Chapter 2

Conditions And
Warranties
When forming a conract, a party may make a statement with a view to
inducing
other party to enter into the contract.. Such statements when made before
tering into the contract are known as representatjons.Such a
representation may
mere expression of an opinion or commendation by the seller of his goods-what is
oten known as a puff. Such representations may or may not be a part of the
contract and this depends upon the intenion of the parties. Where it is not a part of
the contract, it has no legal consequences, On the other hand, if it forms an integral
part of the contract and other party relies upon such a representation, it will be
'stipulation' withiD the meaning of section 12 of the Act and may be either treated as
acondition or a warranty.

eonditions and Warranties [Sec 12(1)1 L

"A stipulation in a contract of sale with reference to gopds which are subject
matter there of, may be a condition or a warranty.
All the stipulations in a contract of sale are not of equal importance. Some of
cin are essential to the m¡in purpose of the contract which are called "conditions"
and some are collatera to the main purpose of the contract which are called
Warranties". So therefore. these stipulations can be of two types :
() Conditions, and (2) Warranties.
Conditions. (Sec 12(2)]
condition is a stipylation essential to the main, purpose of the coptract, the
each of which gives rise toa right to treaL the contract a_repudiated| "> carcelled
erer to influence the buyer to purchase the goods, the seller makes certain
statements regarding the goods, which can be of two types
: Statements in praise of the qoods, which do not form a part of the contract:
ese slatements are given merely in praise of the goods having no lega!
Consequences.
Otatements which form an integral part of the contract: These statements
are known as "STIPULATIONS". A stipulation gives rise to legal
consequences.
a CondiRon or quscmeut ie
as þot
sbecied or dowadad agreeud a
SOG-2.2
CONDITIONS AND WARRANTIE
Essentials of a Condition
k Itis essential to the main puupose of the ontract.
2. The non fulfillment of (ondition e causes ireparable damaqe to
patty which would deleat thc very purpose for which
the the
contract
The breah of a con|ition gives a right to the auret is aggi
madeever
contract and recover he damages for breach of conditionparty to
2. Warranties. [Sec. 12(3)]
rescin d t

4 warranty is a stipulation collaleral to themain purpose of

Drcach of which gives rise to a claim for the
damaqes
qois and treat the contract as repudiatied." Nahe but not to a riqht to contract t.t
na reject
Essentials of a warranty
J. t is collateral to the main
purpose of the contract.
2. The breach of
warranty causes
defeat the main purpOse of the damage to the aggrieved party and doe
contract.
3. The aggrieved party can
only claim the damages
tan repudiate the
contract. forbreach of warrant, o
The breach of a
reluse the goods andcondition entitles the injured party to
if he has
remedy in case of breach of warranty already paid for them, torepudiate
recover
the contrac:
the price
give right to reject the goods is the recovery of
is more vital and treat the contract as damages only. It does r
than warranty. repudiated. Thçs, a cond
The following illustrations make the nature of the
terms clear.
Exomples : (a) Sufppose, A al the time of selling
making a speed of 150 kms per hour. his car to B tells him that it is
capable c
the car that it can keep up Subsequently, if it turns out after B
hardly 100 kms per hour, the breach of the has purchast .
seller amounts abreach of
which is capable of making awarranty. But where B tells A that herepresentation by
speed of 150 kms per wants to bry 4 ca
that the car does not make a hour, but if it is subsequently fowTu
speed
return the car to A and get back the of 150- kms per
hour, B can repudiate the
price. cottiuia
(b) A man buys a
particular horse which is warranted quite to ride
turns out to be vicious the buyer's only remedy is to and drive. If the hon
reserned a right to return i. But if instead of claim damages, unless he has exprss
dealer to supply him with a quiel buying a particular horse, a man applies
horse, and the
stipulation is a condition. The buyer can eitherdealer supplies him with vicious ofit,
damages. 0f course, the right of return the horse or keep it and
clat
IHHaretly v. Hymas, (7920) SK.B. selection
475).
must be exercised
within a reasonable tiue.
sbother astipulattOn m aContrdCt is a
Construction of the condition or a warranty denends in cach
case On the Contract.
condition; a stipulation nay be a
No special
words are
warranty or a condition thoughnecessary
called a
to create
warranty in
PAGE NO

