Restrictive Trade Practices–‐The Danger Sign
| Date | 01 March 1960 |
| Published date | 01 March 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00592.x |
202
THE
MODERN
LAW
REVIEW
VOL.
23
may well be that it is possible to sell goods by description without
words: an article might describe itself by its appearance, just as
a
label on a tin might describe the contents by
a
picture.
Having found that both conditions were implied, it was clear on
the facts that the catapult was not reasonably
fit
far use
as
such,
since the judge found that the boy was using
it
properly when it
broke; an agreed report of a consulting chemist showed that the
catapult was indifferently moulded from a cheap plastic which was
brittle and unsuitable for making toys.
Nor
was the catapult of
merchantable quality.6
The seller’s claim
for
indemnity against the wholesaler was based
on section
15
(2)
(c)
of the Sale of Goods Act, as was the whole-
saler’s claim against the importer. Both sales were by sample, and
under section
15
(2)
(c)
there is an implied condition of merchanta-
bility. But the importer relied
on
the exception as to defects which
would be apparent
on
reasonable examination of the sample.
Counsel for the importer, said Edmund Davies
J.,
“demonstrated that by squeezing together the two prongs of
the catapult in the hand they could be fractured, and further
suggested that by holding the toy down with one’s foot and
then pulling on the elastic its safety could be tested and
.
.
.
its inherent fragility would thereby inevitably be discovered.
True, the potential customer might have done any of these
things. He might also,
I
suppose, have tried biting the cata-
pult,
or
hitting
it
with a hammer,
or
applying
a
lighted match
to ensure its non-inflammability.
. .
.
But
. . .
none of those
tests are called for by a process of
‘
reasonable examination.’
”
The wholesaler and the retailer
had
in fact examined the samples by
pulling back the elastic, though not perhaps
to
its fullest extent.
Such examination, which did not disclose the defect,
“
was all that
could be reasonably expected of any potential customer,” and
accordingly the defence failed. The case is
a
useful illustration
of
the effect of section
15
(2)
(c)
of the Act. AUBREY
L.
DIAMOND.
RESTRICTIVE TRADE PRACTICES-THE DANGER SIGN
SECTION
6
of the Restrictive Trade Practices Act,
1956,
defines the
restrictions which operate to bring an agreement within the scope
of Part
I
of the Act. Sections
20
and
21
require the new court to
determine the validity of such restrictions largely on policy grounds
than one
use:
s.
14 (1)
would, it seems, not apply
even
if the article were
not
fit for any of ,its
uses,
so
that the byp would have to rely
on
8.
14
(2).
6
The
meaning
of
was pithily summed up by Atkin
L.J.
in
Niblett
v.
Confectioners’ Materials
Co.,
Ltd.
[192l]
3
K.B.
387,
404:
“
no one
who knew the facts would buy it.”
7
Cf.
Lord Macnaghten in
Drummond
&
Sons
v.
E.
I?.
Van Zngen
&
Co.
(1887)
12
App.Cas.
284,
296:
“
that
is
not the way in which business is done in this
country.
”
merchantable quality
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