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C H A P T E R - V I I
SALE OF GOODS BY DESCRIPTION AND SAWPLE
Spec,if4-c, .goods and^^qoods s o l d bv d e s c r i p t j L o n i
At Common L a u , t h e most u s u a l i n s t a n c e o f s a l e
o f goods by d e s c r i p t i o n uaa s a l e o f u n a s c e r t a i n e d or
f u t u r e goods o f a c e r t a i n d e s c r i p t i o n i . e . c l a s s or 1
k i n d . An a u t h o r i t a t i v e work says t h a t t h e t e r m u a r r a n t y
i s c o n s t a n t l y a p p l i e d t o d e s c r i p t i o n s g i v e n of s u b j e c t
m a t t e r o f t h e s a l e i n c a s e , where t h e s a l e i s n o t o f
S p e c i f i c a r t i c l e , b u t o n l y of a c e r t a i n d e s c r i p t i o n of
a r t i c l e * I n such cases t h e p r o p e r t y c a n n o t pass by b a r
g a i n . The c o m p l i a n c e w i t h t h e so c a l l e d w a r r a n t y i s a
c o n d i t i o n p r e c e d e n t t o t h e p u r c h a s e r ' s l i a b i l i t y t o
accep t or p a y , and i f t h e a r t i c l e does n o t c o r r e s p o n d
u i t h t h e g i v e n d e s c r i p t i o n , t h e p u r c h a s e r i s e n t i t l e d t o
r e j e c t i t , and i f has p a i d f o r i t , t o r e c o v e r t h e p r i c e 2
as money r e c e i v e d t o h i s use .
"'^ Hevuo r th v , H u t c h i n s o n (1867^ L .R . 2 Q.B, 447
2» Chand le r v . L o p u s . Sm. L .C , 7 t h Ed . V o l , 1 , PP. 185-.B6
21-1 r-i
At common lau specific goods could also be sold
by description. But the Intention had to be ascertained
from the terms of contract and other sourrounding cir
cumstances. As a general rule, a contract for the sale 3
of specific goods was a contract for that article as such.
The property in such good passed at the time of making
the contract and any description of the goods uas merely
a representation hawing no legal effect except where it
was fraudulent and if so the buyer uas liable for damages
only and there uas no implied warranty of fitness in such
cases. Lord Plouden sayss
Prae-Sentjia Corporals Toj.lit Errprem
Nqminis And VerjLtas Wpminis To 11 it Eryorem
pemonstreition Is - *' Another certainty put
to another thing which uas of certainty enough before,
is of no manner of effect". Lord Bacon also says:
"There be three degrees of certainty, presence, name, and
demonstration of reference, where of the presence, the
lau holdeth of greatest dignity, the name in the second
degree and the demonstration of reference in the lowest
and always error or falsity with less worthy shall not
control nor frustrate efficient certainty and variety in
m Willi wi m« wii W M m m -mm iwiw pi.-aw.—iii.i»i — —'— — *>•—i'— —IM-H— >m,.mi«wmwmm awi—«•'— —ii .^i i mmmmmm^mm ii • 'i i w i n •..n
3, Robertson v, Amazon Tug Co. (1881) 7 Q.B.D, 598
278
4 the more worthy "
Comtnpp VPV d i s t inc t ion beitueen Representatjlons and
Contrectual Terms; On plain reading of the Section 15
of S,C. A. i t may appear that i t oddly declares tha t
whatever i s expressly mentioned must impliedly be performed.
Houever, the case lau on the point s t a t e s that there i s
d i s t i nc t ion between mere representat ions and contractual 5 6
terms, in T 4 3 , .Hg\rrj.spn vr KnouXes and fos te r and jDs£gr 7
chess Ltd. v. l^illiams. the court held that t h i s only
amounted to a mere representa t ion and not a term of con t rac t , 8 9
whereas, i t was held in rnr,l,py v.. Fhl.p, Ssnl v, Jny ln r , ie
laylQT V, Combined buyers Ltd. and Dick Bentlv Ltd. v. Harold 11
Smith Ltd. that the descriptive statement did not amount
to mere representation but it constituted as a term of con.
tract. If we compare the facts of DpLck Bentlv Ltd. v. Harold
Smith Lt(j. with Oscar chess, |.td. v, i' >ll,iam_s supra,it will
be evident that the facts of both the cases resemble each
other but still the decisions differ, Atiyah says that
4, Lau Tracts (ed. 1737),102 (quoted from Famnatha Aiyar's "The Sale of Goods Act" (1964 Ed.) P. 63
5, Refer, for a vehement criticism, Stoljar "Conditions, Warranties and Description of quality in Sale of Goods I " 15 nod. L.R. 425 and 16 Pod. L.R. 174
6, (1918) 1 K.B, 608 (seller representing the ship as of 460 tons dead weight capacity whereas'the ship supplied was of only 360 tons)
7, (1857) 1 l',L.R. 370(the seller describing his car a8''1948 Forsis" which was 1939 model)
8, (1900) 1 P.P. 513 9, (1957) 1 .I'.L.R. 1193 10.(l9r4) N.Z.L.P. 627 11. (1965) 2 All E.P. 65
270
perhaps uhere the seller is a private dealer, the courts
have a lenient view of the terms of contract under sec*13
of E. A, (corresponding to Section 15 of S.G. A,) and if
they find that the seller is a dealer in those goods,
then the term is strictly construed and declared as part
11o of contract description.
Though the term description usually refers to a
particular class of goods yet "it also includes the state
ment which may be ossontial to the identity of the goods
as contracted for e,g, as to quality or fitness, place
of origin or of shipment, time of despatch or delivery, 12
mode of packing etc,"
Goods are sold by description where the buyer enters
into contract of sale in reliance on description of goods
given by or on behalf of the seller* There may be sale by
13 description although the goods are specific,
11j Atiyah P.S, "The Sale of Goods" (*th Ed. P. 34
12, National Traders v, „Hindust^n Soap. Uorks, AIR 1959
F!ad. 112 (citing 25 Halsbury's Laws of England, 154
13, 29 Hallsbury ,62. Benjamin states, while commenting
upon Sec, 13 of E. A, (corresponding to sec, 15 of S,G,AHhat the rule applies to a contract for sale by description either of a specific chattel or unascertained goods (Benjamin on Sale,8th Ed.P,609) ,Further,Pollock & nulla state that specific goods may be sold by description and the stipulation, as in case of unascertained goods,may amount to condition and "provision relatinq to sale of specific goods, whatever its precise effect,will only apply to those cases in which the buyer does not rely upon the description".(Sale of goods and Partnership Acts III Ed, P. 65) The authors further state under heading "Sale of specific goods by description" as follows:
lou
It uas observed in Grant v. Austral 1 an |<nitt 1 nq
Wills that a thing, although specific, may be sold by
description so long as it is sold not merely as a specific
thing but as a thing corresponding to a description. So 15
i" ,Va.FJs„y v« tJhio. where the subject matter of sale was
specific goods end the buyer had not seen it but relied
upon the description given by the seller, it was held that
he was entitled to reject it as it did not correspond
with the description.
Unascertained or future goods are invariably sold
16 by description. In cases of sale of specific goods, it
is a question of fact whether the goods ere sold as such
or they are sold by description.
In a contract through correspondence, the goods must
be given some verbal description. Even in a cuntrect effected
in a shop, the goods may be sold by description. In Grant v. 17
Australian Knitting j-lls ,!-td« f it was observed 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,even though it is specific,so long as it
is sold not merely as specific thing but as a thing corres
ponding to a description e,g, woolen under-garments, a hot
This usually applies to a contract for the sale of unascertained or future goods,but It may apply to sale of specific goods,also,if the buyer contracts in reliance on that description,
14. AIF 1936 F,C, 34 at 41 15. ^ 1900) 1 C,B, 513 16. Hawever,refer the r u l i n g s of Howell v.CouolandC1676)
1 R,B, 0,258 where sa le of QB f u t u r e goo'rfs was" t r e a t e d as sa le of s p e c i f i c goods,
17. (1936) A.C. 85 at 100
28.
water bottle , a second hand reaping machine, to select a feu
obvious illustrations.
The Dictum of Dixon J, of Australian High Courts
is based upon inherent fiction that buyer did not select
the stock but rather the sales assistant identified the
goods. His Lordship observed that the identity of goods
may certainly be established, the parties must, since the
intention is expressed or communicated,refer in some uay
to the goods. They must use some 'description* to refer to
them, A difficulty, therefore, will arise in determining
as to uhen the sale is 'by* the description and when not.
Apparently, the distinction is between sales of things sought
or chosen by the buyer because uf their description and of
things of which the physical identity is all important,
"Uhen the ground upon which the goods are selected and identified in their
correspondence to a description and when therefore, it may be said that the buyer primarily relies upon their classification then, notwithstanding that they are bought as specific goods ascertained and identified, the goods are bought by description. In the ordinary course of a sale over the counter by a shopkeeper to a customer, who calls for an article of a given description, inspects the specimens produced, and buys one; the transaction is a sale by description".18
18» Australian Knitting Wills Ltd. v. Grant (1933)
50 C.L.R. 387 at P, 417-18
2bZ
Uil l i s ton does not agree tha t in a s i t ua t i on l i ke
Grant 's case, the sa le may be sal© by descr ip t ion . He
i s of the vrieu tha t the term should be confined to cases
where the inden t i f i ca t ion of goods sold depends on des
c r i p t i o n , that i s , the goods cannot be indent i f led without 19 i t , Houever, he concedes that the terra (nay be extended
to a l l the cases where the buyer r e l i e s upon the descr ip t ive
words.
