CONDITIONS, WARRANTIES AND DESCRIPTIONS OF QUALITY IN SALE OF GOODS—II

AuthorSAMUEL J. STOLJAR
Date01 April 1953
Publication Date01 April 1953
DOIhttp://doi.org/10.1111/j.1468-2230.1953.tb02117.x
CONDITIONS,
WARRANTIES
AND
DESCRIP-
TIONS
OF
QUALITY IN
SALE
OF
GOODS-I1
(Continued
from
Vol.
15,
p.
445)
8.
SALE
BY
DE~CRIPTION
AND
SPECIFIC
@OD&
One advantage’
of
the theory
of
sale by description was
the
limitation of the
doctrine in
Street
v.
Blay
(1881).* But
it
also created a very
technical distinction,
i.e.,
the distinction between the sale by des-
cription, and the sale of specific goods. We
must
&st
discuss
the
relevant difficulties in connection with the Sale of
Goods
Act; and
subsequently discuss more recent developments under the rubric
of
VarZey
v.
Whipp.
There is
no
doubt that the Sale
of
Goods Act distinguishes
between the sale by description and that
of
speci5c
goods.4
In
the first place, section
18
begins with the words:
Where there
is
a contract for the sale of goods by description,” which obviously
implies the existence of other types of sales.
In
the second place,
section
11
(1)
(c)
denies the right of rejection
where the contract
is
for specific goods.” The preliminary question then is, what are
specific
goods
?
They are
goods,
answers the Act, which are
“identified and agreed upon at the time a contract of sale
is
made.” Nevertheless, Chalmers points out that this definition
ie
only a prima Facie one; and he gives the example of the
100
dozen
bottles of champagne specifically described as stored
in
the
seller’s cellar, of which the buyer buys only
20
dozen. The property
in
the wine does not pass until the
20
dozen bottles are appropriated
to
the contract, but if the
whole
cellar
is
destroyed the seller
,is
discharged
from
his obligation. Thus,
.‘‘
[for]
some
purposes
this
would perhaps be regarded
as
a contract for specific
goods,
while for other purposes it would be regarded as a contract for
the sale of unascertained goods.”
In
other words the meaning of spec& goods was extended
for
the purposes of the law of impossibility of performance* and the
1
Cf.
5
6,
supra.
2
2
B.
&
Ad. 456;
for
a
full
discussion, see
3
5,
supra.
5
5
9,
infra.
4
See also Salrnond
J.
in Taylor
V.
Combined
Buyers,
Etd.
(1924)
N.Z.L.R.
6‘27,
5
a.
69
(1).
*
Chalmers,
Sale
of
Goods
(19th
ed.),
174.
7
Ibid.
8t
633.
Thia is,
of
course, a reference
to
Howell
V.
Coupland
(1876)
1
Q.B.D.
268;
46
L.J.Q.R.
147,
in which case. it
will
be remembered, the seller
sold
200
tons
of
potatoes grown in
a
specific field.
The
whole crop failed and the
seller was excused from delivery. Although the potatoes were unascertained,
they were regarded as specific goods, being sufficiently identified.
8
Cf.
8
discussion
of
these problems, Glanville
L.
Williams,
Law
Reform
(Fmsftoted
Contracts)
ilct,
1943,
82-90 (1944).
174
AraxL
1953
CONDITIONS
AND
WARBANTIES ON
SALE
175
statutory definition thus beeame rather indeterminate.
As
a
consequence, the concept of sale by description remained
in
a
state of considerable uncertainty
:
not
only
because the draftsman
failed
to
define
it
clearly, but also because it became more or less
impossible to gauge the precise limits of the concept
in
view of the
almost equally fluctuating meaning of the term
specific goods.”
In
brief,
it
became impossible to say where exactly the sale by
description ended and the sale of specific goods began.
Furthermore,
it
will also be apparent that, as regards sec-
tion
11 (1)
(c),
the draftsman purported to codify not only the
doctrine in
Street
v.
Hay,
but also Blackburn
J.’s
enunciation
of
the law in the case of
Heyworth
V.
Hutchinson
(1867).’
In
that
case the defendant bought 400-odd bales
of
wool
to
arrive
‘‘
ex ship
Seige.”
The wool was guaranteed
about similar
to
samples,”
but later proved of rather different quality and the buyer refused
to
accept
it.
A
strong court held that this was a sale of specific
goods-the bags of wool being (apparently) ascertained and the
ship identified-and that, therefore, the guarantee gave only
a
right
to
damages and not to a right of rejection. And Blackburn
J.
(as
he then was) said:
‘‘
The wools are guaranteed about similar
to
samples. Now, such a clause may be
a
simple guarantee or
warranty,
or
it may be a condition. Generally speaking, when
the contract is to
any
goods, such a clause is a condition
going
to the essence of the contract; but when the contract is as
to
specific goods, the clause
is
only collateral
to
the
contract,
or
is
the subject of
a
cross-action, or a matter
in
reduction
of
damages.”
lo
However, the precise implications of this decision are
quite
confusing. Indeed,
if
the decision in
Heyworth
v.
Hutchinson
is
correct, then most of the leading
description cases
’’
l1
can only
be
regarded as
wrong
decisions. For in
Gardiner
v.
Gray
(1815)
I’
and
Wieler
v.
Schilizzi
(1856),”
Jones
v.
Just
(1867)
and
Azkma?
V.
Casella
(1867),”
the goods were certainly existing and identified
and were, therefore, as specific and determined as those in
Hey-
worth
v.
Hutchinson.
Nevertheless, all the former cases either
decided,
or
at any rate were based
on
the assumption, that the
buyer could reject the goods. Furthermore, if the distinction
is
correct
it
must also apply to th’e situation where the buyer inspects
existing and ascertained goods; in other words, it must apply
to
the facts in
Josling
v.
Kingsford
(l868).la
Some subtle difference
may perhaps be found between
Heyworth
V.
Hutchinson
on
the
(1867)
L.R.
2
Q.B.
447:
36
L.J.Q.B.
270.
lo
L.R.
2
Q.B.
447,
at
451.
11
gee
8
6,
supra.
4
Camp.
144.
Is
17
C.B.
619;
25
L.J.C.P.
89.
14
L.R.
3
Q.B.
197;
37
L.J.Q.R.
89.
la
L.R.
a
C.P.
677.
’q
C.B.(a.s.)
U7;
32
L.J.C.P.
04.

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