Skip to content


Antony Thomas Vs. Ayuppunni Mani - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberA.S. No. 149 of 1956 (E)
Judge
Reported inAIR1960Ker176
ActsSale of Goods Act, 1930 - Sections 12 and 15
AppellantAntony Thomas;ayuppunni Mani
RespondentAyuppunni Mani;antony Thomas
Appellant Advocate T.S. Venkiteswara Iyer and; C.S. Ananthakrishna Iyer, Advs.
Respondent Advocate Adv. General,; K. Achutha Menon and; P. Divakara Menon
DispositionAppeal dismissed
Cases ReferredWimble Sons and Co. v. Lillico and Son
Excerpt:
.....must be performed, are not so vital that a failure to perform them goes to the substance of the contract' and said that later usage 'has consecrated the word 'condition' to describe an obligation of the former class, and 'warranty' to describe an obligation of the latter class'.as pointed out by cheshire and fifoot in their law of contract (fourth edition, page 123): the learned lord justice perhaps went too far in describing a breach of a condition as a substantial failure to perform the contract at all. 6. according to the plaintiff the sale was a safe by description, and there is an implied condition that the goods shall correspond with the description. the provision therein to the effect that the bad nuts shall not exceed twenty per cent of the total appears to be a basic element..........a matter of fact exceeded twenty pet cent is not in dispute before us.3. section 12 of the indian sale of goods act, 1930, deals with conditions and warranties as follows :'1. a stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or warranty.2. a condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.3. a warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.4. whether a stipulation in a contract of sale is a condition of a warranty depends in each case on the construction of the contract......
Judgment:

M.S. Menon, J.

1. The defendant in O. S. No. 63 of 1122 of the District Court of Trichur is the appellant before us. He had undertaken to deliver to the plaintiff 125 candles of cashew nuts and received Rs. 4,000/- in part payment of the price. The suit was for the refund of the said sum with interest at 6 per cent per annum.

2. The plaintiff rejected the goods on the ground that the bad nuts exceeded the stipulated maximum of twenty per cent. The question for consideration is whether the plaintiff was entitled to reject the goods as he did. The answer depends on whether the stipulation regarding the bad nuts was a condition or a warranty. That the bad nuts as a matter of fact exceeded twenty pet cent is not in dispute before us.

3. Section 12 of the Indian Sale of Goods Act, 1930, deals with conditions and warranties as follows :

'1. A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or warranty.

2. A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.

3. A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.

4. Whether a stipulation in a contract of sale is a condition of a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract.'

It is clear that a condition is a more vital undertaking than a warranty, and that the consequences that flow from its breach are different.

4. Fletcher Mpulton, L.J., summarised the distinction between the two as follows in Wallis, Son and Wells v. Pratt, (1910) 2 KB 1003 :

'A party to a contract who has performed, or who is ready and willing to perform, his obligations under that contract, is entitled to the performance by the other contracting party of all the obligations which rest upon him. But from a very early period of our law it has been recognised that such obligations are not all of equal importance. There are some which go so directly to the substance of the contract, or, in other words, are so essential to its very nature that their non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all. On the other hand, there are other obligations which though they must be performed, are not so vital that a failure to perform them goes to the substance of the contract'

and said that later usage 'has consecrated the word 'condition' to describe an obligation of the former class, and 'warranty' to describe an obligation of the latter class'. As pointed out by Cheshire and Fifoot in their Law of Contract (Fourth Edition, page 123):

'The learned Lord Justice perhaps went too far in describing a breach of a condition as a substantial failure to perform the contract at all.'

and all that the Lord Justice sought to emphasise was the 'comparative degree of gravity'' in a term which spells a condition as distinct from one which amounts only to a warranty.

5. The distinction is of great importance. The breach of a condition entitles the injured party to repudiate the contract, to refuse the goods, and, if he has already paid for them, to recover the price. The only remedy for the breach of a warranty is the recovery of damages.

6. According to the plaintiff the sale was a safe by description, and there is an implied condition that the goods shall correspond with the description. The section on which he relies is Section 15 of the Indian Sale of Goods Act, 1930, which provides that

'where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.'

'The general principle of this implied condition is clear and founded on the consensual basis of the law of contract. If the description of the goods tendered is different from that of the goods agreed to be sold, it is not the article bargained for and the buyer is not bound to take it'. (Halsbury's Laws of England, 2nd Edition, Vol. 29, page 62).

7. Section 15 corresponds to Section 13 of the (English) Sale of Goods Act, 1893. The meaning of the expression 'contract for the sale of goods by description' occurring in Section 13 came up for consideration in Varley v. Whipp, (1900) 1 QB 513. Channell, J., said that 'though the most usual application of the section was to cases of unascertained goods, it applies 'to all cases where the purchaser has not seen the goods, but is relying on the description alone'.'

8. Ext. A dated 11-11-1946 is the letter from the defendant to the plaintiff which embodies the terms of the contract. The provision therein to the effect that the bad nuts shall not exceed twenty per cent of the total appears to be a basic element of the description of the goods agreed to be supplied, and it must follow that the plaintiff's contention has to be upheld.

9. The stipulation is definite, and there are no words which indicate any room for elasticity in complying with the stipulation. It may well be that if the difference is exceedingly small the law would disregard it. But this certainly is not one of such cases.

10. A somewhat similar case is Wimble Sons and Co. v. Lillico and Son, (1922) 38 TLR 296. In that case the Court had to consider whether a contract for the sale of cotton cake 'containing approximately 40 per cent protein and 10 per cent oil' was a sale by description. McCardie, J., held that the words as to the percentages were words of description, under Section 13 of the (English) Sale of Goods Act, 1893, that the sale was, therefore, a sale by description and that there was an implied condition that the goods must comply with the description.

11. In the light of what is stated above this appeal has to be dismissed. Judgment accordingly. The appellant will pay the costs of the respondent.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //