SALE BY SAMPLE

SUBMITTED BY
SUBMITTED TO

RAM KUMAR YADAV

LAHAMA MAJUMDAR

SEMESTER: V ‘B’

ROLL NO.: 951

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI
 SALE BY SAMPLE

From a purely factual point of view, a "sample" may take any one of several different forms.
Traditionally, perhaps the most common situation has been that in which the seller abstracts
a small quantity from a large bulk; the contract is then satisfied by the abstraction of a larger
quantity from the same bulk. Less frequently, the contract may be for the sale of specific
goods, of which a small representative quantity is sent in advance. Finally although " pattern
" or 44 model " might be more appropriate than " sample," identical legal principles govern
the provision of a specimen item in accordance with which the contract goods are
subsequently to be manufactured or supplied. What these varying types have in common
(and, indeed, this is the very essence of a sample) is that each represents a statement albeit in
non-verbal form, about the subject matter of the contract. "The office of a sample is to
present to the eye the real meaning and intention of the parties with regard to the subject-
matter of the contract, which, owing to tale imperfection of language, it may be difficult or
impossible to express in words."1 Although frequently cited, however, this well-known
passage is deceptive, for it rather obscures the fact that non-verbal communication, no less
than language, may be imperfect; the first task, therefore, must always be to find out
precisely what the statement means. At its simplest this may be a contractual promise that the
bulk of the goods will correspond in every respect with the sample; even this, however,
requires some qualification. The extract from the speech of Lord McNaughton in
Drummond v. Van lngen which was quoted above continues: "The sample speaks for itself.
But it cannot be treated as saying more than such a sample would tell a merchant of the class
to which the buyer belongs, using due care and diligence, and appealing to it in the ordinary
way and with the knowledge possessed by merchants of that class at the time. No doubt the
sample might be made to say a great deal more. Pulled to pieces and examined by unusual

1
Drummond v Van Ingen (1887) 12 App.Cas. 284, 297, per Lord Macnaghten. Williston (Sales, rev. ed., s. 250)
points out that: " In truth, a sample is simply a way of describing the subject-matter of the bargain, and the principles
which are applicable to contracts to sell and sales by description are applicable here."
 tests which curiosity or suspicion might suggest, it would doubtless reveal every secret of its
construction. But that is not the way in which business is done in this country." Thus, a buyer
is not entitled to reject goods because of discrepancies between sample and bulk which can
only be detected under the microscope, if the sample is intended for examination by the
naked eye alone.2 The "statement" which is implicit in the provision of a sample may, in
appropriate circumstances, fall far short of being a contractual description of the goods in
question. As Williston points out: " Whether a seller who exhibits a sample does represent
that the bulk is like the sample, or merely that the sample was honestly and properly taken,
and that the buyer must take his own risk as to the bulk, is a question of fact in each case." 3
In Gardiner v. Gray,4 for example, 12 bags of waste silk were sold to the plaintiff after his
agent had inspected a sample. In rejecting oral evidence of this sample (with which it was
alleged the bulk did not correspond), Lord Ellen borough C.J. said: "This was not a sale by
sample. The sample was not produced as a warranty that the bulk corresponded with it, but
to enable the purchaser to form a reasonable judgment of the commodity." In the American
case of Wood v. Michaud5 the inference was clearer still. The plaintiffs, who was selling 400
cases of canned corn to be produced from a crop as yet unplanted, exhibited a can from the
previous year. This, it was held by the Supreme Court of Minnesota, could not be a
contractual sample, for: " it is a matter of common knowledge, which both parties must have
understood, that the quality of the crop for different years may vary somewhat and hence
make some difference in the appearance and quality of the canned goods." 6 Certain kinds of
goods, notably agricultural products, are capable of a substantial variation in quality, 7 even
within the quantities involved in a single contract and, where this is so, it is of particular
importance to ascertain the precise meaning to be given to any sample which is provided. In
the American case of Leonard v. Fowler,8 for example, the sale was of a large quantity of
2
F. E. Hookway & Co. Ltd. v. Alfred Isaacs & Son [1954] 1 Lloyd's Rep. 491 Steels and Busks Ltd. v. Bleecker
Bik & Co. Ltd. [1956] 1 Lloyd's Rep. 228.
3
Op. cit. s. 253..
4
(1815) 4 Camp. 144. This decision, like others discussed infra, owes much to the parole evidence rule, under
which oral evidence of a sample is not admissible to vary a written contract which makes no mention of it.
5
(1896) 63 Minn.
6
Williston (o p. cit. s. 253) suggests that the seller in that case should at least be taken to warrant that the bulk
would be similar to the sample in methods of preparation and general appearance
7
The " fair average quality " clause, which is designed to deal with such variations is, it appears, directly analogous
to a sale by sample: see Washington Piggeries Ltd. v. Christopher Hill Ltd. [1972] A.C. 441, 470, 514 (H.L.);
[1969] 3 All E.R. 1496, 1521 (C.A.).
8
(1871) 44 N.Y. 289.
 beans contained in a number of packages. The seller exhibited an "average sample" of these
beans, which he obtained by taking a small quantity from each package and mixing them
together. It was held that no single package could be rejected for failing to match the sample
in quality; the test was whether the bulk as a whole achieved that standard.