The goods should not only be described but contracted 20
under tha t descr ip t ion . I t was obserued in Oavid Jones 21
| . td . w. W,;i,jl,les tha t when-eyer the buyer describes the
goods to place re l iance to a subs tan t ia l degree upon those
words as well as upon the iden t i ty of those goods, i t i s
sa le by descr ip t ion. All sales must be sales by descr ipt ion 22
unless they are sa les of specif ic goods. Numerous thorough
inspections of an a r t i c l e mny mean that a spec i f ic a r t i c l e
i s subject matter of s a l e and descr ip t ive words used are 23
only meant for i d e n t i f i c a t i o n . The aforesaid dictum had
19. I ' i l l l s t o n on Sale , Rev, Ed, Section 224 P. 573 et seq, Prosser i s also of the same view. See his remarks in (1943) 21 C.e.P, at PP. 470-2
20. K.C.T, iu t ton "The Sale of Goods in Austral ia and Newzeland" (196 7) Ed,) V. 147
21. (1934) 52 C.L.P. 110 s t P. 119 22. 3ordon C.J . in Ui l les v, David Jones V.td.(1934^ 24 S,P,
(N,S,I',) 303 at P. 313 and the opinion of Dixon 3 , in Grant 's case
23. Crass v. Steinberg (1947) 73 K, E, 2d. 331, Also r e fe r , Horn V, Winj.3ter of Foo^ (1948) 2 All E.R. 1036 at 1P39,
28
c r e a t e d a d i f f i c u l t y i n acceptance of t h e p r o p o s i t i o n
whether sale© i n s e l f - s e r v i c e s t o r e , where the customer
himself s e l e c t s t h e a r t i c l e , c o n s t i t u t e s a s a l e by
d e s c r i p t i o n . The obse rva t ions of Ptolony Committee
are t h a t r e t a i l e s t ab l i shmen t s c a t e r t h e goods for t h e
s e l e c t i o n by t h e customer himself unaided by s a l e s
a s s i s t a n t s , " I t i s ques t ionab le uhe the r t he se s a l e s a re
by •de sc r ip t i on* and i f no t , t he customer has no shred 24 of r i g h t i n law to complain of a d e f e c t i v e purchase" .
To r e s o l v e over t h i s c o n t r o v e r s y , t h e supply of
Qoods ( Impl ied Terms) Act, 1973 has added, vide s e c t i o n 2,
a c l a u s e under s e c t i o n 13 uhich reads*
*' A s a l e of goods s h a l l not be prevented from being a s a l e by d e s c r i p t i o n by reason only t h c t , being exposed for s a l o or h i r e , thoy a re s e l e c t e d by t h e buyer" ,
n
MPN CnNFCPRTY laTH DCSCriPTION AN'O RErElCKS CF THE BUYER ' • . . • • • - . . . , , • • • — - . - . - • • • — • ^ ^ — I ,. • - . . . . ^ i i - • p L I . L I . . 1 1 . L, II . , .. m . i I " 1 II r - ~ - - i i i 1 f i — r - i v
The p rov i s ion i s s t r i c t l y cons t rued and i f t h e r e
i s non-corrpliancT with i t s term, the buyer i s e n t i t l e d t o
24, F ina l Report of the Committee on Consumer P r o t e c t i o n (196 2) Comnd. 1781, para 441
28 '-X
r e j e c t t h e goods. However, I t i s c o n t r o v e r s i a l as to
when do t h e goods do not conform u i t h the d e s c r i p t i o n .
I t i s an accepted p r i n c i p l e t h a t t r i v i a l i n c o n f i r -
fnity g ives no ground for r e j e c t i o n . But o the rwi se , t h e
buyer i s e n t i t l e d t o r e j e c t even though t h e goods a re 25
merchantable and commercially round,
26 In ^oynal f>ftstur ChpnU v. H^B^-JgnalLi KhanJ:^hajl,76 l b s ,
were packed in a case a g a i n s t BO lbs s t i p u l a t e d i n the
c o n t r a c t . Even though t h e marking on cases correspon^dd
u i t h t h e marking mentioned i n t h e c o n t r a c t , i t was held
t h a t the? buyer was e n t i t l e d t o r e j e c t . The markings of
cases were immater ia l and the mode of packing was m a t e r i a l 27
as i t r e l a t e d t o na tu re of c o n t r a c t . I t i s noted from law
r e p o r t s t h a t the buyer su f f e red no los s from such packing ,
s t i l l he r e j e c t e d the goods on t h e ground of non-conformity
u i t h d e s c r i p t i o n . I t i s oubmitted t h a t t h e law should take
i n t o account the c o n f l i c t i n y c la imes of p a r t i e s and b r ing
about j u s t i c e i n a way which may not opera te ha r sh ly upon «i<— • • <li Wii
?^» Arcos Ltd. V. Ronaasen. (1933'> A. C.47Df HQ t*loore A Co.Ltd. v» Lgndfuer 1 Co,('l921^ 2 K,8 .519 , Pigfibye ,5acharrj.ne Co.v, Corn P r o d u c t , d m n ) T." . [? ,198, B a U a n t i n e v. Cramp & " Rosman (1923^ 129 L.T. 502,Fle3STS Ltd. v. Worison* s Export Go.LtHy^igsg) 1 All E . r . 92
26. ATh 1954 Spurash t ra 79.Jilso r e f e r Pakin v.^.ondon Rice f^ill Co. (1869) 2nL. T .705 .Fa l lan t i ,ne ^ Co.v.Cramo & Bosman.id.
27. l:riciht Stcohennon !> Co^lfd .v .N, 7.Loan * f e r c h a n t i l e Anencv ^ Comnany Ltd, ( 1 9 ^ H ' . Z.L.R. 6 30tParsona v.N. Z. ShipDJnu C o . d q u i ) 1.^.6. 548
28£
the sellei* The proof of loss or damage by the buyer
tnust be demanded and the inconvenience to the seller may
also be taken into consideration. However, in a full 28
bench decision of Punjab High Court, where the contract
related to supply of solidified fuel in containers of
certain specification, their Lordships held that the
inspector rejecting the goods on the grounds of improper
packing was not entitled to do so for the reason that the
instrument of authority did not empower him to reject*
From the terms of contract, it could not be construed that
the packing in suitable container formed part of contract
description of the goods. Their Lordships observed that
in the case of solidified fuel, packing must be a very
important feature in a contract for supplying that commodity.
In such event, it would of course be open to buyers namely
government to insist that the packing to be taken as part
of the commodity itself. The contract in the present
case could well have been specified to be contract for
supply of solidified fuel in a container of a particular 29
description.
?8. Fiohindra Supolv Co. v. G. Cin^Councij.. AIR 195A,
Punjab 211
29. Id, at 214
260
One of the terms of contract read:
"The store is required to be packed in new or uell*cleaned hermetically sealed four gallon tins of the Kersosine oil type and each tin shall contain 30 lb nett, Tuo such tins shall be repacked in a strong trade wooden case iron hooped, steel strapped or wired. The packing shall be sufficiently strong to withstand rough handling during transit by road, rail or sea and shall conform to the 3o requirement of Railway and Pamphlet No,14",
From the facts of the case, it appears that the
contract was formed on 30th Dune 19A3 and the authority
of the inspector to reject on the ground of faulty packing
^^^ augmented by amending the terms of original contract
31 on 1st September 1943.
What is evident in the light of above facts is,
that their lordships appreciated the fact that solidified
fuel should be packed in special containers, and the buyers
had actually made such provision. The inspector rejecting
the goods on ths ground of nan-conformity with the specifi
cations of packing was government official and a represen
tative of buyers. The position of the official is that of
an agent. The intention of the government was that goods
must be properly packed and authority to reject on ground
of improper packing was conferred by the government at a
later date. Hence, uhat-ever may be technicalities of law and
30. id, at p, 213
31. id. at p. 215
2^7
the rule of interpretation, it is submitted that the
decision appears to be strange and not in consonance
with equity and good conscience.
32 Antony Thomas v, Avooonni f ani sugqests that
descriptive uords relate to quality of goods. The time,
place, route of shipment may be part of the description
and non-conformity uith it uill give the buyer, the right 33
to rescind.
