1. UNIVERSITY OF LUSAKA SCHOOL OF LAW
L200-COMMERCIAL LAW
4.1: CONDITIONS & WARRANTIES

2. STRUCTURE OF PRESENTATION
Introduction
Conditions
Warranties
Change of a Condition into a Warranty
Exclusion of Implied Conditions and Warranties
Stipulation as to Time
Doctrine of Caveat Emptor
Exception to the Doctrine of Caveat Emptor

3. Introduction
A contract of sale is made by an offer by the seller and its acceptance by the buyer.
At the time of selling the goods, a seller usually makes certain statements or representations with a view to induce the intending buyer to purchase the goods.
Such representations are generally about the nature and quality of goods, and about their fitness for buyer’s purpose.

4. Introduction
It may be noted that these representations may be a mere expression of the opinion of the seller and may not form part of the contract.
But sometimes, these may also form part of the contract and the intending buyer may rely upon such representations.
When these statements or representations do not form a part of the contract of sale, they are not relevant and have no legal effect on the contract.
However, when the statements or representations form a part of the contract of sale and the buyer relies upon them, they are relevant and have legal effect on the contract.

5. Introduction
A representation which forms a part of the contract of sale and affects the contract is called a ‘stipulation’.
However, every stipulation is not of equal importance.
A stipulation which is most important for the formation of the contract of sale is known as a ‘condition’.
A stipulation which is of lesser importance for the formation of the contract of sale is known as a ‘warranty’.

6. CONDITIONS
The term ‘condition’ may be defined as a representation made by the seller which is so important that its non-fulfilment defeats the very purpose of the buyer.
A condition may also be defined that as a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.
A stipulation forms the basis of a contract of sale, that is, which is essential to the main purpose of the contract.

7. CONDITIONS
Therefore, a condition is an important representation by the seller which is essential to the main purpose of the contract.
If the representation proves to be false the buyer has the right to terminate the contract, and to have the refund of the price.
In Baldry v. Marshall (1925) 1. KB 260: A consulted B, a car dealer, and told him that he wanted to purchase a car ‘suitable for touring purpose’. B suggested that a ‘Bugatti’ car would be fit for the purpose. Relying upon this statement, A bought a ‘Bugatti’ car. Later on, the car turned out to be unfit for the touring purpose. A wanted to reject the car and demanded the refund of the price.

8. CONDITIONS
It was held that A was entitled to reject the car and to have the refund of the price. In this case, the suitability of the car for touring purpose was a condition of the contract. It was so important that its non-fulfilment defeated the very purpose for which A bought the car.

9. CONDITIONS
Example: A went to B, a horse dealer, and told him that he wanted a horse which could run at a speed of 45 m.p.h. B pointed out at a particular horse and said that this will suit his purpose. A bought that particular horse. Subsequently, it was discovered that the horse runs at a speed of 20 m.p.h. only.
In this case, the representation made by the seller is a condition as it is essential to the main purpose of the contract.
A may reject the horse and get back the price.

10. Types of Conditions
The two types of conditions are (1) Express conditions, and (2) Implied Conditions.
(1) Express conditions
Express conditions is a condition, which has been expressly agreed upon by both the parties at the time of the contract of sale.
It is open to both the parties to include in their contract any number of express conditions.

11. (2) Implied Conditions.
It is a condition which the law implies into the contract of sale.
In other words, it is the stipulation which has been included in the contract of sale in express words. But the law presumes that the parties have been incorporated it into their contract.
The implied conditions are read into every contract of sale unless they are expressly excluded by the parties.

12. (2) Implied Conditions.
Therefore, both the parties are bound by the implied conditions unless they are excluded by the express agreement of the parties.
The implied conditions may be also excluded by the course of dealings between the parties or by usage of trade.
Sometimes there is a conflict between the express and implied conditions. In such cases, the express term shall prevail and the implied terms shall not be considered.

13. (2) Implied Conditions.
The following are the implied conditions which are contained in the Sale of Goods Act 1893:
(1) Condition as to Title (section 12)
(2) Condition as to Description (section 13)
(3) Condition as to Sample (section 15)
(4) Condition as to Sample as well as Description (section 15)
(5) Condition as to the Quality or Fitness for Buyer’s Purpose (section 14)
(6) Condition as to Merchantability (section

14. (2) Implied Conditions. (1) Condition as to Title (section 12)
Condition as to title is an important implied condition in every contract of sale.
According to this condition it is presumed that the seller has a valid title to the goods, that is, he has the right to sell the goods.
If later on the buyer comes to know that the seller had no valid right to sell the goods, then he may reject the goods and claim the refund of the price.