I. WHAT IS A SALE BY SAMPLE ?

The special conditions contained in section 17 (2) of the Sale of Goods Act do not apply to
every case in which a sample is exhibited, but only to " sales by sample"; as to this, section
17 (1) provides that: " A contract of sale is a contract for sale by sample where there is an
express or implied term to that effect in the contract." This provision has been criticized as
unhelpful9 but, given the nature of a sample as outlined above, it is difficult to see what other
rule could have been adopted. After all, if a verbal description of goods may in some cases
carry contractual weight while in others operating as a mere representation, it seems entirely
consistent that the same principles should apply to the non-verbal description inherent in a
sample.10 Whether or not a sale is c; by sample " in the contractual sense rests, in the final
analysis, upon the intention of the parties as found by the court and, in some cases, there is
overwhelming evidence that the seller has no intention of standing by his sample.

In Barnard v. Kellogg,11 for example, the plaintiff placed a consignment of wool in the hands of
agents for sale, insisting that any buyer should examine it for himself. The defendant, to whom a
sample had been sent, examined four bales from the bulk and then, having declined the
opportunity to examine the rest, agreed to buy the whole consignment. It was later discovered
that some of the bales had, without the knowledge of the plaintiff, been fraudulently packed so as
to conceal wool which was inferior to that contained in the sample. The United States Supreme
Court held that the plaintiffs could not be made liable for this discrepancy for, by his insistence
that the buyer examine the bulk, he had made it clear that this was not a sale by sample. At the
opposite end of the spectrum to Barnard v. Kellogg lies the comparatively rare type of case in

9
Benjamin's Sale of Goods, s. 835; Atiyah, Sale of Goods (5th ed.), p. 102. The Sale of Goods Bill in 1892 was at
least more explicit: "The exhibition of a sample during the making of the contract does not of itself make it a
contract for sale by sample."
10
The desirability of such consistency may serve as something of an answer to Greig (Sale of Goods, p. 202) who
believes that the mere exhibition of a sample should confer upon the buyer, at least if he is a consumer, the
advantages of s. 17 (2).
11
(1871) 10 Wall. 383
which a contract of sale is based on a sample to the exclusion of all other forms of description. ln
Carter v. Crick12 there was a sale by sample of something which the seller described as " seed
barley" although, as the buyer knew, the seller was not sure of its precise nature. Upon proof that
"seed barley" had no special meaning within the trade, it was held that the buyer was entitled to
no more than a bulk which corresponded with the sample shown to him. The vast majority of
cases in which samples are exhibited are sales "by sample, as well as by description" within the
meaning of the Sale of Goods Act. Where this is so: "It is not sufficient that the bulk of the goods
correspond with the sample if the goods do not also correspond with the description." 13 Thus, on
a sale of "foreign refined rape oil, warranted only equal to samples," it was held that a seller
could not deliver something which, although equal to sample, was so adulterated as not to be
"foreign refined rape oil" at all. 14 In cases of this kind, the courts tend to treat the contractual
force of a sample as limited to the quality of the goods. This, approach, however, is only possible
where the words of description used are clear and unambiguous; if they are not, the sample may
be used as a guide to their interpretation,15as occurred in the Australian case of R. W. Cameron
& Co v. L. Slutzkin Pty. Co. 16 The sale in that case was of "matchless No. 2475 39/40 white
voile," a description which had no particular recognized meaning within the trade. The written
contract did not mention that a sample had been shown, but it was held that this could be
produced in evidence to identify the goods, and to show that the bulk fell short of the required
standard.