34 In V.K, Kumar S u a m y C h e t t i a r v. Karuppu SMami Flooppanar
pn d e l i v e r y in Huly, t h e buyers refused t o accept t h e goods 35
as they did not conform t o t h e d e s c r i p t i o n i . e . u e r e not
supp l i ed by mi l l s i n August. The buyers uere held l i a b l e
for breach of c o n t r a c t . The i r Lordships observed t h a t i t uas
32. AIS I960 Kerala 170 (Huyer e n t i t l e d t o r e j e c t as bad casheunut exceeded 20fi. See a l s o t'im _j._B, Sons ,& Co. v. L i ^ l i c o & Sons (1922^ 38 T.L.P. 296(Sale of c o t t o n cake c o n t a i n i n g 40f. p r o t e i n and 10 - o i l was s a l e by d e s c r i p t i o n )
33 . ,(*|qntaQu^ t,., Wever Ltd . v, ps^key, C a r e l i n Timber Co.Ltd^ (1930) 36 Com. Cas. 17, Kwe^ Tek Chan v, B r i t i s h Traders And sh ippers Ltd. (1954) «* 2 C.B. 459, 472 C a l i f o r n i a prune h Apricot Grouers I n c . v. Baird k Pe t e r s (1926) I .O , L. R. 314; l^qcpherspn Tra in Co,Ltdy v, Howard Ross & Coy Ltd . (1955) L l y o d ' s Rep. 518; Su t ro v. Hei lbut Svmons
_ . _ , " ^ 2 A .C . & Co. (1917) 2 K.B. 34e , Bowes v . ^ h a n d (1877) 2 A .C . 455
34 . AIR 1953 P^ad, 380
35. The main stipulation read "Description-20^ x 10 Harvey Fills Yarn, Despatch August 1943. Cash before delivery subject to terms and conditions above the mills, Fadura qodoun delivery."
28a
immaterial uhether the goods uere supplied in 3uly or
August, i f there was no difference in the quali ty of
goods produced in those months by the mi l l s . I t was
fofjnd tha t the buyers wanted t o evade t h e i r obl igat ions
in order to gain in pr ice ce i l i ng fixed by t e x t i l e com
missioner ( t o be effect ive from 15,8«1943) which was less
than the contract pr ice . I t was further observed, in
the l i g h t of cardinal rules of const ruct ion, that the date
of delivery did not form part of contract descr ipt ion,
Uhere the contract of s a l e spec i f ies cer ta in brand 36
or mark that forms part of descr ipt ion to the goods, any
omission wi l l e n t i t l e the buyer to r e j ec t . However in 37
Hopkins v# ,Hitchcock. the contract re la ted to sa le of i ron
bars with marks "S, & H, Crown", Snowden 4 Hopkins two
partners manufactured these goods under the above t rade
marks, Aftor retirement of Snowden, the f i rm's name was
changed and marks on goods when delivered uere a l te red to
"H & Co, Crown*', The buyers r igh t ly rejected the goods
on the ground that they did not conform to the contract
descr ip t ion , In en action by the s e l l e r for r e j ec t ion ,
i t was held that i t was n proper tender , as the qual i ty
of the goods remained the same. I t i s submitted that in
36. ^ c a l i a r i s v. Of verb era - Co, (1921) 37 T,L,R.307, Bunnel v, W'hitlau (1B5fa^ 14 U.C, P.B, 241; Turner & Co. Q.Fiorrian (1924) 2A S.R. (N.S,W,) 421
37. 143 E.R. 369, (1863) 14 C.B, ( N,S, ) 65
280
contract of sa le of goods, f i r s t , they must conform
with t h e descr ipt ion. Then the second question wi l l be
whether the goods are of r ight qua l i ty . In Njblett v. 38
Confectioners' Platerials co. L td . , the goods were of
r ight qual i ty but af ter s t r ipp ing off t h e i r l abe l s , they
had to be sold on a low pr ice iat a l o s s . I t must be
noted tha t the t rade-descr ip t ion of the goods i s part of
goodwill of a business . I t i s acquired in course of t ime.
The customer r e l i e s upon t rade mark and he purchases the
goods, havinq r e l i ed upon i t . The a r t i c l e may be standard
one. Beta Shoes are very cost ly in comparison to other
shoes. But the i r goodwill i s so high that people do not
mind paying the pr ice demandGd, But if the same shoes are
sold under t rade name "Telco" no one may l i k e to purchase
them, or may purchase on a low pr ice . Hence the buyer
purchasing the goods for r e - sa l e wi l l find i t hard to get
customers on the pr ice which could be fetched under t r ade
descr ip t ion , "S,H,* Crown", Under these circumstances,
damages should hax/e been awarded by the court i f no re jec
t ion was allowed, Uhen the goods do not correspond with
the i r descr ip t ion , the s e l l e r may "cure" the deficiency by
supplying the r ight type of goods, if he could do so within
the delivery schedule specified under the contract of s a l e .
The buyer may rescind the contract and claim damages. An
these r igh ts of the buyer have been discussed at length under Chapter TV,
38, (1921) 6 K.B, 387
2oC
m
I N T E R P R E T A T I O N
There a r e two views i n t h i s r e g a r d . F i r s t i s a
narrow wieu not going beyond the c l a s s i f i c a t i o n of goods
i . e . t h e s e l l e r must supply pe ts not beans , chalk not
Cheese and t h a t q u a l i t y and f i t n e s s do not form p a r t of
d e s c r i p t i o n . Second view i s a broader view and i t regards
d e t a i l s of measurement, t ime of d e l i v e r y , shipment, f i t n e s s
q u a l i t y e t c . as pa r t of c o n t r a c t - d e s c r i p t i o n . In t h e 39
r ecen t c a s e of Ashinqton P joqa r i e s v , Chr i s topher H i l l L t d . .
he r r i ng meal was contaminated with a s u b s t a n c e , known as
D, PI, N.A, t h e add i t i on of which rendered t h e goods harmful
and as o r e s u l t the roof , t he minks d i ed . Their Lordshin
of t h e House of Lords observed t h a t d e s c r i p t i o n only con
cerned wi th i d e n t i f y i n g t h e goods c o n t r a c t e d and would not
i nc lude " f a i r average o u a l i t y of t h e season" under c o n t r a c t 40
d e s c r i p t i o n .
39. (1972) A.C, 441; (1971) 2 U,L,R, 1051 40. For a C r i t i c i s m of t h i s view, r e f e r Annual Survey
of Common Wealth Law (1971) ; I n g r i d P a t i e n t "flore Lore on s e c t i o n 14'' (1970) 33 Flod,, L.R, 565 and '"'Ruminatino on Plink Food", 34 flod. L.R. 557 at 557-59
2yi
It is submitted that the decision is open to
objection, in so far as it afflirBis that (1) the goods
correspond with their description and the addition of
D, P),W, A, in small quantity did not change the descrip
tion, and (2) the "fair average quality" did not form
the description but it related to quality of the goods.
It may be recollected that in Pjlnnock Bros w. 41
Lewis and Peat Ltd., C purchased from 0 a quantity of
Copra Cake under terms "the goods are not warranted free
from any defect rendering them unmerchantable which would
not be apparent on reasonable ecamination**. It was dis.
covered later on that the copra cake was adulterated with
castor beans which rendered it poisonous, Roche 3. held
that the exemption clause did not protect the sellers as
the goods did not correspond with their description. The
admixture of castor beans in copra cake rendered it
totally a thing of different description. In Ashinqton
Pioqeries case, the compounders suggested certain changes
in the formula provided by the buyers. One was that
herring meal, instead of fish meal should be used. It
may be pointed out that D, n.N, A. was used as a substitute
to a salt which was previously used in preparation of
mink food. This was obviously a new substance, though
41, (1923) 1.K,B, 690
(COt^
used in very small quantities in preparation of mink food.
Can then ue say that if the small addition of a substance
changes quality of goods, it amounts to suppl|ring the goods
of different description. It is not the quantity that
matters but the potential danger inherent in that. In 42
Uilson V, Rickatt Cockerell & Co, Ltd,,an explosion uas
caused in a consignment of coal, when placed on fire by the
buyer. This happened dvo to presence of an explosive
substance present in the coal. The buyer uould have suc
ceeded on this ground had he pleaded that the addition
of an explosive, even in small quantities rendered it a
thing of a different description.
There is a very interesting case of unusual^occurence,
A3 decided by Calcutta High Court in which certain hessian
cloth, required for packing food stuff, was rejected by
the buyer for the reason that it gave o bad smell because
of "particular batching process". Ameer All 3, said that
what amounts to description of goods is a mixed question
of fact and law. In the contract, the goods were described
as "Fort Gloster, Standard Dills Piake, quality, weight and
size as per margin". Against quality, uas mentioned hessian
42, (1954) 1 r.B, 598
43, In Re Andrew Yule & Co. AIR 1932 Cal, 879
44, id at p. 881
2^ji o
cloth. This was construed as referring to the nature
of cloth or fabric, Now the question was whether the
smell in the cloth rendered It other than the "Standard
rill Plake". This was a question of fact. From the
fact of the case, he drew the inference as follows:
"Smell is undoubtedly a ouality which can form the part of the description of the goods. Obviously if there was a contract for odourless parafin oil,
goods carrying smell would not conform to tho description. So if the standard make of parafin oil of certain manufacturer is odourless and there is a sale of X's standard make parafin oil, parafin oil manufactured by x but carrying smell would disconform''.45
It may be noted that smell is important in the
Cass of packing of food stuffs. The arbitrators had
found that hessian cloth was largely used for packing
food stuffs. Hence the inference drawn was that "stan
dard make" denotes inter alia standard ao to quality of
smell" and hence the goods did not conform to the des-
cription, I n Bostock & Co, v, Nicholson & Sons, the
contract related to the sale of goods, manufactured free
from arsenic. In a new manufacturing process, goods were
45. id,
46. (1904) 1. K.E. 725; 9 Camp, Cas, 200
2d'i
manufactured, involving the process of arsenic and on
supply, they bore such traces. It uas held that these
goods were not free from arsenic, Sedtion 15 is very
relevant to the quality and fitness of goads, if not
usually, at least sometimes. If the contract mentions
the goods for a certain purpose that purpose may become
part of contract-description. Thus in a Neuzealand case,
buyer bought " a pure bred polled Angus Bull", To the
knowledge of the seller, the bull wao wanted for breeding
purposes, but due to certain physical disabilities it uas
incapable of breeding. It uas held that the sale uas a
sale by description and that the description "a pure bred
polled Angus bull" conveyed the meaning that "the animal
48 might be usod to get this class of stock*'.
