The Sale of Goods by Description — A Return to Caveat Emptor?
| Author | L.A. Lawrenson |
| Date | 01 January 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02640.x |
| Published date | 01 January 1991 |
CASES
The
Sale
of
Goods
by
Description
-
A
Return to
Caveat Emptor?
L.A.
Lawrenson
*
Few decisions are reported on the provisions of Section
13
of
the
Sale of Goods
Act
1979,
so
any such case which is reported should rouse some interest. The Court
of Appeal decision
in
Harlingdon
&
Leinster Enterprises Limited
v
Christopher Hull
Fine Art Limited’
is all
the
more important in that it sets out to define a ‘sale of
goods
by description.’ The ramifications of the decision may prove to be far reaching,
especially as it appears to undermine the very spirit of the Sale of Goods Act and,
in respect
of
Section
13,
indicate a return to
caveat emptor.
The facts of
Harlingdon
are these. The Defendants were London art dealers. They
specialised
in
young contemporary British artists, but had come into possession of
two oil paintings by Gabriele Munter, an artist of the German expressionst school.
The paintings were taken to Christie’s, who agreed to handle the sale. The Defendants
then contacted the Plaintiffs, stating that they had two paintings by Munter for sale.
The Plaintiffs had a special interest
in
the German expressionist school. It was found
that the Defendants expressly stated that they knew very little about the paintings,
and that they were not experts
in
them. Negotiations on price for one of the paintings
then commenced but the Defendants would not accept less than the
f6,000
originally
set down. Agreement was reached and the Defendants drew up an invoice for
f6,000,
and which expressly referred to the purported artist, namely ‘Munter.’ The painting
was later discovered to be a forgery, and the Plaintiffs sought repayment of the
f6,000
claiming,
inter alia,
that the contract had been for the sale of goods by
description
within
Section
13(
1)
of the Sale
of
Goods Act
1979.
Breach of Section
13(
1)
would entitle the Plaintiffs to repudiate the contract and to claim damages
for
loss
of bargain.
The decision turned on the meaning
in
Section
13(
1)
of the phrase ‘sale of goods
by description.’ It was held (Stuart-Smith
LJ
dissenting) that, for there to be a sale
by description,
it
must be established that
the
parties shared a common intention
that the description should be a term of the contract. In seeking to establish whether
or not there was such a common intention between the parties, the Court could look
at whether or not the buyer placed any reliance on the descriptive words used by
the seller. Nourse LJ said* that there cannot be a sale of goods by description
unless ‘it is . . . within
the
reasonable contemplation of the parties that the buyer
is relying on the description.’ SIade LJ concurred. He stated that:
the presence
or
absence
of
reliance on the dcscription may be very relevant insofar as
it
throws
light on thc intentions of the parties at the time
of
the contract.
If
there was no such reliance
by the purchaser, this may be powerful evidence that the parties did not contemplate that
the authenticity of the description should constitute a term
of
the contract, in other words,
that they contemplated that the purchaser would be buying the goods as they were.R
*Trainee Solicilor, Biddle
&
Co.
I
2
ibid
at
744.
3
ibid
at
752.
122
[I9901
1
All
ER
737.
77w
Murlani
Imv
Review
54:
I
January
1991
0026-7961
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