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Flashcards in class 4-fit for purpose Deck (17)
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1

of the following requirements, which one is in favor of the seller (mitigating the harshness imposed on the seller)?

A. make known particular purpose;
B in a way s o that the seller reasonably understand that the is relying on the seller to exercise sufficient skill or judgement to ensure that the goods are fit for that particular purpose.
C. once A and B are satisified, the seller was selected. it does not possess the necessary skill or judgment to detect the particular characteristic of the goods which rendered them unfit for the purpose.
D. the goods must be of a description which it’s in the course of seller’s business to supply.

D. The harshness is mitigated by the requirement that the goods must be of a description which it’s in the course of seller’s business to supply.

2

In AP v CH: Lord Lord dIPLOCk:
Can there be a defence for the defendant that they had never previously supplied a ship’s propeller of the particular dimensions ordered although these did form part of the description by which the goods which were the subject matter of that contrat were sold?

No. It was sufficient that in their business to supply ship’s propellers.

3

Once the seller knew the particular purpose, the burden is on the buyer to prove that there's no reliance or the reliance is unreasonable.

yes, as per Ap v CH AC441

4

19 Implied condition as to * or*

Subject to the provisions of this Act, and of any statute in that behalf, there is no implied *or * as to the * or * for any particular *of goods supplied under *, except as follows:

(1) Where the buyer *or * makes known to the seller the * for which the goods are required so as to show that *, and the goods are of * which it is in the course of * (whether the seller be the *or not), there is an implied condition that the goods shall be * for such 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 as to its fitness for any particular purpose.

Quality、 fitness
warranty /condition
Quality/fitness
purpose
a contract of sale

expressly /by implication
particular purpose

the buyer relies on the seller’s skill or judgment
a description
the seller’s business to supply
manufacturer
reasonably fit

5

Henry Kendall & Sons v William Lillico and Sons Ltd is a UK case or Australia case, what is its short name?
Which of the following contract contains an exclusion clause?
(1)SAPPA--> Hardwick Game Farm
(2)L&G--->SAPPA
(3)Brazillian groundnut supplier -->K&H (importer)
(4)K&H (importer)-->L&G
What is the outcome of the case?

UK

The Hardwick Game Farm Case

L&G--->SAPPA


L&G--->SAPPA yes
K&H (importer)-->L&G yes !

6

In Henry Kendall & Sons v William Lillico and Sons Ltd,
Did the Lord Reid think
If the cloth was sold at a price appropriate for the lower quality, the dealer would have to supply a higher quality simply because the buyer had stated that his purpose was to make overcoats and the lower quality would not always be reasonbly fit for making every kind of overcoat?

If a buyer states that the purpose is to resell the goods, does the purpose have sufficient particularity?

No, not right.

Not necessarily, depending on the buyer’s trade.

7

In Henry Kendall & Sons v William Lillico and Sons Ltd,
Which judge/judges think the word “particular” requires a certain level specificty?
Lord Wilberforce
Lord Reid
Lord Guest
Lord Morris ,
Lord Peace

Lord Reid: if too wide, cannot be particular
Lord Morris: needs to be reasonbly precise.
All the other three said no.

8

In Henry Kendall & Sons v William Lillico and Sons Ltd,
What is the stated purpose the judges think?

If if fit for cattle not poultry, still fit?
A wider purpose is unfair for seller?

Is it correct to say s19(1)-(2) provide exceptions to Caveat emptor rul?

““re-sell in small quantities to be compounded into food for cattle and poultry”.”

As per Lord Peace, No.

As per Lord Peace, there should not be implied condition that the product should be fit for every sub-purpose within the widely-stated purpose.
Yes, as per Lord Wilberforce

9

In Ashington Piggeries v Christopher Hill Ltd;
What does Court of Appeal’s views on AP against CH, CH against N for breach of 14 (s19)?
In AP vs CH: does the purpose of feeding the mink was explicitly stated as the purpose?
Does Lord Lord Wilberforce think that
a buyer always has to formally to make known the purpose?

In CH against Nor: Ch alleged N breached which two sections?

Court of Appeal said both not upheld.
Yes.

No-There’s no need for a buyer to formally to make known that which is already know;




S13 and s14(1)= s18 and s19(1) [note that not s19(2)]

10

In Expo Aluminium (NSW) Pty Ltd v WR Pateman Pty Ltd (1990):

Kirby P: does Kirby P think s19(1) requires the buyer to make known the seller the particular purpose in concise words rather than using allusion such as “ South Pole” (used by Expo Aluminium)

What does Meagher JA think is the purposed having being communicated?

