1. The Disunity of the English Law of Sale

French law inherited from Roman law a unified approach to its law of sale, including movable property (whether tangible or intangible) and immovable property within one legal framework both as to the creation and the effects of the contract.⁷ But when (p.228) English courts started considering whether and how to use the technique of the implication of terms to regulate the consequences of contracts of sale, they took very different approaches to contracts for the sale of land and of goods. For, while at the beginning of the nineteenth century, implied terms as to the quality or fitness for purpose of goods and land were both denied,⁸ by the mid-century this was changing for goods but not for land.⁹ The enactment of the Sale of Goods Act 1893 set the seal on this distinctiveness of the law of sale of goods as opposed to sale of interests in land.

In the English law, ‘goods’ are defined as including ‘all personal chattels other than things in action and money’.¹⁰ This includes ‘all things which are at once tangible, movable and visible, and of which possession can be taken’, but excludes choses in action such as shares, negotiable instruments and all forms of intellectual property, such as copyrights or trade marks,¹¹ which are transferred by assignment, rather than sale. On the other hand, electricity and other forms of energy are thought capable of being bought and sold,¹² as are water, oil and gases.¹³ Moreover, in contrast to the French position which holds that body parts are not capable of being the object of a contract,¹⁴ English law appears to accept that they may be the subject of ownership once worked on so as to be distinguished from a mere corpse awaiting burial.¹⁵ And while it has been said that a disk containing software does constitute ‘goods’ for the purposes of the Sale of Goods Act 1979, though the program itself does not,¹⁶ this has been criticised on the basis that the medium of supply of the programme (by disk or by electronic transfer) should make no difference in its regulation.¹⁷ As will be seen, however, the courts often imply terms at common law as to quality and fitness for purpose in contracts which do not count as ‘sale of goods’ but which involve the transfer of property.¹⁸

2. The Legal Bases of a Seller’s Liability

English law shares with French law a complexity in its regulation of liability in sellers to their buyers in respect of failures of quality or safety of the property sold, whether this liability gives rise to a right to terminate the contract, damages or both. In French law, the complexity may be seen both at the pre-contractual stage and the stage of (p.229) non-performance of the contract. At the pre-contractual stage, the Code’s unpromising provisions on dol and erreur applicable to all types of contracts were developed very considerably and supplemented by obligations d’information which are typically imposed on business sellers to their non-business buyers.¹⁹ While erreur gives rise only to a right to rescind the contract,²⁰ and the failure to perform a pre-contractual obligation to inform gives rise only to a claim for damages,²¹ dol may give rise to either or both, but is restricted to dishonest conduct by the other party.²² These liabilities all have in common, though, that their foundation is the existence of some inbalance of information between the parties to the contract, whether or not this is caused by one party’s conduct, as in the case of dol. This being so, cases of failures in quality, safety or fitness for purpose of property are not at the forefront of the grounds of liability, but are sometimes covered by them.

While English law also uses its general contract law to deal with informational imbalances in the context of the law of sale, its scope is rather different.²³ So, while English law has a wide law of misrepresentation inducing contract which can include both fraudulent and innocent false statements of fact and which can lead to rescission and/or damages, in general (and in the specific context of sale) it does not impose pre-contractual duties of disclosure or information, nor does it allow the contract to be set aside on the ground of mistake save in the most extreme cases (and not ones which arise in respect of the failure of property to conform to standards of quality, fitness for purpose or safety).