cONDITIONS
AND WARRANTIES SOG-2.3

The intention of the parties must be ascertained before a court comes

thecontract, The same phrase in two different contracts nay in one case amount
02CONclusion.
condilionand
in to a warrany muj tin''
oa
stipulation as to time otheLA
:The stipulations as to time
or ag
may be of twÌ cJasses.
pay1ment:
as to lune ol
.i
stipulations as to time. e.g. with regard to the performance of the
other etc.
contract, delivery of goods, stipulations
different intention appears from the terms of the contract,
nless a
the essence of a contract of sale. The law regards
Of
o time of payment are not not as conditions. However, the parties may
warranties and
ch stipulations as mere of payment of the essence of
contract. The
make time
Mend othenwise and may the time of payment shal! be regarded as a
contract that
nartics may provide in the in time will entitle the seller
to put an end to
pay
condition, and the buyers tailure to
the contract. not.
stipulation as to time is of the essence of the contract or
IWhether any other other stipulations such as for
of the contract. In case of
depends on the terms the contract. In the following
cases,
is one of the essence of
delivery of goods, time
also the time is considered to be the eSSerrce O the contraa
expressly agreed'to th£t it is a
condition
a Where the parties háve
b) Where the delay operates as
injury to the party. a condition.
requires it to be
necessity of the contract
Where the nature and
certain goods to Y to be paid for on delivery. Yfailed to pay afler the
Lzamples : (a) X sold further deliveries. It was held that
delivery
in part delivered. X stopped
goods had been and the condition being broken, X was entitled
to
condition of bayment
uas subject to the
bring an adion for the recovery of goods.
goods cif. Antwerp. Delivery was to be given in Odober.
here uas a contract for sale of
loadingthe goods were not shipped until November. It was
eng to a strike in the port of delivery of goods. (.Aron & Co. C. Comptoir
hat the buyer could refuse to take
Wegimont. (1921)3 K.B. 435|
AND WARRANTY
DIFFERENCE BETWEENA CONDITION
between the conditions and the
of distinction
Following: are
warranties
the main points

stipulation which is essential to the

inportance in contractCondition is a collateral to
main purpose of the contract, whereas warranty is a stipulation which is aclated
main Purpose of the contract)
2. aives a right to the
brcach of condition
breach. The
aggri e ConsequenceS
ved partyto
of
repudiate the contract and Claim danaqes, whereas the
breach of
i.e. aggrieved
party
warrant
Can noLy gives the aggrieved parly a right to Claim damaqes only
repudiate
the contract.
 CONDITIONS AND WARRANTIES
SOG-2.4
condition, a breach of condition can be
treatment.(In the case of
3. Option of as an option on the part of the aggrieved party,
of warrant option available to the
treated as a breach
whereas breach of warranty there is no such
treated as breach of
condition) aggrieved
warranty can never be
party i.e/breach of
condition to be treated as warranty treated
When a condition may be waived or
cases in which
Section 13 deals with
as follows :
warranty. These çases are buyer. In a contract of sale, although on a breach t
) Voluntary waiver by treat the contract as repudiated
and ho
buyer has a right to to waive +
condition by aseller, the bOund to do so. Instead he can elect
but he is not accent
can reject the qoods, breach of warranty and
ie. to treat the breach of condition as warranty.
condition of
for dmages for breach
qoods and sue the seller
bags of particular quality of Basmati rice @r4500 per bag
Example :X agrees to sell Y, 100 Basmati rice @ 3500 per bag. It is breach of condition
But he supplied second quality rejecting the goods. But if the buyer elect to treat
delivery by
and he can refuse to accept the warranty, he can accept lhe second quality Basmati
the breach of condition as breach of
rice and claim the damages @ 1000 per bag.
warranty. The buyer may elect to treat a
breach
(2) Treatina the condition as
of a warranty. 9
of a condition as a breach on the
voluntary in nature and depend solely
The two cases mentioned above are right to
of the buyer. On discovery of the breach of a condition a party having the have
will and if he does not, he is taken to
repudiate the contract must excercise it;
waived his right to repudiate it.
the rate of 30 per metre, but
Example :X agreed lo supply Y 5000 metres of fine cloth at
metre. There is a breach of
supplies only the medium quality, the price of which is 15 per goods he can claim
condition and Y can rejecl the goods. However, if Y accepts the
damages at the rale of 15 per metre.
is not severable
(3) Acceptance of goods by buyer. Where the contract of'sale
and the buyer has accepted the goods or part Lhereof, the breach of any conatie
can only be treated as a breach of warranty, but can only maintain an action th
Similarly where a buyer sells
damages, as if the condition were only a warranty. amounts to
coods to the sub-buyer and directs delivery to be naild to him, the act
an unconditional acceplance of he
go0d GbL
Exampl : A contract was ntade for the sale of wheut on c.if. lerns. The buyer icok
docunents and resold and delivered parl af the wheat to sub-buyers without n0h3
profer examination there of. The wheat having been found of inferior quaiy
claimed io reject it. It was held that the resale and delivery of part of the wheat wAS
bcrn
act inconsistent with the ownership of the seller and the right to reject the goods had
lost. [ilardy v. Ilillerns (1923) 2. K.B. 490 (CA)].
 PAD

