Scottish Mer Act. of bad quality he should not be held to warrant their Sect. 14. quality or sufficiency, but the goods, with all faults, should be at the risk of the purchaser unless they were expressly sold for a specified and particular purpose.1 This, it will Effect of be observed, did not produce assimilation; on the contrary, cantile Law the divergence was increased. If the Scottish rule was Amendment formerly broader than the English one, it was now so narrowed as to form a greater contrast in the other direction. Apart from imputed fraud,2 there was now no implied warranty except in the case of goods expressly sold for a specified and particular purpose. This excluded implied warranty arising from usage of trade, or from circumstances showing reliance by the buyer on the seller's skill or judgment, or from the fact that the seller was also manufacturer, and that the buyer had not had an opportunity for inspection. To exclude the operation of the Act in the case of specific goods it was necessary that there should be either (1) an express warranty, or (2) a sale expressly made for a specified and particular purpose. "You can never say that goods have been sold for a specified and particular purpose if they have been sold for the ordinary purpose for which all such goods are sold."3 The provisions of the Mercantile Law Amendment Act are repealed by this Act, and the English and Scottish 1 19 & 20 Vict. c. 60, Sect. 5. 2 See COM., Sect. 11 ante, p. 55; and COM., Sect. 61 post, p. 271. 3 Per Lord President Inglis in Hamilton v. Robertson (1878), 5 Ret. 839 at p. 842. See also Dunlop v. Crawford (1886), 13 Ret. 973 at p. 975. Effect was given to this view of the Mercantile Law Amendment Act in the following Sheriff Court cases :-Adams v. Pattison and Co. (1884), Guth. Sel. Ca. 2nd ser. p. 526; Mollison v. Hamilton (1886), 2 Shf. Ct. Rep. 303; Young v. Gray (1893), 10 Sh. Ct. Rep. 79. Under the Act an express warranty might be either written or verbal, but if verbal it was necessary to prove the very words used-Robeson v. Waugh (1874), 2 Ret. 63; Mackie v. Riddell (1874), 2 Ret. 115; Rose v. Johnston (1878), 5 Ret. 600. But see Scott v. Steel (1857), 20 D. 253. An express warranty was founded on in Gardiner v. M'Leavy (1880), 7 Ret. 612 (horse), and Croan v. Vallance (1881), 8 Ret. 700 (horse). The Act was held to apply in Laing v. Western (1858), 20 D. 519 (jewellery); Young v. Giffen (1858), 21 D. 87 (horse); Hardie v. Austin and M'Aslan (1870), 8 Macp. 798 (seeds); Hardie v. Smith and Simons (1870), 42 Sc. Jur. 454 (seeds); Robeson v. Waugh, supra (horse); Rough v. Moir and Son (1875), 2 Ret. 529 (horse); Rose v. Johnston, supra (horse); Hamilton v. Robertson (1878), 5 Ret. 839 (horse); Dunlop v. Crawford (1886), 13 Ret. 973 (cows). See further on this subject Cом., Sect. 55 post, p. 258. Sect. 60 and Schedule. Sect. 14. Effect of section on previous English law. Effect upon previous law of Scotland. rules as to implied warranty are now by this section completely assimilated. The section was the subject of much consideration and frequent alteration in Parliament, and as finally adjusted it probably extends the exceptions to the rule of caveat emptor beyond the previously existing English exceptions. Thus (1) there is no distinction between a seller who is also a manufacturer and a seller who is simply a dealer;1 (2) where goods are bought by description the buyer's remedy is not excluded by his having had an opportunity of examining the goods, if in point of fact he has not examined them; and (3) even where the buyer has examined the goods, if the defect is latent and not such as the examination ought to have revealed, he may proceed upon an implied warranty by the seller. 2 Comparing the section with the law of Scotland immediately before the passing of the Act, the following alterations may be noted: 1. An implied warranty may now be gathered from any circumstances tending to show knowledge by the seller of the purpose for which the goods are required. Thus the known trade or occupation of the buyer may be important, as where cork is sold to a corkcutter, or flour to a baker, or small-wares to a retail dealer. Formerly in Scotland, in the case of specific goods, there was no implied warranty unless the purpose was expressly stated.3 2. Goods bought by description from a dealer must be of merchantable quality under that description. Formerly in the case of specific goods inferiority of quality gave no remedy by implication, unless there was at least a small percentage of adulteration to support a plea that the goods were not of the description stated in the contract.* 3. An implied warranty may now be annexed by usage 1 See note (h) supra, p. 68; and Coм., Sect. 13 ante, p. 65. 2 See note () supra, p. 69. 319 & 20 Vict. c. 60, Sect. 5. Hardie v. Austin and M'Aslan (1870), 8 Macp. 798; Hardie v. Smith and Simons (1870), 42 Sc. Jur. 454. See note (k) supra, p. 68. But goods bought by description are seldom specific. of trade. No exception of this nature was contained in the Sect. 14. Act of 1856.1 The section does not expressly limit the rule of caveat Caveat emptor applies chiefly emptor to specific goods, but the exceptions to the rule cover to specific almost every conceivable case of sales of goods in genere. goods. By the former law of England implied conditions or warranties were not interfered with in the case of non-specific goods, and in like manner it was held in Scotland that Sect. 5 of the Act of 1856, excluding implied warranty, only applied to goods in corpore specifico.* In regard, therefore, to non-specific goods, the law of Scotland, previous to the present Act, did not differ from that of England.5 Sale by Sample. 15.—(1.) A contract of sale (a) is a contract for sale Sect. 15. by sample where there is a term in the contract, SALE BY express or implied," to that effect. 