If ue turn to the remarks of Lord Abinger in Chanter 49
» Hopkins, that if a man orders copper for sheatbing ships,
which is a specific type of material, the seller will not
be supplying the goods an per description, if he supplies 50
the copper of a different type, I" Tehr,an~Europe Company 51
Ltd, V, Bolton tractor Ltd.. Diplock 3, remarked that 52
"the description of the goods which is dealt with by Sec,13
47. Cotter v. Luckie (1918) N.Z.L.R, 811
^^» id. at p. 813 49, (1838) 4 n & JJ:.399 - . . 5n, id, at p, 40c> 51, (1968) 2 C.B, 546 52. Corresponding to Section 15 of S, C, A,
2bL»
may w e l l be w i t h re fe rence t o the p a r t i c u l a r purpose 53
f ^ r y h i c h the buyer reou i res them, ^ " ^ Davies L .3 . ,
read ing the Judgment of t he Cour t , i n Ashinqton P iooer ies*
case, remarked t ha t i n t he op in i on of the c o u r t , i t would
have made no d i f f e r e n c e i f the word "mink food" were
used as c o n t r a c t - d e s c r i p t i o n , f o r t h i s would mean t h a t
the food was in tended f o r mink, but not t h a t i t was s u i
t a b l e f o r mink. I t i s submi t ted t h a t i f such were the
i n t e r p r e t a t i o n then the very, purpose of desc r i b i ng i s
de fea ted . Can ' t ue c l a s s i f y the s e l l e r ' s o b l i g a t i o n t o
supply the goods of r i g h t q u a l i t y under more than one
sec t ion? 55
I n a case decided by Madras High Court • t he
sub jec t matter of sa l e was Damangan Tour Dal which was
recognised of best q u a l i t y . The da l was loaded i n r a i n
and a f t e r having soaked wa te r , i t cou ld not be descr ibed
as best q u a l i t y . I t was he ld t h a t the da l supp l ied d i d
not conform t o the d e s c r i p t i o n . Also i n case of I n Re 56 "•~~"
Eehari L a i Baldeo Prasad, i t was observed t h a t the sa le
53, Suprc note 51 i d . at 54P
S4i f^efer I h g r i d ' f * a t i e n t , -^upra n, 40 " i d at 566 55. Sh iv l inqappa Shankarappa v , Ba l k r i shna C h e t t i a r & Sons
AIR 196 2 Pfad. 426 56. AIR 1955 Mad. 271 (Sale of dry peas da l super io r w i t h
out broken or denk ie . On supply r 'ha l l t»as found t o be of i n f e r i o r q u a l i t y - d a n k i e , broken and w i t h husk)
( p . 271) .
2bG
of goods by descr ipt ion may have reference to the qual i ty
of the goods, Uhere food s tuffs are purchased by descrip
t ion , an implied condition to the i r f i tness and quali ty
may also a r i s e . The question of reasonable f i tness of the
a r t i c l e can be s e t t l e d through i t s descr ip t ion i t s e l f as
rial. I t was held that the s e l l e r was bound to supply
goods in conformity with the contract and of merchantable
qual i ty . 58
In nal^i & Co. V. l/.,A. A.R. firm,^ i t uas observed
that in order^ that goods are immediately sa leable in the
market, they should conform to the descr ipt ion la id about
the i r qua l i ty . In the case of Bombay Burmah Trading 59
.Ppi:p.p.r,atlff.n «. Aahn .Hahri*. KhalnPi ^hXTMrX> it was held that
the goods supplied were not as per contract description (specification) and hence they uere unmsrchantable and
not fit for particular purpose as railuay sleepers. In 60
another case of the same High Court, it uas observed
that "The term that the goods shall be of merchantable
quality, is fulfilled, when they do not differ from the
normal quality of the described goods, including under
the term 'quality', the state or condition, as required
57, i d . p. 271 58, AIF 1923 Wad. 252 59. 34 flad. 453 (Sale bf rai luay s l eepe r s ) , 60. Aqha> I'1ir7a Nasar A ^ Khoyee, & Co. v, Gordon Ifoodroffe
4 Co. , AIP 1937 Had. 40
297
61 by the contract", jhe^e are a number of cases decided
62 in India to the same effect, Atiyah also conceded that
if the contract calls for goods of a certain quality, 63
this may itself become a part of contract- description.
RELATIONSHIP BETUEEN DESCRIPTION AND DUALITY OP FITNESS;
Section 16 of S,G. A, deals with Implied Conditions
as to quality and fitness in a case where goods are sold
by description. Under this section, goods may be fit for
o particular purpose and may be of merchantable quality, 64
yet they may not correspond with their description. It may
also happen that the goods correspond with their description
but they are either unfit for the particular purpose for 65
which they are sold or they are of unmerchantable quality.
It may be pointed out that sub-sections 16(1) and( 2)
are applicable to those cases where the goods are sold by
a seller dealing in goods of that description. The re
quirement of seller being dealer in the goods of that des
cription is not applicable under Sections 15 and 17 of our
Act. In other words, private sales are also included and
in this respect, the scope of latter section is wider than
that of the former.
6 1 . Id. at PP. 42-43 62 . Bans i l r l Ram Nath v. Fam Chand Tolaram.AIR 1930 Lahore
843(N) : Baretto V. Prucp AIF 1939 K'aq. 19:Peermohammad v, Dallo Ram, AIR 1919 l»)ad, 728
6 3 . Atiyah P.S, Op.cit supra n. 11a at p. 77 6 4. Arc OS L td , v, E.A. Ronaasen & Son, supra n. 25 63 . Ashinoton Piooeries Ltd. v. Christopher HJH, l%d.
Supra n.39.Grant v .Austral ian Knitino Wi l l s , supra n,14
2bl}
jv
SALE OF GOODS BY SARPLE AS UELL AS BY DESCRIPTION
This provision means that where there is sale of
goods by Description and Sample, as well, it is not enough
that the goods correspond with the sample if they do not
correspond with the description also. Use of sample or
Inspection of bulk do not exclude the implied condition 66
that they sha l l correspond with descript ion as w e l l .
However, i f the goods correspond with the sample as wel l
as descr ip t ion , there i s no room to r e j ec t them by the
buyer, even though the mistake is b i l a t e r a l and i s of fun-67
damental nature, according to one of the par t ies .
68 I t was observed i n floc y v, Gregsgn that there ere
a class of cases under sale by sample i n which goods are
bought by speci f ied descript ion. I n such cases, i t i s
an implied term that the goods sha l l reasonably answer that
descript ion i n the i r commercial sense. The sample i n
66. Mchol V. Godts (1854) 10 Ex, 191: 156 E,R.(F.R.) 410
6 7. Harrison and Jones L td , v. Eunton & Lancaster L td . (1953) 1 A l l E.R. 903; ^ 1953) 1 C.B, 6 46
68. (1868)L.R.4 Ex.49 Defendenfe bad contracted to s e l l grey s h i r t i n g s , according to sample, each piece to weigh 7 lbs , semple contained 15" china clay which was inserted to make up the weight, rendering the goods unmerchantable.
2B0
such cases is looked upon as a mere expression of the
qeallty of the article, not of its essential character,
and notulthstandlng the bulk be fairly shown, or agree
uith the sample, yet, if from adulteration or other
causes, not appearing by inspection of sample, though
not known to the seller, the bulk does not reasonably
ansuer the description in a commercial sense, the seller 69
is liable.
Effect of mistake on sale of goods by sample as wel l as
by Descript ion: Harison & Jones v. Bunten & Lancaster is
quite contrary to the general basic pr incip les of the law
of contract i . e . where both the part ies are under mistake
as to a matter of fact essential to the subject matter of 71
Contract, the agreement i s void for want of consent ad .|idem.
69. f pdv V, ,Gyeqson,id at p, 56,. PqsllnjQ v.^ Kinqf oyd 13 C.B. (N.S. ) 447; 32 L.3. ( c . P . ) 94
70. Supra n. 67 , The part ies agreed i n wr i t ing to buy and s e l l 300 bales of cotton "Calcutta Kapok Sree" brand. There was guarantee of qual i ty "to be equal to standard sample marked "Sree" brand i n our possession" from the s e l l e r s . Subsequent to the contract , a sample was sent to the buyers which they found unsuitable for the i r factory . The reason of unsu i tab i l l t y was that the Ka-pok contained an admixture of bush cotton. However, th is fact was unknown to both the buyers and s e l l e r s . Put the fact remained that such admixture made i t Calcutta Kapok "Sree" brand. Hence the goods were held to correspond' ' with the sample as wel l as descr ipt ion.
