IMPLIED UNDDERSTANDING AS TO THE TITLE

In the absence of a contrary intention, the following undertakings as to title are implied by section 14 of the
Sale of Goods Act. Cap. 79.
(a) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and
that in the case of agreement to sell he will have a right to see the goods at the time when the property is
to pass.
(b) An implied warranty that the buyer shall have and enjoyed quiet possession of the goods.
(c) An implied warranty that the buyer shall be free from any charge or encumbrance in favour of any third
party, not declare or known to the buyer before or at the time when the contract is made”.
Any breach of section 14(a) may give rise to a total failure of consideration, that is, if goods sold belong to a third
party that subsection will be broken and subsequently a third party obtain an injunction to restrain the sale of the
goods. Also goods sold must not bring disturbance to the buyer, for example, where goods are stolen from their
true owner and sold to the plaintiff, the latter may recover damages for breach of a warranty implied by section
14(a). Ali Kassam Viran Ltd. v. The United Africa Co. (Tanganyika Ltd. (1958) E.A. 20 See also the case
of Lukhanishi Bros. Ltd. v. R& Son (1966) 1 A.L.R. Comm. 245.

2. SALE DESCRIPTION.

Section 15 of the Sale of Goods Act Cap. 82 provides for conditions implied where sale by description

“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; and if the sale is by sample as well as by description, it is insufficient that the bulk
of the goods correspond with the sample if the goods also do not correspond with the description”.

The above provision was implied in the contract of sale in the case of Alibhai Panju v. Nam (1949)16
E.A.C.72 . Similarly, where a person purchased tyres from an ex-army store and took them and they could not fit
the description, the section was implied in the contract Valiji v. Jiuraj (1949) E.A. 75 . However, in the absence
of fraud and provided the goods were open to inspection, the buyer cannot complain of the defect in the bought.
Thus, where a specified good is to be sold an the buyer has every opportunity to examine it, if he selects and later
finds out defects the implied warranty will not apply instead the common law rule of Caveat Emptor (buyer beware)
will apply. Abdulla Nathoo v. Walji Hiriji (1957) E. A. 207.

3. IMPLIED CONDITIONS AS TO QUALITY AND FITNESS

As seen above the general rule about sale of goods like in other contracts is caveat emptor, and Sale of Goods Act
Cap. 82 provide some exceptional qualifications on the ordinary position that 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. Section
16 provides as follows:-
a) “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for
which the goods are required so as to show that the buyer relies on the seller’s skill or judgement, and the
goods are of a description which it is in the course of the seller’s business to supply (whether he be the
manufacturer or not), there is an implied condition that the goods shall be reasonably fir for the purpose.
Provided that in the case of a contract for the sale of a specified article under its patent or other trade
name, there is no implied condition s to its fitness for any particular purpose.”
 Thus, if the buyer relies on the seller’s skill and judgement and the seller is aware of this, there
is an implied condition that the goods are of merchantable quality and fit for the purpose
described. Doola Singh & Sons v. The Uganda Foundry & Machinery Works (1945)12 E.A.C.A
33.

b) Where goods are bought by description from a seller who deals in goods of that description (whether
he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable
quality.

Provided that if the buyer has examined the goods, there shall be no implied condition as regards defect
which examination ought to have revealed.
c) An implied warranty or condition as to quality or fitness for the particular purpose may be annexed by
the usage of trade.

d) An express warranty or condition does not negative a warranty or condition implied by this Act unless
inconsistent therewith.

If goods supplied by a person, who regularly supplies those actually supplied, capable of, and
normally to serve a number of purposes, the supplier will not be liable under section 16(b),
because the goods do not satisfy the buyer’s particular purpose. The goods themselves will
have been of merchantable quality since they will have satified the purpose for which they are
normally used: Wren v Halt (1903) 1. K.B. 610 also Manchester Liners, Ltd v. Rea Ltd (11922)
A.C. 74.

4. SALE BY SAMPLE

In a sale by sample there is an implied condition that the bulk must correspond with the sample together
with an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the
sample. Section 17 Sale of Goods Act Cap. 82 provides for sale by sample as follows:
a) A contract of sale is a contract of sale by sample where there is a term on the contract, express
or implied, to that effect.

b) In the case of a contract or sale by sample there is;-

i. An implied condition that the bulk shall correspond with the sample in quality

ii. An implied condition that the buyer shall have a reasonable opportunity of
comparing the bulk with a sample

iii. An implied condition that the goods shall be free from any defect, rendering
them un merchantable which would not be apparent on reasonable
examination of the sample.

Afferali Abdullu v. Jan Mohammed‘s Ltd (1951) 16 EA CA 21. See also Godley v Perry (1969)1 W.R.
page 9

As Cheshire and Fifoot (6th Edition) put it’ “ The object of a sample is to explain to the eye what is
sometimes difficult to express in words but the buyer is not expected to pull it to pieces in order to
search for latent defects .

Therefore the sale of goods act provides a further implied condition in S.17 (c) quoted above. We have seen
above that when there is a sale the goods shall correspond to the des description given, Section 15. Once goods
have been accepted, it is then too late for the buyer to reject them and the only remedy open to him is to sue for
damages and not repudiation. Nurmohamed Nurji Hasham & Sons LTD c. Husseinali Gulamhussein Dattu
(1955)22 EACA 294

Lastly where parties have not expressly provided for an event in the contract, a firm may be implied by the custom
or trade of the locality. A trade usage is some term that may be implied into a contract, because it is so well known
as between the parties to the contract that they never bothered consciously to include it in their agreement, Harilal
Shah (trading as Harilal and Co.) and Champalen Shah v. Standard bank Ltd (1967) 1 A.L.R.

In the above case Newbold P. describes a trade usage as a particular course of dealing between the parties who
are in a business relationship, which course of dealing is so generally known to all persons who normally enter into
the relationship that they must have presumed to have intended to adopt the course of dealing and to have
incorporated it into their contractual relationship unless by agreement is expressly or implied excluded.

The Evidence Act Cap. 43 provide that where a particular usage has sufficient general or local notoriety judicial
notice may be taken of it. Where a custom or usage has been proved to exist and therefore becomes an implied
term of a contract, then, unless expressly or implied excluded, it is presumed to have been incorporated into the
contract between the parties, and this is so even though one of the parties may intact be unaware of the usage, so
long as the circumstances are such that he ought to have been aware of the contract”.

A custom or usage which is not inconsistent with the rest of the terms of the contract may be imported or implied in
the contract. Fleury and King c. Mahamed Wolli & Co.& Juma Hemani I.Z.L.R.17

A provision that all disputes arising out of this contract shall be referred to as arbitration” is another illustration of
the place of custom in contracts. For example in many contracts of insurance, a provision of that nature is inserted
and whenever a dispute arises, the insured appoints an arbitrator who is acceptable to the company and this
person helps in bringing a solution to the disagreement. Where agreement cannot be reached, matters are
normally put before a court of law which is a final arbiter.