Implied Terms III
Sale of Goods Act
Conditions and Warranties.
Stipulations as to time.
10.—(1) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.
(2) In a contract of sale “month” means primâ facie calendar month.
F2[
When condition to be treated as warranty.
11.—(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated.
(2) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract.
(3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.
(4) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.]
Annotations:
Amendments:
F2
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2).
F3[
Implied undertaking as to title, etc.
12.—(1) In every contract of sale, other than one to which subsection (2) applies, there is—
(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, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass, and
(b) an implied warranty that the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed to the buyer before the contract is made and that the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed.
(2) In a contract of sale, in the case of which there appears from the contract or is to be inferred from the circumstances of the contract an intention that the seller should transfer only such title as he or a third person may have, there is—
(a) an implied warranty that all charges or encumbrances known to the seller have been disclosed to the buyer before the contract is made, and
(b) an implied warranty that neither—
(i) the seller, nor
(ii) in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person, nor
(iii) anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed to the buyer before the contract is made,
will disturb the buyer’s quiet possession of the goods.]
Annotations:
Amendments:
F3
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2).
Modifications (not altering text):
C8
Enforcement of section provided for (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2).
Statements purporting to restrict rights of buyer.
11.— (1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act.
(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers:
(a) to display on any part of any premises a notice that includes any such statement, or
(b) to publish or cause to be published an advertisement which contains any such statement, or
(c) to supply goods bearing, or goods in a container bearing, any such statement, or
(d) otherwise to furnish or to cause to be furnished a document including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1).
(4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement.
F4[
Sale by description.
13.—(1) 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 be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
(2) A sale of goods shall not be prevented from being a sale by description by reason only that, being exposed for sale, they are selected by the buyer.
(3) A reference to goods on a label or other descriptive matter accompanying goods exposed for sale may constitute or form part of a description.]
Annotations:
Amendments:
F4
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2).
Modifications (not altering text):
C9
Enforcement of section provided for (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2).
Implied undertakings as to quality or fitness.
14.—(1) Subject to the provisions of this Act and of any statute in that behalf, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a contract of sale.
(2) Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition—
(a) as regards defects specifically drawn to the buyer’s attention before the contract is made, or
(b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed.
(3) Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly.
(4) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgement.
(5) An implied condition or warranty as to quality or fitness for a particular purpose may be annexed to a contract of sale by usage.
(6) The foregoing provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made.]
Annotations:
Amendments:
F5
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2).
Modifications (not altering text):
C10
Enforcement of section provided for (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2).
Sale by Sample.
F6[Sale by sample.
15.—(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.
(2) In the case of a contract for sale by sample—
(a) There is an implied condition that the bulk shall correspond with the sample in quality:
(b) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample:
(c) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.]
Annotations:
Amendments:
F6
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2).
Modifications (not altering text):
C11
Enforcement of section provided for (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2).
Statements purporting to restrict rights of buyer.
11.— (1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act.
(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers:
( a ) to display on any part of any premises a notice that includes any such statement, or
( b ) to publish or cause to be published an advertisement which contains any such statement, or
( c ) to supply goods bearing, or goods in a container bearing, any such statement, or
( d ) otherwise to furnish or to cause to be furnished a document including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1).
(4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement.
Part VI.
Supplementary.
F14[
Exclusion of implied terms and conditions.
55.—(1) Subject to the subsequent provisions of this section, where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.
(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.
(3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 of this Act shall be void.
(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13, 14 or 15 of this Act shall be void where the buyer deals as consumer and shall, in any other case, not be enforceable unless it is shown that it is fair and reasonable.
(5) Subsection (4) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13, 14 or 15 of this Act is not a term of the contract.
(6) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
(7) Any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract.
(8) This section is subject to section 61 (6) of this Act.]
Annotations:
Amendments:
F14
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 22, commenced as per s. 1(2).
Modifications (not altering text):
C12
Application of section extended (19.05.1997) by European Communities (Contracts For Time Sharing of Immovable Property — Protection of Purchasers) Regulations 1997 (S.I. No. 204 of 1997), reg. 12.
Contracting out of obligation or denial of rights under Regulations not binding
12.— Any clause of a contract whereby a purchaser renounces the purchaser’s freedom or rights under these Regulations or whereby a vendor is freed from the vendor’s responsibilities arising from these Regulations shall not be binding on the purchaser, under conditions as set out in sections 55 of the Sale of Goods Act, 1893, (as inserted by section 22 of the Sale of Goods and Supply of Services Act, 1980), and section 40 (1) of the Sale of Goods and Supply of Services Act, 1980.
C13
Term “fair and reasonable” construed (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 2(3), commenced as per s. 1(2).
Interpretation generally.
2.— …
(3) Where, under section 13, 31, 40 or 46 of this Act or under section 55 of the Act of 1893 (inserted by section 22 of this Act), a question arises as to whether a term, agreement or provision is fair and reasonable regard shall be had to the criteria set out in the Schedule in deciding it.
Schedule
1.— In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.
…
C14
Application of subs. (1) restricted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 12(3), commenced as per s. 1(2).
Implied warranty for spare parts and servicing.
12.—…
(3) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.
C15
Application of subs. (1) restricted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 13(9), commenced as per. s. 1(2).
Implied condition on sale of motor vehicles.
13.— …
(9) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.