Reception-Sale at goods-English and Egyptian law considered

Sale at goods-Latent defects-Sale at specific goods-Risk at loss-: Whether an
impliid . condition at merchantability

Appellants bought a certain number of bulls from' Kababish Arabs
in the sale zeriba at Omdurman. On the same afternoon the respondent
bought for export 20 of those bulls from the appellants and took them
in the next day to the quarantine station where it was discovered that
most of the, bulls were infected with cattle plague. Of this number only
6 were cured and afterwards sold. The respondent brought an action
for rescission of the contract and recovery of the purchase money. The
trial judge found that respondent was entitled to a rescission of the con-
tract and an appeal followed.

Held: (i) The Egyptian lawcovertng the question was not in acoor-
. dance with equity, justice and good conscience, and English judges- should
in any case generally follow English law.

( ii) The sale was a sale of specific goods and not a salt: by descrip-
tion. There was 'therefore no implied condition that the bulls were of mer-
chantable quality, and in. the absence of defendant's knowledge of the
defect the loss lies where it falls.

Civil Justice Ordinance 1900, s.· 4.

Egyptian Native Civil Code, ss. 313, 324 and 325.
English Sale of Goods Act 1893, s. 14(2).

2 An appeal was launched by the plaintiff against the part of the judgment
of the High Court holding the second defendants not liable under the contract,
the appeal was heard by Dun C. J. and the plaintiHs' application was dismissed
with costs. AC-APP-38-1921.

·Court: Dun C.J., Fleming \~d :Williamson JJ

April 15, 1920. Dun C. J.: This is an appeal from IJ" decision
of tile High Court of Justice in a case arising out of a sale of cattle.

The cattle, 20 in number, were bought by the defendants from
Kababish Arabs in the sale zeriba at Omdurman 'On August 19th.
They were 22 in number and were part of a larger number of 70
and the price paid by the defendants was LE. 10.500 m/ms per head
for. 20 bulls = LE. 210 and LE. 8.500 m/ms per head for 2
bulls = LE. 17.

The same afternoon the plaintiff bought 20 of these bulls for
LB. 12.500 mjms per head. Next day, August 20, he took them to
the quarantine station at Shambat. There they were inspected by the
Veterinary Officer M.A. Mahmud Eff. Mukhtar who states that in the
same day he isolated 4 of them which showed symptoms of cattle
plague, two died the same night and two were slaughtered the next
morning in the last stages of disease: altogether seven died in quarantine
and seven were slaughtered, six were cured and afterwards sold.                                                                                                                                                     ,

The learned judge has found that the cattle were not fit for
export at the time of the sale to the plaintiff because the herd was
infected with cattle plague: that the plaintiff had not proved that the
defendants knew this at the time of sale, but they knew the plaintiff
was buying for export.

The learned judge has considered the case under both Egyptian
and English law and has held that under Egyptian law there being a
latent defect in the animals at the time of sale, the purchaser is
entitled to rescission of. the contract and repayment of the price
under article 313¹ of the Egyptian Native Civil Code.

The learned judge has also considered the English law as stated
in the Sale of Goods Act 1893 and has held that this was a sale by

1 Section 313 of the Egyptian Native Civil Code. reads as follows:

"The vendor is liable for any latent-defects in the thing sold, when
such defects are of a kind to diminish the value upon which the purchaser
had to reckon, or when they render the thing in question unfit for the
use fl'r which it was intended."

description of "cattle fit for export" which under section 14(2)2 of the
Act implies a condition "that the goods shall be of merchantable
quality" : that the vendors were people who deal in cattle and that
the defect was not one which the examination by the plaintiff ought
to have revealed. He has, therefore, given judgment for the plaintiff. .

From this decision the defendants have. appealed. They argued
first that it was not proved that the animals were diseased at the time
of sale: I have considered the evidence on this point and am of opinion
that the probability is that he herd was infected at the time of sale:
it falls far short of mathematical certainty, but I think it satisfies the
burden of proof which is imposed on a plaintiff.

The appellants. then argued that Egyptian law should not be
applied in this case because it has been the practice of the courts to
apply English law in cases of sales of goods and to apply sometimes
one law and sometimes another will lead to contradictory decisions
and endless confusion.

