SALE BY DESCRIPTION - INTERPRETATION AND AMBIGUITIES
“A picture will never compare to the real thing”
- Author Unknown
A red bike described by the seller is up for sale online, the buyer then receives an orange-colored motorcycle: deception by description or merely a deal by description, which is built wholly on one person’s observation and interpretation of color? UK legislation governs the Sale of Goods Act 1979 (the Act), providing statutory protection for consumers and non-consumers. Minor changes to the Act have caused ambiguity in areas that need further interpretation.
The sale of goods involves a simple procedure through which a seller transfers ownership of the products to the buyer in consideration for payment. The Act deals with issues that may arise from a 'sale by description' in the absence of a prior agreement between the parties of the contract. A promise in contract law holds great significance. Based on the sellers promise to the buyer that the goods will be of a specific description, failing to abide by a guarantee concerning the item explanations, results in a breach of contract, allowing repudiation and possible compensation. The Act provides a balance of bargaining power between the seller and the buyer, guaranteeing the buyer will receive goods replicating the information provided by the seller, and the seller will receive payment for performing the implied term stipulated within the contract. The concept of a sale by description is set out in section thirteen (13) of the Act. Subsection one (1) imposes an implied condition on the seller that the goods will correspond with the description. The Act will only apply in circumstances where the buyer has not seen the products they have purchased, and have proceeded with the sale based on the reasonable contemplation of the parties about how they portray the item to look.
As abovementioned under section thirteen (13) the buyer is dependent upon the goods being of the exact description given by the seller. Sale by description is perceived as including refusing the buyer from inspecting the item before buying as they would not be wholly reliant on the seller’s description. A sale by description interpretation creates uncertainty as to whether all language used by the seller to offer this interpreted buyer with a virtual picture of the goods can be put against them to succeed with a claim under section thirteen (13).
The case of Beale v Taylor, however, contradicts the above, permitting a buyer who has seen the item before purchasing, successfully relying upon a claim of sale by description. The Court of Appeal confirmed that irrespective of the buyer viewing goods in advance to buying, the description by the buyer did not resemble the one which has been provided in the advertisement.
The case facts are that a description provided by the seller about a specific model of car that the buyer relied upon when they visited the seller and physically observed it. The buyer purchased the item based on the description, but, later found that the car was a combination of two different models. Arguably it seems that the buyer ought to have formed their description of the item, and unable to depend upon the explanation provided by the seller.
In his judgment, LJ Seller specified there is a sale by description even though the buyer saw the car before purchasing it. He stated that “Goods sold by description as long as it is not sold merely as a specific thing but as something corresponding to a particular description is accepted under a sale by description claim.” The buyer had relied upon the description given by the seller and not anything they had seen when they viewed the car and entered into the contract.
The difficulty, therefore, arises in regards to reliance upon the goods description if the seller doesn’t hold satisfactory expertise. An analysis of the Court of Appeal case of Harlington v Christopher Hull[i] suggests that the buyer will not succeed with a claim based upon goods not being that as described if they do not exclusively rely on the items' attributes given by the seller.
The case concerned an art dealer who specified they had little experience and knowledge of the art for sale. At auction, the painting was described by the seller as ‘the work of a German impressionist Gabriele Munter.' The buyer was a fellow art dealer, and an expert on this artists work, hence why they sent their specialized experts to view the painting before proceeding with the transaction. It was later discovered once the buyer purchased the painting that it was a fake and worth a mere £100 at market value.
The issue of this case, and the matter that causes uncertainty about reliance upon sale by description is that in this instance, it is not that the buyer had visibly shown interest and purchased the painting based on the seller's description of the ‘Gabriele Munter painting.' The Court held that the buyer had not relied upon the seller's account.
Stuart-Smith LJ in his dissenting judgment specified that if it is established that the parties shared a common intention that the description would be a term of the contract, this will suffice to make it a sale by description. Sale by description is an implied term; therefore although it is not visible in the agreement, both parties impliedly accept the goods to be a certain way.
In his judgment, Nourse LJ stated that if the buyer relies entirely on his judgment and ignores the description provided by the seller, this would not be enough to call for the sale by description definition given under section thirteen (13) of the Act. The buyer had purchased the painting based on his own expert’s judgment of the description and not what was given by the seller who ensured that his information on the art was known. A broad interpretation of sale by description demonstrated the purpose of the act in protecting buyers from purchasing items that do not mirror the explanation provided. Nevertheless, from the perspective of a seller, a vague description of the goods would place a minimal duty upon them to make sure some criteria are satisfied, yet on the contrary, a precise description would show a greater duty. It appears that there is no medium for the seller or the buyer to understand the true interpretation of a sale by description. The decision in Harlington v Christopher Hull creates ambiguity as to the distinction between sale by description and misrepresentation in the Misrepresentation Act 1967.
A misrepresentation, however, is the opposite of a sale by description. Misrepresentation is legally defined as a false statement of fact which induces a party to agree to their detriment. The Misrepresentation Act, under section two (2), subsection two (2), in circumstances where a party has agreed due to misrepresentation and as a result have suffered loss, they may claim damages. If the misrepresentation has not been made fraudulently, and the person has reasonable grounds when the contract concluded, that the facts represented were true, this will be taken into account when assessing a misrepresentation claim.
The court has at its disposal the option to allow a purchaser the right to reject the goods and claim damages from loss under the Act, or only allow them to continue with a damaged claim by misrepresentation. Contrasting a sale by description with misrepresentation, it would seem logical that a claim under section thirteen (13) of the Act would prevail. The Act targets the root of the contract, enabling the buyer to rescind the contract and claim damages for loss as a result of the seller being in breach. On the other hand, misrepresentation considers a specific part of the contract that may have been false. At the House of Lords, Lord Diplock provided a further interpretation of a sale by description, stating that identification is what constitutes description. It must be considered whether it is fair and just for the buyer reject the goods they have received based on them not corresponding with what was described, consequentially resulting in the item being dissimilar from those confirmed through the contract. In a time where the internet and e-commerce are growing at a considerable rate, buyers place a prodigious reliance upon sale by description.
Under subsection two (2) of the Act, the goods will match the sample received by the buyer, but excluding the condition whereby the seller notifies the buyer of any difference in the goods from the sample before a contract is complete between the parties. Recent law, Consumers Rights Act 2015 works with section thirteen (13) subsection two (2) to support the seller. This states that the buyer will be unable to discard the goods if the seller can demonstrate that possible breach of sale by description is unreasonable to call for rejection. Where there is a sale by description, it is not sufficient for the bulk of the goods to match the sample if the sample does not match the description provided.
The law states that if a difference in description is so remote, the buyer will no longer benefit from a condition, allowing them the option to reject the goods and claim damages from a loss to only suing for possible compensation by warranty. Reasonableness is paramount when considering how a sale by description is interpreted. The practical importance of sale by description is that it places a condition into the contract allowing consumers to reject what they have received if it doesn’t match a description. UK Law enforces more responsibility on the seller to protect the buyer. Albeit it would be unjust to prohibit a buyer receiving the goods they have purchased based on a description they have relied upon, to the receive something they wouldn’t have construed to look a certain way, the Act works as a shield.
Sale by description is flawed for its misconceptions. However, without having the Act readily available for buyers to rely upon, the buyer’s protection would suffer a harmful effect.
Is it fair to say sale by description offers support and protection to buyers in the sale of goods contracts or is seeing really the only way of believing?
Harlingdon And Leinster Enterprises Ltd V Christopher Hull Fine Art LTD | CA 15 DEC 1989
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