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Published: Fri, 02 Feb 2018
unascertained goods not specifically identified
On the other hand, specific goods are defined as the goods “specifically identified at the time a contract of sale is made”, e.g. a shirt made of cotton and with a Mickey Mouse cartoon on it. If the good cannot be identified, the contract is considered as the sale of unascertained goods. In sale of specific goods the seller is obligated to deliver the identified goods.
Every contracts for the sales of unascertained goods are included in sales by description and specific goods, which the buyer has not seen the goods through any catalogue and brochure. In the case of Varley v Whipp, Varley agreed to sell to the Whipp a “second-hand self-binder reaping machine”, which quite new and used to cut only 50 or 60 acres. When the machine was delivered, Whipp claimed that it did not match with the statement. So, the court held that it was a sale of good by description and Whipp have the right to claim. In another case of Nagurdas Purshotumdas & Co. v Mitsui Bussan Kaisha Ltd, previously they had a sale of flour bearing a well-known trademark. Later on, flour was ordered based on the description as “the same as our previous contract”, which identical in quality. However, it failed to bear the same well-known trademark when it was delivered to the buyer.
There can be a sale by description where specific goods have been seen. In the case of Grant v Australian Knitting Mills Ltd, Grant claimed that the woollen garment that he bought had caused him to get dermatitis. He suspected that it was caused by external factor. Later on, it was found to be defective due to the presence of excess sulphites, which was negligently left in it in the process of manufacture. There was a sale by description even though the buyer is buying something displayed before him on the counter, as the good did not meet the description.
There are 2 categories of cases of failing to correspond with the goods description. The first category is those goods are substantially required but there is some small discrepancy from the contract. In the case of Arcos Ltd v E A Ronnasen & sons, respondents claimed that the staves delivered did not satisfy the measurement as described which to be of the thickness of half an inch. However, when received, they exceeded half an inch in thickness. Court held that it is a sale of goods by description. It implied that the goods shall correspond with the description.
In another case of Moore & Co. v Landauer & Co., the contract was of Austalian canned fruits stated as containing 30 tins each. Payment will be done on per dozen tins. The sellers purchase the whole quantity ordered, but only half of the cases contained 24 tins only. The buyers rejected the goods. It was a sale by description. Court held that the goods were mixed with goods of a different description. The goods did not correspond with what have described.
The second category is those goods described in a more general sense in the absence of detailed commercial description. Due to a general description, a considerable discrepancy must occur before it can constitute a breach. In the case of Varley v Whipp as mentioned just now, the machine delivered was a very old machine. There is a considerable discrepancy in description of “second-hand self-binder reaping machine”, which was a very general description.
In another case of Beale v Taylor, seller planned to sell his car and advertised it as a “Herald convertible white, 1961, twin carbs” The buyer had seen the car and bought it. However, they do not realise that the rear part of the car was part of 1961 Herald convertible car, but the front half was part of an earlier model. Later on, the buyer realised the truth and claim for damages for breach of condition. Court held that although the description of the car was true to their knowledge, the seller was selling a car as described in the advertisement. There is a discrepancy on description which breaches the sales of goods by description.
Besides, there are still other cases on sales by description. Example will be Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd. Christopher Hull Fine Art Ltd were a art dealers firm which owned by Harlingdon. He was asked to sell 2 oil paintings by Gabriele Münter. However, Harlingdon does not have knowledge in examining paintings by Münter. He told the plaintiffs that he wanted to sell two painting by Münter and the plaintiffs’ employee agreed to buy one of the paintings for £6,000 without any inquiries. Before this, Harlingdon had told him that he do not have much knowledge on the paintings. Later on, the painting was discovered to be a forgery and plaintiffs claim for repayment. However, court held that plaintiffs did not relied on Harlingdon’s description to buy the paintings, hence, it was not a sale by description.
Another example is Bowes v Shand. They have made 2 contracts. The first contract (second was exactly the same), was for 300 tons of Madras rice to be shipped at Madras or coast for this port, during the months of March or April. 600 tons filled 8200 bags. However, there were 50 bags which had not been put on board before the bill of lading given on 3 March. The defendant claimed that the shipment was not done during the months of March or April. In this case, court held that the time of shipment is the part of the description and the plaintiff has the right to claim.
Another case is Cotter v Luckie. A “polled Angus bull” was sold to a buyer in an auction. Later on, the bull was proved to be impotent and the buyer would like to void the transaction. Court held that the bull was not complied with a description and hence, the transaction is void.
Ashington Piggeries Ltd v Christopher Hill Ltd could be another example for sales by description. U was a mink farmer and an expert on mink nutrition. On behalf of appellants, approached respondents, compounding a mink food called “King Size”. One of the ingredients was herring meal. Respondents knew that the food was required for mink. The respondents had no knowledge of preparing food for mink. Later on, minks started to have heavy losses with the usage of Norwegian herring meal. The presence of dimenthylnitrosamine (DMNA) was highly toxic to mink. Court held that the “herring meal” was the subject of sales in that case was still covered by the description “herring meal” even though it was poisonous. The description might include words that relates to the quality of the goods, but for identifying the goods purpose only.
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