Page 153 - DCOM103_COMMERCIAL_LAW

Commercial Law

Notes 6. Sale by sample (Sec. 17). A contract of sale is a contract for sale by sample where there is a term
in the contract, express or implied, to that effect [Sec. 17 (1)]. In the case of a contract for sale by
sample, there is an implied condition:
(a) that the bulk shall correspond with the sample in quality; (b) that the buyer shall have a
reasonable opportunity of comparing the bulk with the sample. (c) that the goods shall be free
from any defect, rendering them unmerchantable. The defect should not however be apparent
on a reasonable examination of the sample [Sec. 17 (2)]. This implied condition applies only
to latent defects, i.e., defects which are not discoverable on a reasonable examination of the
sample. The seller is not responsible for the defects which are patent, i.e., visible or discoverable
by examination of the goods. In case of patent defects, there is no breach of implied condition as
to merchantability.

Example: (a) There was a sale by sample of mixed worsted coatings to be in quality and
weight equal to the samples. It was found that the goods owing to a latent defect would not stand
ordinary wear when made up into coats. The same defect was there in the sample but could not
be detected on a reasonable examination of the sample. Held, the buyer could reject the goods

[Drummond v. Van Ingen, (1887) 12 App. Cas. 284]. The office of the sample is to present to the
eye the real meaning and intention of the parties with regard to the subject matter of the contract

which, owing to the imperfection of language, it may be difficult or impossible to express in
words. The sample speaks for itself.” (Lord Macnaghten).
(b) In a contract for the sale of brandy by sample, brandy coloured with a dye was supplied. Held,
the buyer was not bound to the contract even though the goods supplied were equal to sample,
as the defects were not apparent on reasonable examination of sample [Mody v. Gregson, (1868)
L.R. 4 Ex. 49].

(c) D sold sulphuric acid to P as commercially free from arsenic. P used it for making glucose
which he sold to brewers who used it in brewing beer. The persons who drank the beer were
poisoned. D was not aware of the purpose for which P had bought the acid. Held, P was entitled
to repudiate the contract and since this was not possible in the instant case (as P had already used
the goods), he could treat breach of condition as breach of warranty and claim damages [Bostock
& Co. Ltd. v. Nicholson & Sons Ltd., (1904) 1 KB. 725].
7. Condition as to wholesomeness. In the case of eatables and provisions, in addition to the
implied condition as to merchantability, there is another implied condition that the goods shall
be wholesome.

Example: (a) F bought milk from A. The milk contained germs of typhoid fever. F’s wife
took the milk and got infection as a result of which she died. Held, F could recover damages [Frost
v. Aylesbury Dairy Co. Ltd., (1905) 1 KB. 608].
(b) C bought a bun containing a stone which broke one-of C’s teeth. Held, he could recover
damages [Chaproniere v. Mason, (1905) 21 T.L.R. 633].

Implied Warranties
The implied warranties in a contract of sale are as follows :

1. Warranty of quiet possession [Sec. 14 (b)]. In a contract of sale, unless there is a contrary
intention, there is an implied warranty that the buyer shall have and enjoy quiet possession
of the goods. If the buyer is in any way disturbed in the enjoyment of the goods in
consequence of the seller’s defective title to sell, he can claim damages from the seller.

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