Sect. 33. Double enquiry as to facts. Sect. 34. THE GOODS. and the implied warranty is therefore narrowed to this extent. The law of the section is founded on Bull v. Robison (1854), where Alderson, B., says: "A manufacturer who contracts to deliver a manufactured article at a distant place must indeed stand the risk of any extraordinary or unusual deterioration, but the vendee is bound to accept the article if only deteriorated to the extent that it is necessarily subject to, in its course of transit from the one place to the other."2 The rule of the section is perhaps open to the objection that it may involve an enquiry as to the state of the goods at both ends of the transit.3 (a) (c) 34.-(1.) Where goods are delivered to the buyer,(") which he has not previously examined," he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract." (2.) Unless otherwise agreed," when the seller (a) tenders delivery (") of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. (e) (d) NOTES. (a) "Goods," "delivery," "seller," "buyer." Defined Sect. 62 (1). (b) "Not previously examined." The delivery may be under (1) a "sale," or (2) an 'agreement to sell" [Sect. 1 (3)]. In either case the goods may be bought by description, i.e. they 1 10 Ex. 324. 2 10 Ex. at p. 346. The seller need not now be a manufacturer if he is a dealer. See Sect. 14 (2). 3 As in Dixon, Ltd. v. Jones, etc. (1884), 11 Ret. 739, where it was held that inferiority of quality on arrival at a home port is not conclusive of their condition at a foreign port, where by contract they were to be delivered. may be represented in the contract by written or spoken Sect. 34. language, or they may be bought by means of that special kind of description called "sample." There is also a third alternative: they may be defined by being pointed out to the buyer in bulk, either with or without a sample. Where they are bought by "description" from a dealer there is an implied warranty of merchantable quality [Sect. 14 (2)], but this again is subject to the qualification that if the buyer has examined the goods and the examination ought to have revealed the defect, there is no warranty [Sect. 14 (2)]. The provision of the present section differs from the qualification referred to, in so far as it implies a duty of examination before acceptance, while Sect. 14 only provides for the case of actual examination. Where under Sect. 14 the buyer accepts the goods without examination, it appears to be still within his power, at any time, to found upon a breach of warranty. Where goods are bought by sample, the provision of this section as to "reasonable opportunity" is also practically contained in Sect. 15 (2) (b), and the implied condition that the goods are "free from any defect, rendering them unmerchantable," is qualified by the further provision that the defect must be such "would not be apparent on reasonable examination of the sample" [Sect. 15 (2) (c)]. Where the goods are defined for the purposes of the contract, by being pointed out in bulk to the buyer, there may nevertheless be an express or implied term of the contract, conformity with which can only be ascertained by an examination on delivery, or before acceptance, in terms of the present section. as 66 (c) "Not deemed to have accepted." Acceptance implies such conduct on the part of the buyer as will preclude him from afterwards rejecting the goods as disconform to contract. Where it follows upon an "agreement to sell [Sect. 1 (3)], it is practically the buyer's assent to the seller's appropriation of the goods to the contract (Sect. 18, Rule 5). It is to be distinguished from receipt," and also from "acceptance" in the sense of Sect. 4. See COM., Sect. 35 post, p. 169. The equity of the rule is obvious. A buyer "cannot be said to accept that he knows nothing of, otherwise it would make him the acceptor of whatever the vendor chose to send him; whereas he has a right to see whether, in his judgment, the goods sent correspond with the order."1 (d)" Reasonable opportunity." See note (b) supra. Reasonable opportunity, like "reasonable time" (Sect. 56), is a question of 1 Per Alderson, B., in Hunt v. Hecht (1853), 8 Ex. 814 at p. 817. See also Isherwood v. Whitmore (1843), 11 M. & W. 347.-Per Parke, B., at p. 350, quoted post, p. 170, note. Sect. 34. Sect. 35. case. fact. What is reasonable depends on the circumstances of each Thus it may be necessary to make the examination at the time and place of delivery,1 or at some other time or place contemplated by the contract, either before or after delivery.2 (e) "Conformity with the contract." "Contract of sale includes an agreement to sell as well as a sale" [Sect. 62 (1)]. See also Sect. 1 (3). (f) "Unless otherwise agreed." See Sect. 55. 35. The buyer() is deemed to have accepted the goods (a) when he intimates to the seller that he has accepted them, or when the goods have been delivered (a) to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. (1). NOTES. (a) "Seller," "buyer," "goods," "delivery." Defined Sect. 62 (b) "Accepted." Cом. infra, p. 169. See note (c), Sect. 34 ante, p. 167, and (c) "Intimates" to the seller. It will be observed that out of three modes of acceptance, two depend on express notice to the seller. The third is any act on the part of the buyer inconsistent with the seller's ownership. (d) "Inconsistent with the ownership." Breaking bulk to a reasonable extent, or even a certain amount of use, is not necessarily inconsistent with the seller's ownership, provided the goods are of such a nature that disconformity to contract cannot be otherwise discovered.3 COм. infra, p. 170. (e) "Reasonable time is a question of fact." Sect. 56. 