KSAND WARRANTIES
NYTIONS, SOG-2.5
divisible and even thouqh the buyer has accepted a part of
cOntraCt0s
the
xercse his right to reject the qoods. Thus, In a contract by
Mherehe C lstill

the buyer can reject the quantity under any instalment. ut under an
alments the buyer loses his right to reject the
goods if he accepts a part

t dealerordered from a manfacturer horns of different deseriptions and pries. The

horsscTe
delivered in several instalments. The buyer accepted some instalments but
lo be
others on the ground that they were not of merchantable quality. It uas held that
cas entitled to do so. Jackson v. Rotax Motor and Cycle Company (1910) 2.
h dealer
K.R 927)1.

EXPRESS CONDITIONS AND WARRANTIES

either be express or implied.
ln acontract of sale conditions and warranties may
the parties in express
ronditions and warraties which are agreed upon between
express conditions and warranties.
eds. either spoken or written are called
IMPLIED CONDITIONS AND WARRANTIES
applicable a ontract of sale by
Where the conditions and warranties areconditions and warranties. These are the
implied
Bperation of law, they are said to be timne of
and warranties which do not form a part of contract of sale at the
Conditions existence by
between the parties, but they automatically come into to
ontract
However the inplied conditions and warranties are subject
peration of law.,
ontract Lo the contrary.
»with all faults' in a markel. The pigs were sufering from
Lample : There was a sale of pigs heavy loss. It
infected other pigs belonging to the buyer and caused him
bphoid feer and that the seller was giving no warranty, the buyer
was expressly agreed
eas keld that as it 13).
without any remedy. [Ward v. Hobbs. (1878) 4. App. Cas.
Las left
IMPLIED CONDITIONS
as follos:
conditions laid doW) under the Act are
iPiied
l
as to title (Section 14) OryU at Implied Conditions
dition
is an
Subjet to atonrary iulention, there that 1. Condit1on as to title
inselier
mptied ondition on the part of the 2. Sale by description
to sell qoods 3. Sale by sanple as well
by
Case ol he has a right
a sal sell, he
and lhat in the case of an agreennent tothe tiine cescription
ality or fitness
Wil have a right lo sell the qo0ds at 4. Cordition as to q'
merchantability
This is called 5 Condition as to
when inc property is to pass. has no 6. Sale by sample
Where he selier
Condition
right to
as to itle'.
and byer has to return because the
sell the goods lic pice trom the seler,
recover
Co tme oWner. the buycr can
Consirteratior, has failed.
 SOG-2.6
cONDITIONS AND WARRANT.
A person may not have the right to sell in two
circunstances
N he may not be the owner of qoÍds sol.,
(2) he may be the owner yet duce to certain reasOns he may not have
to sell" the "i
The leading case on this point is Kowland v. Divall (1923) (ae
The point decided is
There çan be no saleditaM
of goods which the seller has no right to sel.
The facts of he case are

