Merchantable Quality in UK Law

If the description is a familiar one it may be that in practice only one quality of goods answers that description —then that quality and only that quality is merchantable quality. Or it may be that various qualities of goods are commonly sold under that description—then it is not disputed that the lowest quality commonly so sold is what is meant by merchantable quality: it is commercially saleable under that description.

Some goods which are bought by description may be capable of being used in many different ways. If the buyer merely orders goods by description all that he can expect is that he will get goods that correspond with the description and goods of such a quality that they could be used for one of the purposes for which such goods arc normally used.

In order to comply with that requirement, the goods did not have to be suitable for every purpose within a range of purposes for which goods were normally bought under that description. It was sufficient that they were suitable for one or more such purposes without abatement of price since, if they were, they were commercially saleable under that description.

In the case of such dual purpose goods it is not, in my opinion, legitimate for the purpose of deciding whether the goods are of merchantable quality to compare the contract price too closely with the price at which the goods were sold for the secondary purpose. The assumption is that the goods are merchantable for a secondary purpose and unless the price is what has been described as a "throw away price" the discrepancy sheds little or no light on the question of merchantable quality.

On the other hand, it is extremely difficult to read our exclusion clause as not being intended to cover the exclusion of the statutory implications of satisfactory quality (the new merchantable quality) and fitness for purpose. Mr Edey's reference to the little known or exemplified section 14(4) cannot realistically be considered as the exclusive subject matter of the clause's language about

"(a) as regards defects specifically drawn to the buyer's attention before the contract is made; or

There are in my view good reasons for implying such a warranty if it is not excluded by the terms of the contract. If the contractor's employer suffers loss by reason of the emergence of the latent defect, he will generally have no redress if he cannot recover damages from the contractor.