It is rather at the level of the performance of the contract where the English law of sale of goods has chosen to deal with failures of quality, safety and fitness for purpose. Here, the courts carved out exceptions to caveat emptor by implying terms which were in 1893 crystallised by Parliament in the provisions of sections 13 and 14 of the Sale of Goods Act. While the wording of these provisions was considerably altered in the last quarter of the twentieth century, their division into three terms has remained constant: terms as to conformity with the goods’ description, their ‘merchantable’ or, later, ‘satisfactory’ quality and their reasonable fitness for their purpose.²⁴ Moreover, while the conditions for the implication of these terms or their breach may differ, the consequences of their breach do not.²⁵ So, breach of any of these terms gives rise to a right in the buyer to reject the goods and rescind the contract, a right which may be lost by ‘acceptance’ of the goods in the same ways; and any claim for damages by a buyer for breach of these terms is subject to the same regime of liability, notably, as regards their measure and limitation of actions.²⁶ This means that the differences between the statutory implied terms have not mattered in the way in which in French law the differences between liability under the garantie légale (which has its distinct system of remedies and (until 2005) its notorious bref délai) and under the general law for non-performance of a contractual obligation attached to sale, whether an obligation de conformité, obligation d’information or obligation de sécurité.²⁷ As a result, the English courts have not been tempted to manipulate the basis of contractual liability (p.230) in sale to gain or to avoid a particular incidental rule of the sort which has plagued the French law due to the bref délai of the garantie légale. There are, however, differences in English law between liability for breach of the statutory implied terms and for breach of any express terms as to the quality or fitness for purpose of goods sold, notably as to the circumstances in which the right to rescind the contract will arise and be lost.²⁸

(a) Misrepresentation, non-disclosure and mistake

The English law governing liability for informational imbalance arising in the context of sale of goods for which the seller may be liable is strikingly different from the French from a number of points of view.²⁹ These differences are not particular to the context of sale, but in both systems this type of contract has been at the forefront of lawyers’ minds in determining the limits of the law.

Setting out the bare legal position in English law governing pre-contractual informational imbalance is now relatively straightforward.³⁰ Where a seller makes a positive misrepresentation of fact which induces the buyer to enter the contract, in principle the buyer may rescind the contract (with consequential restitution of the price if paid) whatever the nature of the misrepresentation (whether fraudulent, negligent or purely innocent),³¹ and/or he may claim damages unless the seller establishes that he honestly believed and had reasonable grounds for believing the truth of his own statements.³² However, where the seller makes no representation of fact, in general the buyer will have no remedy either on the ground that he was seriously mistaken as to the nature or condition of the goods nor on the ground that the seller knew of their defect or inappropriateness for the use to which he intended to put them and failed to inform him: the law of mistake as to the substance is extremely narrow in English law and a duty of disclosure is imposed only in exceptional situations which have little impact on sellers’ liability.³³

A first difference between this English position and the French law relates to the historical roots of the law. For French law inherited from the Roman tradition not merely vitiation of contracts on the ground of dol, but also an explicit doctrine of error in substantia, taken from the law of sale but generalised to all contracts;³⁴ it also included a tradition that contracts must be made as well as performed in good faith, even if the draftsmen of the Civil Code felt it necessary to include only the latter explicitly within its terms,³⁵ and good faith has been seen as the foundation of (p.231) obligations d’information.³⁶ While the law of fraud has deep roots in the common law, the idea that a contract is vitiated on the ground of mistake can be seen clearly only in the nineteenth century as the result of a late wave of continental influence on the development of the English law of contract.³⁷ But while English judges might have been willing to quote passages on mistake in contracts from Pothier’s Traité des obligations or from Justinian’s Digest,³⁸ in the context of mistake as to the subject matter of the contract they gave a distinctly narrow (and classical) interpretation to them in the interest of the need for certainty in commercial transactions.³⁹ Moreover, Lord Mansfield’s declaration that ‘good faith forbids either party by concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing the contrary’ which he said was ‘applicable to all contracts’⁴⁰ was restricted to its context of contracts of insurance.⁴¹ So, while distinctly civilian elements were available to nineteenth-century English writers and courts, they were not developed in the directions in which they were taken by French lawyers.

A further contrast between the general approaches of English and French law is found in their different conceptions of contract and different priorities of policy. So, French law has developed a greater concern with the protection of the quality of consent of the parties to a contract, on occasion despite the terms of the Civil Code and the tradition of Roman law, reflecting the long domination of a ‘subjective’ theory of contract; whereas English law has taken an ‘objective’ view of agreement and has been concerned more with preserving the reasonable reliance of a party on the continuation of a contract and with the need to promote certainty of transactions rather than with the protection of the quality of an individual’s consent.⁴² Perhaps the most striking manifestation of the modern French approach is in obligations d’information, a doctrine with no explicit basis in the Civil Code but which has been used to explain in what circumstances a failure to speak will attract vitiation for dol and to help impose liability in damages for delictual faute.⁴³