15. (2) Implied Conditions.
Section 12 of the Sale of Goods Act provides that “In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is –
(1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

16. (2) Implied Conditions.
In every contract of sale there is an implied condition that the seller has a valid title to the goods, that is, he is entitled to sell the goods.
This implied condition, as stated in section 12 above, may be analyzed as follows:
(a) In the case of sale, the implied condition is that the seller has the right to sell the goods, and
(b) In case of an agreement to sell, the implied condition is that the seller will have the right to sell the goods at the time when the ownership is to pass from the seller to the buyer.

17. (2) Implied Conditions.
The condition regarding the seller’s title is very essential to protect the interest of the innocent buyers.
The whole object of the sale is to transfer the property (legal ownership) from one person to another. There can be no sale at all if the seller has no right to sell the goods.
In Rowland v. Divall (1923) 2 KB 500: A bought a second hand car from B, a car dealer. After a few months, the car was taken by the police as it was stolen one. A was forced to return the car to the true owner.

18. (2) Implied Conditions.
It was held that A could recover the full price from B. In this case, there was a breach of condition as to title as B had no right to sell the car.
The term ‘right to sell’ is wider than the term ‘right to pass property’. The expression also means that the seller has a right to sell the goods in the same condition in which he is possessing them.
Therefore, when a person sells the goods by infringing the copyright or trade mark of the others, there is a breach of condition as to title.

19. (2) Implied Conditions
In Niblett v. Confectioners Material Co. (1921) 3 KB 387: A, a businessman of England, bought 3,000 tins of condensed milk from B, a dealer in USA. When the tins reached England, it was found that 1000 tins contained the label of ‘Nissle Brand’. C another manufacturer of the milk under the name of ‘Nestle Brand’, claimed that this was an infringement of his trademark. A had to remove the labels, in order to get clearance from custom authorities. Moreover, A had to sell the tins at loss. A brought an action against B for the breach of a condition.
It was held that the seller had broken the implied condition that he had a right to sell. In this case, the seller had no right to sell the goods (tins) which contained the trade mark of another.

20. (2) Implied Conditions. (2) Condition as to Description (section 13)
Sometimes, goods are sold by description. In such cases, the implied condition is that the goods shall correspond with the description.
The term ‘correspond with description’ means that the goods purchased by the buyer must be the same which were described by the seller.
If subsequently it is found or discovered that the goods do not correspond with the description, the buyer may reject the goods and claim the refund of the price, if already paid.

21. (2) Implied Conditions.
In Varley v. Whipp (1900) 1 Q.B. 513: A purchased from B a car which he had never seen. B described the car as a ‘brand new’. However, on delivery, A found that the car was used and repainted. A, therefore, returned the car to B.
It was held that the sale was by description and the car did not correspond with the description. In this case A was entitled to reject the car.

22. (2) Implied Conditions.
The buyer can reject the goods only if the sale is by description, and the goods do not correspond with the description.
The buyer is given the right to reject the goods because a person cannot be compelled to buy a thing different from the thing he or she contracted to buy.
In Bower v. Shand (1877) 2 AC 455, Lord Blackburn emphasized this condition in the following words:

23. (2) Implied Conditions.
“If you contract to sell peas you cannot oblige a party to take beans. If the description of articles tendered is different in any respect it is not the article, bargained for, and the other party is not bound to take it”.

24. (2) Implied Conditions.
Section 13 of the sale of Goods Act provides that “Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.”

25. (2) Implied Conditions.
It is worth noting that the term ‘sale by description’ has not been defined in the Sale of Goods Act 1893.
However, it generally means the sale when the goods are described in the contract as of particular kind or class, for example, Chama Rice, Mongu fish, Kafue sugar, etc.
The sale will also be by description when the identity or quality of the thing is described, for example, Brand New Car, Mercedes Benz C Class, etc.

26. (2) Implied Conditions.
The term ‘sale by description’ includes the following situations:
(a) When the buyer has never seen the goods but he buys on the basis of description given by the seller.
In such cases the goods must correspond with the description given by the seller.

27. (2) Implied Conditions.
Example: A purchased from B, a sewing machine which he had never seen. The seller (B) described the sewing machine as ‘Brand New’. But on delivery, A found that the sewing machine was extremely old.
In this case, the sale is by description, and A is entitled to reject the sewing machine as it does not correspond with the description given by the seller.

28. (2) Implied Conditions.
(b) when the buyer has seen the goods but relies on the description given by the seller and not on what he has seen.
In such cases, the goods must also answer to the description given by the seller.

29. (2) Implied Conditions.
In Beale v. Taylor (1967) 1 WLR 1193: A advertised his car for sale as a “Herald Convertible, white 1961 model”. B examined the car and bought it. Subsequently, B discovered that the car was made of two parts which had been welded together. Only one part was of 1961 Model, whereas the other part was of an old model.
It was held that the sale was by description and B could reject the car as it did not correspond with the description. In this case, though B has examined the car, but he relied upon the description given by the seller, A.

30. (2) Implied Conditions.
(c) The packaging of goods may be part of the description.
In Moore & co. v. Landover Co. (1921) 2 KB 519: A sold to B, 3000 tins of Australia fruits which were agreed to be packed in cases each containing 30 tins. A delivered the substantial portion of the fruits in cases containing 24 tins.
It was held that the method of packing was a part of the description. Therefore, B was entitled to reject all the goods.

31. (2) Implied Conditions.
Therefore, once it is proved that the sale is by description, then the goods must correspond with the description. If they do not correspond, the buyer may reject them and the seller cannot take the defence of saying that they will serve the purpose.
Thus, in Arcos v. Ranason & Sons (1933) AC 470: A contracted to sell to B the timbers of 15 mm thickness. But when B received the timber, it was discovered that the timbers varied in thickness from 15 mm to 20 mm. However, the timbers were fit for A’s purpose as he bought them to make cement barrels.
It was held that the buyer (B) could reject the goods as they did not correspond with the description given in the contract.

32. (2) Implied Conditions.
However, where the goods correspond with the description, the buyer is bound to take the delivery for whatever worth they may be otherwise, for example, where the pigs were sold ‘with all faults’ and they were what they stated to be.
The buyer was without a remedy even when they turned out to be suffering from typhoid and infected other pigs of the buyer. [Ward v. Hobbs (1878) 4 AC 13]

33. (2) Implied Conditions. (3) Condition as to Sample (section 15)
Sometimes, the seller shows sample of the goods to the buyer, and the buyer relying upon the quality of the goods from the sample, buys the goods.
In such cases, there is an implied condition that the goods shall correspond with the sample in quality.
Furthermore, the goods shall be free from defects which render them unmerchantable.

34. (2) Implied Conditions.
In case of the sale by sample there are three implied conditions namely:
(i) Correspondence of goods with the sample in quality [s.15(2)(a)]
(ii) Reasonable opportunity of comparing the goods with the sample [s. 15(2)(b)]
(iii) Merchantability of the goods [s.15(2)(c)]

35. (2) Implied Conditions.
(i) Correspondence of goods with the sample in quality
The implied condition that goods must correspond with the sample in quality means that the goods delivered must correspond with the quality of the sample.

36. (2) Implied Conditions.
Section 15 of the Sale of Goods Act 1893 provides that “(1) A contract of sale is a contract for sale by sample Sale where there is a term in the contract, express or implied, to sample that effect.
(2) In the case of a contract for sale by sample—
(a) There is an implied condition that the bulk shall correspond with the sample in quality.

37. (2) Implied Conditions.
In E & S Ruben Ltd. V. Fair Bros (1949) 1 KB 254: A agreed to buy some rubber material from B. The sample of the rubber was shown to A, and the rubber was to be delivered in rolls of specific length and width. On receiving the goods , that is, rubber materials, A found that the measurement of the material was different from that of the sample in quality.
The court held that the measurements of the rubber was part of the quality.

38. (2) Implied Conditions.
(ii) Reasonable opportunity of comparing the goods with the sample [s. 15(2)(b)]
The second implied condition is that the buyer shall have a reasonable opportunity of comparing the bulk with the sample. If the seller refuses to allow such opportunity to the buyer may reject the goods and terminate the contract.

39. (2) Implied Conditions.
Section 15(2)(b) of the Sale of goods Act 1893 provides that
“(2) In the case of a contract for sale by sample—
(b) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.”

40. (2) Implied Conditions.
Lorymere v. Smith (1822) 1 B & C 1: A agreed to sell to B two parcels of wheat. The sample of wheat was shown to B. The buyer (B) went to A’s warehouse to examine the wheat. One parcel, which was lying in the seller’s (A’s) warehouse, was shown to B. But refused to show the other parcel to B, which was not in the warehouse.
It was held that the buyer could put an end to the contract.

41. (2) Implied Conditions.
(iii) Merchantability of the goods [s.15(2)(c)]
The third implied condition is that the goods shall be free from latent defects, that is, the defects which are not discoverable on reasonable examination of the sample.
When the goods delivered are defective, the buyer can reject the goods if the defect was not discoverable by reasonable examination of the sample.

42. (2) Implied Conditions.
Section 15(2)(c) of the Sale of goods Act 1893 provides that
“(2) In the case of a contract for sale by sample—
(c) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

43. (2) Implied Conditions.
In Drummond & Sons v. Van Ingen (1887) 12 AC 284: The defendant, A, sold some cloth of ‘worsted coating’ quality to the Plaintiff, B. The sample was also shown to B. Subsequently, it was discovered that the cloth was defective and unfit for stitching into coats, because the coats made out of it were not fit to stand ordinary wear. The same defect was in the sample but that was not discoverable on reasonable examination.
It was held that the goods, that is, the cloth were unmerchantable due to the latent defect. Also that the goods were not fit for purpose.

44. (2) Implied Conditions.
(4) Condition as to Sample as well as Description (section 13)
Sometimes, the seller shows sample of the goods to the buyer and also gives him their description.
In such cases, the implied condition is that the goods shall correspond with both, the sample as well as description.
Therefore in case of sale of goods by sample as well as description, the goods must correspond with both, the sample and the description.

45. (2) Implied Conditions.
Section 13 of the Sale of Goods Act 1893 provides that “Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.”

46. (2) Implied Conditions.
In Azemar v. Carella (1867) 2 CP 431: A agreed to sell to B some cotton which was described as ‘Long Staple Cotton’. The sample was also shown to B. A delivered the cotton which was of the quality of sample. But subsequently, B found that the cotton was not ‘Long Staple Cotton’ but only ‘Western Madras Cotton’.
It was held that the buyer could reject the goods, that is, cotton as they do not correspond with the description given by the seller, though they correspond with the sample.

47. (2) Implied Conditions.
(5) Condition as to the Quality or Fitness for Buyer’s Purpose (section 14)
Ordinarily, there is no implied condition that the goods shall be fit for the particular purpose of the buyer.
However, in certain circumstances, the seller is required to supply the goods which will be fit for the buyer’s purpose, for example, where the buyer tells his purpose to the seller and buys the goods relying upon seller’s skill and judgment.

48. (2) Implied Conditions.
Therefore, if the buyer makes his purpose clear to the seller and buys the goods ‘relying upon his skill and judgment’, then there is an implied condition that the goods shall be fit for the buyer’s specific purpose.
However, this implied condition will be there only if the following requirements are satisfied:
(a) The buyer requires the goods for a particular purpose.
(b) The buyer should make known to the seller about the particular purpose.

49. (2) Implied Conditions.
(c) The buyer should rely on the seller’s skill and judgment.
(d) The seller’s business is to supply such goods whether he is the manufacturer or producer or not.
Section 14 of the Sale of Goods Act 1893 provides that “Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows :

50. (2) Implied Conditions.
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.

51. (2) Implied Conditions.
(2) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.

52. (2) Implied Conditions.
(3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade:
(4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

53. (2) Implied Conditions.
In Priest v. Last (1930) 2 K.B. 148: A customer, had no knowledge about hot water bottles. He went to B, a chemist, and demanded a hot water bottle from him. B gave a bottle to him and stated that it was meant for hot water. A few days, while using the bottle, it burst and injured A’s wife. It was found that the bottle was not fit for use as a hot water bottle, and the seller was liable for damages.
In this case, the buyer’s purpose was clear from the nature of the bottle.

54. (2) Implied Conditions.
In connection with the condition as to quality or fitness for buyer’s purpose, the following important points may be noted:
(a) Sometimes, the goods can be used for more than one purpose. In such cases, the buyer should inform his particular purpose to the seller. If this is not done, the seller will not be liable if the goods do not suit buyer’s particular purpose. However, in such cases, condition as to merchantability must be satisfied.

55. (2) Implied Conditions.
(b) Sometimes, there are special circumstances affecting the use of the goods for a particular purpose, and the seller is not aware of such circumstances.
In such cases the implied condition as to fitness for buyer’s purpose does not apply if these special circumstances have not been disclosed to the seller, for example, if the buyer buying an article for particular use, is suffering from an abnormality, that is over sensitiveness, and the same has not been disclosed to the seller at the time of sale, then the implied condition as to fitness does not apply.

56. (2) Implied Conditions.
In Griffiths v. Peter Conway Ltd (1939) 1 All ER 685: A bought a tweed coat from B. After wearing the coat for sometime, A developed a dermatitis (skin trouble). It was discovered that the coat was fit for the use of a normal man. A’s skin trouble was due to her oversensitive skin.
The court held that the implied condition as to fitness for buyer’s purpose was broken, as the coat was fit for the use of a normal man. In this case it was A’s duty to disclose the fact of her over sensitiveness to the seller at the time of sale.

57. (2) Implied Conditions.
(c) sometimes, the goods are purchased under a patent or trade name. In such cases, there is no implied condition as to their fitness for any particular purpose.
Therefore where a buyer relies more on the trade name of a commodity than on the skill and judgment of the seller, the condition as to fitness for buyer’s purpose does not apply (s.14(1)).

58. (2) Implied Conditions.
Example: A went to B’s shop and asked for a “Merrit” sewing machine. B gave A the “Merrit” sewing machine and A paid the price. A relied on the trade name of the machine rather than on the skill and judgment of the seller, B.
In this case, there is no implied condition as to the fitness of the machine for buyer’s particular purpose.

59. (2) Implied Conditions.
(6) Condition as to Merchantability [s.15(2)(c)]
The term ‘merchantability’ has not been defined in the Sale of Goods Act, However, it has been interpreted by the courts, and basically it means two things:
(a) If the goods are purchased for resale, then they should be immediately resalable in the market under their description. Besides, the goods should also be marketable at their full value, for example, the cement turned into stone by water is not merchantable.

60. (2) Implied Conditions.
(b) If the goods are purchased for self use, then they should be reasonably fit for the purpose for which they are generally used, for example, a watch that will not keep time, or a pen that will not write, cannot be regarded as merchantable under such name.
In case of sale by description, there is an implied condition that the goods shall be of merchantable quality.
Therefore, the seller who sells the goods by description, is bound to deliver the goods of merchantable quality.

61. (2) Implied Conditions.
However, this implied condition will be there only if the following requirements are satisfied:
(i) The goods must be sold by description
(ii) The seller’s business is to supply the goods of that description whether he is the manufacturer or producer or not.

62. (2) Implied Conditions.
In Jones v. Just (1886) LR 3 QB 197: A & Co, a firm of merchants, contracted to buy from B, a London Merchant, a number of bales of ‘Manila Hemp’. This was to arrive from Singapore. The hemp arrived wetted by sea water, and it was so much damaged that it was not possible to sell it in the market as ‘Manila Hemp’.
It was held that the goods , that is hemp, were not of merchantable quality. In this case the hemp was not sealable under the description of ‘Manila Hemp’.

63. (2) Implied Conditions.
In Wilson v. Rickett Cockerrel & Co (1954) 1 QB 598: A bought some cooking coal from B, a coal dealer for domestic use. However, the coal contained an explosive substance which exploded and caused injury to A.
It was held the coal was not merchantable as it was not fit for using as cooking coal, and the buyer (A) was allowed to recover damages from the supplier (B).

64. (2) Implied Conditions.
As already stated above, the goods must be reasonably fit for the purpose for which they are generally used.
Thus where the goods can be used for several purposes, then they shall be merchantable if they are fit for any one of the several purposes for which they may ordinarily be used.
However, in such cases the seller may be held liable on the ground that the goods are not fit for buyer’s particular purpose, the requirements of the ‘condition as to fitness for buyer’s purpose’ must be satisfied.

65. (2) Implied Conditions.
In Henry K. & Sons v. William L. & Sons (1968) 3 WLR 110: A bought poultry feed from B. When the feed was used, it killed A’s young birds. However, it was discovered that the feed was fit for older birds.
It was held that the feed was of merchantable quality as it was fit for other purposes, for example, for older birds and other animals. However, A could recover damages on the ground that the feed was not fit for his purpose.