It is clear from the cases that, where a conflict appears between the contractual words of
description and a contractual sample, the former usually prevails, and this fact alone makes
noteworthy a case in which the converse applied. In Joseph Travers & Sons Ltd. v. Longel
Ltd.17 the plaintiffs, after seeing samples, bought from the defendants 42,000 pairs of government
surplus over boots described during negotiations for the sale as “waders." The plain tiffs had
intended to resell these at a profit but this proved to be impossible once it was found that the
boots were not waterproof. It was alleged by the plaintiffs that the word "waders" implied that

12
(1859) 28 L.J.Ex.
13
Section 13 (2).
14
Nichol v. Godts (1854) 10 Exch. 191. See also losling v. Ringsford (1863) 13 C.B.(N.s.) 447; Azetmar v. Casella
(1867) L.R. 2 C.P. 677; Mody v. Gregson (1868) L.R. 4 Ex. 49.
15
See Boshali v. Allied Commercial Exporters Ltd. (1961) 105 S.J. 987.
16
(1923) 32 C.L.R. 81.
17
(1947) 64 T.L.R. lSO.
the boots would be waterproof, Sellers J. however held that this was a sale by sample only, and
that no reliance had been placed upon the vague and general description used. 18 Apart from the
matters of substance so far discussed, the scope of "sales by sample" is also affected by the
"parole evidence" rule which provides, subject to a number of exceptions, that a written contract
may not be added to, varied or contradicted by parole evidence. 19 In the context of our present
inquiry, this rule has been applied in such a way that, where a written document appears on the
face of it to be a complete memorandum of a sale, the sale will only be "by sample" if there is a
term in the document to that effect. 20 It should, however, be noted that parole evidence is
admissible to prove a trade usage that, when a sample is given, it constitutes the contractual
description of the goods.21 Although it is only on a "sale by sample" that the seller under takes as
part of the contract to provide a matching bulk, this is not to say that, in all other cases, the
sample is devoid of legal effect. If, as has been suggested, the true nature of a sample is a non-
verbal statement, there seems no reason why, in appropriate circumstances, this should not
operate in some other way to impose liability. In Meyer v. Everth,22 for example, the plaintiff
bought 50 hogsheads of Hambros sugar loaves after inspecting a sample. The written contract
made no mention of the sample and, accordingly, when the plaintiff sought to complain that the
bulk was inferior, he was non-suited. Lord Ellen borough C.J., However, was in no doubt that the
alleged facts, if proved, would have sufficed to found an action in deceit: "In truth, the present
was not a sale by sample; and the sample can only be used as evidence of a deceitful
representation." If, as is submitted, this principle is correct, there seems no reason for it to be
restricted to cases of fraud; the provisions of the Misrepresentation Act 1967 which deal with
negligent (and, indeed, wholly innocent) misrepresentation would appear to be very much in
point.23 A further possibility (again designed to circumvent the parole evidence rule) was
suggested by the Supreme Court of New South Wales in the case of L. G. Thorne & Co. Pty.
18
The Uniform Commercial Code, s. 2-317 (2), makes clear provision for such cases of conflict: "(a) Exact or
technical specifications displace an inconsistent sample or model or general language of description. (b) A sample
from an existing bulk displaces inconsistent general language of description."
19
See, e.g. Chitty on Contracts (24th ed.), ss. 735 et seq.; Treitel, Law of Contract (Sth ed.), pp. 135-143. 20 Tye v.
Fynmore (1813) 3.
20
Tye v. Fynmore (1813) 3 Camp. 462; Meyer v. Everth (1814) 4 Camp. 22; Gardiner v. Gray (1815) 4 Camp. 144.
21
Syers v. Jonas (1848) 2 Exch 111.
22
(1814) 4 CamP- 22
23
This is certainly valid in relation to a sample drawn from an existing bulk, for the implied statement (that it
accurately reflects that bulk) may be seen as one of fact. Where, however, the "sample " is in truth a " model " for
the future, it is difficult to regard the seller as making anything other than a promise; if this is to be binding without
forming part of the contract of sale, it can only be on the basis of a collateral contract.
 Ltd.v. Thomas Borthwick & Son Ltd.24 which concerned the sale of a quantity of neat foot oil.
Despite the fact that the written contract made no mention of a sample, the buyer was allowed at
first instance to complain that the bulk failed to match up to the sample which had been shown.
This decision was clearly wrong, and was set aside on appeal. The Supreme Court, however,
ordered a new trial on the basis that the plaintiff might be able to establish a collateral contract
by which the goods were warranted to be equal to the sample.

