IMPLIED TERMS IN LAW (TERMS IMPLIED BY STATUTE WITH RESPECT TO TITLE, QUALITY AND FITNESS)

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When transacting, consumers are not always aware that they are entering into legally binding contracts. Hence, they do not always ensure that certain important terms are expressly agreed upon and stated in the contract. Even where they are aware, it is not, practicable to expressly agree on all the vital terms. With the aid of decided cases, discuss in details, the liability imposed on the seller with respect to title, quality and fitness. 

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INTRODUCTION

Gradually, over an extended period of time, courts accepted and enforced certain terms into contract (mainly for the sale of goods) even though such terms were not expressly included in the contract. The rationale behind this was to protect the weaker party which is usually the buyer or the consumer in contracts for the sale of goods. In 1893, the British parliament enacted the Sale of Goods Act which was in substance a codification of the existing common law of sale. Sections 12-15 enumerates a category of implied terms of which five are conditions and two are warranties and they are binding on the seller unless expressly excluded.

The Sale of Goods Act, 1893 has been repealed in Britain and replaced by the Sale of Goods Act, 1979 but the 1893 Act is still applicable in Nigeria as a Statute of General Application. However, the western region of Nigeria enacted its own Sale of Goods Law in 1958. Naturally, this means that the Sale of Goods Act of 1893 does not apply to the seven states which made up the Western region of Nigeria. Even so, the terms of their laws are identical to the terms of the English Act. Therefore, the principles of law arising from the interpretation of the provision of these laws are therefore uniformly applicable throughout Nigeria.

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IMPLIED TERMS AS TO TITLE 

According to s.12 (1)  of the Sale of Goods Act, in any contract for the sale of goods, there is an implied condition on the part of the seller, that in the case of a sale, he has the right to sell the goods and that in the case of an agreement to sale, he will have the right to sell the goods at the time when the property is to pass.  The seller is also deemed to give an implied warranty that the buyer shall enjoy quiet possession of the goods and another warranty that the goods are free from any charge or encumbrance in favour of a third party. This provision reinforces the Latin maxim, nemo dat quod non habet (which means no one gives what they do not have). In  Akoshile v Ogidan, the plaintiff bought a stolen car from the defendant and the car was removed from the plaintiff’s possession by the police. The plaintiff brought an action for recovery of the 340 pounds purchase price from the defendant. The defendant’s  reliance on caveat emptor was rejected and the plaintiff was held to be entitled to the refund sought. Roland v Dival shared similar facts and decision. Also, in Niblet v Confectioners Materials, the breach of the condition as to title was extended to cover a situation in which the purchaser of goods was restricted from re-selling them as a result of a successful action brought against the seller by a third party for the infringement of a trademark.

MERCHANTABLE QUALITY 

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Goods said to be of Merchantable quality are such goods seen as fit, for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the relevant circumstances.

Section 14(2) of the Sale of Goods Act states that goods bought by description must be of merchantable quality. However, there are exceptions to this rule. The rule will not apply if the goods were not sold by description; any defect in the goods is brought to the attention of the buyer before sale; or the buyer has examined the goods before going into contract and the defect is obvious enough to have been discovered during examination.

This was applied in John Holt Ltd. v Ezefulukwe where the respondent bought cartons of Geisha fish from the appellant and they turned out to be rotten. According to the appellants, the defendant examined and selected the goods before taking them from the warehouse. It was held, that the respondent had satisfied himself on the examination of the goods before signing the exemption clause so he could not claim that the goods were bad under the circumstances.

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