ASSIGNMENT ON

Sales of Goods
Ans To The Q.No-3
Course Title: MERCANTILE LAW
Course Code: LAW 323
Trimester: Summer 2020

Submitted by: Submitted to:

Proshad Biswas Md. Shafiqul Islam

ID-19100060 Lecturer,
Department of Law & Human Rights,
Department of Law & Human Rights
Batch: 15th

Ranada Prasad Shaha University.

Ranada Prasad Shaha University.

Date of Submission – 22nd August 2020

 Letter of Contents
No Topic Page
1 Ans To The Q. No- 3(a) 03
Distinctions between Condition and Warranty
2 03

When breach of condition may be treated as

3 breach of warranty 03-04
4 Ans To The Q. No- 3(b) 05

2|P a g e Department of LAW, RPSU

 Ans. To The Q. No.- 3(a)

Distinctions between Condition and Warranty

condition warranty

 A condition is a stipulation essential to  A warranty is a stipulation collateral to

the main purpose of the contract, the the main purpose of the contract, the

breach of which gives rise to a right to breach of which gives rise to a claim for

treat the contract as repudiated.’ A damages but not to a right to reject the

stipulation may be a condition, though goods and treat the contract as

called a warranty in the contract. repudiated

 Breach of a condition gives the  Breach of a warranty gives the aggrieved

aggrieved party the right to repudiate party the right to claim damages only,
the contract and to claim damages. but not to reject the goods and repudiate
the contract.

When breach of condition may be treated as breach of

warranty?

 Breach of a condition may be treated as a breach of warranty, but not vice

versa.
 Breach of a condition is treated as a breach of a warranty in the following
cases:
1) Voluntary waiver of a condition

3|P a g e Department of LAW, RPSU

 Where the seller commits a breach of a condition, the buyer may
waive the condition or he may treat the breach of condition as a
breach of warranty, and sue the seller for damages for breach of
warranty, e.g. A promises to deliver the goods to B on 1st February
2000, time being the essence of contract. A delivers the goods on 4th
February 2000 and B accepts the goods. B has voluntarily waived a
breach of a condition.15

2) Compulsory waiver of a condition

Where a contract of sale is indivisible and the buyer accepts the

goods or a part thereof, and subsequently he comes to know of a
breach of condition, then he cannot repudiate the contract, but sue
the seller for breach of warranty.16 In this case, the law presumes a
waiver and creates an estopple against the buyer.

4|P a g e Department of LAW, RPSU

 Ans. To The Q. No.- 3(b)

Incident - Mr. Rupok, a milk dealer, supplied Farhan Mahmud with milk
which was consumed by Farhan Mahmud and his family. The milk contained
germs of typhoid. Farhan Mahmud’s wife was infected and died.
Issue - i) Whether Mr. Rupok liable for Farhan Mahmud’s wife died or not.
ii) Whether Mr. Rupok breached the contract of sales of goods or not.

Related Law - i) Sale of Goods Act, 1893

ii) Sale of Goods Act, 1930

Related Case - i) Frost v Aylesbury Dairy Co. Ltd. [1905] 1 KB 608

Application to the Fact of Law – In this fact Mr. Rupok, a milk dealer,
supplied Farhan Mahmud with milk which was consumed by Farhan Mahmud
and his family. The milk contained germs of typhoid. Farhan Mahmud’s wife
was infected and died. If we analyse the fact at law, A Landmark case come
first which is Frost v Aylesbury Dairy Co. Ltd 1. In this case A woman died of
typhoid contracted from infected milk supplied by the defendant(Aylesbury
Dairy Co. Ltd). The plaintiff “Her husband 'Frost'” sued for breach of contract,
relying on a term implied by Section 14(1) of the Sale of Goods Act 1893 which
is related with FITNESS FOR PURPOSE which stated that 'goods must be fit
for all the purposes for which goods of the kind in question are commonly
supplied'. The court held that defendant was liable to pay damages, since it was
implied from the nature of the product itself that he wants it for consumption,
and if later on it is found un-fit for human consumption, there is a breach of
condition as to fitness. Also in Bangladesh According to Section 16 of the Sale
of Goods Act,1930 said same as Section 14(1)2

So, from above discussion it is clearly conceivable that Mr. Rupok (milk dealer)
liable to pay damages, since it was implied from the nature of the product itself
that he wants it for consumption, and if later on it is found un-fit for human
consumption, there is a breach of condition as to fitness.

1
[1905] 1 KB 608
2
Sale of Goods Act,1893

5|P a g e Department of LAW, RPSU