7 1 . Indian Trade & General Insurance Co. v. JiJlsLJliJL1954 A.B. l i e , G r i f f i t h v. Brvmer (1903^ 19 T.L.B. 434 Krelj . V, Henry (1903^ 2 K.B. 740 etc .
i 3 U <->
It uas held that the buyers had no ground of relief for
their contractual liability even though they honestly
believed that the goods of a known trade description
had particular composition and the sellers also shared
such erroneous belief. Though the decision does not
appear in conformity uith the fundamental principles re
lating to lau of contract, yet the judgment is on the merit
of facts quite justified. However, had there been a
guarantee of suitability for their factory purposes, the
buyers stood a fair chance of rejecting the goods.
U
SALE BY SAFIPLE
"A contract of sa le i s a contract for sale by sample
where there i s a term in the contract express or implied, 72
to tha t e f fec t , " The mere fact that a sample has been
shown i s not su f f i c i en t . Fut fur ther , the re must be agreement
to the effect tha t the sample wil l se t the standard for the
goods contracted. Unlike Sections ^A t o 16 which imply
ce r t a in conditions under specif ic fact s i t u a t i o n s , the t e s t
of s a l e by sample i s a question of law. A sa le at which a
specimen of goods has been exhibited i s not necessari ly a
72. Section 17(1) of S. G. A,
301
s a l e by sample For t h e buyer may r e l y upon d e s c r i p t i o n 73 74
a lone . Ameer All 3 , , i n a C a l c u t t a Case, decided t h a t
uhe re samples a re t ransformed i n t o formula a f t e r a n a l y s i s ,
t h e s a l e may s t i l l be a s a l e by sample.
The s e l l e r may shou a sample and ye t d e c l i n e t o
s e l l by i t but may ask t h e buyer t o i n s p e c t t h e bulk and 75
form h i s oun Judgment about t h e goods. In a number of c a s e s , may be
uhere samples are d i s p l a y e d , s a l ^ b y d e s c r i p t i o n from such
samples , Houever, i n cases of goods l i k e uhee t or f l o u r ,
uhe re sample i s produced, s a l e i s more l i k e l y t o be by
sample,
U i l l i s t o n observed t h a t sample i s simply a uay of
d e s c r i b i n g t h e sub jec t mat te r of b a r g a i n . The same r u l e s
which govern s a l e by d e s c r i p t i o n and agreement t o s e l l a r e 76
a p p l i c a b l e he re , t 'here t h e c o n t r a c t mentions d e l i v e r y by
i n s t a l m e n t s , sample, forming p a r t of one b a r g a i n , may ope ra t e
73, Gardiner v . Gray (1815) 4 Camp, 144,16 R.R, 764 fav^r V, Fverth (1814) 4 Camp,23j 15 R.R, 722
74, Lalchand v . £ a j j n a t h ( 1937) 63 Cal , 736; 169,1,C, 128; AlF 1937 Ca l . 140
' 'S . Gardiner v. Gray .Suora n ,73 Cameron v . S h i t z k i n P tv .L td . (1923) 32 C,L,R. 81
76. U i l l i s t o n on 5 a l e s ( n e v i s e d Ed. )Uol .1 S. 250 P,665 "Verbal d e s c r i p t i o n may be usBd(l) as a means of i d e n t i f y i n g t h e goods or(2) as a means of de sc r ib ing the q u a l i t y of e x i s t i n g goods which a r e o therwise i d e n t i f i e d , o r ( 3 ) as a means of de sc r i b ing n o n - e x i s t i n q goods. The same p r i n c i p l e s a r e a p p l i c a b l e uhere t h e d e s c r i p t i o n i s by means of a sample".
302
as a*condition*ln subsequent t ransac t ions but not in 77
case of Future goods; ' 78
Lord nacnaghten in James pruminond w. V/art In pen sa id :
"The office of a sample i s to present to the eye the rea l meaning and in ten t ion of the pa r t i e s with regard to subject matter of the contract which owing to the imperfection of the language, i t may be d i f f i c u l t or Impossible to express in words* The sample speaks for i t s e l f . But i t cannot be t rea ted as saying more than such a sample would t e l l a merchant of the c lass to which buyer belongs, using due care and d e l i -gence, and appealing to in the ordinary way and with the knowledge possessed by the merchant of that c l ass at the t ime,"
' Sa l e by sample* must be dist inguished with ' s a l e
by sample as well as by descript ion*. In the former, the
sample only r r fe rs to the oual i ty of goods but the l a t t e r
deals with i t s quali ty plus essen t ia l character . Thus in 79
Mchol V, Codts. where the sale re la ted to "Foreign refined
rape oil**,warranted only eoual t o sample, the s e l l e r was
held l i a b l e for supplying such n i l with an admixture of
hemp o i l , though such defect existed in sample as wel l .
77. Es Faulkners Ltd. (1917) 38 D.L.F. PAtEast Asiatic Co. Inc . V. Canada Fice F i l l s Ltd.(1939) 3 D.L.P. 695
78. (1887) 12 A.C. 284 a t 297
79. Supra n. 66
30" u
Uhere the descr ip t ive uords in the wr i t t en contracts
are u n i n t e l l i g i b l e or have no def in i t e t rade meaning, ex
t r i n s i c evidence wi l l be allowed to ascer ta in the meaning
of the descr ip t ive words. Under such circumstances, evidence
of exhibit ion of samples wil l be admissible, in order to sh ow
as to what was the rea l in ten t ion of the pa r t i e s behind these 80
descr ip t ive words. In an Australian case , j.,G^ Thome 4 81
Co. Ptv. Ltd. V, Thomas Rcpthwick & Sons Ltd* whore the
wri t ten contract had no reference to sample, i t was held
that parol c o l l a t e r a l contract may be proved If the goods
were warrantod as equal to sample.
A mistake in the sample which has been shown may
prevent the formation of a contract e«g. where the sample
i s drawn from a bulk different than the speci f ic one 8 2
intended and expressed to be sold. But the party at mistake
cannot take the benefi t of his own wrong.
BP» Sharp v . Thompson (1915) 20 C .L .R , 137 In Cameron k Co. v. Sjutzkln Fty.Ltd.(1923) 32 C,L.F. 81 ,
s e l l e r s sold "matchless No, 247539/40 white vo i le" under a wri t ten cont rac t . I t was held open to buyers to
refer to sample, even though there was no mention of such sample in the cont rac t ,
81. (1956) 56 S.r, (N.S.I'. B1
82. neoaw v, Holloy (1878) 2 L.R. Ir. 530 (C.A.) Scott V. Littledale (1858) 8 E,& B, 815
304
ui
PAROL EVIDENCE RULE
Where there i s contract of sa le by sample but the
p a r t i e s , while reducing the contract to wr i t ing , have not
recorded. Any reference to i t , then parol evidence, ru l e
u i l l prevent them from giving oral evidence to the effect 83
t h a t i t uaa sa le by sample. However, evidence of usage
or custom of t rade may be given that a s a l e uaa by sample, 84
even though the contract in wri t ing was s i l e n t . Fur ther ,
where the wri t ten contract does not refer to any sample
but the order on which such sa le i s made refers to i t , 85
then a l so , i t sha l l be t rea ted as a s a l e by sample.
83. f^ever v. Everth (1814) Supra n, 73 Gqrdiner v, Cray.supra n,73 .Ginner v. Kino (1890) 7 T.L.R. 140.. In an Australian case.L. C.Thome & Co V. T|iomgs Porthwick & Sonsf AsiaKtd. (1956^ ^56 S.R, (N,S,IF,)81,B had purchased f i f ty drums of neats foot
o i l , under a wri t ten con t rac t , with a considerable degree of p a r t i c u l a r i t y in the de t a i l s of the agreement. Majority of the Judies of P'ew South t 'ales Full Court held that as the c in t r ec t was complete on the face of i t , Parol evidence vas not admissible. S t ree t C.3. observed "If the contract i s reduced to wri t ing after the sample has been shown and makes no reforpnce to t h i s fac t , then the wri t ten con t rac t , i f i t be a complete cont rac t ,cannot hove the added term incorporaterl in i t " ( P . 8 7 ) . Similar view was taken by Panigrahi 3 in flahadev Canoa Pradad v. Gouri Shankar Alf 1950 Orrrsa 42 where the wr i t ten contract was s i l e n t about sample though the p la in t i f f alleged that the ramples were shown at the time of making the contract but they were not retained by the buyer.
