 441 (claim against defendants).
117. See criticism by Coote, (1976) 50 A.L.J. 17 on the basis that such reasoning: (i) pays
insufficient attention to the distinction between sales of unascertained or future goods and sales
of specific goods; and (ii) was unduly influenced by cases on the doctrine of fundamental
breach (as then understood) in relation to exemption clauses (to which some of the cases cited
 Page 15

above relate).
118. Grenfell v E B Meyrowitz Ltd [1936] 2 All E.R. 1313. (But cf. Kat v Diment [1951] 1 Q.B. 34 as to
application of false trade description under the old Merchandise Marks Acts.) See also Powell v
Horton (1836) 2 Bing. N.C. 668 (“mess pork of Scott & Co”); Lucas v Bristow (1858) E.B. & E.
907 (best palm oil). But the express terms of a contract cannot be contradicted by usage or
custom: Yates v Pym (1816) 6 Taunt. 446. See also Re Walkers, Winser and Hamm and Shaw,
Son & Co [1904] 2 K.B. 152.
119. Steels and Busks Ltd v Bleecker Bik & Co Ltd [1956] 1 Lloyd’s Rep. 228. See also Peter
Darlington and Partners Ltd v Gosho Co Ltd [1964] 1 Lloyd’s Rep. 149 (“canary seed on pure
basis”); Glass’s Fruit Markets Ltd v Southwell & Son Ltd [1969] 2 Lloyd’s Rep. 398 (potatoes:
contract “for sound bags only”).
120. Montague L Meyer Ltd v Vigers Bros Ltd (1939) 63 Ll. L.R. 10. See also Rosenthal & Sons Ltd
v Esmail [1965] 1 W.L.R. 1117 (cotton poplin).
121. See Nichol v Godts (1854) 10 Exch. 191 (“foreign refined rape oil, warranted only equal to
samples”), one of the cases on which s.13(2) was based; Parker v Palmer (1821) 4 B. & A. 387
(rice); Azèmar v Casella (1867) L.R. 2 C.P. 677 (cotton); Wallis, Son and Wells v Pratt and
Haynes [1911] A.C. 394 (seed); Steels and Busks Ltd v Bleecker Bik & Co Ltd [1956] 1 Lloyd’s
Rep. 228 (rubber); John Bowron & Son Ltd v Rodema Canned Foods Ltd [1967] 1 Lloyd’s Rep.
183 (apricot pulp).
122. Below, para.11-081.
123. Boshali v Allied Commercial Exporters Ltd (1961) 105 S.J. 987; Mody v Gregson (1868) L.R. 4
Ex. 49 at 53; Carter v Crick (1859) 4 H. & N. 412 (seed); RW Cameron & Co v L Slutzkin Pty
Ltd (1923) 32 C.L.R. 81 (description had no recognised meaning in trade).
124. Joseph Travers & Sons Ltd v Longel Ltd (1948) 64 T.L.R. 150 (“waders”); Houndsditch
Warehouse Co Ltd v Waltex Ltd [1944] 2 All E.R. 518 (“braces”).
125. Supply of Goods and Services Act 1982 s.3.
126. Above, paras 1-041 et seq.
127. Supply of Goods (Implied Terms) Act 1973 s.9 as substituted by Consumer Credit Act 1974 and
amended by Sale and Supply of Goods Act 1994.
128. Supply of Goods and Services Act 1982 s.8. It may be assumed that similar provisions will be
implied into sui generis supply contracts (above, paras 4-001 et seq.) of the sort considered in
The Res Cogitans [2016] UKSC 23; [2016] A.C. 1034 (ship bunkers): see Lord Mance at [34].

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