contract description

It is important to remember that the question of merchantability cannot be divorced from the contract description.

This is more than a mere breach of the implied condition that goods should comply with the contract description.

The modern trend is therefore to regard as part of the contract description only those contract words which help in 'identifying' the goods.

It was held that the contract requirement that they be packed in cases of 30 was part of the contract description.

(The contract descriptions came from the IEM site.)

Hence the expression 'fair average quality for the season' was held not to be part of the contract description, since it did not 'identify'the goods sold.

This approach would seem to be correct because goods in that condition were unsaleable by the buyer under the contract description (but compare Cehave v Bremer [1976]QB 44).

Other expressions in the contract (such as'fair average quality for the season' or 'packed in cases of 30') can then be regarded, not as part of the contract description, but as express terms of the contract in their own right.

Because section 13 is an implied condition anything which is regarded by the court as part of the contract description automatically becomes 'of the essence' and, if it is not complied with, automatically gives the buyer a right to reject the goods for breach of condition.

In Nichol v Godts (1854) 10 Exch 191, a sale of "foreign refined rape oil, warranted only equal to samples" was held to be a sale by description so that a seller could not deliver something which, although equal to sample, could not match the contract description.

Clauses providing that goods sold "with all faults" will generally be construed as referring to defects which make the goods unmerchantable, or unfit for purpose, but will not cover a case where the goods do not comply with the contract description (Shepherd v Kain (1821) 5 B & A 240).