0^» _SYre8 V. Jones (1848) 2 E x , I l l s 154 E.F. (F .P . ) 426
85. I amson Paragon Ltd. v. Spicers ( Australia) Ltd. ( 1953^ S. A .S .R. 297
3I J5
Uau Commission i n i t s p re l iminary r e p o r t on Sec t ion 15 B6
(1) of E. A, , advocated for i t s omendroent, i n order t o
circumvent t h e parol evidence r u l e . However, t h i s idea
uas abandoned by t h e Commission on t h e ground t h a t t h e
amendment should be made a f t e r having thoroughly examined
t h e i s s u e "wi th in t h e framo uork of a comprehensive s t u d y ,
d i r e c t e d t o t h e r e s p e c t i v e mer i t s of w r i t t e n and paro l
evidence and n o t , , . , , i n r e l a t i o n t o one p a r t i c u l a r s e c t i o n „87
of oae p a r t i c u l a r s t a t u t e .
From t h e remark of t h e Law Commission, i t appears
t h a t they were convinced with regard t o t h e fac t t h a t
pa ro l evidence ru l e opera tes ha r sh ly upon t h e p a r t i e s t r a n
s a c t i n g t h e i r a f f a i r s under t h i s s e c t i o n . At p r e s e n t , we
a re not concerned with exemining t h e paro l evidence r u l e
as a whole but t o t h e ex ten t i t e f f e c t s t r a n s a c t i o n s r e
l a t i n g t o s a l e by sample. The author has t r a c e d down t h e
h i s t o r y of t h e r u l e through o r i g i n a l ca se r e p o r t s which a r e
not e a s i l y a v a i l a b l e . Hence f a c t s of t h e c a s e s , where t h e
paro l evidence r u l e was app l ied a r e given b r i e f l y , i n o rder
t o a p p r i s e t h e readers of t h e a c t u a l c i rcumstances of i t s
a p p l i c a t i o n . From t h e r e p o r t s i n t h e fol lowing pages , i t
86, Correspondinc t o s e c t i o n 17(1) of S.G, A,
87, F i n a l Report of Law Commission, P, 21 para 58
3^-<j<j
u i l l be discerned tha i t h i s rule has been applied as
a dogma or sacred principle^ resu l t ing in to shear mis
carr iage of j u s t i c e . The f i r s t case , where t h i s parol
evidence ru le uas Indudasd in to sa le by sample la Pleyer v. 88
Everth, wherein the p la in t i f f*s contention was that
the sugar was of Infer ior quali ty and not one equal to
the sample which was shown to him before such del ivery.
Lord Cllenborough s ta ted that In such cases , remedy was
for an act ion of declet by wilful misrepresentat ion.
I t may be shown by evidence t h a t :
*'at the time of s a l e , a sample was fruadalently exhibited t o decleve the buyer, whereby the p l a in t i f f has been Induced to purchase the commodity, which turned out of great ly Infer ior quali ty and value. But when the sa le note I s s i l e n t as to the sample, I cannot permit I t to be incorporated in to con t rac t . This would be contrary to ,F'Br, s v, Anssl.l (3 wi l l s 275) and would amount to an admission of parol evidence to contradict a wr i t ten documemt, ••
From the above, I t Is c lear that his lordship con
ceded tha t the sample uas shown at the time of entering
in to contract but he was unable to t r e a t i t as a sa le by
sample for the simple reason tha t I t would be contrary to 4t 88, Supra n, 83, considered In n .nul len v, HelberqC1878)
4 L.R, 19A Refer red t o Ka|.j\ v . ""Id (1624) 2 B & C 627 ft 11 an v. , Lake (18S2) 18 T.B, 660
3 i j '
89 the ru le l a id down sole ly in WgiPfta v..„fijiajall i " which
the defendants contended that i t was ora l ly agreed
that grass of Flillcroft was also to be taken away along-
ui th tha t of Boreham'a f i e ld and hence he entered the
farm whereupon, a su i t for t respass was brought by the
p l a i n t i f f s . The a t t e s t i n g witness , when cal led by the
p l a in t i f f , deposed that at the time of making the wr i t ten
agreement, i t was oral ly agreed by Reres and partners to
give away the grass of both the farms and not only one
of them (as In wr i t i ng ) . The matter was referred to the
3ury who found for the defendant. Lord Mansfield accor
dingly gave the verdict for defendant.
In appeal, r e t r i a l was ordered under the rule tha t
"parol evidence sha l l not be admitted to contradict an
agreement in wr i t ing" .
89, (1971) 3 I ' i l l s , 275. ("eres and partners had occupation of land ca l led Borehems f ie ld and (" i l lcrof t . Ansell and partner owned a copper r u n and a i l the four agreed by memorandum in writ ing and a t t e s ted by Wathews (a witness) to exchange the Copper Will for
grass and vesture of hay off Boreham's Pleadou". There was no mention of m i l c ro f t . The facts are based upon the English Report (Full Reprint) 95 E.R, 1052
oU»J
So far as the rule in ^otjas v. AnsBl,! i s concerned,
i t i s a good ru le but any absolute ru l e ui thout an excep
t i on , causes, at tiroes, great hardship, r esu l t ing in to
in jus t i ce to the p a r t i e s . The human nature being what
i t i s , ( tha t i s to err i s human), exceptions should be made
out in favour of cases where c i rcumstant ia l oral evitdence
strongly suggests contrary to the wr i t ten cont rac t . I t
may be noticed that the a t t e s t i ng witness bore testimony
about the oral agreement and the 3ury a lso Came to the
same conclusion. Under these circumstances, Lord Plans-
f i e ld , a legal luminary, gave the verd i t for the defendant,
by sac r i f i c ing a pr inc ip le for Dustice, The legal rules
are framed for promoting Dustice and i f they resu l t in to
i n j u s t i c e , they should be disregarded, and discarded. 90
In JXLas V. l a n a s , tabacco was bought as per sample.
But i t could not be t rea ted as sa le by sample for the
simple reason that the bought notes did not mention that fac t ,
91 In another important case, Gqrdj.ner v,_,,Gjray_, the
p l a in t i f f brought an action for breach of implied warranty
90. Supra n, 84 91. Supra n, 83 Followed Pones v. BriQht(1929) 5 Bing; 533,
FowellM V, Horton (1836),2 Bing N.C.66B;5heDhered v. Pvbus (1842) ,3 Han & G, 868:3ones v. Jus t (1868H.R. .3 C.B, 197 Explained and applied Randall v, Newaon(l877) 2 r.B.D, 102 considered ffc.ffullan v, HelberoC 1879) A L . R . I . 9A; Ut^llis V. Russell (1902) 2 I r,F.585;Ni^jjifei v, Conflec-t ioners Hater ials Co.Supra n, 3B.0istinQuished Pody w,
eqs'on (1868) L.P. 4 Ex. 49 Referred to Kain v.,;q,^,d( 1B24)
3u[i
88 to sample. Lord Eilenborough observed that as the
sample uas not referred in the written ogreement, "I
cannot all6u it to be superadded by parol testimony.
92 This uas not a s a l e by sample"*
93 In iLlcJml V. ilacltS, ^^^ ^ " ry found t h a t t he buyer
knew t h e f ac t t h a t he uos being given Ffape Oi l , mixed
u i t h hemp, but h i s Lordship s t i l l s a id " t h a t a w r i t t e n
c o n t r a c t cannot be c o n t r a d i c t e d by evidence of moaning
which t h e p a r t i e s a l l e g e t h a t they themselves a t t a c h t o
i t s words".
2 B & C 627 , Al^an v. Lake r i852) 18 ©.B. 560, 6 r i 81 oJL, T r a„mu . v & C a r r i age C omp. v . F i a t dot or s Ltd , (1910) 2 K.B. , 831 ; Sumner Permain & Co^v. Uebb & Co. (1922) I .K .B. 55
92. 4 Camp. U4-A5, 171 E,F!. (F .R . ) 46 a t 47
93 . Supra n. 66 There was "Sale of fo re ign Refined Rape Oil warranted only equal t o sample". The o i l was a d u l t e r a t e d u i t h hemp o i l . Defendant refused t o t a k e r e s i d u e . The p l a i n t i f f oave evidence t o t h e e f f e c t t h a t defendant knew t h e f ac t of mixture and had agreed t o t a k e i t as per sample.
94. i d . 412 per Pol lock C.B.
31C
From the above, it may be noted that in all
the cases, the finding of the court and Duty were to
the effect that the transaction was based on-sample.
But as it was a written document hence nothing inconsis
tent with that could be imported through oral evidence.
The only folly of the parties was that the document was
in writing. Had it been oral, everything, was permissible.
The reports lead us to the conclusion that this pernicious
rule has done no good to the parties but has only made
the courts as helpless cxpectators, In bringing Dustice
to the parties aggrieved.
It operates harshly upon an ordinary man in the
sense that apart from purchasing the goods according to
sample, he must also refer to them in his written contract.
It is not a realistic and oracticol approach. People may,
sometimes, as has hcppened in a humber of cases, not refer
the sample on the written contract, under the impression
that sample will speak for itself and hence it needed no
writing or reference. Very often goods displayed are of
standard quality but those supplied are not of the same
standard or quality though they are merchantable and fit
for the purpose under section 16(1) & (2),
31
Sometiloe, t h e person w r i t i n g t h e c o n t r a c t may
not be auare or may not f u l l y a p p r e c i a t e t h e i m p l i c a
t i o n s of paro l evidence r u l e . At o t h e r , h i s u r i t in tg
may not cover a l l t h e a s p e c t s of c o n t r a c t . Oral evidence
should a l so be accepted with regard t o t h e va lue of b a r g a i n .