Example : Abought a motor car from. B, and afer using il for somelime he was
return il to the true owner, il appearing that B had obtained the car thefl. compel led
It was held
t,
that B had broken the condition as to litle and A was, therefore, enlitled to rero
purchase money from B. [Rowland v. Divall (1923) 2 K.B. 500).
The expression right to sell means that the man had a right to sell the thino
was, and in the sense that nobody holds a title superior to that of the vend
Accordingly a sale which would be a breach of patent, copyright, or trade mark ma
be repudiated by the
buyer. Case
The leading case on this point is
Co. LTD. (192 1)
:NIBLETT V. CONFECTIONERS] MATERIALS
The point decided is :
Right to sell means not merc
possession of defect free title to goods. It also
means that the seller should not infringe on the
trade mark of other seller.
The fact of the case are :

Example :D sold to P condensed milk in tins c.i.f.

from New York to London. Some of the
goods arrived bearing a brand
the comnissioner of custom infringing
the trademark of third
detained the goods. The buyer had toperson
al whose instance
possession of the goods. The goods were in remove the brand to get
claimed damages. It was held that the seller had consequence sold at a loss and the buy
had the right to sell the goods. broken the implied condition that they
387). [Niblett v. Confeclioners Materials Co. Ltd. (1921) 3 K.D
2. Sale by
deseription (Sc.15)
Where goods are sold by
shall correspond with the description, there is an
implied condition that the go
description.
contract to sell peas, you cannot This rule is based on the maxim,
the article
tendered is oblige a party to take
beans. If the desSC.
the other party is not different in £ny respect, it is not the
bound to take it." A contract for arlicle barganed h
performed the supply of
by another. the sale of one thing Cam
The word 'description' has not been
particular class, kind or variety ol defined in the Act. t usually means be
goods. It also includes any which na
statement
 cNOITIONSAND WAARRANTIES
SOG-2.7
s e n t it
ao
the identity of the
l goods Contracted for as e..,
fitness. place of anything said as to
origin, source of manulacture, mode of packing, etc. Thus, a
ntractofsale of 'a Suzuki Car- 2009 Model' is a contrat for sale by description.

gopression'sale by descqiption' includes many situations.

The has never seen the goods.
Thebuyer
aoteed to buy a second hand reaping machine, which he had neuei en but
chich theseller assured him to had been new the previous year and used to cut about 50
aTEs. Th machine was delivered to A. This was sale description. Afound that it was
mended. A was entitled to
oldand had been wA t tß Varley u. Whipp. (1900) 10.8
S13,!
The buyer has seen the goods, it may be a sale by description if he
ot on wht he has seen but what was stated to hjm, o s1
Bamble : There was an auction sale of a set of napkins and table cloths described as 'dating
from the seventeenth century. X who was a dealer in antiques saw the set and þurchased
He subsequently found it to be an eigthteenth century set. ll was held that Xcould reject
iL [Nicholson and Venu.v. Smith Marrit(1947) 177 LT 1891. r ' t oh
(3) Packing of goods also forms a part of the description.
Exam)les : (a) Dagreed to sell to P tea in chests containing 80 pounds of tea. Dsupplied lea
chests containing 76 pounds of tea. Since there was a breach ef the condition as to
deseription Pwas entitled lo reject the goods. Oh
(6) In a contract for the purchase of 3000 tins of Australian fruits to be packed in ases
each containing 30 tins, the seller tendered a substantial þortion in cases each containing
24 tins. It was held that the þurchaser could reject the whole consignment as the goods
Lere not packed according to the description, although the market value of the 24 tins
cases was the same as that of 30 tins cases. (R. Moore and Co v. Landauer and Co (1921)
2. K.B. 519]

S SaBe by sample as well by desçription (Sc. 15)

Iftne saie is by sample as well 'as by description,is not sufficient that the bulk
icgoods shall correspond with the sample, if the goods do not also correspond
tn the description. In other words, there is an implied condition that the goois
shall corrrespond both with the sample as well as with the description
ExanbBe : Nagreed to sell to Gsome oil described as "foreign refined rape oil, warranted only
rqual to sanple» N delivered oi! equal to the quality of sanmples, but which was not
Jregn refined rape oil. Il was heid that Gcould refuse to accept it. (Nichol . Godts.
(1854)70 Ex. 191].
4.Condition
as to quality or ftness
Subject to the provisions of this Act, and of any other iaw for thhetime being in
 CONDITIONS AND WARRANTIES
SOG-2.8
as to the quality or fitness
no implied condilion for
of sale. But where the buyeranyexpressly or
purpose of
force, there is
qoods supplied

nakes
unde a contract
known to the seller the particular purpose for which
paricular
are
by
implication
required, so as to show
the goods
that the buyer relies on the sellers skill or judgement and
is the seller's
description, which it business to supply the
ae of a
goodscondition that the qoods shall be reasonatbly fit for such purpose.
implied
the there is an
as to quality or fitness will operate if
Ihe implied condition the
conditions are satisfied
:

