108 



warranty; sale and warranty by agent, etc. 



Beflnition of 

 warrant)'. 



No particular 

 words neces- 

 sary. 



protect himself hidden defects, he must take a warranty, and he is not 

 '' ''^'^' protected otherwise, unless he can make out fraud (ir). 



By s. 62, sub-s. (1) of the Sale of Goods Act, 1893, 

 "warranty" as regards England and Ireland, means an 

 agreement with reference to goods which are the subject of 

 a contract of sale, but collateral to the main purpose of 

 such contract, the breach of which gives rise to a claim for 

 damages, but not to a right to reject the goods and treat 

 the contract as repudiated. 



As regards Scotland a breach of warranty shall be 

 deemed to be a failure to perform a material part of the con- 

 tract. 



It is much better both for the buyer and seller, when 

 the latter states whether he professes to warrant or not ; 

 because where nothing has been said on that point, a con- 

 siderable degree of doubt must frequently rest upon the 

 case, and then it is only by interpreting the expressions 

 used at the time of sale that even an opinion can be formed 

 as to whether a warranty were ever intended. No particu- 

 lar words are necessary to constitute a warranty ; if a man 

 says, " This horse is sound," that is a warranty {x) ; and 

 it is not necessary that the seller should say, " I warrant ; " 

 it is sufficient if he says that the article is of a particular 

 quality or is fit for a particular purpose («/). The general 

 rule laid down by Mr. Justice Bayley is, that whatever the 

 vendor represents at the time of sale is a warranty (s). 

 Therefore if a person at the time of sale say, " You may 

 depend upon it the horse is perfectly quiet and free from 

 vice," it is a warranty («). Words, however, of expecta- 

 tion and estimate only do not amount to a warranty {b). 



A condition in a contract of sale as opposed to a warranty 

 is not defined in the Sale of Goods Act, but appears by 

 implication, from ss. 11 and 62 (1), .•<iq:)ra, to be an essential 

 term, a breach of which entitles the buyer to reject the 

 goods, and treat the contract as repudiated (c). 



Section 11 of the Sale of Goods Act is as follows : 



" (1) In England or Ireland — ■ 



(a) Where a contract of sale is subject to any condition 



When condi- 



{w) Ormrod v. ffnth, 14 M. & "W. 

 661. 



(:!;) Per Best, C.J., Salmon v. 

 Ward, 2 C. & P. 211. 



ly) Per Best, C.J., Jones y. Bright, 

 3 M. & P. 173. See also Randall 

 Y. Neman, 1 Q. B. D. 102; 46 

 L. J., a. B. 259; 36 L. T., N. S. 



164; 25 W. E. 313-C. A. 



{i) Wood V. Smith, 4 C. & P. 45. 



(a) Cave v. Colmxin, 3 M. & E. 2. 



(J) U'Connel T. Murphy, L. E., 

 5 P. C. 203 ; 28 L. T., N. S. 713. 



(c) See Kerr & Pearso:i-Gee on 

 the Sale of Goods Act, 1893, p. 68. 



