A NOTE ON SECTION 14 (1) A N D (2) OF

THE SALE OF GOODS ACT, 1898

THEpurpose of this note is to examine the present effect of these two
subsections in the light of subsequent judicial interpretation, and to
suggest a revised version of them which would be more in line with
modern doctrine.
Section 14 runs as follows:
“Subject to the provisions of this Act and of any statute
in that behalf, there is no implied warranty or condition as to
the quality or fitness for any particular purpose of goods
supplied under a contract of sale, except as follows :-
“ (1) Where the buyer, expressly or by implication, makes
known to the seller the particular purpose for which
the goods are required, so as to show that the buyer
relies on the seller’s skill or judgment, and the goods
are of a description which it is in the course of the
seller’s business to supply (whether he be the
manufacturer or not), there is an implied condition
that the goods shall be reasonably fit for such purpose,
provided that in the case of a contract for the sale
of a specified article under its patent or other trade
name, there is no implied condition as to its fitness
for any particular purpose :
“ (2) Where goods are bought by description from a seller
who deals in goods of that description (whether he
be the manufacturer or not), there is an implied
condition that the goods shall be of merchantable
quality; provided that if the buyer has examined the
goods, there shall be no implied condition as regards
defects which such examination ought to have
revealed.”
I shall be mainly concerned in what follows with subsection (l),
and for the time being we can leave subsection (2) on one side.
Similarly, I am leaving out of account for the moment the proviso
to subsection (1). What we have left of subsection (1) is, apart
from two expressions, delightfully clear and has given rise to no
dimculty whatsoever.
The two expressions to which I refer are these : first, “ particular
purpose,” and secondly, “ so as to show that the buyer relies on
the seller’s skill or judgment.” As to the first, it is now well settled
that a purpose may be a “ particular purpose ” within the meaning
of this subsection even though it is the normal purpose for which
the article sold is used, and that the act of ordering goods whose
purpose is evident from their name “ makes known ” to the seller
484
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SEPT.1969 SALE OF GOODS ACT, 1898, 8. 14 (1) AND (2) 485

the purpose for which they are required. That an ordinary or

normal purpose was not within the words of the Act WM strenuoudy
argued on behalf of the defendant in P r h t v. Last.’ This argument
was rejected by the Court of Appeal. It does not follow, however, that
a normal and a special purpose are one and the same thing in r e g d
to the application of section 14 (1). I shall return to this point in
a moment.
The words “ so 88 to show that the buyer reliea on the seller’s
skill or judgment ” are not 80 easily disposed of. It seems to be fairly
well established that in the case of goods whose purpose is self-evident,
the fact that the purpose is self-evident not merely “ makes known ”
to the seller the purpose for which they are required-in the absence,
of course, of a disclosure by the buyer that he requires them for some
purpose other than their normal o n e b u t is also su5uent to prove
the necessary reliance on the seller’s skill or judgment. Collina
M.R. in Chapronitre v. Mason * is reported as follows: (His
Lordship said that) ‘‘ It was obvious that the person who bought
a bun from a baker relied on the baker’s skill or judgment.’’ The
judgment in this case was not, however, based on section i4 (1). For
this reason the advice of the Privy Council in Grant v. Australian
Knitting Mills is probably stronger authority. The plaints in that
case had done no more than buy some underpants. He had not,
so far as one can tell, asked the shop assistant whether the garments
which he was shown would be fit for the purpose for which he
required them, nor brought home to the assistant in any way that
he (the plaintiff) was relying on the latter’s skill or judgment. Yet
he recovered damages under section 14 (1). Lord Wright said : ‘
“ The first exception,6 if its terms are satisfied, entitles the
buyer to the benefit of an implied condition that the goods are
reasonably fit for the purpose for which the goods are supplied,
but only if that purpose is made known to the seller, ‘ 8 0 as
to show that the buyer relies on the seller’s skill or judgment.’
It is clear that the reliance must be brought home to the seller,
expressly or by implication. The reliance will seldom be
express: it will usually arise by implication from the circum-
stances : thus to take a case like that in question, of a purchase
from a retailer, the reliance will be in general inferred from the
fact that a buyer goes to a shop in the confidence that the
tradesman has selected his stock with skill and judgment.’”
So much for goods whose purpose is self-evident. The statute
has been judicially glossed in such a way as to relieve a plaintin
1 “033 2 K.B. 148. The hot water bottle case.
2 (1906)21 T.L.R. 633,at 634. a [1936] A.C. 86
6 Ibid., at 09.
6 i.c., Sale of Goods Act, n. 14 (l), or rather, the equivalent subsection of the
South Australian Sale of Goods Act, 1895.
6 See also Frost v. Aylesbuy Dairy Co. [leO5] 1 K.B. 608 (sale of milk 0ont.m-
inated with typhoid e m s ) where the vendors’ insistence on the prsclrutionr
they took to ensure t%e purity of the milk wan held to show reliance by the
buyer on the vendors’ skill and judgment.
VOL. 22 81
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486 THE YODEFtN LAW REVIEW VOL. 22

