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   Chapter 54 THE WARRANTIES OF MERCHANDISE

Up To Date Business By Various Characters: 6967

Updated: 2017-12-06 00:03


The rule of law in buying is, the buyer must look out for himself; and if things are not what he supposed they were he has no rightful claim against the seller. The maxim of the law is, "Let the purchaser beware"-let him take care of himself. The rule of the Roman law was different. It was the duty of the seller to tell the buyer of all the defects known by him in the thing sold, and if he did not he was responsible for any loss caused by any defect or imperfection found after purchasing that was known by the seller before.

The modern principle may be looked at from two points of view. First, the seller need not make known any defects which the buyer can find out himself. Suppose a man is thinking of buying a horse that is (though he does not know it) blind in one eye. The law says that the buyer ought to be able to see such a defect quite as readily as the seller, and if he does not the fault is his own. Blindness in one eye is quite as easily seen as would be the lack of an ear or tail. And this principle applies very generally in all purchases. It covers all visible defects. Nor can any one find much fault with this rule, because the buyer generally has as good eyesight as the seller, and if he takes pains, as he should, he is able to discover all ordinary defects. Furthermore, the buyer doubtless often knows quite as much about the things he purchases as the seller.

But the courts also say that it applies to other defects. Suppose a horse has the heaves or the rheumatism, which is known to the seller but of which the buyer has no knowledge whatever. The seller is not obliged to make known this defect to the buyer, and if he is silly enough to purchase on his own wisdom he must abide by the consequences. If he does inquire and is deceived, that is another thing. But if he asks no questions, or the seller does not deceive him in any way, the seller is not responsible for defects known by him at the time of the sale. This also is a well-understood rule.

The seller, we repeat, must not deceive the buyer. In one of the well-known cases a man owned a ship that he was desirous of selling. She was unsound in several places and the seller put her in such a position that her defects could not be readily found out. He did this for the purpose of deceiving the buyer and succeeded. When the buyer learned how he had been tricked he began a legal proceeding to get back a part of the money that he had paid, and won his case. And rightfully, too, for the reason that the seller had deceived him, which he had no right to do.

Another case may be stated of a man who was desirous of purchasing a picture, supposing that it was once in the collection of an eminent man. The seller knew perfectly well that the picture did not come from that collection and that the buyer was acting under a delusion. He did not say that the picture had belonged to the collection or had not; he was silent, although he knew that the buyer would not purchase it if he knew the truth about its former ownership. For some reason or other the buyer did not make any inquiry of the seller, or if he did was not told. But after purchasing the picture the buyer learned that he was mistaken and that the seller knew this at the time of making the sale. He sought to recover the money he had paid and succeeded, the court saying that a fraud had been practised upon him; that it was the duty of the seller, knowing what was passing in the mind of the buyer, to have tol

d him the truth about the former ownership of the picture.

It will be seen, therefore, that the seller must not deceive the buyer in any way or practise any fraud on him; if he does he will be responsible for the loss or injury befalling the other.

What, then, ought a buyer to do in purchasing a horse, for example, in order to guard himself against the unwelcome discovery of disease or other defect? Clearly, he ought to require the seller to give him a warranty. A proper way is, if the transaction be an important one, to have the warranty in writing and signed by the seller. It need not be very long; a few words usually are enough.

There is a very important difference that every one ought to understand between words that are spoken at a sale, which are mere representations, and words that form a warranty of the thing sold. If I should go into a store to buy a piece of flannel, and ask the salesman if it was all wool, and he should assure me that it was, and I, ignorant of the quality of the material, and desirous of buying a piece of all-wool flannel, should say to him: "I know nothing about it; I rely entirely on your statement," and he should say: "It is all right; all wool, and no cotton," his words would be a warranty, and if the flannel proved to be made partly of straw or cotton, or something besides wool, I could sue the seller on his warranty, and recover for the loss I had suffered, whatever that might be. But suppose I were a flannel manufacturer myself, and knew at the time he was saying this to me that the flannel was partly cotton; in short, knew a great deal more about it than he did, and was not deceived in any way by what he said, his words would not be a warranty, because my action in buying the flannel would not be influenced by them.

What test, then, is to be applied? Evidently whether or not the buyer acts on the words spoken and is deceived by them. If, relying on them, he buys and is deceived or misled to his loss or injury, then the words will be taken as a warranty and protect the buyer. If, on the other hand, he is not deceived by what is told him, and he buys on his own knowledge and judgment, then the words are not a warranty.

One or two other points may be briefly noticed. The law says that the seller always warrants the title to the thing sold-in other words, that he is the owner. He may not say one word about the matter, but the law implies that he is the owner and would not sell a thing that did not belong to him. If he should prove not to be the owner, the buyer could recover for his loss.

Another point about adulterations. The common law does not regard an article as adulterated, giving the buyer the right to claim something back, unless it has been materially changed by the foreign substance. All, or nearly all, of the States have made statutes within recent years, or re-enacted old ones, holding sellers strictly responsible for the quality, especially of provisions, sold. These statutes generally require the seller to sell absolutely pure articles, and he cannot shield himself by saying that he was ignorant and innocent of their nature if they proved to be other than pure articles. If a grocer should sell cotton-seed oil for olive oil, even though doing so ignorantly, without any intention to deceive, he would nevertheless be held liable under the statutes that now exist in most of the States; and public opinion strongly favours the strict execution of these statutes.

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