() The buyer requires the

goods Tor a particular purpose
fol owing
purp0se
particular
(2) The buyer makes known to the seller that
(3) The buyer relies on the seller's
skill or judgement.
(4) The seller's business is to sell such goods, whether he is the a
producer or not.

The particular purpose for which the goodS are required has to be made ke
to the seller. This may be done either expressly or impliedly. Where an article is
for one particular purpose alone, and turns out to be unsuitable for that
when used, it is easy to see that condition as to fitness has been broken, Butpurpose
wh
an article is capable of being applied to a variety of purposes, the buyer must not#.
the specific purpose he has in mind, and if this is not shown, the buyer will have
remedy merely because it was unfit for that purpose.
The leading case on this point is :
aGRANT V. AUSTRALIAN KNITTING MILLS LTD. (1936)
The point decided is
The purpose for which the goods are
and conduct of the parties to the sale. Inrequired may be ascertained from the acs
such a case the buyer need not tell ne
seller the purpose for which he buys the
goods.
Facts of the case are
P. a doctor, purchased from a
D. Next day after wearing one of retailer tWo woollen underpants manufactured ."
them he became ill. His illness was
chemical irritant which D_ had caused '
manufacture. was held that the
It neqligently omitted to remove in the
proces
implied condition of fitness for the
buyer's pulp
Examples : (a) Awho had no
chemisl and asked for a hotspecial
waterknowledge
bottle. He
of hot water bottles went to the shop of a
will not stand wns shown a bottle which the
a few days, boiling water but was intended
cheni
to hold hot water. A bought the botle. Afur
while
not fil for use as using it, it burst and
a hot water injured his wvife. It was found that the bottle was
[Priest v. Last (1903) 2 K.B. bottle and therefore the chemist was liable for damages
148).
(b) A vent to a
assured that the imilk milk
was
dealer and bouaht milk for Use. The mi!k
deate
familyBut the milk Cantained
germs of typhoId and the Iree from the germs of disease.
Duyer's wife died. The milk not Use, the nt
being tit
ONDITIONS,
AND WARRANTIES

to be liable for SOG-2.9

H.B.608).
damaqes. (Frost v.
Aylesbury Dairy Co. Ltd.
rettigeralor to B. I
lailed to mahe ice. Il waspertormed
all other acts
which a relrigerator
but held that this
Benjamin A.LK. 1951anounted
alea/contlon(E. W. Evans v. S. tO a breach of
Cal.470).
selleralways deals with normal and not
with
Nga article for a particular Ise is suffering from abnormal
The cases. and
an abnormality, If ait person
is not
Rtehioisn to the
seller at the time of sale, implied
condition as to fitness will not

