Implied Terms (Sale by Description) PDF

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Sale of Goods Act 1979: s. 13(1) SGA 1979: “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” s. 13(1A) SGA 1979 : “As regards England and Wales and Northern Ireland, the term implied by subsection (1) above is a condition” Grant v Australian Knitting Mills Ltd : But see SGA s.11(2): Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated. SGA s.11(4): Where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is an express or implied term of the contract to that effect. SGA s.15A: in relation to non-consumer sales, breach of s. 13 to be treated as breach of warranty, IF ‘breach is so slight that it would be unreasonable for [B] to reject them

Meaning of ‘sale by description Sale of future or unascertained goods: Are sold by description, as B will need to rely on description What about specific goods? Grant v Australian Knitting Mills: ‘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., woolen under-garments, a hot-water bottle…’ Selection: s. 13(3) SGA1979: “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” Goods exposed and sold in self-service stores may be goods sold by description: Scancom International A/S v RWH Enterprises Ltd (goods selected by reference to examples shown at an exhibition; not a sale by sample: sale by description) Intention: Intended that it is part of the contract.

Sale not ‘by description’ unless parties intended the descriptive words to be a term of the contract Drake v Agnew: art dealer buying painting for art collector from specialist seller; painting referred to as a painting by ‘Van Dyck; specialist seller’s refs. to ‘Van Dyck’ clearly stated to be only expressions of opinion. Held: references are mere expressions of opinion; sale cannot be one by description unless parties intended description to be a term of the contract Identification: Words must go to the identity: It needs to be a fundamental description of the thing Distinction between words that relate to the goods’ identity and descriptive words that relate to the goods’ attributes (e.g. quality, fitness for purpose) Ashington Piggeries Ltd v Chrstopher Hill Ltd: Sale of ‘Norwegian herring meal fair average quality of the season’, herring contaminated, fatal to mink No breach of s.13 (but s.14) ‘Fair average quality of the season’ = attribute (quality) Important case that comes out in every implied terms question.

Courts in past were too willing to recognise words of description as falling within s. 13: Re Moore and Co Ltd and Landauer (sale of tinned fruit; delivered in packs of 24; supposed to be packed in packs of 30 according to statement in contract. Held: sale is by description; B entitled to reject the full consignment) BUT see Reardon Smith Line v Yngvr Hansen-Tangen (ship built in different yard and given different hull number as originally stated) Re Moore is ‘excessively technical’ Particular item in description must be a ‘substantial ingredient of the identity of the thing sold’ Hull and yard number no special significance; merely meant to identify the vessel : are not words of description for purpose of s. 13

Reliance: B’s reliance on the description must be within reasonable contemplation of the parties:

Harlington & Leinster Ltd v Christopher Hull Fine Art Ltd: (sale of oil paintings; paintings described in the past as ‘by Munter’; S makes it clear that he is not an expert; B, art dealers specialising in German expressionists, buys; painting forgery) Held: B has not relied on S’s description of painting as being ‘by Munter’ => no sale by description Representations: Oscar Chess Ltd v Williams: Cf. Beale v Taylor: Sales by sample: S.13(2) SGA 1979: “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”

B. Consumer Rights Act 2015: s. 13(5) SGA 1979, as amended by CRA 2015:

‘[s.13 SGA] does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 11 of that Act)’

s. 11 CRA 2015: goods to be as described

(1) Every contract to supply goods by description is to be treated as including a term that the goods will match the description

(2) If the supply is by sample as well as by description, it is not sufficient that the bulk of the goods matches the sample if the goods do not also match the description.

(3) A supply of goods is not prevented from being a supply by description just because—

(a) the goods are exposed for supply, and (b) they are selected by the consumer.

(4) Any information that is provided by the trader about the goods and is information mentioned in paragraph (a) of Schedule 1 or 2 to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) (main characteristics of goods) is to be treated as included as a term of the contract.

(5) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

… (7) See section 19 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.

** NB: Recall that the CRA 2015 includes a specific chapter on digital content. This chapter also deals with description:

Digital Content:

s.36 CRA 2015: digital content to be as described

(1) Every contract to supply digital content is to be treated as including a term that the digital content will match any description of it given by the trader to the consumer.

(2) Where the consumer examines a trial version before the contract is made, it is not sufficient that the digital content matches (or is better than) the trial version if the digital content does not also match any description of it given by the trader to the consumer.

(3) Any information that is provided by the trader about the digital content that is information mentioned in paragraph (a), (j) or (k) of Schedule 1 or paragraph (a), (v) or (w) of Schedule 2 (main characteristics, functionality and compatibility) to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) is to be treated as included as a term of the contract.

(4) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

(5) See section 42 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.

S.39 CRA 2015: supply by transmission and facilities for continued transmission :

(1) Subsection (2) applies where there is a contract to supply digital content and the consumer's access to the content on a device requires its transmission to the device under arrangements initiated by the trader.

(2) For the purposes of this Chapter, the digital content is supplied—

(a) when the content reaches the device, or (b) if earlier, when the content reaches another trader chosen by the

consumer to supply, under a contract with the consumer, a service by which digital content reaches the device.

(3) Subsections (5) to (7) apply where—

(a) there is a contract to supply digital content, and (b) after the trader (T) has supplied the digital content, the consumer is to have access under the contract to a processing facility under arrangements made by T.

(4) A processing facility is a facility by which T or another trader will receive digital content from the consumer and transmit digital content to the consumer (whether or not other features are to be included under the contract).

(5) The contract is to be treated as including a term that the processing facility (with any feature that the facility is to include under the contract) must be available to the consumer for a reasonable time, unless a time is specified in the contract.

(6) The following provisions apply to all digital content transmitted to the consumer on each occasion under the facility, while it is provided under the contract, as they apply to the digital content first supplied—

(a) section 34 (quality); (b) section 35 (fitness for a particular purpose); (c) section 36 (description).

(7) Breach of a term treated as included under subsection (5) has the same effect as breach of a term treated as included under those sections (see section 42).

s.40 CRA 2015: quality, fitness and description of content supplied subject to modifications:

(1) Where under a contract a trader supplies digital content to a consumer subject to the right of the trader or a third party to modify the digital content, the following provisions apply in relation to the digital content as modified as they apply in relation to the digital content as supplied under the contract—

(a) section 34 (quality); (b) section 35 (fitness for a particular purpose); (c) section 36 (description).

(2) Subsection (1)(c) does not prevent the trader from improving the features of, or adding new features to, the digital content, as long as—

(a) the digital content continues to match the description of it given by the trader to the consumer, and

(b) the digital content continues to conform to the information provided by the trader as mentioned in subsection (3) of section 36, subject to any change to that information that has been agreed in accordance with subsection (4) of that section.

(3) A claim on the grounds that digital content does not conform to a term described in any of the sections listed in subsection (1) as applied by that subsection is to be treated as arising at the time when the digital content was supplied under the contract and not the time when it is modified.

** NB: finally cf. with the new provision on sale by way of a model:

Sale by way of a model:

s.14 CRA 2015: goods to match a model seen or examined

(1) This section applies to a contract to supply goods by reference to a model of the goods that is seen or examined by the consumer before entering into the contract.

(2) Every contract to which this section applies is to be treated as including a term that the goods will match the model except to the extent that any differences between the model and the goods are brought to the consumer's attention before the consumer enters into the contract.

(3) See section 19 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract....