Difference between revisions of "Contracts for Sale of Goods (11:III)"
Jump to navigation
Jump to search
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) |
||
| Line 104: | Line 104: | ||
The concept of merchantable quality is difficult to define. A commonly used test, the '''price abatement''' test, asks whether a reasonable buyer, informed of the actual quality of the goods, would buy the goods without a substantial abatement of price (''B.S. Brown & Son v Craiks Ltd.'', [1970] 1 All ER 823 (HL)). If the informed reasonable buyer would not buy without a substantial abatement of price, unmerchantable quality is inferred, and repudiation may be available. | The concept of merchantable quality is difficult to define. A commonly used test, the '''price abatement''' test, asks whether a reasonable buyer, informed of the actual quality of the goods, would buy the goods without a substantial abatement of price (''B.S. Brown & Son v Craiks Ltd.'', [1970] 1 All ER 823 (HL)). If the informed reasonable buyer would not buy without a substantial abatement of price, unmerchantable quality is inferred, and repudiation may be available. | ||
Any damage to goods beyond the de minimus range, may be said to render the goods of unmerchantable quality (IBM v Shcherban, [1925] 1 DLR 864 (Sask CA)). Section 18(b) applies to the sale of used goods as well. However, there is a lower standard here: the goods must be usable but not perfect. A minor defect does not necessarily render the goods unmerchantable. See Bartlettv Sidney Marcus Ltd.,[1965] 2 All ER 753 (CA). In any case, where the buyer seeks recovery of the full purchase price based on the implied condition of merchantable quality, he or she should be cautioned that continued use of the goods in question seriously weakens the argument that the goods are not fit for a particular purpose, or are not of merchantable quality. (2)Sale by Description Section 18(b) only applies to a sale by description. This is usually not a problem since most sales are by description, except where the buyer is clearly buying a particular item on the basis of qualities known to him apart from any representations. (3)Seller who Deals in Goods of that Description In addition to requiring that the sale be by description, section 18(b) also requires that the seller must “deal in goods of that description.” In Hartman v McKerness, 2011 BCSC 927, a seller sold a watch by description over eBay and was sued for violating the implied condition of merchantability in section 18(b). In paragraphs 43-47, the BC Supreme Court held that the eBay seller was not a seller “who dealt in goods of that description” for the purpose of 18(b), as he did not specialize in watches, but rather sold a large variety of goods. (4)Effect of Examination by the Buyer If the buyer examines the goods, there is no condition of merchantable quality for defects that the examination ought to have revealed. However, if the average person would not have been able to spot the defect during the exam, the condition of merchantability remains. Hence, it must be determined: 1) whether the buyer examined the goods, and 2) whether the defects ought to have been revealed by the exam. There is no obligation on the buyer to make a reasonable examination, or even any examination. (5)Implied Condition of Reasonable Durability The goods must be durable for a reasonable period of time (s 18(c)). f)Implied Conditions in Sales by Sample: s 19 For a contract to be a sale by sample, there must be “an express or implied term in the contract to that effect” (s 19(1)). | |||
next 11-12 | next 11-12 | ||