Ruminating on Mink Food

DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02350.x
Published date01 September 1971
Date01 September 1971
NOTES
OF
CASES
RUMINATING
ON
MINK
FOOD
WHEN reversing in
Ashington Piggeries
Ltd.
v.
Christopher
Hill
Ltd.‘
the
decision of the Court of Appeal, the House
of
Lords had
the opportunity to settle a number
of
difficulties relating
to
sections
13
and
14
of
the Sale of Goods Act
1898
and to make observations
thereon
at
great length.
It
would seem that their lordships availed
themselves more fully
of
the chance to do the latter than of that
to
do the former.
The facts of ,the case were as follows: the respondents, well-
known compounders of animal feeding stuffs (henceforth referred to
as
‘‘
Hill
”),
entered into a contract with the appellants, proprietors
of mink farms and expects in mink farming (henceforth
‘(
Ashing-
ton
”),
to supply
a
food mixture for mink, caled
King Size,”
to
be
specially compounded by Hill in accordance with
a
formula supplied
by the buyers, Ashington. Several batches
of
King Size contained
(‘
D.M.N.A.,” a chemical which
at
that time was undeteoted and
which-being highly toxic
to
mink-caused the death of large
numbers of these animals. One
of
the ingredients of King Size was
herring meal, and the offending substance D.M.N.A. was in fact
contained in a particular consignment of Norwegian herring meal
which Hill had bought from the third party
(“
Norsildmel
”)
and
used in the compounding
of
the relevant batches of King Size.
Ashington sought
to
recover from Hill damages in respect of the
losses caused by the death
of,
and injury
to,
the mink, alleging
breaches of the conditions implied by sections
18,
14
(1)
and
14
(2)
of the Sale of Goods Act
1893.
Hill in turn sued the ,third party
for
an indemnity, alleging breaches of the conditions implied by sections
13
and
14
(1)
of the Act.
Section
18
:
The House of Lords-agreeing in this respect with the
Court
of
Appeal-found that under neither contract had khere been
a
breach
of
section
13.
Although starting from the position that
the subject-matter of ,the contraot between Hill and Ashington was
King Size,”
(‘
King Size mink food
or
‘‘
King Size according to
formula
their lordships subsequently continued the discussion
in terms of
herring meal.” Taking the view that
contaminated
herring meal
could still be described as
herring meal
’’
the
majority found that section
13
had been complied with.
[I9711
1
All
E.R.
847.
[1971]
1
All
E.R.
at
pp.
858a; 865g; 871g, h;
884b.
It
is
also striking tha,t
their lordships ffequently speak
of
the contractual subjeot-matter as
King
Size mink
food
when they have ocoa.sion
to
refer
,to
it incidentally
(e.g.
at
pp.
858c; 876h;
888f..
h).
Viscount Dilliorne
taking
the
opposite
view.
557
558
THE
MODERN
LAW
REVIEW
VOL.
34
In effect, by selecting one ingredient only from the contractually
described substance, the judges treated the contract for
‘‘
King
Size
as
if
it
had been a contract for the raw material herring meal,
simply assuming that they might substitutethe one for the other and
apparently unaware that in
so
doing they were largely prc-
determining the outcome of the discus~ion.~ This approach ignores
the fact that the dividing line between non-compliance with descrip-
tion and unsuitability for purpose is an arbitrary one and a matter of
degree,5 that therefore failure to comply with description is a relative
notion, very much affected by the wid&h of the underlying con-
tractual description, or-more precisely-by the range of purposes
which that description imports.6
It
is easier to answer
yes
to
the question whether
‘‘
contaminated herring meal
’’
is nonetheless
“herring meal
(being a substance which can be used-among
other things-as a food for animals
or
as a fertiliser) than
to
the
question whether
‘‘
King Size which
kills
mink
’’
is nonetheless
King Size
(being a compound for feeding mink).
For
these
reasons their lordships’ assumption that the court may substitute
some other description for the contractual one is-at the very least
-unsatisfactory.
The question concerning scope
or
width of the contractual des-
cription presented itself in slightly different form in the contract
between
Hi11
and Norsildmel, which-unlike that between Ashington
and Hill-was in writing. One of the clauses, headed
Quantity
and Desoription,” spoke
of
u
Norwegian Herring Meal fair average
quality of the season
’’
and continued
to
set out the minimum
percentage amounts of the various ingredients which the meal was
expected to contain. In their lordships’ view the contractual
description did not extend beyond the phrase
‘‘
Norwegian Herring
Meal
and comprised neither the reference
to
ingredients
nor-
differing in this respect from ithe
Court
of
Appeal and Milmo
J.
at
4
Their lordships either simply changed from one phrase to the other or blandly
stated that such
?a
change could be made.
Cf.
Lord Wilberforce (at
p.
871h) that
one proposition oan be reduced
to,’,’
the other:
cf.
also Lord Diplock (at
p.
884~)
that it
does
“not matter whether the dcscription included the
expression
mink food.”
5
A
number of hire-purchase cams-it may suffice here to mention
Chartcrhouse
v.
Tolly
[1W3]
2
All
E.R.
423
Nand
Farnworth
v.
Attryde
“701.2
Al!
E.R.
774-illustrate paaticnlarly clearly that
(I
high degree
of
unsuitability
for
purpose an be seen
as
tantamount to non-compliance with description and that
it is
a
matter
of
policy (and occasionally of taste) w,hether.you label it one or
the other.
6
This corresponds
to
a
Eimiler argument concerning the relativity
of
the
notion and its dependence
on
the scope
of
the underlying
description
as
expounded by Lord Reid in
Kendall
v.
Lillico
(Hmdwick Game
Farm mse) [1968]
2
AIL
E.R. 444 and
Brown
v.
Craiks
[1970]
1
All
E.R.
829.
It
is a different question whether the partiea’ freedom to make the description
m
detailed
as
the wish is
as
nntrammelled for &be purposes of
8.
14
(2)
a8 it
is
thought
to
be
&r
s.
13, or whether the description for
8.
14
(2)
must have
some
degree of generality. The cases just mentioned euggestcd the latter and
this would now seem to have been tpnfirmed by the interpretation which their
lordships have given to the phrase goods
of
thort description,” on which see
the last
part
of
this case note.
merchantability

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