II. IMPLIED CONDITION IN SALE BY SAMPLE.

Where a sale is held to be "by sample", it is subject to three implied conditions which are
contained in section 15 (2) of the Sale of Goods Act. It now remains for us to consider whether
these are sufficiently different from the conditions applicable to other sales to justify the
retention of sales by sample as an independent category.

(a) Correspondence
It is well established that a buyer may reject goods which do not conform to a
contractual sample; as long ago as 1807, Lord Ellen borough C.J. remarked that: "If I buy
a commodity wholly discordant to that which is promised me, I am not bound to accept
of a compensation for the dissimilarity. This is not a performance of the contract." 25 The
principle is now contained in the Sale of Goods Act, s. 15 (2) (a) of which provides:
"There is an implied condition that the bulk will correspond with the sample in quality."
This requirement of correspondence with sample raises strong echoes of section 13 (1),
which calls for conformity with the contractual description of the goods and, indeed, the
approach of the courts to the two provisions is identical. Strict compliance is needed 26 So
that, in the case of E. and S. Ruben Ltd. v. Faire Bros& Co. Ltd. 27 buyers were held
entitled to reject rolls of rubber which, unlike the sample shown, were crinkly and hard.
The sellers claimed that the faults could be rectified by the simple process of warming the
rubber; their argument, however, was not to the liking of Hilbery J.: " It is, however, no
24
(1956) 56 S.R.(N.S.W.) 81.
25
Hibbert v. Shee (1807) 1 Camp. 113, where samples of sugar differed in colour from the bulk.
26
See Coote: " Correspondence with Description in the Law of Sale of Goods " (1976) 50 A.L.J. 17. Compliance,
however, need not be exact where the description is used solely to identify a specific object as the subject-matter of
the contract: see Reardon Smith Line Ltd. v. Hansen-Tangen [1976] 3 All E.R. 570.

27
[1949] 1 K.B. 254.
 compliance with a contractual obligation for an article to be delivered which is not in
accordance with the sample but which can by some simple process, no matter how
simple, be turned into an article which is in accordance with the sample on which the
contract was made."28 The only relaxation of this strict rule is, it appears, where thede
minimsprinciple applies.29 In view of the similarity between the two provisions, one is
tempted to wonder whether section 15 (2) (a) is not superfluous and whether section 13
could not safely be left to cover non-verbal as well as verbal descriptions. It is true that
section 15 (2) (a) specifically mentions correspondence in quality, whereas section 13
does not; nevertheless, statements as to quality may form part of a contractual description
where the circumstances of the case demand it 30 and, it is submitted, such circumstances
would clearly be evidenced by the use of a sample. If this is correct, it means that the first
of these "special conditions" is not really special after all.

(b) Inspection
Section 15 (2) (b) states that: "There is an implied condition that the buyer will have a
reasonable opportunity of comparing the bulk with the sample." Once again, it is
instructive to turn to a similar provision governing sales in general, which in this case is
section 34. This provides: " (1) Where goods are delivered to the buyer, and he has not
previously examined them, he is not deemed to have accepted them until he has had a
reasonable opportunity of examining them for the purpose of ascertaining whether they
are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders
delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable
opportunity of examining the goods for the purpose of ascertaining whether they are in
conformity with the contract."

