Sale By Sample—A Distinction Without A Difference?
| Published date | 01 July 1981 |
| Author | J. R. Murdoch |
| Date | 01 July 1981 |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb02750.x |
SALE
BY
SAMPLE-A DISTINCTION WITHOUT
A
DIFFERENCE?
MODERN
textbooks
on
the sale of goods invariably contain
a
section
on
“sales by sample,” in which is discussed the meaning and
extent of this category, and the special conditions applicable to
cases which fall within it. That such
a
classification should be
made is hardly surprising, since it mirrors that contained in section
15
of the Sale of Goods Act
1893,
and repeated in section
15
of the
Sale of Goods Act
1979.
There is, however, a suggestion, which it
is the purpose of this article to examine, that this special treatment
is of
no
practical value and that, were section
15
to be repealed,
and sales by sample dealt with under the principles governing
sales in general, little or
no
legal change would take place.
Con-
sideration of this matter naturally revolves for the most part
around the
“
special conditions
”
contained in section
15;
first,
however, it is necessary to look at the nature of a sale by sample
and, indeed, of
a
sample itself.
1.
WHAT
IS
A
SAMPLE?
From a purely factual point of view,
a
“
sample
”
may take any
one of several different forms. Traditionally, perhaps the most
common situation has been that in which the seller abstracts
a
small quantity from a large bulk; the contract is then satisfied
by the abstraction of a larger quantity from the same bulk. Less
frequently, the contract may be for the sale of specific goods, of
which
a
small representative quantity is sent in advance. Finally,
although
“
pattern
”
or
“
model
”
might be more appropriate than
“
sample,” identical legal principles govern the provision of a spec-
imen item in accordance with which the contract goods are
subsequently to be manufactured or supplied.
What these varying types have in common (and, indeed, this
is the very essence of a sample) is that each represents a
statement,
albeit in non-verbal form, about the subject matter of the contract.
“The office of a sample is to present to the eye the real meaning
and intention of the parties with regard to the subject-matter of the
contract, which, owing to the imperfection of language, it may be
difficult or impossible to express in words.” Although frequently
cited, however, this well-known passage is deceptive, for it rather
obscures the fact that non-verbal communication,
no
less than
language, may be imperfect; the first task, therefore, must always
be to find out precisely what the statement
means.
At
its simplest,
1
Drummond
v.
Van
Zngen
(1887) 12
App.Cas.
2??, 297,
per
Lord Macnaghten.
Williston
(Sales,
rev.
ed.,
s.
250)
points
out
that: In truth, a sample is simply
a way
of
describing the subject-matter
of
the bargain, and the principles which are
applicable to contracts to sell and sales by description are applicable here.”
388
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