However, in the specific context of seller’s liability to a buyer for failures in quality, safety or fitness for purpose the main difference between the English and the French law is one of technique. In English law, where a seller has made a statement as to one of these aspects of the goods, it will readily impose liability on the ground of misrepresentation; but where he has said nothing, neither the law of mistake nor the law of non-disclosure applies. By contrast, in French law, a buyer may well be able to seek rescission of the contract on the ground of the seller’s knowing failure to speak and possibly on the basis of his own mistake as to the goods’ essential quality.⁴⁴ And in (p.232) these circumstances French courts have imposed liability in damages for loss caused by inadequate warnings, instructions or even advice as to a suitable alternative for non-performance of a seller’s obligation d’information, where this non-performance consists of saying nothing at all or saying something but getting it wrong.⁴⁵ Under the law of obligations d’information, French law deals with a number of cases which are governed in English law by misrepresentation as well as those left without remedy by its general refusal to impose duties of disclosure.

However, even more important a contrast of technique between the English and the French laws is to be found in the former’s reliance on its law of implied term rather than on pre-contractual liability. For if caveat emptor is a false maxim for modern English law, its falseness stems from the breadth of the statutory implied terms as to quality and fitness for purpose, rather than from its law of misrepresentation, nondisclosure or mistake. Indeed, while an English claimant may choose to rely alternatively on the law of misrepresentation and on breach of one or more of these implied terms where quality or fitness for purpose are in issue, the former is usually of significance only where one of its incidents differs from the law of implied term.

(b) Contract terms as to the quality of goods

Two years before the promulgation of the French Civil Code, the Court of King’s Bench in Parkinson v Lee held that in the absence of fraud or an express warranty, there is no liability in a seller of goods for their defects, refusing to imply a warranty that the goods would be ‘merchantable’ merely on the ground that their price was one for merchantable goods.⁴⁶ Nevertheless, the courts later distinguished from this position cases where the buyer could not exercise his own judgment and so relied on his seller’s judgment as to the quality or fitness for purpose of the goods, and implied terms to this effect.⁴⁷

On the ‘codification’ of the law of sale of goods in 1893, the position taken by the common law on the definition and consequences of contracts of sale of goods was reduced to a series of fairly simple and formally coherent statutory propositions.⁴⁸ While it involved some substantive changes, the 1893 Act was not intended to introduce radical innovation and did not prevent the application of rules of the common law, as long as they were not inconsistent with the Act’s provisions.⁴⁹ These general features were reflected in the terms implied as to the quality or fitness for purpose of the goods, where the Act confirmed earlier common law developments and introduced the threefold structure of implied terms which remains to this day: in section 13 that goods sold by their description should correspond to their description and in section 14 that, while generally there is no implied term as to the fitness or quality of the goods,⁵⁰ in certain circumstances terms are to be implied that the goods were of merchantable quality⁵¹ and reasonably fit for their purpose.⁵² This has had considerable advantages (p.233) in terms of clarity and simplicity, but the wording has had to be revised on several occasions, not counting implementation of the Consumer Guarantees Directive.⁵³ While the substantive elements used by Parliament in setting these texts and by the courts in their interpretation have remained remarkably constant, the balance between them has shifted significantly.

Before looking, though, at the statutory implied terms, I shall look briefly at English law’s approach to express terms relating to the quality of the goods.

(i) Express warranties

An express term of a contract of sale concerning the description, quality or fitness for purpose of the goods takes effect according to its terms.⁵⁴ So, if the term is broken, liability in damages will arise, but the question whether breach gives rise to a right to reject the goods and rescind the contract depends first on the interpretation of the parties’ intention on the issue (for example, they may have used technically the language of ‘condition’⁵⁵), but if no clear intention is discernible the courts instead ask whether breach substantially deprives the buyer of the benefit of the contract.⁵⁶ Where such a statement concerning the goods is made by a seller but does not clearly form part of the contract (for example, by forming part of a signed written document), the courts decide whether the parties intended it to have contractual effect under the general law of warranty⁵⁷ though as ever an objective view is taken of their intention for this purpose.⁵⁸ While the ambit of liability in damages for misrepresentation was narrow, the courts were ready to find such an intention so as to incorporate a pre-contractual statement into the contract or to find a ‘collateral warranty’, especially where the seller is in business and the buyer has no special skill,⁵⁹ but since the creation of a statutory right to damages for misrepresentation in 1967 there has been far less need to do so.⁶⁰