At first sight, the rule which applies specifically to sales by sample seems to have most, ln
common with section 34 (2), since they are both expressed as obligations on the part of the seller
28
Ibid p. 260
29
See Joe Lowe Food Products Co. Ltd. v. J. A. and P. Holland Ltd. [ 1954l 2 Lloyd's Rep. 70.
30
Ashingron Piggeries Ltd. v. Christophet Hill Ltd. [ 1972] A.C. 44l, 470; Toepfer v. Continental Grain Co. [1973]
1 Lloyd's Rep. 289, 294.
(for whose breach, presumably, damages could be claimed if the buyer could prove any resulting
loss). It would therefore appear to be of importance that, whereas the duty under section 15 (2)
(b) arises automatically, that under section 34 (2) does so only upon a request by the buyer. In
practice, however, the buyer's right of inspection has achieved legal relevance only as a condition
precedent to his acceptance of the goods (whereby his right to reject them is lost) and to his
obligation to pay the price; this aspect of the matter falls more naturally under section 34 (1)
where, of course, a request by the buyer is not necessary. Two other points of comparison
between section 15 (2) (b) and section 34 are worthy of mention. In the first place, the buyer's
right of inspection in sales in general is tied to the delivery of the goods, whereas the provision
applicable to sales by sample is not expressly so limited. In one of the cases upon which section
15 (2) (b) was based, namely Lorymer v. Smith,31the defendant, who had agreed to buy two lots
of wheat by sample, asked to see the bulk. The seller allowed him to inspect one lot but not the
other, whereupon the buyer repudiated the contract. A few days later, the seller offered to let the
buyer inspect the whole, and to make delivery of it, but this offer was rejected. It was held that
the buyer's action was justified in the circumstances. On the face of it, Lorymer v. Smith appears
to suggest that a buyer by sample, but not any other kind of buyer, may demand to inspect the
goods before the seller tenders delivery and, if this is refused, may justifiably repudiate the
contract. It may well be, however, that this is limited to cases where, as in Lorymer v. Smith
itself, the buyer has a right to demand immediate delivery of the goods; in such circumstances it
seems reasonable that he should also have the right to examine them. The second point of
distinction between the two statutory pro visions is perhaps the more substantial. It had been
held, both before and after the passing of the Sale of Goods Act 1893, that the right of a buyer to
examine the goods might be excluded, either expressly or by implication, by the contract of
sale.32Indeed, section 34 (2), by its opening words: "Unless otherwise agreed," clearly envisaged
this as a possibility and, while section 34 (1) contained no such phrase, this was never held to
make any practical difference. In 1973, however, legislation was introduced to control the use of
exemption clauses in contracts for the sale of goods, and the 1893 Act's peculiarities of drafting,
whereby section 15 appears with " Conditions and Warranties," while section 34 forms part of "

31
(1822) 1 B. & C. 1.
32
It is restricted, for example, in c.i.f. contracts, where the buyer must pay against the documents and cannot insist
upon first examining the goods: E. Clemens Horst & Co. v. Biddell Bros. [1912] A.C. 18; Polenghi Bros. v. Dried
Milk Co. Ltd. ( 1904) 10 Com.Cas. 42. When the goods are delivered, however, they may be inspected (and
rejected): Kwei Tek Chao v. British Traders and Shippers Ltd. [1954] 2 Q.B. 459.
Performance of the Contract," quite accidentally created a new problem. Clearly, the provisions
o-f the new section 5533 applied to sales by sample under section 15, so that any contract term
which sought to prevent a buyer from comparing the bulk with the sample would be void against
a consumer and, in other cases, subject to the statutory test of fairness and reasonableness.
Whether the same could be said of a term designed to avoid the operation of section 34 was,
however, open to considerable doubt. In so far as that section could be treated as a mere adjunct
to the buyer's right to reject goods for a breach of sections 13-15, it might be argued that an
attempt to exclude it would fall, under section 55 (9), to be treated as a term restricting rights
conferred by sections 13-15. If, however, the buyer wished to inspect the goods in order to see
whether they conformed with an express term of the contract, or if he simply wished to claim
damages for breach of section 34 (2), an exclusion clause would seem to fall well outside the
ambit of section 55. The changes introduced by the 1973 Act, therefore, meant that a buyer by
sample was slightly better protected against exemption clauses than one who bought in any other
way. As a result of the more widespread controls on exemption clauses which were effected by
the Unfair Contract Terms Act 1977, this distinction, although still visible, has achieved an even
greater degree of subtlety. The position under this Act is that, once again, an attempt to exclude
or restrict the operation of section 15 (2) (b) is void against a con sumer; in other cases it must
satisfy the statutory requirement of being fair and reasonable. As for a term which seeks to
deprive a " non-sample " buyer of his right of examination under section 34, the position is now
more complicated than it was under the 1973 Act. In the first place, if section 34 is treated as
ancillary to sections 13-15, any attempt to exclude its operation is undoubtedly caught by section
6 of the Unfair Contract Terms Act, 34 so as to be void against a consumer and otherwise subject
to the "reasonableness " test. Secondly, if the buyer seeks to sue for breach of section 34 (2)
itself, or if he alleges that an express term of the contract has been broken (and complains that he
has not been allowed to inspect the goods to check their conformity) any clause on which the
seller wishes to rely must be justified under section 335; as a result, it will be subject to the
statutory test of reasonableness if either the buyer is a consumer or the contract of sale is made
on the seller's written standard terms.