of any burden of proving that he brought home to the seller that

he was relying on the latter’s skill or judgment. But what of the
case where the buyer requires the goods for a purpose which he
discloses expressly to the seller, and where this purpose is not self-
evident from the nature of the goods? Let US take the case of
Manchester Lines v. Rea.’
The plaintiffs, who were shipowners, ordered a quantity of coal
for their steamship “ M ” from the defendants. The defendants
knew the purpose for which the coal was required. Owing to a
combination of circumstances beyond the control of the defendants,
there was only one source of supply from which they could obtain
the quantity which the plaintifla required. They delivered coal from
this source, and it proved wholly unsuitable for the plaintiffs’ ship,
with the result that the ship had to turn back after putting out to
rea. The House of Lords held that section 14 (1) applied.
Lord Buckmaster said’:
“If goods are ordered for a special purpose, and that
purpose is disclosed to the vendor, SO that in accepting the
contract he undertakes to supply goods which are suitable for
the object required, such a contract is, in my opinion, sufficient
to establish that the buyer has shown that he relies on the
seller’s skill and judgment.”
Lord Atkinson speaks to the same effect : ’
‘‘It was argued that this subsection throws upon the buyer
the burden of showing not only that he has made known to the
seller-expressly or by implication-the particular purpose for
which the eoods are required, but also that he relied upon the
‘ skill and judgment of the seller ’ in selecting the g o d s to be
supplied. Three questions arise upon this contention : (1) Does
not the buyer by (as in the present case) e y l y stating in
the contract of purchase the purpose for whic he requires the
goods, prima facie at least, show to a seller whose business it is
to supply goods of the description required, that he relies upon
the latter’s skill and judgment sdlciently to satisfy the
provisions of this subsection ? ”
This question he answers in the a5rmative.
Lord Sumner lo is less explicit.
‘‘The words of section 14 (1) are ‘ SO as to show,’ not ‘ and
also shows.’ They are satisfied, if the reliance is a matter of
reasonableinference to the seller and to the court.”
He differs from the other learned Lords in not stressing that a
strong inference is to be drawn from the mere fact that the seller has
contracted to supply goods, knowing the purpose for which those
“221 2 A.C. 74.
6 Ibid., at 79.
9 Ibid., at 84-86.
10 Ibid.. at 90.
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SEW.1969 SALE OF GOODS ACT, 1893, 5. 14 (1) AND (2) 487