But even on the basis of Egyptian Law the appellants' Advocate
contended that the claim could be answered .under articles 324¹ and
325 of the Egyptian Native Code. Article 324 is only a procedural
regulation requiring an action. such as this to be instituted within
eight days of the discovery of the defect: the french Code does not
specify any particular number of days, but requires the actiorl to be
brought within' a short time, and it is left to. the courts to say in such
case whether having regard to the circumstances the action has been
brought in time. This action was instituted within twelve days of the
discovery of the defect and 'I should not hold that this was an un-
reasonable period having regard to the circumstances.

2 Section 14(2) of the Sale of Goods Act 1893 reads:

"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 a merchantable quality;
provided that if the buyer has examined the goods, there shall be no
implied condition as regards defects which such examination ought to have
revealed."

1 Section 324 of the Egyptian Native Civil Code, provides:

"An action on a warranty against latent defects must be brought
within eight days of the discovery of the defect, failing which the right
of action is forfeited,"

Article 325¹ states an important principle and might be a com-

plete answer to the claim. It is taken, however, from article 344
. of the Ottoman Code and there is no corresponding article in the
French Code, and it does not seem to me to be consonant with
justice, equity and good conscience that a purchaser should be deprived
of his right of rescission (if he has one) merely because after calling
on his vendors to take back the goods and their refusal, he disposed
of them in the way best possible to mitigate the loss on whomsoever
it alternatively falls. Such a rule may be suitable for a more civilized
commercial community, but I am sure it would work injustice in the
Sudan.

I have considerable hesitation in applying the principles of
French or Egyptian law partly because it is much more difficult for
an English lawyer to discover how to apply the French law to any
particular set of facts than it is to discover how to apply the English
law and, therefore, I should not as a rule apply the principles of
French, Egyptian or any other law except English law in cases in
which I am directed by section 4 of the Civil Justice Ordinance"
"to act according to justice, equity and good conscience" unless the
result of applying English law was repugnant to my ideas of justice,
equity and good conscience. It is necessary therefore to consider
how this case would be decided by English law.

I have read the evidence as to the circumstances of the negotia-
tions for the sale and have come to the conclusion that it was a sale
'of specific articles, namely 20 bulls not by description. For one
thing a description such as bulls fit for export, is a very vague
description: whether bulls are fit for export depends on so many·
factors besides their health, weight, and condition: it depends on the
price obtainable in the market to which they are to be exported and
the cost of getting them there. An animal which could be exported

. at profit in December might not be worth exporting in January owing

1 Section 325 of the Egyptian Native Civil Code reads as follows:

"Any act of disposition with regard to the thing sold, performed
by the purchaser subsequently to the discovery of the defect, entails the
forfeiture of the right of action on the warranty."

2 Section 4, C.J.O. 1900 reads:

"In cases not provided for by section 3 or by any other law for the
time being iii. force, the Court shall act according to justice, equity and
good conscience.":

Now see Section 9, C.J.O. 1929.

to an increase in freight or a drop in the market, therefore, the
phrase does not convey to my mind any· definite standard by which
to compare the article delivered with the description. Moreover I
cannot believe that any purchaser would haggle for an hour and a:
half over the price of animals before looking at them as the plaintiff

says he did, and I prefer to accept the statement of one of the

defendants that the bulls were looked at before the price was
discussed.

For these reasons, I think there was not a sale by description
and, therefore, there was no warranty by the vendors that the animals
were of merchantable quality: consequently, by English law, in Illy
opinion, the plaintiff cannot recover.

This result is not repugnant to my ideas of justice, equity and
good conscience: the vendors are not shown to have known that
the herd was infected with disease, and it is not repugnant to my
ideas of justice that as between an innocent vendor and an innocent
purchaser the loss should lie where it falls.

My view might have been very different if it had been shown
that the vendors were aware of the. defect and had stood by and
allowed the purchaser to buy under the impression that the animals
were free from the defect, although even in that case, I do not think
the plaintiff could have recovered under English law.

The result is that in my opinion this appeal must be allowed
with costs here and in the court below.

Williamson J.: I agree that this appeal should be allowed for
the reasons stated in the judgment of the Chief Justice.

On the question of the legal principles to be . applied to cases
such as these in the Sudan, I should think that as a general rule. it
is more in accordance with justice, equity and good conscience that
the English law should be applied in preference to the Egyptian law
or ~y other law.

The law as administered by British judges is more likely to be
a Just law if it is administered in accordance. with a system with which
they are familiar rather than in accordance with a system such as
Egyptian law. The latter law with its technicalities and terminology
does not commend itself to me as a legal . systeni applicable to a
country in a backward state of civilisation where the people are in
no sense familiar with the law itself and the judges have had no
practical experience of the system .