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Fitness for buyer

Akanksha Bajpayee

Buyer is defined by Section 2(1) of the Sale Of Goods Act, 1930 as “a person who buys or agrees to buy goods”. A sale being a bilateral agreement there must be two parties, one buyer and the other seller. However, sometimes, a person may have a dual capacity. Thus, a person who is permitted to sell the property of other may himself become the buyer of it. There may be another instance, a man’s goods when sold in execution or distress, he may himself become the buyer of the goods. Under section 4(1) of the, a part owner of a property may become the buyer of the goods. An insolvent may buy goods from an official receiver or official assignee [1]

In a contract of sale, the terms and conditions are attached. According to Section 12(2) of the Sale of Goods Act, the terms which are so important for a sale that they are facts so material of the contract that the sale cannot be presupposed without them, are called conditions. According to section 12 condition becomes a warranty when –

  1. a) The buyer waives the conditions or opts to treat the breach of the condition as a breach of warranty; or
  2. b) The buyer accepts the goods or a part thereof, or is not in a position to reject the goods.

Implied conditions of quality or fitness is an important condition given in section 16 and includes the principle of ‘Caveat Emptor’ (buyer beware). The seller has no obligation to supply the goods regarding the quality or fitness for aby particular purpose. The general rule is that the buyer has to depend on his own skill or judgement regarding the quality and fitness of goods except in cases of fraud by seller. In Ward v. Hobb[2] , the pigs purchased by the buyer were infected and all but one died of typhoid: The pigs bought by the buyer infected the pigs of buyer also which he already had. The buyer had paid the price for healthy pigs. It was held that sending of diseased pigs to market was an offence and the silence of the seller could amount to fraud but the seller was normally under no duty to disclose all defects which he knew. There was no implied warranty or condition of pigs being healthy. In Bar v. Gibson[3], it was held that when a ship was bought bearing character of a ship, the defendant was not liable if it was stranded, damaged, unseaworthy, or not fit to be beneficially employed. These cases show that the buyer has to buy the goods on his own risk. He has to ensure himself that the goods are fit for the purpose for which he wants to buy. The burden of ensuring the goods to be fit for his purpose shifts on the buyer by the express or implied warranty or condition. However there are four exceptions to this ,that is, this condition of fitness shall apply, if:

 

  1. The buyer makes known to the seller the particular purpose for which the goods are required,
  2. The buyer relies on the seller’s skill or judgment,
  3. The goods are of a description which he sellers ordinarily supplies in the course of his business, and
  4. The goods supplied are not reasonably fit for the buyer’s purpose.

 

 

[1] Kitson v. Hardwick, LR 7 CP 473, 476

[2] (1878) 4 App. Cas 13

[3] (1838) 3 M and W 390: 7 LJ Ex 124

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