Express stipulations as to the quality or fitness for purpose of goods may be useful in some commercial contexts despite the underlying standards of the statutory implied terms⁶¹ and are common in some consumer contexts, for example, as regards electrical goods, where retailers offer ‘extended warranties’ which are sometimes free and sometimes require an extra charge.⁶² Extended warranties may take the form of an undertaking by the retailer itself of some liability beyond that imposed by the statutory implied terms (p.234) (often under a ‘service agreement’) or an undertaking by a third party, typically an insurer, to the same or similar effect. Typically, extended warranties provide consumers with protection by way of replacement or repair of goods within a specified period, usually after any manufacturer’s guarantee has expired.⁶³ In law, these warranties take effect on their terms, except that they may not restrict a seller’s liability under the statutory implied terms.⁶⁴ The practice of extended warranties in the context of electrical goods has been the subject of investigation both from the point of view of competition and the fairness of retailer practices towards consumers, not least because their cost to the consumer appears to bear little relationship to the risks encountered.⁶⁵

(ii) ‘Sale by description’

Section 13(1) of the 1979 Act provides that ‘where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description’, this term being classed as a ‘condition’. This provision is the least altered since 1893 and appears to be the most straightforward of the three implied terms. It could be thought to give a contractual basis for liability for statements describing goods sold, unrestricted to sales in the course of a business,⁶⁶ but it has been given a narrow interpretation by the courts, so that it does not give contractual force to any description emanating from a seller concerning the goods.⁶⁷

In practice, the most usual and straightforward cases of the application of this implied term are where unascertained goods are described before sale, such as a certain quantity of iron or corn of a particular grade and type, where the seller will be held to have sold the goods by this description;⁶⁸ it will also apply to ascertained goods bought unseen, as here the buyer can be said to be relying on the goods’ description alone.⁶⁹ However, a sale of ascertained goods which have been seen by the buyer may or may not be held to be by description: ‘the description must have a sufficient influence in the sale to become an essential term of the contract and the correlative of influence is reliance’.⁷⁰ The buyer’s reliance must have been ‘within the reasonable contemplation of the parties’,⁷¹ which is not the case where a seller makes clear that he has no expertise in the matter of the statement, whereas the buyer does.⁷²

As I shall explain, this restrictive interpretation of section 13 is balanced by the significance of the ‘description’ of the goods (here in a wide sense) to their ‘satisfactory quality’ or their reasonable fitness for their purpose within the meaning of section 14.⁷³ This means that a court has sometimes held the goods’ description to have been satisfied for the purposes of section 13, leaving ‘more delicate questions’ of the satisfactory nature of the goods as so described to the more sophisticated evaluations put in (p.235) place by section 14.⁷⁴ For example, in one case in 1936,⁷⁵ the plaintiff was an aviator who had bought some goggles fitted with ‘safety-glass’, but whose lens broke in a crash and injured his eye. The Court of Appeal rejected his claim for damages under section 13, holding that use of the expression ‘safety-glass’ could not amount to an absolute guarantee that the glass would not splinter,⁷⁶ a decision clearly influenced by its view that the goggles were of ‘merchantable quality’ given that a buyer has a ‘right to expect, not a perfect article, but an article which would be saleable in the market’.⁷⁷

(iii) From ‘merchantable quality’ to ‘satisfactory quality’

The evolution of the implied term as to the quality of the goods marks the shift in orientation of the law towards a model of consumer rather than commercial sales of goods and also illustrates nicely the modern tendency of English law to structure the discretion given to judges in the application of broad evaluative concepts by setting out factors for them to take into account and the ‘aspects’ of the facts for which they should look.