66. (2) Implied Conditions.
The term ‘merchantability’ also means that the goods must be properly packed.
In Morelli v. Fitch & Gibbons (1928) 2 K.B. 636: A purchased a bottle of “Stone’s Ginger Wine’ from B. When A attempted to draw its cork with a cork screw, the neck of the bottle broke off and injured A’s hand.
It was held that the bottle was not of merchantable quality, and A was entitled to recover damages from B.

67. (2) Implied Conditions.
It also worth noting that where the buyer purchases the goods after examination, the implied condition as to merchantability shall not be applicable.
Therefore, the buyer is not entitled to the benefit of this condition if he has examined the goods before purchase.
The seller is not liable for defects which the examination ‘ought to have revealed’ (s.14(2)).

68. (2) Implied Conditions.
The expression ‘ought to have revealed’ refers to patent defects only. The term ‘patent defects’ means the defects which can be found on examination by an ordinary man.
In case of latent defects, the seller can be held liable even if the buyer has examined the goods.
The term ‘latent defects’ means the defects which cannot be found on such examination, for example, in the case of sale of a car, the defects of body tyres, etc., are patent defects, whereas the defects of the engine are latent defects.

69. WARRANTIES
The term ‘warranty’ may be defined as a representation made by the seller which is not of that importance as a condition. The non-fulfilment of the warranty does not defeat the very purpose of the buyer.
A warranty may be also defined as a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated.
Therefore, a warrant is a representation by the seller which is not very important factor in the sale of the goods. It is only collateral or subsidiary to the main purpose of the contract, and if it proves to be untrue, the buyer cannot put an end to the contract. He can only claim damages from the seller.

70. Types of Warranties
There are two types of warranties, namely (1) Express Warranties, and (2) Implied Warranties
(1) Express Warranties
This a warranty which has been expressly agreed upon by both the parties at the time of contract of sale.
It is open to both parties to include in their contract any number of express warranties.

71. WARRANTIES
In Harrison v. Knowles & Foster (1917) 2 K.B. 606: A bought two small ships from B relying upon the particulars furnished by B that the dead weight capacity of each ship was 460 tons. The capacity was in fact 360 tons. A wanted to reject the ships.
It was held that the representation about the capacity of the ships was not a condition but a warranty only, and therefore A could not reject the ships.

72. WARRANTIES
Example: A, a customer, went to B, a horse dealer, and told him that he wanted to buy a healthy horse. B pointed at a particular horse and said it to be healthy. Moreover, B informed A that the particular horse can also run at a speed of 40 km per hour. A bought that particular horse. Subsequently, A found the horse to be healthy, but could run only at a speed of 20 km per hour. A wanted to reject the horse and to have the refund of the price.
In this case, the representation made by the seller (B) is a warranty because it is only collateral to the main purpose. Therefore, A cannot reject the horse on this ground.

73. Types of Warranties (2) Implied Warranties
Implied warranties is a warranty which the law implies into the contract of sale.
In other words, it is the stipulation which has not been included in the contract of sale in express words, but the law presumes that the parties have incorporated it into their contract.
The implied warranties are read into every contract of sale unless they are expressly excluded by the express agreement of the parties.

74. Types of Warranties
The implied warranties may also be excluded by the course of dealings between the parties or by usage of trade.
Where there is a conflict between the express and implied warranties, the express warranties shall prevail and the implied terms shall not be considered.
The following are the implied warranties which are contained in the Sale of Goods Act, 1893:
(1) Warranty as to quiet Possession (s.14(2))
(2) Warranty as to free from encumbrance (s.12(3))
(3) Warranty implied by customs

75. Types of Warranties (1) Warranty as to quiet Possession (s.14(2))
The warranty as to quiet possession is an important implied warranty in every contract of sale.
According to this warranty, it is presumed that the buyer shall have and enjoy the quiet possession of the goods.
This means that where the buyer has obtained the possession of the goods, he has a right to enjoy them in a way he likes, that is, no one should interfere with the quiet enjoyment of the buyer.
If the buyer’s right of possession and enjoyment is disturbed by anyone having a superior title to the goods, then the buyer can recover damages from the seller.

76. Types of Warranties
As a matter of fact, in every contract of sale there is an implied warranty that the buyer shall have the peaceful possession of the goods, that is he is entitled to use the goods in the way he likes, subject to the law and agreement between the parties.
In Mason v. Birmingham (1949) 2 K.B. 545: A purchased a second hand typewriter from B. A used it for sometime and also spent some money on its repairs. The typewriter turned out to be a stolen one and as such A had to return it to the true owner.
It was held that A could recover damages from B amounting to the price paid and the cost of repair.

