It is usual for both seller and buyer to make representations to each other at the time of entering into a contract of sale. Some of these representations are mere opinions which do not form a part of contract of sale.Whereas some of them may become a part of contract of sale.Representations which become a part of contract of sale are termed as stipulation which may rank as condition and warranty e.g. a mere commendation of his goods by the seller doesn’t become a stipulation and gives no right of action to the buyer against the seller as such representations are mere opinion on the part of the seller.But where the seller assumes to assert a fact of which the buyer is ignorant,it will amount to a stipulation forming an essential part of the contract of sale.
Meaning of Conditions [Section 12(2)]
A condition is a stipulation
- Which is essential to the main purpose of the contract
- The breach of which gives the aggrieved party a right to terminate the contract.
Meaning of Warranty[Section 12(3)]
A warranty is a stipulation
- Which is collateral to the main purpose of the contract
- The breach of which gives the aggrieved party a right to claim damages but not a right to reject goods and to terminate the contract.
Conditions to be treated as Warranty[Section 13]
In the following three cases a breach of a condition is treated as a breach of a warranty:
- Where the buyer waives a conditions; once the buyer waives a conditions,he cannot insist on its fulfillment e.g. accepting defective goods or beyond the stipulated time amount to waiving a conditions.
- Where the buyer elects to treat breach of the condition as a breach of warranty;e.g. where he claims damages instead of repudiating the contract.
- Where the contract is not severable and the buyer has accepted the goods or part thereof,the breach of any condition by the seller can only be treated as breach of warranty.It can not be treated as a gorund for rejecting the goods unless otherwise specified in the contract.Thus,where the buyer after purchasing the goods finds that some condition is not fulfilled,he cannot reject the goods.He has to retain the goods entitling him to claim damages.
Express and Implied Conditions and Warranties
In a contract of sale of goods,conditions and warranties may be express or implied.
- Express Conditions and Warranties.
These are expressly provided in the contract.For example,a buyer desires to buy a Sony TV Model No. 2020.Here,model no. is an express condition.In an advertisement for Khaitan fans,guatantee for 5 years is an express warranty.
- Implied Conditions and Warranties
These are implied by law in every contract of sale of goods unless a contrary intention appears from the terms of the contract.The various implied conditions and warranties have been shown below:
- Conditions as to title [ Section 14 (a)]
There is an implied condition on the part of the seller that
- In the case of a sale,he has a right to sell the goods,and
- In the case of an agreement to sell,he will have a right to sell the goods at the time when the property is to pass.
- Condition in case of sale by description [Section 15]
Where there is a contract of sale of goods by description,there is an implied condition that the goods shall correspond with description.The main idea is that the goods supplied must be same as were described by the seller.Sale of goods by description include many situations as under:
- Where the buyer has never seen the goods and buys them only on the basis of description given by the seller.
- Where the buyer has seen the goods but he buys them only on the basis of description given by the seller.
iii. Where the method of packing has been described.
- Condition in case of sale by sample [Section 17]
A contract of sale is a contract for sale by sample when there is a term in the contract, express or implied,to that effect.Such sale by sample is subject to the following three conditions:
- The goods must correspond with the sample in quality.
- The buyer must have a reasonable opportunity of comparing the bulk with the sample.
- The goods must be free from any defect which renders them unmerchantable and which would not be apparent on reasonable examination of the sample.Such defects are called latent defects and are discovered when the goods are put to use.
- Condition in case of sale by description and sample [Section 15]
If the sale is by sample as well as by description, the goods must correspond with the sample as well as the description.
- Condition as to quality or fitness [Section 16(1)]
There is no implied condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale.In other words,the buyer must satisfy himself about the quality as well as the suitability of the goods.
Exception to this rule:
There is an implied condition that the goods shall be reasonably fit for a particular purpose described if the following three conditions are satisfied:
- The particular for which goods are required must have been disclosed(expressly or impliedly) by the buyer to the seller.
- The buyer must have relied upon the seller’s skill or judgement.
- The seller’s business must be to sell such goods.
- Condition as to merchantable quality[Section 16(2)]
Where the goods are bought by description from a seller who deals in goods of that description,there is an implied condition that the goods shall be of merchantable quality.The expression ‘ merchantable quality’ means that the quality and condition of the goods must be such that a man of ordinary prudence would accept them as the goods of that description.Goods must be free from any latent or hidden defects.
- Condition as to wholesomeness
In case of eatables or provisions or foodstuffs,there is an implied condition as to wholesomeness.Condition as to wholesomeness means that the goods shall be fit for human consumption.
- Conditions implied by custom [Section 16(3)]
Condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
a) Warranty as to quiet possession [Section14(b)]
There is an implied warranty that the buyer shall have and enjoy quiet possession of the goods.The reach of this warranty gives buyer a right to claim damages from the seller.
b) Warranty of freedom from encumbrances [Section 14(c)]
There is an implied warranty that the goods are free from any charge or encumbrance in favour of any third person if the buyer is not aware of such charge or encumbrance.The breach of this warranty gives buyer a right to claim damages from the seller.
- Warranty as to quality or fitness for a particular purpose annexed by usage of trade[Section 16(3)]
- Warranty to disclose dangerous nature of goods
In case of goods of dangerous nature the seller fails to do so, the buyer may make him liable for breach of implied warranty.