g d q are to be used. In fact, I think it is not going too far to say

that the effect of the opinions of Lords Buckmaster, Atkinson and
Dunedin (to be considered in a moment) is that the inference of
reliance will ordinarily be drawn on the strength of a contract made
with knowledge on the part of the seller of the purpose for which
the goods are required.
This becomes apparent when we consider in what circumstances
reliance on the seller’s skill or judgment will not be shown. Lord
Dunedin,” after stating that disclosure of the purpose for which the
goods are required will satisfy the provisions of the subsection,
unless there are other circumstances to prevent the drawing of the
ordinary inference, goes on to consider what these circumstances
might be:
cc For instance, if there had been a conversation in which the
seller had said: I have only got such and such Welsh coal and
I cannot guarantee it to be fit for bunkering for steamer, but
I think it may do; you can have it if you like,’ and if, on the
top of that, the contract had been made, then I think the
ordinary inference of trust would have been displaced.”
This example shows, I think, that in order to escape liability
under section 14 (1) a seller must show that he contracted on the
footing that the risk of the goods’ proving unfit for the purpose for
which they were required stood with the buyer, or in other words,
that the seller was not going to make the decision on the fitness of
the goods for the buyer. If the seller offers what goods he has,
without a word as to their fitness, section 14 (1) applies. This was
in fact exactly the situation of the respondents in Manchester Lines
v. Rea. They delivered the only coal they could get without ever
consulting with the buyers as to its probable fitness for their
purpose.
I f it is difficult for a seller who is not the manufacturer of the goods
to escape liability under section 14 (l),it is probably even more
difficult for a seller who is the manufacturer to do so. This will be
evident upon examination of the case of Cammell Laird 8j- Co. v.
The Manganese Bronze and Brass Co.“ The appellants, a firm of
shipbuilders, had agreed to build for and sell to X Co. two ships.
They made a contract with the respondents for the manufacture of
two propellers, to be to the entire satisfaction of the future owners,
X Co., and of the appellants. The respondents made two propellers
in accordance with the specifications given. One of them, when
fitted to one of the ships, made so much noise that X Co. would
not accept it. A replace propeller was made, also in accordance with
the specifications, and this again proved too noisy. A second
replace propeller was made and this one was satisfactory. The
propeller which had been fitted to the other ship was tried on the
11 Ibid., at 81.
12 [1934] A.C. 402.
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488 THE MODERN LAW REVIEW VOL aa
ship with which there had been so much trouble and was found
entirely satisfactory. The appellants sued for damages for delay in
completing the work, relying on the “ entire satisfaction )’clause
and on section 14 (1) of the Sale of Goods Act. They were held by
the House of Lords to be entitled to succeed on both grounds.
Lord Warrington of Clyffe’s statement of the position under
section 14 (1) is expressly based on Manchester Lines v. Rea. He
says Is :
“ The point in that case [i.e., Manchester Lines v. Real was
that reliance by the purchaser on the skill and judgment of the
vendor may be inferred from the communication by the
purchaser of the purpose for which the goods in question were
purchased, and need not be supported by positive evidence, as
the Court of A eal in the judgment appealed from and reversed
had thought. ,P
When applying this to the facts of the case before him, he said l4 :
‘‘Here there was a substantial area outside the specifica-
tion, which was not covered by its directions and was therefore
necessarily left to the skill and judgment of the seller.’$
Without attempting to express an opinion on the actual cause
of the trouble, I think it is clear that it arose from some defect
in the seller’s area. Four propellers were made, each in accord-
ance with the specification. Two were noisy, two were not.”
It will be very rarely that a manufacturer is required to produce an
object /or a special purpose upon specifications so complete that
there is no room for the exercise of his skill or judgment a t all. Of
course, it is implicit in the decision in the Cammell Laird case that
the defect rendering the goods unfit for their special purpose must
arise from the area left to the seller’s judgment.’O
When we come to consider Lord Wright’s judgment in the
Carnmell Laird case, we find that the law is stated with a rather
difterent emphasis.
“ But the more difficult question remains whether the
particular purpose for which the goods were required was not
merely made known, as I think it was, by the appellants
to the respondents, but was made known so as to show that the
appellants as buyers relied on the seller’s skill and judgment.
Such a reliance must be aflrmatively shown; the buyer must
bring home to the mind of the seller that he is relying on him
in such a way that the seller can be taken to have contracted on
1s Ibid., at 413.
1’ Ibid., at 414. Italics supplied.
15 I n particiilar, the thickness of the propeller blades was not specified, apart from
the thickness nlnng medial lines, and apart from the direction that the edges
were to be “hrniight up to fine lines.” I t wan snbseqiiently foiind that the
Satisfactory propellers had slight1 thicker blade6 in some respects. They were
also somewhat heavier. cf.Lord kxnlin, ibid., at 411.
16 The problem of ’‘ partial ” reliance, i.e.. reliance in respect of some matters, but
not in respect of others, will normally only arise in the case of a seller who i n
also maniifactiirer.
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SEPT.1959 SALE OF GOODS ACT, 1898, 8. 1k (1) A N D (2) 489