77. Types of Warranties
It may noted that to a certain extent the ‘implied condition as to title’ as contained in section 12(1) and ‘implied warranty as to quiet possession’ as contained in section 12(2) are overlapping.
This is so because where the implied condition as to title is broken, that is, the seller’s title to the goods is defective, it is natural that the buyer’s right of possession and enjoyment will be disturbed by the person having a superior title.
Therefore the buyer may recover damages for breach of both, the condition as to title, and a warranty as to quiet possession.

78. Types of Warranties
Section 12(2) of the sale of Goods Act, 1893 provides that in a contract of sale, unless the circumstances of the taking as to contract are such as to show a different intention, there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods”.

79. Types of Warranties (2) Warranty as to free from encumbrance (s.12(3))
According to this warranty, it is presumed that the goods shall be free from any charge or encumbrance in favour of any third person or party.
If the possession of the buyer is disturbed due to such charge in favour of a third party, he can claim damages from the seller.
As a matter of fact, in every contract of sale there is an implied warranty that the goods shall be free from any charge in favour of any third party, that is, no one else has the interest of any kind in the goods sold to the buyer.

80. Types of Warranties
However, there will be no warranty if the charge has been declared to the buyer at the time of sale or if he has notice of such charge.
Example: A obtained a loan of K50 million kwacha from B and hypothecated his cycle with B as security for the repayment of the loan. Subsequently, A sold the same cycle to C, an innocent buyer, who had no notice or knowledge about B’s charge on the cycle.
In this case, if C’s possession is disturbed by B who is having charge on the cycle, then C can claim damages from A for any loss which he may suffer due to such charge.

81. Types of Warranties
Section 12(3) of the Sale of Goods Act 1893 provides that in a contract of sale, unless the circumstances of the taking as to contract are such as to show a different intention, there is an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.”

82. Types of Warranties (3) Warranty implied by customs
Like implied conditions, implied warranties are also attached by custom or usage of trade.
This is because the parties enter into an agreement subject to the known customs or usages of trade.

83. Change of a Condition into a Warranty
Sometimes , a condition is changed to the status of a warranty, that is, it is reduced to a warranty, and the breach of condition is treated as the breach of a warranty.
In such cases, the buyer loses the right to reject the goods on the ground of breach of condition. However, his right to recover damages continues.
The circumstances in which a breach of a condition is treated as a breach of warranty are as follows:
(1) Voluntary Circumstances, and
(2) Compulsory Circumstances

84. Change of a Condition into a Warranty
(1) Voluntary Circumstances (s.11(1)(a))
The express or implied conditions are for the benefit of the buyer. He may, at his option, treat them as warranties.
As a matter of fact, the buyer is always at his option to treat the breach of a condition as breach of warranty, and may not reject the goods.

85. Change of a Condition into a Warranty
Section 11(1)(a) of the Sale of Goods Act 1893 provides that “Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer 'may waive warranty, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating contract as repudiated.”
The analysis of section 11(1)(a) reveals that the buyer may exercise his option in either the following ways:

86. Change of a Condition into a Warranty
(a) Waiver of condition: The buyer may waive off the condition, that is, if certain condition is not fulfilled, the buyer may give up the condition and accept the goods.
The waiver, by the buyer, may be express or implied.
(b) Option to treat the condition as a warranty
The buyer may also, if certain condition is not fulfilled, that his option, treat the breach of warranty. Therefore buyer may not put an end to the contract by rejecting the goods.

87. Change of a Condition into a Warranty
Once the buyer exercises his option, that is, decides to treat the breach of warranty, he cannot afterwards compel the seller for its fulfilment.
When the buyer waives off the condition or treats its breach as a breach of warranty, he does not lose his right to recover damages from the seller. He remains entitled to recover the damages as in case of breach of a warranty.

88. Change of a Condition into a Warranty
Section 11(1)(b) of the Sale of Goods Act 1893 provides that “Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract”.

