Principles

·  Sale of Goods—Caveat emptor—Specific goods—Caveat emptor maxim not applicable in case of fraudulent misrepresentation—Buyer’s right to reject defective goods lost if he adopts the contract

The maxim caveat emptor is not applicable to a contract of sale induced by the seller’s fraudulent misrepresentation. However the buyer’s right to reject the goods, because of the seller’s fraud, is lost if he elects to adopt the contract by. for example, retaining the goods after discovery of the misrepresentation.

Judgment

      Abdel Mageed Imarn J. June 18, 1964 : —This is an application for revision submitted on behalf of applicant (plaintiff) against the decree of the District Judge, High Court, dated March , 5 1963, vide, in which his claim for recovery of the sum of £S.1,326.600m/ms, being balance of price of a lorry and damages for an alleged breach of a contract of sale in respect of the same, was dismissed.

      The contract in this case was in respect of the sale of a specific chattel, viz., a lorry, described as Bedford “Sifigna.” Specific goods are defined as “Goods identified and agreed upon at the time the contract of sale is made”: Sale of Goods Act, 1893, s. 62. In this case the maxim caveat emptor applies, in which case the seller would be answerable for any latent defects which an examination cannot reveal. Again, the property in the

goods passes to the buyer on delivery in the absence of any agreement to the contrary.

      In spite of applicant’s denial, it was proved that the lorry was properly examined by an engineer selected and approved by applicant’s son. The engineer carried out a thorough examination, and pointed out the defects after testing up to the Merkhiyut Hills. These defects seem to have been mended, for applicant took delivery and proceeded in his lorry to the Gezira.

      The lorry broke down the same day near Masschamia Gate and was repaired by applicant at a garage in the industrial area of Khartoum. He then went to Wad Medani and after five to eleven days brought back the lorry to respondent and asked for either the change of the Perkins engine or to give back the lorry and receive back his money paid in advance on the allegation that the lorry was not a Bedford Sifigna but a lorry of diverse assembly. The respondent accepted neither suggestion.

      The defects which put the lorry off work at Masschamia Gate and caused later repairs by applicant himself were not proved to have been latent defects. The court below was therefore right in holding applicant to the maxim.

      But I think the court below went off track when it disregarded the question of fraudulent representation alleged by applicant, for it is clear that the respondent was offering for sale a Bedford Sifigna. The learned advocate for respondent tries to urge that there was no question of misrepresentation but only non-disclosure in so far as the Perkins engine and other parts were concerned, and he also urges that the evidence shows what it does not show, that the term “Bedford Sifigna” is styled by ordinary members of the public to any lorry whatsoever that used diesel for fuel. Perhaps this may be so in so far as “Sifigna” is concerned, but not the mark of a lorry, e.g., Bedford, Fiat, etc.

      The evidence clearly shows that the respondent was offering a specific lorry for sale as Bedford, Sifigna or no Sifigna. The engine, inter alia, turned out to be Perkins. That was a false representation for which applicant was entitled to revoke the contract.

  “The representation may he false and fraudulent. In that case even if it only was to part of the consideration, the contract may be avoided according to the rule fraus omnia vitiat, and the person who makes it may be liable to exemplary damages”: see Chalmers, Sale of Goods 188.

      I hope it is clear that the maxim caveat emptor does not cover a case of false and fraudulent representations.

      But it seems it is too late now for applicant to avoid the contract, for he elected to adopt the contract and retained the lorry till January 1, 1961, as appears from his statement. In this case he will be entitled only to

damages, and though he struck high when he asked for £S.7 per day, yet in the circumstances of this case, that may be reasonable by way of exemplary damages.

      For the above reasons the application partly succeeds. The decree of the District Judge, High Court, above-mentioned is reversed. There shall be a decree of £S.371.000m/ms in favour of applicant, with costs here and in the court below. The respondent’s counterclaim is hereby dismissed.

      Editors’ Note:-

(a) The court states that in the case of a sale of specific goods the property in the goods passes to the buyer on delivery in the absence of any agreement to the contrary. This is not the case in English law where by Sale of Goods Act, 1893, s. 18, r. i, the rule is stated as follows:

“Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed.”

(b) From the facts of this case it appears that it could have been decided by the application of the English Sale of Goods Act, 1893, s. 13. There was clearly a breach of the condition implied by that section that in the case of a sale of goods by description the goods shall correspond with the description.

(c) This case illustrates the necessity for a Sudanese Sale of Goods Act. For a tentative draft of such an enactment, see P. S. Atiyah, “A New Sale of Goods Bill” (1957) S.L.J.R. 107.