that footing. The reliance is t o be the baais of a contractual

obligation.”
Yet he accepts Preist v. Last.
‘‘ In some cases the matter may be very simple : the purpose
for which a hot water bottle is required is easily determined
and equally easy is it to determine the extent of reliance on the

Lord Wright’s formulation of the requirements of section 14 (l),

with its insistence on af3rmative proof of the buyer’s reliance on the
seller’s skill or judgment, is, in my opinion, contrary to the general
tenor of the decisions, and in particular, is contrary to the formulrr-
tion on which the decision of the House of Lords in Manchester Lines
v. Rea la is based. It is indeed to be noticed that Lord Wright does
not allow the heresy which has tainted his statement of the principle
to affecthis decision in the caw. Nor does it affect the way in which
he reaches that decision.
‘‘. .. what the respondents had to do was to follow the
instructions given them as to design and SO forth, and produce
something which being of that design and size would function as
a propeller. The conclusion I arrive a t is that in all matters
relevant as between these parties to the creation of a propeller
for No. 972, there was reliance on the seller’s skill or judgment
within the section.”
This is based on inference and not on a m a t i v e proof.
But the fact remains that it is misleading to talk in terms of
affirmative proof of reliance by the buyer on the seller’s skill or
judgment. A good example of this is provided by the statement of
the effectof section 14 (1) in Cheshire and Fifoot zo :
“ It must be proved that the seller knew, not only the purpose
for which the goods were required, but also that reliance was
placed on his own skill and judgment. ...
It is a question of
fact in each case whether the seller 88 a reasonable man must
have known that reliance was placed on his skill or judgment, but
he i s taken t o have this knowledge if a disclosure is made of the
special purpose jor which the goods are required.”
Thus, what is given with one hand in the 6rst sentence is taken away
with the other hand in the second. There is no need t o clutter up
the law with doctrines of imputed knowledge which a more realistic
statement of the fundamental principles would avoid.
Before putting forward my own suggestions for the improvement
of the drafting of section 14 (l),I must say a word or two about the
proviso. This states in quite unambiguous language that in the case
of a contract for the sale of a spe~ifiedarticle under its patent or other
17 I b i d . , at 423-424. Italics supplied.
18 [1922] 2 A.C. 74.
19 [1934] A.C. 402, at 425.
zo Law of Contract. 4th ed., at p. 131. Italics supplied.
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490 THE MODEBN LAW REVIEW VOL !a

