CHAPTER V. 



WAKRANTY ; SALE AND 'WAKRANTY BY AN AGENT ; ANl) 

 PATENT DEFECTS. 



Warranty. 



In buying a horse, as ■well as in making an exchange, the "Wairanty 

 maxim caveat emptor is the rule of law, and a party who ^1'^^'^ ^ 

 has got an unsound horse has in neither case any remedy horse." 

 unless there he evidence either of express warranty or of 

 fraud. For in the general sale of a horse the seller only 

 warrants it to be an animal of the description it appears 

 to be, and nothing more ; and if the purchaser makes no 

 inquiries as to its soundness or qualities, and it turns out to 

 be unsound or restive or unfit for use, he cannot recover as 

 against the seller, as it must be assumed that he purchased 

 the animal at a cheaper rate (a). 



According to the Roman law (b), and in France (c) and Implied 

 Scotland, and partially in America (d), there is always an ™^?,^'''1°S 

 implied contract that the vendor has the right to dispose of " ^' "' 

 the article which he sells. 



In England the common law rule was formerly stated to 

 be that on a sale of specific goods there was no implied 

 warranty of title, and that, in the absence of fraud, the 

 seller was not hable for a defect of title unless there was an 

 express warranty or an equivalent to it by declaration or 

 conduct (e). It was, however, well settled that in an 

 executory agreement, the seller imphedly warranted his 

 title in the goods which he promised to sell (/) ; and so 

 wide a construction was put upon the circumstances which 

 might be held to be equivalent to an express warranty that 

 Lord Campbell said that the exceptions had well nigh eaten 

 up the rule (g). This dictum was quoted with approval by 



(a) Jones v. Bright, 3 M. c& P. also Morley v. Attenhorough, 3 Exch. 



175. 510, per Parke, B. 



lb) Domat, book 1, tit. 2, s. 2, {e) Morley v. Attenhorough, 3 



art. 3. Exch. 500; 18 L. J., Ex. 148. 



(c) Code Civn, chap. 4, s. 1, art. (/) Benj. on Sales, 4th Ed. p. 622; 



1803. Morley t. Attenhorough, ubi supra. 



id 1 John's Eep. 274 (Amer.) ; ((/) Sims v. Marrgat, 17 Q,. B. 



Story on Sales, 4th Ed. 367. See 281. 



