Difference between revisions of "Contracts for Sale of Goods (11:III)"

Under s 18(b), if: (1) goods are bought by description, and (2) from a seller who deals in goods of that description, the seller is bound by an implied condition that the goods are of merchantable quality, except to the extent that the buyer has examined them.  

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 (''BS 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 (''[https://www.canlii.org/en/sk/skca/doc/1925/1925canlii154/1925canlii154.html?autocompleteStr=International%20Business%20Machines%20v%20Shcherban&autocompletePos=1 International Business Machines Co Ltd v Shcherban]'', [1925] 1 DLR 864 (Sask CA), [1925] 1 WWR 405).  

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 ''Bartlett v Sidney Marcus Ltd'',[1965] 2 All ER 753 (Eng 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.

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.  

The goods must be durable for a reasonable period of time with regard to their normal use (s 18(c)).