89. Change of a Condition into a Warranty
(2) Compulsory Circumstances (s. 11(1)(c))
Section 11(1)(c) provides that if the contract is not severable or divisible and the buyer accepts all the goods or their part, then he cannot reject the goods on the ground that certain condition is not fulfilled.
In such cases, he can only claim damages from the seller. This is, however, subject to an agreement to the contrary, that is, the agreement between the parties may give the right to the buyer to reject the goods.
But where the contract is severable and the buyer has accepted the part of the goods, he can exercise his right to reject the remaining goods.

90. Change of a Condition into a Warranty
It is worth noting that in case the breach of a condition is treated as a breach of warranty, then it does not mean that a condition has become a warranty.
The condition remains a condition. Only the buyer’s right changes, that is, the buyer loses his right to reject the goods, he can only recover damages from the seller as in the case of breach of warranty.

91. Change of a Condition into a Warranty
In Wallis Sons & Wells v. Pratt (1911) AC 394: A sold some quantity of seeds to B which were described as ‘Common English Sanfoin’. One of the terms of the contract was that “the seller gives no warranty express or implied as to growth, description or any other matter.” Later on, it was found that the seeds delivered to B were not ‘Common English Sanfoin’ but ‘Gain Sanfom’, which was different and of inferior quality. B accepted the goods believing it to be ‘Common English Sanfoin’. B resold the seeds to C, who recovered damages from B because of the inferior quality. As B has accepted the goods, his only remedy was to bring an action for damages against A. As such he sued A for damages.

92. Change of a Condition into a Warranty
The seller, A, contended that the condition was reduced to warranty as the buyer B, had accepted the goods. The seller is not liable because the liability warranty is expressly excluded in the contract.
The court rejected the contention of the seller, and the buyer was allowed to recover the damages from the seller. The court observed that the condition is converted into warranty only for the purpose of remedy.

93. Change of a Condition into a Warranty
Section 11(1)(c) of the Sale of Goods Act 1890 provides that “Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.”

94. Exclusion of Implied Condition and Warranties
Though the parties to a contract of sale are bound by the implied conditions and warranties, in certain circumstances, the liability for the breach of implied conditions and warranties may be excluded.
The three modes by such a liability can be excluded are as follows:
(1) By Express Agreement
(2) By Course of Dealing
(3) By Customs or trade usages

95. Stipulation as to Time
Section 10(1) of the Sale of Goods Act 1893 provides that “Unless a different intention appears from the terms Stipulations 'of the contract stipulations as to time of payment are not as to time. deemed to be of the essence of a contract of sale. Whether any other stipulation 'as to time is of the essence 'of the contract or not depends on the terms of the contract.
(2) In a contract of sale "'month " means prima facie calendar month.”

96. Doctrine of Caveat Emptor
The term ‘caveat emptor’ is a Latin word which means ‘let the buyer beware’, that is, a buyer purchases the goods at his own risk.
As a matter of fact, it is the buyer’s duty to select goods of his requirements, and the seller is not bound to supply the goods which shall be fit for any particular purpose of the buyer or which should possess any particular quality.
This rule is known as the ‘doctrine of caveat emptor’. It is contained in the opening words of section 14 of the Sale of Goods Act 1893 which provides as follows:

97. Doctrine of Caveat Emptor
“Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows”
In other words, it is not the seller’s duty to give to the buyer the goods which are suitable for a particular purpose of the buyer.
The buyer must take care of his own purpose while purchasing the goods, that is, it is his duty to purchase the goods of his requirement. As such, the buyer must take care while purchasing the goods.

98. Doctrine of Caveat Emptor
If the buyer makes a wrong choice of the goods, he cannot blame the seller if the goods turn out to be defective or do not serve his purpose.
The seller is not suppose to know the particular purpose for which the buyer is purchasing the goods.

99. Doctrine of Caveat Emptor
In Ward v. Hobbs (1878) 4 AC 13: A sold certain pigs to B by auction. The pigs were sold ‘with faults and errors of description’, that is no warranty was given by the seller in respect of any fault or error of description. B paid the price for the pigs. The pigs were ill, and all, except one, died of typhoid fever. They also infected some of buyer’s own pigs.
It was held that there was no implied condition or warranty that the pigs were of good health. Therefore, B could recover damages from A. In this case, it was buyer’s duty to see whether the pigs were healthy or not.

100. Exceptions to the Doctrine of Caveat Emptor
The exceptions to the doctrine of caveat emptor are as follows:
(1) Condition as to quality or fitness for buyer’s purpose
(2) Condition as to merchantability
(3) Condition as to wholesomeness
(4) Conditions implied by customs

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