bought atweed coat from D; developed skin trouble through wearing it. It uas
that P vas abnormally sensitive and that a normal person would not have been
dei by the wearing of the coat. It was held that there was no breach of any implied
ndition as to fitness. (Grifiths u. Peter Conway(1939) 1Al E.R.685].
ulsere. however, the goods are sold under its patent or trade name, there
an implied condition as to its fitness for any particular purpTse. Thus, when
ntent smoke consuming furnace was ordered by the plaintiff by its patent name,
fot his brewery and the same being torwarded to him proved useless, it was held that
the buyer had no cause of action against the seller. But the situation will be quite
different where the buyer asks the seller to supply an article of a named make and
indicates to the seller that he relies on his skill and judgement, for its being fit for a
particular purpose, implied condition as to quality or fitness will apply even though
the article is described in the contract by its trade name.
car,
Example : P abplied to D for a motor car suitable for touring. D said that the Bugatti
their sheciality would suit, and showed P a specimen. P then ordered for a Bugatti car.
the
The car delivered proved to be unsuitable for touring purposes. P was entitled to reject
(1925)1 K.B. 260].
car and could recover back the þurchase money. [Baldry v. Marshall
purpose, may be
An implied condition as to quality or fitness for a pariicular
ataseof trade.
be excluded by the,
trade. .t may ak
annexed by the usage ofade
oyntuE
SCondition as to merchantability y00
contract of sale that the goods
here is always an implied condition in a to apply the implied
Parcnased should be of a merchantable quality. In order
requjrements must be satisfied,
as to merchantability, the following
amely:
and
The goods should have been bought by description,
description.
) Trom a seller who deals in the qoods of that
In order to be
The term 'merchantable' has not been defined in the Act.. that
in such condition
must be of such quality and
'mTeasonable
erchantable'man
the article
Would accept the article as performance of a promise.
they
The goods
are known in the
should be which
saleable under the description by
imarket. immediately
 WhouOn
which can bo
The duyed latort eyd cONDITIONS AND WARRANTIFe
SOG-2.10 (omes
The dehd ohichare not merchantable':
Examples of goods which picture.
A colour TV which
qives only black & white
make the ice
which does not
A referiqerator
not keep time.
A watch which does
does not write.
A pen that
doeS not cool the room.
An air-conditioner which
nean that the goods should be of
Merchantability, however, does not
Goods may be unmerchantable not only because
first quality.
of some defect in their physical
example:
ol some other cirCumstances as for
condition, but also, because0ilati
mark, or
() where they infringe a trade'
not to be expected f
(2) the use of them is dangerous or injurious in a way
goods of the kind, or
(3) they are unfit for use.
The leading case on this point is :
(o MORELLIV. FITCH AND GIBBONS (1928)
Point decíded is
A dealer who sells goods by description is bound to deliver goods of
merchantable quality.
Facts of the case are
Pasked for a bottle of Stone's Ginger Wine at D's restaurant. While P was drawing
the Cork with a cork screw, the bottle broke at the neck and injured him. It was held
that tt sale was by description and since the bottle was not of merchantable
qual'.y.P was entitled to recover damages.
Examples : (a) A agreed to sell B some motor horns to be delivered by instalments. The first
instalment was accepted but the second contained a substantial quantity of horns which
were damaged due to bad packing. It was held that was entitled to reject the whole
instalment as the goods were not of merchantable quality. [Wren u. Holf (1903) 1K.B.
610].
(0) Ahouse wife ordered for certain quantity of coal from a coal dealer. The dealr
supplied the coal in pursuance of her order. Thefuel coniained explostve matter, which ot
exploding caused damage. It was held that the goods were 'unmerchantable' owing to e
presence f the explosiue malerial and therefore the dealer was liable. [Wilson v. Ritse
CockerellG Co. (1954) 1 AU ER. 868].

Exception :
The implied condition as to imerchantability would not
where the buyer has examined the be applicable
goods and the defects which in aM
such an examination
ought o have revealed. Ii, hOwever, examination by the buyer does not reveal the
defect and he approves and accepts the
found to be defective, there is a qOods, but when put to work, the goo
breach of the condition of
merchantable quai*
 oTIONS
AWD
WARRANTIESOa &
o oRut C s0G2.11
decfect as make the, goods
such and latent
defects unnerchantable
defects. Palent defe¢ts are of two kinds, called
are thoSe which can be
person of ordinary found on
Aaminatio)by a
those whicr Cannot be
intelliqence with the exercise of due care.) Latent
discOvered on such examnination. There is an
ixtcondition,on the seller's part th¡t the goods are free from latent defects,
defects whcre an opportunity is afforded to the buyer to
anine the yoods, but the buyer makes only a casual examination of the goods,
ill nount to an examination within the meaning of this section, and the seiler
liable for the defects which such an examination ought to have
not be
neaed. t

Example: P wanted to purchase some glue from D. The glue was stored in D's warehouse in
nls, Euery facility was given to Pfor its inspection. P did not have the barrels opened,
but only looked the outside of the barrels. On purchase, the glue was found to have
icts which would have been revealed if P had inspected the contents of the barrel. It
uns held that there was no breach of any implied condition of merchantability. [Thornett
GFehr v. Beers Sons (1919) 1 KB. 486].

