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FACTS: The Appellant had sold a second-hand car to their respondent. The respondent had
made two cash payments and made two extra cash payments with post-dated cheques. Upon
delivery however, it was discovered that the car had been involved in a major accident. The
Appellant accepted liability and decided to exact the repairs out of his own pocket. After meeting
the first mechanic, he decided the costs of repairs were too high and decided to have a wayside
mechanic fix the car. The car was eventually repaired and the Respondent took possession of the
car afterwards. However after using the car for two months, the Respondent decided to repudiate
the contract on the ground that he had found some latent defect in the car.
The Court at the first instance held in favor of the Respondent, but the decision was brought on
Appeal, where the Court was tasked with determining the rights of purchaser to repudiate a
contract on the grounds of latent defects.

PROCEDURAL HISTORY: The case was first heard at the Circuit Court and then was brought
on Appeal at the Court of Appeal.

HOLDINGS: Appeal Allowed

1. The Respondent would have been able to repudiate the contract due to the presence of
latent defects but for the unusually and unreasonably long delay before he reported the
latent defects.

2. Time is a material element in considering a contract of sale, since it is used to determine

whether the goods have passed. Thus a long period of retention would be equated to
3. The Defendant waived his rights by keeping the car for too long.

FRANCOIS JSC: The Learned Judge argues that the choice of the Respondent to abide by the
contract of sale was dependent upon the car being repaired into a state or condition close to how
it was before the accident, however the Respondent would have been right to repudiate the
contract as the repairs were done in a cheap and shady manner.
FRANCOIS J further contends that the Respondents could not be held to abide to the contract of
sale as even after the shady repair works, the car had still retained some of the defects thus

making the car inferior and fundamentally different from what was bargained for, giving the
option of repudiating the contract to the Respondent.
By Section 51 (Act 137), a buyer may not reject goods which he has accepted and by section 52
(b) a buyer is deemed to have accepted if "he does not, within a reasonable time after delivery of
the goods, inform the seller that he rejects them." To further put an accent on the time factor,
FRANCOIS JA moved to quote Section 26 (2) (Act 137), provides that: "Unless a different
intention appears the property in the goods passes under a contract of sale when they are
delivered to the buyer." As such the Learned Judge is of the view that any undue delay in the
rejection of the goods
Section 26 (2) Act 137, provides that: "Unless a different intention appears the property in the
goods passes under a contract of sale when they are delivered to the buyer." Also in his further
analysis and in accord with Section 27(2), the learned FRANCOIS JA adds that risk is a
necessary concomitant to the passing of property as a period of long retention of goods will
not only equate to acceptance, but will also be held as a valid transfer of goods and the
assumption of all risks by the retaining party. However the Learned Judge is quick to argue
that the determination of the concept of time is not a uniform one as it will vary depending on the
facts of each case.
By section 13 (1) (a) of the Sale of Goods Act, 1962 (Act 137):
". . . 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(a) There is an implied condition that the goods are free from defects which are not declared or
known to the buyer before or at the time when the contract is made: Provided that there is no
such implied condition
(i) Where the buyer has examined the goods, in respect of defects which should have been
revealed by the examination; . . .
(iii) Where the goods are not sold by the seller in the ordinary course of his business, in respect
of defects of which the seller was not, and could not reasonably have been aware."
FRANCOIS JA further argued that in the case of second hand goods (car in this context), the
goods must be taken exactly as they are and shouldnt be expected to perform as fresh out of
factory Goods.
The Learned Judge also went on to define the difference between conditions and warranties in a
contract, defining the former as[obligations] 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 whereas He explains warranties as 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 ... In the present case, the Learned Judge argues that often one of the determining factor
as to identifying if the terms of a contract should be held as Condition or warranties also depend
on the Level of expertise of the contracting parties, in a sense the more the experience of the

party or parties involved in the transaction, the more the likelihood that the term will be held as a
condition. On the contrary the lesser the expertise of contracting parties, the more chances that
the term will be held as a warranty.