COXDITIOXS AS TO QUALITY. 9 



9. Implied Conditions as to Quality. — When a purchaser 

 bu^'s a horse without a warranty, there is a condition implied 

 in the contract of sale that the animal is reasonably fit for 

 the purpose for which it is sold ; that is to say, it must be a 

 merchantable animal, and such as it is represented to be 

 according to the fair intention and understanding of the 

 parties, (a) If the buj^er has seen and examined the horse, 

 the rule caveat emptor applies, " his eye is his merchant," 

 and he must take it Avith all its faults, unless there be fraud 

 on the part of the seller, or the concealment (h) of any defect 

 known to him material to the contract and not obvious on 

 inspection, (c) A seller, however, is not bound to disclose 

 any patent defects in a horse he is going to sell, unless this 

 duty is imposed upon him by the buyer's asking about them : 

 he may remain silent and allow the buyer to inspect the 

 animal and judge for himself ; mere silence does not per se 

 amount either to implied warranty or concealment. (r?) If 

 the buyer, however, has not seen or had an opportunity of 

 seeing the horse, the rule caveat emptor does not apply, and 

 the buyer can reject it, and demand repayment of the price 

 if it has been paid, in the event of its not being a merchant- 

 able animal, (e) If a defect be undiscoverable on inspection, 

 the buyer is held both in England and Scotland to be aware 

 of the possibility of its existence, and unless there be fraud 

 on the part of the seller in concealing it, or the buj^er get a 

 warranty with his horse, he must take the risk.(/) " Where 

 an article is sold with all its faults," said Lord Ellenborough, 

 " I think it is quite immaterial how many beloDged to it 

 within the laiowledge of the seller, unless he used some 



(a) Ersk. iii. 3, 10 ; B.C. i. 463 ; Rahton v. Rohb, 180S, M. v. Sale. 



[h) See § 32. 



(c) B. Pr. 96. 



(rZ) Per Lord Jervis in Keats v. Earl of Cadognn, 1851, 10 C.B. 591 ; Yeats v. 

 Rcld, 1884, 21 S.L.R. 698, see this case also in § 28. 



(e) B.C. i. 464 ; Ersk. iii. 3, 10. 



(/) B. Pr. 97 ; Stair, i. 10, 15, citing liroKn v. Nicolson, 1629, M. 8910. The 

 former English rule that sound price implied sound quality, is overruled. Jones 

 V. Just, 1868, L.R. 3 Q.B, 197. 