From 1893 to 1994, the statutory standard required of some sellers was one of ‘merchantable quality’, this notion having been used previously by the common law. Section 14(2) as originally enacted provided that:

Where goods are bought by description from a seller of goods who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; 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.

As enacted, therefore, the ambit of the term was restricted as to goods (‘bought by description’) and as to the sellers (‘who deals in goods of that description’) and its standard of merchantable quality focused firmly on the commercial utility of the goods, especially in terms of their potential for resale.⁷⁸ At the time, the decision as to merchantable quality lay in principle within the province of the jury, which could sometimes be a ‘special jury’ of merchants,⁷⁹ and where it was they would be in a good position to assess the ‘merchantable quality’ of the goods without need for any judicial explanation.⁸⁰ Even after the disappearance of juries from the civil process by the 1960s,⁸¹ some judges continued to think it impossible to frame a definition of ‘merchantable quality’ ‘except in the vaguest terms’,⁸² though others had a go, it becoming accepted that account should be taken of the goods’ description⁸³ and (where appropriate) their price.⁸⁴

(p.236) Despite its terminology, the courts felt able to use the implied term of ‘merchantable quality’ outside the commercial context, so as, for example, to impose liability on a seller to a consumer in respect of a second-hand car described as in good condition but having been written-off by its insurer.⁸⁵ However, the focus of this term on the goods’ utility could require a buyer to tolerate considerable defectiveness. For example, in Townsley v Langton a horse bought for showjumping and represented as ‘sound’ but which suffered from a lung infestation (which was not reasonably discoverable by a buyer on examination) was held to have been of ‘merchantable quality’ as it could still be ridden in competitions, even though it was resold ‘without warranty’ at less than half its cost.⁸⁶

Although subject to some earlier amendment, section 14(2) was completely recast in 1994 as a result of the recommendations of the Law Commission.⁸⁷ On the eve of implementation of the Consumer Guarantees Directive in 2002, section 14(2) read:

1. (2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.

2. (2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.

3. (2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods—

   1. (a) fitness for all the purposes for which goods of the kind in question are commonly supplied,

   2. (b) appearance and finish,

   3. (c) freedom from minor defects,

   4. (d) safety, and

   5. (e) durability.

4. (2C) The term implied by subsection (2) above does not extend to any matter making the quality of goods unsatisfactory—

   1. (a) which is specifically drawn to the buyer’s attention before the contract is made,

   2. (b) where the buyer examines the goods before the contract is made, which that examination ought to reveal, or

   3. (c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.

What changes were thereby introduced?

First, the category of seller was extended to all those selling goods ‘in the course of a business’, which has been interpreted ‘at their wide face value’ so as to include all sales by a business as part of its business without any restriction to sales which form any regular part of the business: only ‘purely private sales of goods’ were intended to be (p.237) excluded.⁸⁸ The Act provides that ‘business’ includes ‘a profession and the activities of any government department or local or public authority’ and this suggests that the activity need not be with the view to profit.⁸⁹

Secondly, a standard of ‘satisfactory quality’ was substituted for ‘merchantable quality’, principally to avoid a test appropriate only for some types of commercial transaction.⁹⁰ While it retains a unique standard for all types of contracts of sale of goods, in particular whether commercial or consumer,⁹¹ ‘satisfactory quality’ is not a simple broad test but possesses three levels of elaboration. At a first level, it states that ‘goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory’. While this formulation seems circular,⁹² its reference to the ‘reasonable person’ makes clear that it is in principle an objective test though qualified as regards the position in which the buyer finds himself⁹³ an objectivity which is carried through to the test’s treatment of the goods’ fitness for their purpose:⁹⁴ the courts should not inquire whether or not the goods were seen as satisfactory by or for the particular buyer. ‘Satisfactory’ suggests that the goods have to be ‘good enough’, being preferred to a test of ‘acceptable quality’ to avoid the argument that goods were ‘acceptable’ even though they were objectively unsatisfactory⁹⁵ and to a test referring to the ‘reasonable expectations of the buyer’ for fear of encouraging a decline in standards of quality, consumer expectations being quite low in particular contexts.⁹⁶

