106 warranty; sale and warranty by agent, etc. 



According to Bowen, L.J. {q) : " An implied warranty, 

 or, as it is called, a covenant in law, as distinguished from 

 an express contract or express warranty, really is, in all 

 cases, founded upon the presumed intention of the parties 

 and upon reason. The implication which the law draws 

 from what must obviously have been the intention of the 

 parties, the law draws with the object of giving efficacy to 

 the transaction, and preventing such a failure of considera- 

 tion as cannot have been vnthin the contemplation of either 

 side. ... I believe if one were to take all the cases . . . 

 it would be found that in all of them the law is raising an 

 implication from the presumed intentionof the parties ... In 

 business transactions, . . . what the law desires to effect 

 by the implication is to give such business efficacy to the 

 transaction as must have been intended, at all events, by 

 both parties, who are business men — not to impose on one 

 side all the perils of the transaction, or to emancipate one 

 side from all the chances of failure, but to make each party 

 promise in law as much, at all events, as it must have been 

 in the contemplation of both parties that he should be 

 responsible for in respect of those perils and chances." 

 Implied It is a rule of the common law that, with regard to the 



to'quality or ®^^® °^ ascertained chattels, there is no implied warranty of 

 quahty, unless there are some circumstances beyond the 

 mere fact of a sale, from which it may be imphed (r) . The 

 maxim of the common law, caveat emptor, is the general 

 rule applicable to sales, so far as quality is concerned, and 

 except there be deceit, either by a fraudulent concealment 

 or fraudulent misrepresentation, or the seller has given an 

 express warranty, or unless a warranty be implied from the 

 nature and circumstances of the sale, no action for unsound- 

 ness lies by the buyer against the seller upon the sale of a 

 horse or other animal (s). And this rule is recognized and 

 declared by s. 14 of the Sale of Goods Act, 1893, in the 

 following terms : — 



" Subject to the provisions of this Act and of any statute in 

 that behalf, there is no implied warranty or condition as to 

 the quality or fitness for any particular purpose of goods 

 supplied under a contract of sale, except as follows : — 



(?) The Mom-cock, 14 P. D. 64 ; Mart, 23 L. T., N. S 851 ■ 19 



58 L. J., P. 73; 60 L. T., N. S. W. E. 331 ; TFardY. Bobbs, iAw 



654 ; 37 W. E. 439. Cas. 13 ; 48 L. J., C. P. 281 ; 40 



(r) Chanter v. Sopkbis, 4 M. & L. T., N. S. 73 ; 27 W. E. 114 

 W. 399 ; Mill \. Balls, 2 H. & N. (s) Mill v. Balls, ubi supra. See 



304 ; 27 L. J., Ex. 45 ; Osborne v. also Beuj. on Sales, 4th Ed., 637. 