Condition as to Wholesome
condition
In the case of eatables, and other provisions, in addition to the implied
goods shall be
to merchantability, there is another implied condition that the
sholesome, ie., the article should be fit for consumption.
broke one of P's
Ezambles : P bought bun from D's bakery. The bun contained a stone which
leeth. D was held liable. fChaproniere v. Mason. (1905) 27 T.LR. 633].
Sale by Sample lu 40mpl di, htp wt co
den
In a contract of sale by sample, there is a term in the contract, express or implied
ial the bulk of the qoods are, or shall be equal to the sample.
condition
na contract of sale by sample, there is an implicd
idt the bulk shall correspond with
the saimple in quality,
opportunity of comparing the bulk with
ldt the buyer shall have reasonable
sample, and a refusal on the part of the seller to allow the buyer
he
opportünity to compare the bulk with the sample justifies the
asonable
lattler to reject the contract.
i) that the goods shall be free from any defect rendering them
examination
be apparent on a reasonable
erchantable. which would not
of the sample.
Where he severable, the buyer can retain that of the qoods which
Contract is where the contract is not
Correasblpondse,
Sever
with the Sample and reject thc other part. But whole and claim
the buyer may cither reject the whole or accept the cannot retain one
Dardamages
t for the portion which is inferior to the sample. But he
and reject the other part.
SOG-2.12
CONDITIONS AND WARRANTIES

Example : In a case there was a sale by sample of two parcels of wheat. The buyer went to
examine the bulk a wcek afer. One parcel which was lying in the seller's warehouse was
to show the other parcel which was not
shown to him, but the seller refused rescind the contract. [Lorymer u. there
in the
Il was held that the buyer could
warehouSe.
IB. G C.IL]
Smith (1822)
Goods sold by sample, are deemed to be sold with an implied condition
the in
are merchantable on reasonable examination of the sample. But, where the defect that
exercise of ordinary care, the
the sanple is patent or discoverable by the
his contract by delivering the bulk in accordance with the defective sampie seller fulfils,
7.Condition implied by custom uSage
or of trade
An implied as to quality or fitness for a
annexed by custom or usage of trade (Sec. 16(3). Caat awaorarticularr apurpose
u l may te
IMPLIED WARRANTIES
The Act lays down the foilowing implied warranties in a çontract of sale.
(1) Implied warranty of quiet possession
In a contract of sale, there is an implied Implied Warranties
warranty that the buyer shall have and enjoy 1. Implied warranty of quie:
quiet possession of goods. The implied warranty possession
of quitepossession is a warranty against 2. Implied warranty of freedo
disturabance of possession. It is an implied from encumberances
assurance to the buyer that he shall have the 3. Implied warranty annexed by
possession and enjoyment of the goods sold to
him without disturbance by the seller or usage of trade
any other
person. If there is a breach of this warranty, the
damages. seller is liable to the buyer ir

Example :P purchased a secondhand typewriter from Dfor

it overhauled. Unknown to 200 and spent100 on having
the parties the typewriter was a
return il to the ouwner. It was held that P was stolen property and P nad u
U. Burmingham. (19) 2 K.B. entitled to recover damages from D. [Mason
545).
(2)_Implied warranty of freedo from encumber§hces har
There is an implied warranty on the part of the seller Moulaag
aiy charye or that the
goods are free
discharges lhe encumberance.
amount
A breach of this
warranty will occur
encumberances are
of
encumberance.This warranty will not when the
notice of them. Wheredeclared
tlhere is
to the buyer when
a the contract is
apply wn as
made
buyer is to sue for
damages. ftbreach of this implied warraniy, the o r
he
remeayv
Example :A pledges his scooler with B
possession the next duy. So0n for aloan of 1000 and promises lim to gweits
not know about the after he sells his
fact of scouter being scooter to G an innocent buyer who does
may himself pay the
money and then file a pledged. C may either ask 4 to clear the loan 0
suit cainst A for the
recovery of Lhe no
aNDTIONS4ND
WARRANTIES
atochel
tmpliedwarranty annexed by usage of
trade
SOG-2.13
as to fitness for a

tradeparticular
a

custom or usage
of
(Section purpose
16(3))
may be
annexed to a contract of
xclusionofimplied conditions and
ConditiOns and warranties in a
warranties
Implicd
contract of sale may
be
negatived or
aqreement between the parties; or
couse of dealing between them: or
b)
trade
Athe custom or usage of

ty chrtCAVEAT EMPTOR A.
lCavcat Emptor" i.e.,'Let the buyer beware means that .ordinarily, a buyer must
buy goods oniy after satisfying himself of their quatity or fitness. If he makes a bad
choice, he can't blame the seller and claim damage In other words it is not a part of
the seller's duty in a contract of sale to give to the buyer, an article suitable for a
narticular purpose uniss SuCh purpose is made known to the seller. : ye