trade name, there is no implied condition as to its fitness for any

particular purpose. O n the face of it there is no room for argument
that the buyer has relied on the seller’s skill or judgment: if the
article is sold under its trade name section 14 (1) does not apply.
But once again the courts have interpreted the statute.
The proviso must now be read in the light of the Court of Appeal’s
decision in Baldry v. Marshall.21 The plaintiff in that case wrote
to the defendants, asking them whether the Bugatti eight cylinder
was likely to be on the market that year. The defendants replied
that they specialised in the sale of these cars and could supply all the
necessary information. At a subsequent interview the plaintiff told
them of the purpose for which he wanted the car. They said that
they thought that a Bugatti would satisfy his requirements, and the
plaintiff ordered one. Having found the car unsuitable, he claimed
to reject it and have the purchase money back.
The defendants argued that where there was a sale under a trade
name the question of reliance on the seller’s skill or judgment was
irrelevant. They found strong support for this proposition in a
dictum of Farwell L.J. in Bristo2 Tramways v. Fiat Motors a 2 :
“If a man orders in express terms an article known by a
patent or trade name under that name, and gets it, he cannot
complain that it will not answer some specific purpose for which
he wanted it, even although he told the vendor before he ordered
it the purpose for which he required it.”
And again:
“ ... the seller is not bound t o refrain from carrying out his
order for the machine because it is ill adapted for, or even wholly
incapable of, effecting the purpose mentioned in the order.”
One could not desire a clearer statement of the effect of the proviso.
Moreover, this is the natural meaning of the language used in the
statute.
Nevertheless, the plaintiit succeeded in Baldry V. Marshall. The
crucial issue was whether the car had been sold under its trade name
wit& the meaning of the proviso. The effect of the decision is that
an article is not ‘‘ sold under its trade nbme ” when the buyer has
relied on the seller’s elrill or judgment that the article will be fit for
tbe purpose for which he (the buyer) requires it. The following well-
b o r n passage from the judgment of Bankes L.J.aaillustrates his
line of reasoning:
“The mere fact that an article sold is described in the
contract by its trade name does not necessarily make the sale a
sale under a trade name. Whether it is so or not depends upon
the circumstances. I may illustrate my meaning by reference
to three different cases. First, where a buyer asks a seller for an

21 [1935] 1 K.B. 260.

22 [19101 2 K.B. 831, at 839.
23 [1928] 1 K.B. 260. at 266.
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SEPT.1959 SALE OF GOODS ACT, 1898, 8. 14 (1) AND (2) 491

article which will fuHl some particular purpoee, and in answer to

that request the seller sells him an article by a well-known trade
name, there I think it is clear that the proviso does not apply.
Secondly, where the buyer says to the seller, ' I have been recom-
mended such and such an article '-mentioning it by its trade
name-' will it suit my particular purpose? ' naming the pur-
pose, and thereupon the seller sells it without more, there again I
think the proviso has no application. But there is a third case
where the buyer says to the seller, ' I have been recommended so
and so '-giving its trade name-' as suitable for the articular
purpose for which I want it. Please sell it to me.' In t at case I
think it is equally clear that the proviso would apply."
\
In fact he makes no bones about reintroducing the test of reliance in
so many words." The test is :
" Did the buyer specify it under its trade name in such a way
as to indicate that he is satisfied, rightly or wrongly, that it will
answer his purpose, and that he is not relying on the skill or
judgment of the seller, however great that skill or judgment
may be? ')
The effect of the decision in Baldry v. Marshall is that where the
buyer discloses the purpose for which he requires the goods the seller
will be hard put to it to resist the inference of reliance on his skill
or judgment, and the proviso will not apply. Yet on the wording of
the proviso as it stands it is by no means obvious that reliance on the
seller is to have any relevance at all where an article is sold under a
patent or other trade name.
But it seems that the proviso is not deprived of its full effectin
the case of goods sold for a purpose which is self-evident. As we have
seenYz5 the fact that the purpose is self-evident is sufllcient to show
reliance on the seller's skill where the goods are not sold under a trade
name. But in Wilson v. Rickett Cockerell 4 Co., Ltd.16 Romer L.J.
said that the fact that the buyer was satisfied with the standing and
reputation of the sellers, and assumed that any Coalite supplied by
them would be of the normal quality and in normally good condition,
although indicating some reliance on the sellers' skill and judgment,
was quite insu5cient to displace the operation of the proviso."
Consequently there will be cases where the buyer is defeated on the
sole ground that the goods were sold under a trade name. But they
will be pretty rare.
One of the main defects of section 14 (1) is that it lumps together
the two cases, where goods are required for their ordinary purpose
and where goods are ordered for a special purpose. It is no accident
that in the first case section 14 (2) often applies as well as section
24 Ibid., at 261. 2s Supra, 486.
26 [1954] 1 Q.B. 598, at 612.
27 Contrast with this the,l,an ua e of Lord Wright in Grant v. Awtralian Knitting
Mills, quoted above: [% tfe case] of a purchase from a retailer, the reliance
will be in general inferred from the fact that a buyer go- to a shop in the
confidence that the tradesman has selected hie stock with ekill and judgment."
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492 "HE MODERN LAW REVIEW VOL. 22