Hence, i n t h e i n t e r e s t of D u s t i c e , an exp lana t ion should
be added a t t h e end of Sec t i on 17 which may reed " '^o tu i th-
s t and ing t h e r u l e of paro l ev idence , a s t r ong c i r cums tan
t i a l evidence may d i s p l a c e t h e term of agreement i n
u r i t i n g " .
V/II
IFiPLUD CCNDITIPNS UNDER CDNTPACT HF SALE BY SAWPLE
Once i t has been a s c e r t a i n e d t h a t c o n t r a c t of s a l e
i s a s a l e by sample, c e r t a i n cond i t i ons a re implied under 95
the Act, The first of them is that the bulk shall corres-96
pond uith sample in puality.
95, Section 17 (2)
96. Section 17(2) (a)
312
I - Correspondencej of bulk with the aamolet
97 The older authorities apeak of the term as 98 99
Warranty • Out E,A, calls this term os condition
and S,G,A, has copied that. However, the parties may
treat the breach of this condition as breach of warranty 100 101
either under the agreement or subsequently , quality, 102
includes the state or condition of the goods. But it
confines to such qualities as are apparent on an ordinary
examination of the sample, carried out in any particular
f . 103 laoe. However, there is no reason to believe as to
why it should not include the intrisic Quality of the 104
goods, apart from labelling etc, In the light of decision
97, Parker v. Palmer (1821} 4 F & Ad. 3P7 at P. 391
98, Also refer U.C.C, Section 2-213(l|(c) which reads
••Any sample or model which is made part of the bargain creates an express warranty that whole of the goods shall conforn to the sample or model",
99, Spction 15(2) (a) following Penjamin on Sale (4th Ed,) P, 936
100* Champanhac & Co. f.td. v, Waller & Cop Ltd.(1948^ 2 All E,F, 724
101. E /: 5. Kubbor I Id v. fair Bro;.(l949) I.K,P.254
102. Section 2(12)
103. .HookMay v, Alfted I s a a c s & Sons (1954) 1 Llyod; Rep,491 AshinQt.on P.i.pi.eries Ltd. v, Chr i s topher H i ^ .Ltd. Supra n, 39
104. ^ j ib le t t V. C o n f e c t i o n e r ' s f^aterial Co.Ltd. .Supra n,38
3iG
105 ^° '^"bs" ^» f a i r Bros A Co, , j^t ^g evident t h a t t h e
breach of t h i s cond i t i on has taken p l a c e even though the
defect i n bulk i s e a s i l y remediable by some ac t of t h e
vendoe* Houeuer, t he impl ied c o n d i t i o n as t o cor respon
dence u i t h sample i s not broken i f t h e r e e re d i f f e r ences 106
of minor n a t u r e , not a f f e c t i n g t h e "qua l i t y "* Under a
C , I ,F , c o n t r a c t , though t h e payment i s made aga ins t s h i p
ping documents, s t i l l t h e r e i s a r i g h t t o r e j e c t under
t h i s c l a u s e , i f t he bulk does not correspond u i t h t h e 107
sample i n q u a l i t y .
I t i s a ques t ion of f ac t os t o whether bulk c o r r e s
ponds u i t h sample or no t . However, under t h e c o n t r a c t , t h e
105. (1949) I .K .B. 254, Hilbery 3 , observed t h a t i t uas no compliance u i t h a c o n t r a c t u a l o b l i g a t i o n for an a r t i c l e t o be de l i ve r ed which i s not i n accordance u i t h t h e sample but which can by some simple p r o c e s s , no mat ter how s icrple , be tu rned i r t o an a r t i c l e which i s i n accordance with t h e sample on which t h e c o n t r a c t was made" ( a t p , 260) ,
106. See Frankel v. Foreman & f l a r k e l n c , ( i g 2 9 ) 33 F 2d ,83 , I t has bpen observed t h e t uhe rp , from t h e na tu re of goods, some v a r i a t i o n i s n e c e s s a r i l y t o be expected , i t amounts t o s u f f i c i e n t cor respondence , i f t h e c u a l i t y of bulk i s same aa t h a t of sample, Lockuood 3 r . I n c . v» E, Cross fr Comp. I n c . (1923) 122 A, 59
107. Polennhi F r r s . v. P r i ed P i lk Co. .(19C4) 92 L.T. 64
31'^
part ies may agree that i n case of dispute, the decision 108
of an a r b i t r a t o r sha l l be binding upon them. Leaving
apart the decision of a t h i r d party , the contract may
provide that one of the part ies may have power to decide
109 the matter, y^g^e ^ gy^t i e brought fo r damages for non-
acceptanco and the vendor proves that the sample came
from the same bulk, the onus to prove contrary is shi f ted • 110
on the buyer. I f the buyer alleges breach of th is clause
but does not ollou the so l le r feo inspect the goods and
ver i fy the f a c t , i t u i l l create a doubt about the bonafides 111
of the claim of the buyer, 112
I n the l igh t of observation of Lord nacnaghten, i t 113
uas held i n Hookuay v. Alfred Isaacs & S-ons that the
buyer could not escaple l i a b i l i t y to accept the goods by
demonstrating that i n some unusual respect, they 0id not
108, PrjLscoB V. V ic tor ian F ly . Commissioners (1907) V.L,R.522 I n Hookuay v. Alfred Issacs & Sons (195A> 1 Lloyds Rep, A91 against the custom of shellac market ( f o r v i sual inspect ion) , P l a i n t i f f submitted i t for analysis which shoued that i n one par t icu lar respect the shellac uas not ecual to standard sample. But Devlin 3 , held that such a test uas inadmissible under S , l 5 ( 2 ) ( o ) (Engl ish Act) aS cua l i ty under i t referred to such
Dual i t ies as are apparent on ordinary examination of the sample as usually done i n the t rade (P ,511 ) ,
109, Briscoe v. y i c t o r i a n Raij.Mav.;id.
110, I'awrvk V. r c. Kenrie (1921^ 61 D.L.R, 25 111, HouardsCcolonevHtd.v.Aluivn (1958^ 2 Lloyds Rep,556 112, Dames prummpad v, Vari lpc\Bjn ,supra n, 78
113, Supra ,no, 108 i d .
Silj
correspond with the sample, Uith due respect , i t i s
subfAitted tha t under the circumstances of tha t pa r t i cu la r
Case, the observation of the noble lauolord uas correct
and the p l a in t i f f uas allowed re l i e f on the ground that
defect being l a t e n t , the p l a in t i f f was not expected to
discover thetn by ordinary examination. The sample and
bulk corresponded u i th each other. There uas no difference
in composition or make of the fabr ic . But in Hookuay's
case , supra the analysis of the standard sample revealed
that the bulk of s h e l l a c , when supplied, uas not equal to
the sample, at l eas t in one respect . But Davlin 3 , did
not accept the contention of thr buyer on thP ground tha t
"cjuality" referred to "such qua l i t i e s as are apparent on
an ordinary examination of the sample as usually done in
the t r ade" . i^ ^g submitted tha t t h i s observation i s not
in accord u i t h any cannon of construction.When the usage
of t rade i s inconsis tent u i th the provisions of any lau, 115
the law u i l l p reva i l . Here the ru le i s that the bulk must
correspond u i th the sample in qual i ty , Guality should
refer to i n t r i n s i c quali ty as u e l l . I t i s not the end of
the matter that outer look of the goods accords with the
sample but the goods must also be i n t r i n s i c a l l y the same as the sample represents . Hence the buyer was e n t i t l e d for re l ie f ,
114, i d , at 511
• 15, Oopenheimer v, Attpnborouoh (1908) I,K,B, 221
3IC
At the end, it is concluded that the provieion
of section 15(2)(c) is satisfactory but the word quality
should be interpreted in liberal manner so as to enable
the buyer to avail maximum benefit under the provision.
The contrary may subject him to fraud*
2, Reasonable opportunity to compare the bulk with the sample: _ _
This provision ^s based uponLprymer v. Smith. \
uherein the buyer was en|:itled to rescind the contract
on the failure of the seller to grant him reasonable 'i
opportunity to compare the bulk with the sample. Under
this clause, the buyer has, as a matter of right, to be
afforded reasonable facilities for inspecting the bulk, 118
ir^dependent of any local custom or usage of trade,
Atiyah is of opinion that this clause is not happily uorded
ar it does not discuss a more fundamental obligation of
delivering the goods, I'lthout delivery, there is no ques-119
tion of inspection, it is submitted that a reasonable
opportunity of comparing the bulk with the sample is in-120
dependent of the provisions of Section A1 of S.G,fl,
116, Section 17(2)(c) 117. (1822) 1 B,& C,1 (buyer contracted t o purchnse two
parcels of uheat. Dot of uhich, the s e l l e r refused to shou him one of the parce l s ) ,
''IB, Lgrvmer v. Smith ,supra n. 117 119, Atiyah P,S. Op,cit ^upra n,63 PP.98-99
120, Corresponding to Sect ion 34 of E, A,
31'
It is not essential that the seller should deliver
them to the buyer under this clause* The buyer may 121
inspect them on the premises of seller. This disposes
of the query of the learned author. Right to inspect
under this section is different and independent of 122
right to inspect on delivery. Prime-facie, the place
of delivery is the place for comparing the bulk ulth the 123
sample. But this presumption is liable to be rebutted
by evidence and a contract to the contrary. It implies
that if the buyer has been granted a reasonable opportu
nity to compare the bulk with the sample and, on inspec
tion he finds that the bulk does not correspond with the
sample, he may return them there and then on the hands of
seller, in caae the place of inspection is different from
the place of delivery or time of inspection is subsequent
to the delivery.
