2,734
edits
Difference between revisions of "Contracts for Sale of Goods (11:III)"
Jump to navigation
Jump to search
Contracts for Sale of Goods (11:III) (view source)
Revision as of 19:52, 4 October 2022
, 19:52, 4 October 2022→c) Implied Condition of Compliance with the Description: s 17
| Line 81: | Line 81: | ||
:Most sales will be sales by description. The notable exception is where a buyer makes it clear that they are buying a particular item on the basis of its qualities known, independent of any representations by the seller. Generally, where a buyer purchases a product because of a vendor’s representations about its features (which may have been offered either gratuitously or in response to the buyer’s questions), this will be a sale by description, with the vendor’s representations forming part of the description. Catalogue purchases, online shopping, and purchases of products sealed in containers by the manufacturer are also sales by description. | :Most sales will be sales by description. The notable exception is where a buyer makes it clear that they are buying a particular item on the basis of its qualities known, independent of any representations by the seller. Generally, where a buyer purchases a product because of a vendor’s representations about its features (which may have been offered either gratuitously or in response to the buyer’s questions), this will be a sale by description, with the vendor’s representations forming part of the description. Catalogue purchases, online shopping, and purchases of products sealed in containers by the manufacturer are also sales by description. | ||
If a sale is made by description and by sample, it is not enough that the bulk of the goods correspond with the sample; the delivered goods must also correspond with the description by which they were sold (s 17(2)). | :If a sale is made by description and by sample, it is not enough that the bulk of the goods correspond with the sample; the delivered goods must also correspond with the description by which they were sold (s 17(2)). | ||
:'''NOTE:''' '''Specific goods''' (as opposed to unascertained goods) are goods that, at the time the contract is made, are agreed to be the only goods whose transfer will satisfy the contract. For example, in a sale of a new chair, if the parties agree that a ''specific'' chair is to be the subject matter of the contract, the sale has been of specific goods. So, if the seller attempts to deliver a different chair, which is identical in every way, except that it is not the actual chair agreed upon, the seller has breached the contract. '''Unascertained goods''' are goods that are agreed to be the subject matter of the contract at a point in time after the contract is made. For example, in the sale of a new chair, if the parties agree only on a specific type of chair, but do not specifically single out any individual chair, the sale has been of unascertained goods. | :'''NOTE:''' '''Specific goods''' (as opposed to unascertained goods) are goods that, at the time the contract is made, are agreed to be the only goods whose transfer will satisfy the contract. For example, in a sale of a new chair, if the parties agree that a ''specific'' chair is to be the subject matter of the contract, the sale has been of specific goods. So, if the seller attempts to deliver a different chair, which is identical in every way, except that it is not the actual chair agreed upon, the seller has breached the contract. '''Unascertained goods''' are goods that are agreed to be the subject matter of the contract at a point in time after the contract is made. For example, in the sale of a new chair, if the parties agree only on a specific type of chair, but do not specifically single out any individual chair, the sale has been of unascertained goods. | ||
Although s 17 cannot be excluded in retail sales of new goods, it may be excluded in private or commercial sales, subject to the ''contra proferentum'' rule. The ''contra proferentum'' rule states that a contract, if ambiguous, is construed as against the party who wrote it. Where a standard form contract (a “take it or leave it” contract that is drafted entirely by one party without any negotiations with the other party) is used, it is construed as against the party who offered it (usually the seller). | :Although s 17 cannot be excluded in retail sales of new goods, it may be excluded in private or commercial sales, subject to the ''contra proferentum'' rule. The ''contra proferentum'' rule states that a contract, if ambiguous, is construed as against the party who wrote it. Where a standard form contract (a “take it or leave it” contract that is drafted entirely by one party without any negotiations with the other party) is used, it is construed as against the party who offered it (usually the seller). | ||
A sale by description may also raise s 18(b) issues (see [[{{PAGENAME}}#e) Implied Condition of Merchantable Quality: s 18(b) | e) Implied Condition of Merchantable Quality: s 18(b)]] below). | :A sale by description may also raise s 18(b) issues (see [[{{PAGENAME}}#e) Implied Condition of Merchantable Quality: s 18(b) | e) Implied Condition of Merchantable Quality: s 18(b)]] below). | ||
==== d) Implied Condition of Fitness for Buyer’s Purpose: s 18(a) ==== | ==== d) Implied Condition of Fitness for Buyer’s Purpose: s 18(a) ==== | ||