33
As amended by the Supply of C Toods (Implied Terms) Act 1973.
34
This is because the exclusion or restriction of any right or remedy in respect of a liability falls, under s. 13 (1) (b)
of the Unfair Contract Terms Act, to be treated as an exclusion or restriction of the liability itself.
35
In the latter case, this would again be by virtue of s. 13 (1) (b).
 (c) Quality
Under the doctrine of caveat emperor, the common law was for a long time reluctant to
imply into contracts of sale any requirement that the goods be of merchantable quality
and, even when such implications began to be made, they would still be defeated by
proof that the buyer had been given an opportunity to inspect the goods. 36 In the case of a
sale by sample it could, of course, be assumed that the buyer would inspect the sample
that, after all, was its purpose and he could not therefore complain of any defect in the
bulk which a reasonable examination of the sample ought to reveal. As Willes J. put it in
Mody v. Gregson37 " A purchaser who buys by sample will still have to use due dili gence
to avail himself of all ordinary and usual means to ascertain the properties of that sample,
and he will be equally bound by what he aotually recognises in the sample, and by what
he might by due diligence in the use of all ordinary and usual means have ascertained."

Section 15 (2) (c) of the Sale of Goods Act now provides: "There is an implied condition that
the goods will be free from any defect, rendering them unmerchantable, which would not be
apparent on reasonable examination of the sample.” 38 That this was regarded in its inception as
merely part of a wider principle applicable to sales in general, is clear from the wording of the
Sale of Goods Bill, which in 1892 sought to restrict the general condition of merchantable
quality (contained in s. 14 (2)) to cases where: " the buyer has no opportunity of examining the
goods." As a result of an amendment introduced in the House of Commons, however, this
limitation on the operation of section 14 (2) emerged in a narrower form: "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." Thus, whereas a buyer by sample could complain only of
latent defects,39 whether or not he inspected the sample, a buyer "by description" could complain
of any defects except those which his actual examination (if any) ought to have brought to light. 40
The less generous treatment which the Sale of Goods Act affords to a buyer by sample does not,
36
See Jones v. Just (1868) L.R. 3 Q.B. 197.
37
(1868) L.R. 4 Ex. 49, 57.
38
As to what constitutes a " reasonable examination," see Heilbutt v. Hickson (1872) L.R. 7 C.P. 438; Drummond
v. Van Ingen (1887) 12 App.Cas. 284; Godley v. Perry [1960] 1 W.L.R. 9.
39
Including those which the sample is too small to reveal: Jurgensen v. F. E. Hookway & Co. Ltd. [1951] 2
Lloyd's Rep. 129.
40
In Thornett & Fehr v. Beers & Son [ 1919] 1 K.B. 486 it was held that, if the buyer inspected the goods at all, he
was fixed with notice of all defects which a reasonable examination would reveal. Whether or not this was correct,
the change of wording (" that examination " for " such examination ") which was introduced in 1973 means that the
buyer is today judged on what he actually does.
in this respect, seem unreasonable, for it can surely be expected that such a person will examine
the sample; if he chooses not to do so, or does so carelessly, he takes upon himself the risk that
defects will be overlooked. Perhaps because this principle is generally regarded as fair, or
perhaps because section 14 (2) in its original form applied only to sales " by description" (a
category which has always been sharply contrasted with sales by sample in the judicial mind)41
there appears to have been no case in which a disgruntled buyer by sample has attempted to
claim under the wider provisions of section 14 (2). Were such an attempt to be made today,
however, it might well prove successful, for section 14 (2) has been amended 42 and now reads as
follows: " Where the seller sells goods in the course of a business, there is an implied condition
that the goods supplied under the contract are of merchantable quality, except that there is no
such condition (a) as regards defects specifically drawn to the buyer's attention before the
contract is made; or (b) if the buyer examines the goods before the contract is made, as regards
defects which that examination ought to reveal."

