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Unit 15: Conditions and Warranties

result, the boy was blinded in one eye. Held, P was liable as the catapult was not of merchantable Notes
quality [Cod ley v. Perry, (1960) I All E.R. 36].
(d) A radio set was sold to a layman. The set was defective. It did not work in spite of repairs.
Held, the buyer could return the set and claim refund [R.S. Thakur v. H.G.£. Corpn., A.l.R. (1971)
Bom. 97].
Even if the defect can be easily cured, e.g., by washing an irritant out of a woollen or nylon

garment by making some trifling repair, the buyer can avoid the contract. If he has examined
the goods, there is no implied condition as regards defects which such examination ought to
have revealed. If, while professing to examine the goods, he makes a perfunctory examination
with the result that he overlooks a defect which a proper examination would have revealed, he
has nevertheless examined the goods, and there will be no implied condition of merchantable
quality.

Example: B went to V’s warehouse to buy some glue. The glue was stored in barrels and
every facility was given to B for its inspection. B did not have any of the barrels opened, but only
looked at the outside. He then purchased the glue. Held, as an examination of the inside 01 the
barrels would have revealed the nature of the glue, and as B had an opportunity of making the
examination, there was no condition as to merchantable quality [Thornett & Fehr v. Beers & Sons,
(1919) 1 KB. 486].
Packing of the goods is an equally important consideration in judging their ‘merchantability’.

Example: M asked for a bottle of Stone’s ginger wine at F’s shop, which was licensed
for the sale of wines. While M was drawing the cork, the bottle broke and M was injured. Held,
the sale was by description and M was entitled to recover damages as the bottle was not of
merchantable quality [Morelli v. Fitch & Gibbons, (1928) 2 KB. 636].
Where the buyer has examined the goods, there is no implied condition as regards defects which
such examination ought to have revealed [Proviso to Sec. 16 (2)].
5. Condition implied by custom. An implied condition as to quality or fitness for a particular

purpose may be annexed by the usage of trade [Sec. 16 (3)].
In some cases, the purpose for which the goods are required may be ascertained from the acts and
conduct of the parties to the sale, or from the nature of description of the article purchased. For
instance, if a perambulator or a bottle of milk is purchased, the purpose for which it is purchased
is implied in the thing itself. In such a case, the buyer need not tell the seller the purpose for
which he buys the goods.

Example: (a) P asked for a hot water bottle of L, a retail chemist. He was supplied one
which burst after a few days use and injured P’s wife. Held, L was liable for breach of implied
condition because P had sufficiently made known the use- for which he required the bottle [Priest

v. Last, (1903) 2 KB. 148].
(b) G purchased a woollen underwear from M, a retailer, whose business was to sell goods of that
description. After wearing the underwear, G developed an acute skin disease. Held the goods
were not fit for their only proper use and G was entitled to avoid the contract and claim damages

[Grant v. Australian Knitting Mills Ltd., (1936) A.C. 5].
(c) A bought a set of false teeth from a dentist. The set did not fit into A’s mouth. Held he could

reject the set as the purpose for which anybody would buy it was implicitly known to the seller,
i.e., the dentist [Dr. Baretto v. T.R. Price, AIR (1939) Nag. 19].

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