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Difference between revisions of "Contracts for Sale of Goods (11:III)"
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Contracts for Sale of Goods (11:III) (view source)
Revision as of 00:32, 6 August 2021
, 00:32, 6 August 2021→e) Implied Condition of Merchantable Quality: s 18(b)
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# From a <u>seller who deals</u> in goods of that description, the seller is bound by an implied '''condition''' that the goods are of merchantable quality. | # From a <u>seller who deals</u> in goods of that description, the seller is bound by an implied '''condition''' that the goods are of merchantable quality. | ||
===== (1) The Concept of Merchantable Quality ===== | :===== (1) The Concept of Merchantable Quality ===== | ||
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 ([https://www.bailii.org/uk/cases/UKHL/1970/1970_SC_HL_51.html ''BS Brown & Son v Craiks Ltd'', [1970<nowiki>]</nowiki> 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 ([https://www.bailii.org/uk/cases/UKHL/1970/1970_SC_HL_51.html ''BS Brown & Son v Craiks Ltd'', [1970<nowiki>]</nowiki> 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. | ||
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===== (2) Sale by Description ===== | ===== (2) Sale by Description ===== | ||
This section only applies to a sale by description (s.18(b)). 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 them apart from any representations (see d) Implied Condition of Fitness for Buyer's Purpose: s 18(a) above). | This section only applies to a sale by description (s.18(b)). 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 them apart from any representations (see [[{{PAGENAME}}#d) Implied Condition of Fitness for Buyer's Purpose: s 18(a) | d) Implied Condition of Fitness for Buyer's Purpose: s 18(a)]] above). | ||
===== (3) Seller who Deals in Goods of that Description ===== | ===== (3) Seller who Deals in Goods of that Description ===== | ||
In addition to requiring that the sale be by description, | In addition to requiring that the sale be by description, s 18(b) also requires that the seller must “deal in goods of that description.” In [https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc927/2011bcsc927.html?autocompleteStr=hartmann%20v%20mc&autocompletePos=1 Hartmann 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 ss 18(b). In paragraphs 43-47, the BC Supreme Court held that the seller was not one “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 ===== | ===== (4) Effect of Examination by the Buyer ===== | ||
There is an '''exception''' where the buyer has examined the goods; then, there is no condition of merchantable quality to the extent that the examination ought to have revealed the defect. However, if the average person would not have been able to spot the defect, the condition of merchantability remains. Hence, it must be determined: 1) whether the buyer <u>examined</u> the goods, and 2) whether the defects ought to have been <u>revealed</u> by the examination. | |||
::'''NOTE:''' There is no obligation on the buyer to make a reasonable examination or even any examination. | |||
===== (5) Implied Condition of Reasonable Durability ===== | ===== (5) Implied Condition of Reasonable Durability ===== | ||