Whatever may have been the intention of Parliament in 1893, the new wording of section 14 (2)
does not in itself seem apt to exclude sales by sample from its sphere of operation. If they are
included, the result is indeed an odd one, since it means that a buyer who does not inspect a
sample, having deservedly lost his right to claim under section 15 (2) (c), may sue instead under
the wider provisions of section 14 (2). Of the possible arguments which might be put forward in
an effort to avoid this conclusion,43 the most convincing is perhaps that the Act, notwithstanding
its piece meal amendment, should still be read so far as possible as a consistent whole. 44 It cannot
be denied, however, that an interpretation of section 14 (2) which excludes sales by sample
would be based upon the spirit of the Iaw rather than its letter; it is by no means certain,
therefore, that it would find favor in court. There seems, then, to be a distinct possibility that an
action under section 14 (2) will lie as an alternative to one under section 15 (2) (c). If this is in
fact so, then the only remaining sphere of operation which is unique to the latter provision is the

41
See, for example, Joseph Travers & Sons Ltd. v. Longel Ltd. (1947) 64 T.L.R. 150, 153, per Sellers J.; Boshali v.
Allied Commercial Exporters Ltd. (1961) 105 S.J. 987, per Lord Guest.
42
By the Supply of Goods (Implied Terms) 1973.
43
e.g. that the specific mention of sales by sample in s. 13 means that they are excluded by silence from s. 14; that a
buyer is estopped under s. 14 from denying that he has inspected a sample; (even) that no conflict arises since, in the
absence of inspection, the sale is not " by sample " at all.
44
See Canada Sugar Refining Co. v. R. [1898] A.C. 735, 741, per Lord Davey.
 case where the seller is not selling goods "in the course of a business." 45 This would indeed be
ironic, since the most likely reason for the absence of any restriction of section 15 (2) (c) to
business sales is that, in practice, private persons do not sell by sample.

III. CONCLUSION
The burden of this article rests mainly upon two submissions, namely, that a " description "
for the purposes of the sale of goods is apt to include the non-verbal kind which is inherent
in the exhibition of a sample, and that section 14 (2) may well now apply to a sale by sample
just as to any other kind of sale. If these are accepted, it appears that the "special " rules laid
down by section 15 (2), which are what identify sales by sample as a particular class, are
reduced to the following two points. In the first place, while the right of a buyer to compare
the bulk with a sample is closely analogous to his right to inspect the goods in general, the
extent to which each of these rights may be excluded by the contract of sale is governed by
slightly different rules. Second, it is only in the case of a sale by sample that a private seller
may be held liable for supplying unmerchantable goods. 46 It cannot seriously be suggested
that these two principles are related to any underlying theory as to the nature of a sale by
sample. They are, in truth, simply anomalies brought about by the erosive effects of
fragmented law reform, and their continued existence serves only to give this area of law an
arbitrary, even whimsical, appearance. It is submitted that, unless the traditional (and useful)
distinction between sample and description is to be revived, by the express removal of sales
by sample from the ambit of section 14 (2), a rational code of law for the sale of goods
would be better served by their abolition as a separate category.

45
There is one other theoretical possibility, although it is unlikely to arise in practice. A buyer who subjects a
sample to a scrutiny closer than is reasonable (for example by putting it under a microscope), but who does not
thereby discover defects which he ought to, might, it could be argued, lose his rights under s. 14 (2) but not under s.
15 (2) (c).

46
Except in the special circumstances envisaged by s. 14 (5) (private seller who sells by means of a business agent).