WAEEANTY. 109 



to be fulfilled by tbe seller, the buyer may waive the ^^°^ *° ^^ 

 condition or may elect to treat the breach of such wa?rant^! 

 condition as a breach of warranty, and not as a 

 ground for treating the contract as repudiated. 



(b) Whether a stipulation in a contract of sale is a con- 



dition, the breach of which may give rise to a 

 right to treat the contract as repudiated, or a war- 

 ranty, the breach of which may give rise to a claim 

 for damages but not to a right to reject the goods 

 and treat the contract as repudiated, depends in each 

 case on the construction of the contract. A stipula- 

 tion may be a condition, though called a warranty 

 in the contract. 



(c) Where a contract of sale is not severable, and the 



buyer has accepted the goods, or part thereof, or 

 where the contract is for specific goods, the pro- 

 perty in which has passed to the buyer, the breach 

 of any condition to be fulfilled by the seller can only 

 be treated as a breach of warranty, and not as a 

 ground for rejecting the goods and treating the con- 

 tract as repudiated, unless there be a term of the 

 contract, express or implied, to that effect. 



(2) In Scotland, failure by the seller to perform any 

 material part of a contract of sale is a breach of con- 

 tract, which entitles the buyer either within a reasonable 

 time after delivery to reject the goods and treat the con- 

 tract as repudiated, or to retain the goods and treat the 

 failure to perform such material part as a breach which 

 may give rise to a claim for compensation or damages. 



(3) Nothing in this section shall affect the case of any 

 condition or warranty, fulfilment of which is excused by 

 law by reason of impossibility or otherwise." 



By sub-s. (1) (c) of the above enactment, the buyer 

 must, in the absence of any special term to the contrary, 

 treat the breach of a condition only as a breach of warranty 

 where (1) he has accepted part of the goods under an entire 

 contract, or (2), there has been a sale of specific goods. 



With regard to part acceptance under an entire con- Acceptance 

 tract, the principle is that the buyer, " by not repudiating ™^^^Jt^*^^ 

 the contract has affirmed it" (d). "If I bargain for the 

 purchase of ten horses . . . and the seller delivers only 

 nine, I may say to him, 'I will not accept them, my 

 bargain was for ten.' But if, instead of so doing, I take 



{d) White V. Beeton, 7 H. & N. 42, per Channel, B. 