The right to compare the bulk uith the sample may be
excluded by an express contract. So uhere the agreement
states that the price is payable in exchange for a shipping
document, this right stands waived but the buyer still
retains the right to inspect and reject on delivery, if the
121. Loyvwer v. Smith supra n, 117 122. iiection 41 of S. G, A. 123. Parkins v, Ee],; (1893) I .P.B. 193 C. A. 124. Heilbutt V. Hickson (18721 L.B. C.P. 438 at P. 456,
Crimoldbv v« ^ e l l s (1875) L,R, 10 C.P.391
31" u
125 goods do not conform to the contract,
3- Goode to be ftes from any defect rendering them
unmerchantable not apparent on reasonable exami
nation of the sample; 126
This statutory provision is based upon the 127
decision in Dames Orummond v, Van Ingen, If the defect
is patent, the seller fulfils his contract by delivering 128
defective goods corresponding to the sample. So far
as latent defect ia concerned, the seller is not absolved
from liability to supply goods of merchantable quality
even though the same defect uas present in the sample 129
itself.
The p r i n c i p l e l a i d doun i n the s e c t i o n i s s p e c i a l
a p p l i c a t i o n t o t h e r u l e " t h a t the s e l l e r ' s duty t o f u r n i s h
merchantable goods answering the d e s c r i p t i o n i n the con-130 ••
t r a c t i s paramount t o any p a r t i c u l a r c o n d i t i o n or u a r r a n t y .
Before passing of E,A. t h e r e uas a divergence of
op in ion whether a merchant uas respons ib le f o r l a t e n t
de fec ts i n t h e goods, i f he uas not a manufacturer or pro-
ducer , even i f t h e same uas present i n t h e sample but uas 131
not d e t e c t a b l e by any reasonable examinat ion . But t h e same
has nou been set at r e s t ,
125, C a s t l e v . Su/order (1860^ 5 H & N 281 126, S e c t i o n 1 7 ( 2 ) ( c ) of S.G, A, 127, (1887) 12 A.C. 284 128, Ha lsbury 's Laus of Ennland,3rd E d , y o l , 3 4 F, 56 129, James Urymmond v.Van Inoen.suDrp n, 127 130, Po l lock & Piulla "Sale of goods & P a r t n e r s h i p Acts* ' (3rd
•;: : =t E:d,)P,80 1 3 1 , Parkinson v . Lee (1802) 2 East 314
over ru led by Randal l w, Ncuson (1877) 2 C.B.D, 102
319
p i s t i n c t i o n betueen Sectloris 16(2^ and 15 (2Uc1 t
The proviso t o former a p p l i e s where t h e buyer
had a c t u a l l y inspec ted t h e goods, u h e r e a s ; of t h e l a t t e r
app l i e s even though t h e buyer had not i n spec ted them,
Uhat i s e s s e n t i a l i s t o prove t h a t t h e defec t was
pa ten t and was l i a b l e t o be de tec ted by ord inary or
reaso | )able examinat ion. In a s a l e by a sample, t h e
presumption i s t h a t t h e buyer w i l l examine t h e sample
and d iscover those de fec t s which could be de tec ted by
ord inary examination. An a n a l y s i s of t h e above mentioned
sub-c lauses w i l l r e v e a l t h a t though both a re worded
d i f f e r e n t l y , " t h e r e can bo l i t t l e doubt t h a t thoy a re
in tended t o ca r ry t h e same meaning, i n o the r words, t h e
defec t s contemplated under Sec t ion 16 a r e t h o s e apparent 132 e 133
on reasonab le examination w i th in t h e meaning of ^ e c l ? " .
132, In Houndsditch t 'arPhouse CoiLtd. v. »>'altex Ltd, ; (19A4) 2 All E.F. 518, i t was observed t h a t a defec t e x i s t s i n t h e sample which renders t h e goods unmerc h a n t a b l e P.nd t h e buyer with t h e knowledge of such defec t chooses t o t ake t h e de l i ve ry of g o o d s , c o r r e s ponding with t h e sample, he has no cause for comp l a i n t (Per S t a b l e 3 . P . 519) ,
133, ^Per Ucnkatasubba Rao 0 f f , C , 3 , in Aoha l^irra Wasjar Ali Khoyee v, Gordon f^'opdroffee & Co. Supra n, 60 i d . Also r e fe r t h e obse rva t ion i n In Re Firm Behar;L Lai Dal labhdas .Supra n,56 at p , 273,where Ramaswami 3 , observes t h a t r i g h t of examination in t h e Act i s giver under Sec t ions 16,17 pnd A1, Even i f t h e buyer has exrmined them, but t h e defect being l a t e n t , i f he could not d i scover i t , he has a r i g h t t o r e j e c t
them l a t e r on.
320
However, in the case of Wib,le, t w. Confectioner's
f^aterial Co, Ltd., it was observed that the sale
involved the violation of statutory right of a third
party. The condensened milk had to be sold by removing
the lables and hence implied conditions as to Title and
merchantable quality uere affected. One may say that
the defect in the milk was latent and could not be dia.
covered by ordinary examination. Supposing the milk
uould have been sold by sample, then also the same situa
tion uould have arisen and the buyer uiould have succeeded
in the same manner, Atiyah, uhile commenting on the
above provisions, in the light of Nibletts* case, says that
too much reliance should not be placed upon "quality**, 135 136
appearing in Section 14C2) , as Section 15(2)(c) does not
contain this uord at all* But the word ''defect" appears
therein and this should be treated at par uith quality and
it "should be given a uide enough interpretation to ensure
that the requirements of the tuo clauses remain the same,
in other words, that defective goods includes goods in
such a state that their sale can be prevented by legal 137
process", it is submitted uith due regard to the learned
134, S-upra n, 38
135. Corresponding to Section 16(2) of S.G.R, 136, Corresponding to Section 17 (2) of S,G,A.
137. P,S, Atiyah Dp.cit, supra n, 63 at T, 80
32
author t h a t such apprehension i s unca l l ed fo r . In
t h e N i b l e t t s * c a s e , i f t h e goods were rendered unmer
chan tab le due t o removal of l a b e l s on t i n s , they were
a l so unmerchantable due t o l a t e n t defec t which was not
d e t e c t a b l e by ord inary examinat ion. The l a t e n t defect
comprised of t h e unlawful use of someone's p r o p r i e t r y
r i g h t s i n v i o l a t i o n of t h e law of Trade n a r k s . This
p a r t i c u l a r a s p e c t , t h a t t h e goods were rendered unmer
chan t a b l e under t h o p rov i so t o s e c t i o n 14(2) of E. A. was
not cons idered by t h e i r l o r d s h i p s , most probably for the
reasons t h a t t h e ends of 3 u s t i c e were met wi thout going
too f a r . I f we r e f e r t o t h e p r o v i s o , i t mentions t h e
word " d e f e c t " l i k e Sec t ion 15(2)(c) of E.A, The word
"defec t " i i s c l o s e l y connected with examination under both
t h e p rov isos and t h e r e i s no l i k e l i h o o d of confusion i n
both t h e s u b - s e c t i o n s . This has been s e t t l e d long back 138
in England.
In n u t s h e l l , t h e combined e f f ec t of Sec t ions 15,16
and 17 of S,G.A. i s t h a t t h e goods must correspond wi th
t h e sample and d e s c r i p t i o n and should be of merchantable
q u a l i t y minus pa ten t de f ec t ,
138>3pmes Drummond v, V/an Inqcn ^ Sons, supra n, 127
Giant V. ftustyaJ-lftn Kn^t^^nq. HM!^» aupra n, U
niZ
139 "Reasonable" does not mean p r a c t i c a b l e . Th is
phrase uas exp la ined by Lord Hac naghten i n 3awe;8
Drummond v , Uan Ingen, I n other words, uhat -ever
can be found out from t h e sample by a buyer , us ing
o rd ina ry care and de l igence w i l l amount t o reasonable 141
examinat ion . Th is p r i n c i p l e was app l i ed i n a case
t o r e j e c t t h e c l a im of a buyer where a v i s u a l t e a t
uas not c a r r i e d out but t he r e s u l t s were based on
s c i e n t i f i c ana lys i s of t he sample.
139, Godley v . Perry (1960) 1 A l l E.B. 3 6 « . . , . . the
act speaks not of a p r a c t i c a b l e but a * reasonable*
examination*' (Per ^dmund 3 . at P. 41 ) ,
140, f o r observa t ion r e f e r , supra n, 84
141, r^ Hookuav & Co. L t d . v . Isaacs , supra n, 108
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