The general rule of law is that the buyer must look after herself; people must make their purchases with their eyes open, and, where they can inspect and handle the articles for sale, must rely on their own judgment. It is also a time-honoured maxim that the tradesman is not obliged to "cry stinking fish"; it is his business to dispose of his wares to the best advantage, and the mere puffing of them is not a fraudulent misrepresentation if he does not overstep the bounds of legitimate advertising.
But there are certain transactions when a warranty by the seller is implied, and this arises whenever articles are sold by a tradesman for a particular purpose of which he is well aware, and under circumstances which necessitate that the buyer should trust himself to the judgment or skill of the seller. For instance, if you buy a diamond bracelet of a jeweller, and he sells it to you as such, there is an implied warranty on his part that the bracelet is what it is represented to be. And the purchaser of a sewing-machine who is supplied with a defective article is entitled to have it exchanged for one which will work properly or to the return of her money. A man bought a hot-water bottle of a chemist and inquired if it would stand boiling water, and the chemist replied that it was meant for hot water but would not stand boiling water.
A few days afterwards the bottle burst and scalded the man's wife who was using it at that time. The purchaser brought an action against the chemist on the breach of warranty that the bottle was fit for use as a hot-water bottle, and judgment was given in his favour.
In a case where two pictures representing respectively a sea-piece and a fair had been catalogued, the former as by Claude Lorraine and the other by Teniers, it was held that the seller had not warranted but merely expressed his opinion, because the artists had lived so long ago it was impossible for anyone to be sure whether the pictures were by them or not. But in a case where the seller described some pictures as "Four pictures, views in Venice, Canaletto, £160," it was held that the words implied that the pictures were painted by Canaletto.
There is generally no implied warranty of fitness for human food in the sale of meat, etc., which the buyer inspects and selects herself; but where a buyer orders articles of food to be supplied and trusts to the judgment of the seller, there is an implied condition that they shall be fit for the food of man.
In an Irish case a fishmonger was held liable in damages to a customer who became seriously ill through eating crabs which were not fit for human food. But, apart from this, the tradesman who is guilty of adulteration or of exposing food which is unfit for human consumption renders himself liable to a fine and imprisonment.
In the case of a sale by sample there is an implied condition that the bulk shall correspond with the sample in quality, that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and that the goods shall be free from any defect which would not be apparent on reasonable examination of the sample. Manufactured goods must be of merchantable quality. There is an implied contract by a manufacturer who sells goods that they are of his own make, and a warranty of genuineness is to be implied from a trade mark or description or the custom of a particular trade. Where the vendor of a tin of disinfectant powder knew that it was likely to cause danger to a person opening it unless he were warned and special care was taken, it was held that, independently of any warranty, it was the vendor's duty to warn the purchaser of the danger.
A general warranty does not extend to obvious defects, but if the defect, though obvious, is not of a permanently injurious character, it will be covered by a general warranty. A racehorse was sold with a warranty of soundness, though the horse was obviously suffering from a splint. But some splints cause lameness and others do not, and as it was uncertain what would be the result in this case, the warranty was held to extend to it. The expression "sound" in the warranty of a horse or other animal implies the absence of any disease which diminishes or will diminish its natural usefulness in the work to which it would ordinarily be applied. A temporary lameness has been held to be unsoundness, so has a cough.
A breach of warranty on the sale of a specific article does not entitle the buyer to reject and return it. His remedy is either to sue the seller for damages or to set off the breach when an action is brought against him for the price. If, however, the article is not in existence at the time of the contract, he may refuse to accept an article which is sent him and which is not in accordance with the description stipulated for. To entitle a purchaser to return the goods and rescind the contract, he must be careful not to make any further use of them than is necessary to give them a fair trial.
Previous representations cannot be relied on as a warranty. A warranty must be given, if at all, at the time of the sale; what is said before the sale or after the deal is mere puff or assertion, and does not amount to a warranty. Thus, where a man the day before the sale of his horse assured an intending purchaser that he was perfectly sound and after the sale the purchaser found that the animal was unsound, it was held that the assertion formed no part of the contract of sale, and the same principle would apply to the purchase of a pedigree dog or cat.
It is important for the buyer that in acquiring an article he should get a title with it, so as to remain in undisturbed possession of it; but the rule, which a learned judge referred to as pretty well " eaten up by the exceptions," was that on the sale of a chattel personal there is no implied warranty of title. The illustration quoted in "Shirley's Leading Cases " tells how a man hired a harp from a firm of music sellers, and then pledged it. As he failed to redeem it within the stipulated time, the pawnbroker sold it to another person. The transaction came to the knowledge of the music-sellers, who got back their harp from the second party, who, naturally enough, tried to recover his money from the pawnbroker, but without avail.
But goods purchased in a shop or a warehouse are sold with an implied warranty of title, unless the circumstances of the contract are such as to show a different intention. For example, where a forfeited pledge is bought of a pawnbroker. Persons who purchase articles from tradespeople in the ordinary way are not likely to have their bargains disturbed; but if it transpires that an article which you have bought of a stranger has been unlawfully dealt with, you may be obliged to return it to its lawful owner.
A famous case illustrating the distinction between a genuine offer and a "bluff" is the following : A company advertised that they would pay £100 to anyone who contracted influenza after using a certain patent cure three times daily for two weeks according to the printed directions, and they stated that £1,000 was deposited at a bank, "showing our sincerity in the matter." A lady on the strength of the advertisement bought the cure from a chemist, used it according to the directions, caught influenza, and claimed the reward. The company tried to get out of the contract by urging that the lady had failed to notify an acceptance of this offer to them. But the Court held that the performance of the condition was sufficient. It was then argued that the offer was merely an advertisement, or " puff "; but it was held that the statement of the deposit was evidence that the offer was sincere, and the lady won her case.