14 (1).2a This is because the implied condition is basically one of

quality, and there is no justification for retaining the inappropriate
language on which this result is based under section 14 (1). If it is
recognised that the condition is one that the goods shall be of
reasonably good quality, or rather of a quality which the buyer is
entitled in the circumstances to expect,2s not only can we dispense
with the artificialities of " inferred reliance " but we can also see
that the proviso to section 14 (1) has, in this first case a t least, no
justification in principle. For if a retailer is to be bound by an
implied condition that the goods which he sells are of reasonably good
quality, as indeed he ought to be,so then no sensible distinction can
be made between goods which are sold under a trade name and
goods which are not.
The implied condition that the goods sold are fit for a particular
purpose! should be confined to the case where the buyer has expressly
indicated some special purpose for which he requires them. In this
case it should be recognised in the wording of the statute that reliance
on the seller's skill or judgment is not something which the buyer
has to prove, but, in the absence of some strong indication to the
contrary, is an in€erence which is to be drawn in every case. Here
again there is no justification for an exception in cases where an
article is sold under a trade name. Baldry v. Mamhall is sound in
general principle, and effect should be given to it in reframing the
section.
It has already been pointed out that in the case of goods which
have a self-evident purpose section 14 (1) and section 14 (2) may
easily overlap. It is impossible to be absolutely certain of the
precise meaning of " merchantable,', but the general idea is that the
goods should be of a quality which the buyer is entitled to expect for
his money. The limitation of the proviso t o section 14 (2) to cases
where the buyer has actually examined the goods seems a little odd.
There is no good reason why a buyer who has neglected t o examine
them when he had a real opportunity to do so, and a reasonable buyer
would have taken the opportunity, should be able to call on the seller
to make good defects which an examination ought to have revealed.
Yet as the law stands he can. In Thornett fi. Fehr v. Beers fi. Son d l
Bray J. held that the Act had deliberately changed the common law
rule, and a mere opportunity for examination no longer excluded
the implied c o n d i t i ~ n . Nevertheless,
~~ the examination need not be
28 As in, for example, Grant v. Australian Knitting Mills.
29 Obviously the buyer of a cheap article cannot complain if it is not as well made
as an expensive article of the same kind. For this reason it seems impossible,
or at least misleading, to talk of B condition of "good quality," or even
" reasonably good quality."

30 If on1 for the reason that the buyer is not in contractual relations with the
manuPacturer. 3 1 [1919] 1 K.B. 486.
52 It is not contended that mere opportiinity for examination ought to exclude the
implied condition. A buyer ought only to be defeated under the proviso where
it was reasonable to expect, him to take the opportunity of examining the goods.
This will obviously not be so in every case.
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SEPT.1959 SALE OF GOODS ACT, 1898, 8. 14 (1) A N D (2) 498