> The ruie of 'caveat emptor is laid döwh in section 16, which states that. subject
o the provisions of this Act or of any other law for the time being in forc. there is
no implied warranty or condition as to the quality orfitness for any particular purpose
of coods supplied under a contract of sale". But the rule has no application in any
case, in which the seller has undertaken and the buyer has left it to the seller, to

Supply goods to be sed for a purpose known to both parties at the time of the sale.
Example : There was sale by sample by a woollen manufacturer of cloth to a merchant cho
was also a tailor. The buyer required the cloth for making special uniforns but this fact
defect in the cloth which was also there
Was nol made known to the seller. 0wing to latent
nothing to show that it uas unfiu
tne sample, it was unfit for the purpoSe. But there was
purposes. It was held that the buyer was without remedy. Jenes v. Pudgelt.
Jor oher
(1890). 24 Q.B.D. 650].

EXeeptions to the rule of caveat emptor These

is to narrow the scope of the rule of caveat enptor. to
keern tendency nature making it difficult for buyers
ays.
trade has become international in
case of 'mail order'
purchases.
examine goods
before hand especially in the caveat emptor.
exceptions to the rule of
Seclion
I6 lays down the following
s
of the
1. Where
the buyer on the skill andhjudgement N hoid liable for
relies c9l..
the seller will be
will not apply and
breach O temptor
doctrine of
of implied condition as to quality or fitness of the goods, if the
buyer has
requires the goods and
the
which he
Known to the seller the particular purpOse for who deals in such
goods.
buyer has relied on the skill and judgement of
nl2
the seller,

t9rtrl
SOG-2.14
CONDITIONS AND WARRANTIE,
There is, however, no such implied condition where a specific
under its patent or trade name.
article ssol,
Example : Bpurchased timber from Cand the fact was made known to the
timber was to be used for railway sleepers. It was held that B
could reject seller that the
the
was not fit for the purpose. [Bombay Burmah Trading
(1911) 34. Mad. 453 (PC)]. Corporationu. Agha timber as it
2. Merchantable Quality of goodsUGh5 u Oncesi U
Bugoods
Mohammad.
Where the goods are bought by description f a owe
that description, there is an implied Séller who deals in goods ti
Condition that the
merchantable quality.) However this exception to caveat emptor goods shall h
buyer has examined the goods as will not apply it.
regards the
revealed by such examination of the goods at the defects which could have he
hands of the buyer.
3. Consent by fraud
The Alaud
doctrine of caveat emptor shall not applykae qo Gtuh hy
been made by a buyer under a to all those
by fraud i.e., where the buyer contract where his purchases which have
consent was obtained by the seller
damages. A seller, who is guiltyrelies on false
of fraud, shallrepresentation of the seller and suffers
caveat emptor. have no protection of the
doctrine oi
4. Uságe of trade
An implied
condition as to quality or fitness for a
annexed by the usage of trade. particular purpse may be

1.
Short Answer Questions
Define a
condition in a contract of sale.
,KWNhat warranty in a contract of sale.
is a
3.
Distinguish between condition and warranty.
4. What is
implied condition as to title on
5. What is the part of the
6.
implied condition in the case of seller ?
What is implied sale by samnple?
7. What do you condition in the case of
sale by
8. understand
Explain implied warranty of
by implied
warranty of descripition?
quite possession ?
8. What is meant by freedom from
10. Under what caveat ernptor ? encumberances.
circumstances the rule of caveat emptor is not
Test uestions applicable
1
(aDefine and distinguish between a
condition and a warranty.
(h)Inder
breach
what
of circumstances
warranty
can a breach of
(G.ND.U Apr. 200
? Meaning of condition be treated
Conditions, Warranties as
and
(G.N.D.U Apr. 2001, 2O04, 20O6 difference.