1 Perkins v. Bell (1892), 62 L.J. Q.B. 91. 2 Lorymer v. Smith (1822), 1 B. & C. 1; Heilbutt v. Hickson (1872), L.R. 7 C.P. 438; Grimoldby v. Wells (1875), L.R. 10 C. P. 391. "If the time of inspection as agreed on, be subsequent to the time agreed for the delivery of the goods, or if the place of inspection as agreed upon, be different from the place of delivery, the purchaser may, upon inspection at such time and place, return them, then and there, on the hands of the seller."-Per Brett, J., in Heilbutt v. Hickson, L. R. 7 C.P. at p. 456. See also Lucy v. 3 Wallace v. Robinson and Co. (1885), 22 S.L.R. 830. Moufflet (1860), 5 H. & N. 229. 2 Acceptance" here, and in Sect. 34, has a different mean- Meaning of ing from "acceptance" in Sect. 4, which is technical, and "acceptance." does not apply to Scotland. In England goods might be accepted so as to elide Sect. 17 of the Statute of Frauds,1 and thus form a binding verbal contract for the sale of goods of the value of £10 or upwards; yet they might not be accepted as performance of the contract. In Morton v. Tibbett (1850), Lord Campbell, in delivering the judgment of the Court, said: "We are of opinion that there may be an acceptance and receipt within the meaning of the Statute. of Frauds, without the buyer himself having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract, appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled." 3 Again, "acceptance" must be distinguished from mere Distinguished receipt. "When goods are sent to a buyer in performance from "receipt." of the vendor's contract, the buyer is not precluded from objecting to them by merely receiving them, for receipt is one thing and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were the owner of the goods." Goods may be received by a carrier on behalf of Receipt by the buyer, but it is obvious that a carrier cannot take upon himself the responsibility of accepting them, so as to preclude 1 Repealed by this Act, but re-enacted by Sect. 4. 2 19 L.J. Q.B. 382, and 15 Q.B. 428. 319 L.J. Q.B. at p. 385. This judgment was afterwards doubted, but, still later, it was approved, and the law is now established. "There must be an acceptance and an actual receipt; no absolute acceptance, but an acceptance which could not have been made, except on admission of the contract, and that the goods were sent under it. I am of opinion there was a sufficient acceptance under the Statute of Frauds, although there was (still) a power of rejection."-Per Brett, L.J., in Kibble v. Gough (1878), 38 L.T. N.S. 204 at p. 206. See also Blackburn, part i. chap. 2; Benjamin, book i. chap. 4. Benjamin, p. 711. See Abbott v. Wolsey (1895), 11 Times Law Rep. 414, where the buyer having examined the goods and taken a sample was held to have accepted them in terms of Sect. 4 (3). carrier. Sect. 35. Examination the buyer from objecting that they are not conform to contract. So also the buyer himself is entitled, before acceptance, to "a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in before accept conformity with the contract." 1 He is not bound to accept goods tendered to him in closed casks which he is not allowed to open, nor to attend at a particular place after sunset, nor to select the contract goods out of a larger quantity or a mixed lot sent him by the seller.+ ance. Wallace v. The case of Wallace and Brown v. Robinson, Fleming, and Co. (1885) illustrates the extent and limits of the buyer's duty of giving notice of rejection, and also the effect of breaking bulk as an act inconsistent with the ownership of the seller. The goods consisted of a cargo of 615 logs of wood consigned by the seller in Dantzic to the buyers in Arbroath. The ship arrived on 14th June, and the discharge was completed on 26th June. While the ship was discharging, the buyer sold 11 logs from the ship's side, but these being used for a special purpose for which they were suited, disconformity to contract was not then discovered. He subsequently cut up in his yard 13 other logs to fulfil an order, and finding them disconform to contract, he caused a large number more to be chipped in order to ascertain their condition. On 3rd July he wrote to the seller's agents in London rejecting the cargo. The disconformity to contract was admitted, but it was urged that the buyer's notice of rejection was not timeous, and that by cutting up part of the cargo and selling another part, he had broken bulk, and was thus, at the date of the notice of rejection, 1 Sect. 34. 2 "A tender of goods does not mean a delivery or offer of packages containing them, but an offer of those packages under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he is called on to part with his money, of seeing that those presented for his acceptance are in reality those for which he has bargained."-Per Parke, B., in Isherwood v. Whitmore (1843), 11 M. & W. 347 at p. 350. 3 "Where a thing is to be done anywhere, a tender at a convenient time before midnight is sufficient; where the thing is to be done at a particular place, and where the law implies a duty on the party to whom the thing is to be done to attend, that attendance is to be by daylight and a convenient time before sunset."--Per Parke, B., in Startup v. Macdonald (1843), 6 M. & G. 593 at p. 623. 4 Sect. 30. 5 22 S. L. R. 830. |