Condition, Warranties and Descriptions of Quality in Sale of Goods
![handle is hein.journals/modlr15 and id is 437 raw text is: CONDITIONS, WARRANTIES AND DESCRIP-
TIONS OF QUALITY IN SALE OF GOODS-I
1. INTRODUCTORY. Where a seller delivers defective goods, two
questions immediately arise: what is the precise legal basis of his
liability, and what rights has the buyer against him. Although
these questions appear quite simple, the answers to them are diffi-
cult enough. Taking a broad preliminary view, the existing law
may, somewhat paradoxically, be criticised as follows: (1) it has
too much theory, (2) it has not enough theory, and (3) it has no
theory whatever. There is too much theory because of the over-
elaborate legal symbolism of conditions, warranties, sale
by description, sale of specific goods and so on. There is, on
the other hand, too little theory because certain concepts, not being
properly defined, have been allowed to fluctuate. There is, finally,
no theory at all, because had there been a general or basic theory
the existing complications and contradictions could never have
arisen. In this paper I shall attempt to clarify the law. For this
purpose I shall analyse the main legal principles and concepts and
(where necessary) retrace their historical career.
2. THE WARRANTY. It is with the warranty that we must
begin.' For the warranty, properly understood, explains almost
the whole range and scope of the seller's duties with regard to the
quality of the goods. And it is only through an analysis of the
warranty that we can best understand the confusing (because inter-
fering) development of certain other important concepts such as
I caveat emptor (including its exceptions), the condition, and
sale by description. Indeed, it can be truly said that without
a grasp of the law of warranty, the central aspects of the law of
sale of goods cannot really be mastered.2
1 The best expositions of the law of warranty are those by Professor Williston,
and I have learned most from him; see especially, 1 Williston on Sales (2nd
ed., 1948), hereafter referred to as Williston, Sales, §§ 178-226; 4 Williston
and Thompson on Contracts (2nd ed., 1936), hereafter Williston, Contracts,
§§ 968-973, and 5 Williston, Contracts, §§ 1461-1462. For references to
Professor Williston's several important articles, see notes, infra. See also,
Burdick, Conditions and Warranties (1900) 1 Columbia L.R. 71; Prosser,
The Implied Warranty of Merchantable Quality (1943) 21 Can.B.R. 446 et
seq. (reprinted from (1943) 27 Minnesota L.R. 117 et seq.). For a broader view
of the subject: K. N. Llewellyn, On Warranty of Quality, and Society (1936)
36 Col.L.R. 699; (1937) 37 Col.L.R. 341; Bogert and Fink, Business Practice
Regarding Warranties in Sale of Goods (1930) 25 Illinois L.R. 400; Morrow,
Warranty of Quality: A Comparative Study (1940) 14 Tulane L.R. 327, 527;
Rabel, The Nature of Warranty of Quality (1950) 24 Tulane L.R. 273.
- As Professor Llewellyn has said, [the warranty of quality] presents the
sweep of sales law it) perhaps its most dramatic form. Cases and Materials
on the Law of Sales (1930) 204.](ViewImageLocal?handle=hein.journals/modlr15&div=36&collection=&method=preview&ext=.png&size=3)
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Condition, Warranties and Descriptions of Quality in Sale of Goods
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