as thorough as a prudent buyer would make, provided that the buyer

concerned considered it sdcient. This only serves to emphasise
the absurdity of allowing a buyer to rely on section 14 (2)when he
has neglected altogether to examine the goods.33 Moreover, why
should examination exclude the seller's liability (as to defects which
the examination ought to have revealed) under section 14 (2)but not
under section 14 (1) ?
My contention has been that as a result of judicial interpretation
section 14 (1) and (2) now have effects which, in some respects, no
longer correspond with their language. The points which have been
advanced in support of this contention, together with some suggested
changes in the substantive law, may be summarised as follows:
First, two different situations have been brought within the
scope of section 14 (1) which can be more conveniently handled
separately-namely, the case where goods are bought for a purpose
which is self-evident, and the case where goods are bought expressly
€or a special purpose. In the former case the implied condition is
one of quality, and there is no need to frame it as one of fitness for
purpose.
Secondly, the words " so as to show that the buyer relies on the
seller's skill or judgment are misleading in that unless the seller
expressly guards himself against warranting that the goods will be
fit for the purpose for which the buyer requires them, the mere fact
of his supplying goods with knowledge of the buyer's purpose will
be sufficient to raise the implied condition. There is no burden on
the buyer other than that of showing that the seller knew of the
purpose.
Thirdly, the decision in Baldry v. Marshall renders the proviso
t o section 14 (1) nugatory, or nearly so, in regard to goods bought
for a particular purpose, and it ought not to be retained either in this
case or in the case of goods bought for a self-evident purpose.
Fourthly, the implied condition under section 14 (2)that the goods
shall be of merchantable quality comes to much the same thing as
the condition of quality which section 14 (1)gives in the case of goods
bought for a self-evident purpose, and no harm would be done if
these two implied conditions were rolled into one. This composite
subsection ought to contain the proviso from section 14 (2), and
the proviso ought, in turn, to be amended so as to exclude the implied
condition where the buyer has had an opportunity, which he ought
reasonably to have taken, of examining the goods, and has not
bothered to do so.

3s Again provided it was reasonable to expect him to examine the goods.

34 This is assuming that both conditions are in effect as to quality (leaving aside
the case under 8. 14 (1) of goods required for a speck1 purpose), and also
that the limitation of s. 14 (2) to sales by description is not of great
practical importance. See Atiyah, Sale of Goods, p. 67-68. In any csne it
IS hard to see a distinction of principle
- - between a sag by description end s sale
not by description.
35 [1925] 1 K.B. 260.
 14682230, 1959, 5, Downloaded from https://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1959.tb00555.x by Nigeria Hinari NPL, Wiley Online Library on [02/10/2023]. See the Terms and Conditions (https://onlinelibrary.wiley.com/terms-and-conditions) on Wiley Online Library for rules of use; OA articles are governed by the applicable Creative Commons License
494 THE MODERN LAW REVIEW VOL. 2a

There only remains the problem of redrafting the two subsections

so as to give effect to these suggestions. The following version is
tentatively proposed :
" (1) Where the goods are of a description which is in the
course of the seller's business to supply (whether he be the
manufacturer or not), there is an implied condition that the goods
shall be of merchantable quality s r ; provided that if the buyer
has, or ought to have, examined the goods there shall be no
implied condition as to defects of quality which such examination
ought to have revealed;
" (2) Where goods are bought from a seller who deals in
goods of that description (whether he be the manufacturer or
not), and the buyer makes known to the seller the particular
purpose for which he requires the goods, there is an implied
condition that the goods shall be reasonably fit for that purpose."
If section 14 were revised on these Sines the change would be
mainly one of formulation. The following points, however, would
be new :the implied condition of quality, which is a t present excluded
only in sales by description where the buyer has actually examined
the goods, would be excluded in all sales where the buyer has had
an opportunity, which he ought reasonably to have taken, of
examining the goods, whether he has actually done so or not S T ; and
the proviso to the present section 14 (1) would be entirely removed-
it should be up to the seller to exclude the condition as to fitness for
purpose by an express term of the contract if he does not want to
guarantee their fitness for the buyer's purpose, and there is no reason
in principle why a seller should not be liable on a condition of
quality in the case of goods sold for a self-evident purpose, whether
they are sold under a trade name or not.
Apart from these two points, I suggest that the law already has
the effect which my revised form of section 14 (1) and (2) would give,
and that it should be formulated in terms which correspond better
with that effect.'O
A. D. HUGHES.*

36 See note 29, supra. "Merchantable" may not be a n ideal term, but it is
difficult to find a better one.
37 Liability is, and would be excliided only as to defects which an examination
ought to have revealed.
$6 I would like to record my gratitude to Mr. J. W. Davies, B.ff.L.(OXOn.),
LL.B.(Birm.), Stallybrass Lecturer in Law at Brasenose College, Oxford, for
his acute criticisms of this note
* B.c.L., Y.A., Assistant Lecturer in Laws, King's College, London.