No, although it’s preferable to do so, it’s not required by the section.




window fit for an exposed and elevated house.

11

Golden West Refining Corporation v Daly Laboratories (1995) ATPR 41-378
Is there any problem with the “in the course of business...” requirement?
What is the issue?

Mr Spencer (GW) told Mr B (DL) that the hydrochloric acid needs to be fluoric free. Why this is not relevant?
The extract is a trial judgement; on appeal, why GW failed to recover loss for breach of s52 TPA?

No.
Whether GW has made known to DL the particular purpose for which the acid was required so as to show that GW relied on DL’s skill and judgement?


Issue of causation: Knowledge and no reliance.

12

In Slater v Finning [1996] 3 All ER 398 (House of Lords), Lord Keth of Kinkel said which of the two cases are analogous?
1propellor
2.Tweet coat
Where there’s abnormality made unknown to the seller, whether the buyer is himself aware of the abnormalility matters?

2 is the correct answer: tweet coat suits people with normal skins but not the plaintiff who has an abnormal skin condition.

It does not matter. - no breach of implied condition.

13

In Henry Kendall & Sons v William Lillico and Sons Ltd :
(1-)Why did Lord Reid find Manchester liners Ltd v Rea Ltd (1922) ALL ER Rep 605 not a good source of principles?
(2-)Does Lord Reid think the case is an authority for the proposition that if the seller knows the purpose for which the buyer wants the goods it will be presumed that the buyer relied on his skill and judgement.

(3-)Lord Reid:
Does he think “Reliance must be affirmatively shown” means that reliance must be express?

(1-)it’s a case where the purpose is expressly stated- easier to draw reliance.
(2-)not necessarily. However, Lord Wilberforce indicates so

(3-)No, Lord Reid says you can not never do that, the correct test is whether a reasonable man in the shoes of the seller would have realized that he was being relied on.

14

In AP v CH: Lord Lord dIPLOCk:
Can there be a defence for the defendant that they had never previously supplied a ship’s propeller of the particular dimensions ordered although these did form part of the description by which the goods which were the subject matter of that contrat were sold?
Does the section require the seller to supply goods of that particular description in the course of their business?
What is the element intended to distinguish?
Does whether or not the seller has previously accepted orders for goods of that description matter?

No. It was sufficient that in their business to supply ship’s propellers.

No, no need, it’s sufficient that the seller supply goods of that kind in the course of the business []

Intended to distinguish between conducting business and selling in a private capacity
No , it does not matter. There’s no need for sufficient regularity in terms of dealing.

15

In order for the term as to fitness for purpsoe to be implied, the following elements must exisit:
2.Made known (express or by implication), the particular purpose for which he or she wanted the goods
3.The particular purpose must have been disclosed in such a way that it was clear that the buyer was relying on the seller’s skill and jdugement.
4.3. the seller must have been in the business of supplying goods of that description.
The goods, if *, must not have been bought under their patent or other trade name.

Specific

16

True or false:
A Whether the goods fit for purpose (element) is a question of fact.
B In most cases, there is an issue whether or not the goods are not reasonbly fit for the purpose.
C Sale of a specified article under patent or trade name: in practice, goods are rarely sold in this way so as to exclude the implication of the term of fitness for purpose.

B in correct, in most cases it’s about the extent of the seller’s liability. At what time must the goods fit for purpose? For how long and in what circumstance does the liability of the seller persist? Is the seller liable for latent defects?
The test: whether the buyer specifies it under its trade name in such as way as to indicate that the is satisfied, rightly or wrongly, that it will answer his purpose, and that he is not relying on the skill or judgement of the seller, however, great that skill or judgment may be?

17

What does Lord Wilberforce:
Think it’s the only defence open to CH when the elements of “made kown particular purpose”; “in a way ...exercise skill and judgement”; “in the course of business ” are satisfied?
Is this defence available to CH?

The only defence open to CH: the relevant consignment was fit to be fed to all normal animals and only unfit to be fed to mink.

No, not available; when considering whether the goods are reasonably fit for the purpose (a matter of facts)- although the plaintiff did not prove that DMNA is lethal to animals other than pinks, Lord Wilberforce thinks given the nature of the unfitness being poisonous food, the burden of proof should be reserved to the defendant once the plaintiff proved some general toxic quality. Here the defendant failed to discharge its burden of proof.