119 & 20 Vict. c. 60, Sect. 5. 2 "Where a buyer buys a specific article the rule caveat emptor applies, but where the buyer orders goods to be supplied . . . there is an implied warranty."-Per Cockburn, Č. J., in Bigge v. Parkinson (1862), 7 H. & N. 955 at p. 961. See also judgment of Parke, B., in Barr v. Gibson (1838), 3 M. & W. 390 at p. 399; and judgment of Grove, J., in Smith v. Baker (1878), 40 L.T. N.S. 261. 3 19 & 20 Vict. c. 60. 4 "The kind of sale contemplated by the Act is a sale in which, after the constitution of the contract, the goods are at common law at the risk of the purchaser. That is a sale of a definite quantity or corpus, for unless it were that, the goods could not be at the risk of the purchaser."-Per Lord JusticeClerk Inglis in Jaffé v. Ritchie (1860), 23 D. 242 at p. 249. See also Hutchison and Co. v. Henry and Corrie (1867), 6 Macp. 57; Cooper and Aves v. Clydesdale Shipping Co. (1863), 1 Macp. 677; Carter and Co. v. Campbell (1885), 12 Ret. 1075. In a Scotch appeal Lord Chancellor Cairns incidentally applied the Mercantile Law Amendment Act (Scotland) to goods ordered and therefore not specific [Macfarlane and Co. v. Taylor and Co. (1868), 6 Macp. H.L. 1 at p. 14], but the dictum was not necessary to the judgment. It may be noted, however, that Scottish judges do not consistently apply the principles set forth in such cases as Jaffé v. Ritchie. Thus the Act has been applied to sales of seed which, when sown, proved defective, although the goods were furnished per order, and the risk could not pass to the purchaser before delivery. See e.g. Stewart v. Jamieson (1863), 1 Macp. 525, where the grounds of judgment in Jaffé v. Ritchie seem to have been entirely ignored. 5 "The law of England in such cases was always identical with the law of Scotland. If an order was given in a contract of sale in either country for an article which was bespoken with a view to be applied to a particular purpose, and the order was accepted, action would lie on that contract at the SAMPLE. Sect. 15. (c) (2.) In the case of a contract for sale by sample- (c.) There is an implied condition that the goods NOTES. (a) "Contract of sale." Defined Sect. 1 and Sect. 62 (1). (b) "Express or implied." There is no distinction in this section between a sample of specific goods and of goods to be manufactured or supplied. The former law, both of England and Scotland, seems to have made such a distinction, and only in the latter case to have implied a condition that the goods were free from defect, rendering them unmerchantable. COM. infra, p. 76. (c) "Condition." Not merely an English "warranty." COM., Sect. 10 ante, p. 46. (d) "Quality of goods includes their state or condition." Sect. 62 (1). (e) "Reasonable opportunity." It was held by Lord Tenterden in Lorymer v. Smith1 (1822), that the buyer had not received reasonable facilities for comparing the bulk with the sample.2 (f) Sub-sect. (2) (c) seems to widen the buyer's remedy in Scotland as it existed under the Mercantile Law Amendment Act 1856, Sect. 5. An express warranty was required,3 and no exception was made in the case of sale by sample. instance of the purchaser for implement or damages just as in Scotland. There was no dissimilarity in that respect between the laws of the two countries to be corrected by legislation."-Per Lord Justice-Clerk Patton in Hutchison and Co. v. Henry and Corrie (1867), 6 Macp. 57 at p. 59. 1 1 B. & C. 1. 2 The judgment in other respects contained bad law, and was corrected by Hibblewhite v. M'Morine (1839), 5 M. & W. 462. 3 COM., Sect 14 ante, p. 71. COMMENTARY. A sample is a description wanting words. It is an Sect. 15. appeal to the understanding in which objective illustration Relation of takes the place of, or supplements written or spoken lan- sample to description. guage.1 A sale by sample has therefore the general legal effects of a sale by description, although sample and description may so supplement each other that correspondence of the article sold with both becomes essential.2 In one respect, however, there is a marked difference between description and sample. Description in the mercantile sense usually refers to the name of a genus to which well-known attributes are attached. If the thing furnished includes these attributes it corresponds with the description, although within the description itself there may be great diversity of quality. Sample, on the other hand, includes quality as well as the more general attributes. Thus, if goods are sold by sample and are described as "flax yarn," an admixture of jute in the goods furnished will render them disconform alike to sample and to description, but if the goods are entirely "flax yarn" they will correspond with the description, although they may fall far short of the sample in quality. 3 By Sect. 13 the goods must correspond with the description, but the correspondence there referred to is merely that of kind. In this section it is taken for granted that the goods correspond with the sample in kind, but it is expressly provided, in conformity with the principles stated above, that they must also correspond with the sample in quality. When goods are sold both by sample and by description, Sect. 14 provides that they must correspond with the description as well as with the sample. This illustrates a converse view of the relation of sample to description. The 1 "The office of a sample is to present to the eye the real meaning and intention of the parties with regard to the subject matter of the contract, which, owing to the imperfection of language, it may be difficult or impossible to express in words."-Per Lord Macnaghten in Drummond v. Van Ingen (1887), 12 App. Cas. 284 at p. 297. 2 As in Sect. 13. 3 See Jaffe v. Ritchie (1860), 23 D. 242. |