At a second level, in assessing the satisfactory quality of the goods a court is required to take into account ‘any description of the goods, the price (if relevant) and all the other relevant circumstances’. These factors had been used by the courts in assessing the ‘merchantable quality’ of goods and were introduced into section 14 in 1973,⁹⁷ being ‘essential in setting the required standard of quality’.⁹⁸ Here, the better view is that the ‘description’ of the goods should be interpreted to refer to any descriptive statements and not merely to those recognised under the law of sale by description.⁹⁹ As to their price, Lord Reid earlier explained (in relation to the same wording under the former test of ‘merchantable quality’) that where ‘the market price for the better quality is substantially higher than that for the lower quality…[t]hen it could not be right that, if the contract price is appropriate for the better quality, the seller should be entitled to tender the lower quality and say that, because the lower quality is commercially saleable under the contract description, he has fulfilled his contract’.¹⁰⁰ More simply, what is ‘satisfactory quality’ must depend on the place in the market at which the goods are aimed as reflected in their price: ‘the buyer [is] entitled to value for money’.¹⁰¹ On the other hand, a lower price for a second-hand vehicle may not necessarily justify a lowering of the standard as it may simply reflect the buyer’s good bargain.¹⁰² As to (p.238) relevant ‘other circumstances’, while these will depend on the particular case, they have been held not to include the ‘buyer’s personal agenda’, which is relevant instead to liability under section 14(3).¹⁰³ On the other hand, it has been held that the relative ease of repair of any defect in the goods should not prevent their quality being held inadequate if the defect is sufficiently serious.¹⁰⁴ And the existence of an additional manufacturer’s warranty is not a reason to require a buyer to put up with defects which would otherwise render the goods unsatisfactory: in taking out such a warranty, a buyer is adding to rather than subtracting from his existing rights.¹⁰⁵ It has also been said that compliance with a relevant public standard is an important but not a conclusive factor in determining the standard of quality.¹⁰⁶

At a third level of elaboration, the Act also notes that the quality of the goods includes their ‘state and condition’,¹⁰⁷ and then sets out five ‘aspects’ of their quality to which the courts should have regard in appropriate cases: the fitness of the goods for all the purposes for which goods of the kind in question are commonly supplied; their appearance and finish; their freedom from minor defects; their safety and their durability.¹⁰⁸ This further elaboration addressed difficulties experienced by the courts under the earlier law by clarifying that these features of goods can contribute to a judgment of their ‘unsatisfactory qualityc, depending on the circumstances. So, for example, while ‘minor defects’ (which may or may not affect the goods’ appearance) may well render unsatisfactory a new car sold to a consumer, they are not likely to do so where the car is second-hand and are less likely to do so where the buyer is not a consumer.¹⁰⁹ This also marks the first occasion when the notion of ‘defect’ is used by the statute as an element in imposing liability on a seller.¹¹⁰

Changes were also made to the significance of the goods’ fitness for purpose, the new formulation addressing the problem of goods reasonably fit for one or more purposes for which the goods were commonly supplied, even though this did not happen to be the buyer’s actual (and private) purpose.¹¹¹ But more importantly the goods’ fitness for common purposes is expressed to be merely one aspect among many of the goods’ quality, rather than (as under the 1979 enactment) a necessary feature.¹¹² While the inclusion of the goods’ fitness for purpose as relevant to their satisfactory quality makes clear the continuing potential for overlap between this implied term and the term implied in section 14(3), it has been held that it is the function of section 14(2) to provide a ‘general standard of quality’ not ‘to ensure that goods are fit for a particular purpose made known to the seller which is the function of section 14(3)’.¹¹³

(p.239) While there were cases under the old law holding that goods were ‘unmerchantable’ owing to their lack of safety,¹¹⁴ the new formulation in section 14(2B) made the ‘safety’ of the goods explicitly relevant to the issue of their ‘satisfactory quality’.¹¹⁵ According to the Law Commission, ‘it [is] clearly an important element in the implied [term of quality] that goods should be reasonably safe when used for any of their normal purposes’,¹¹⁶ especially as regards consumer goods.¹¹⁷ And the new provision makes

clear that hazardous things or substances, which can be safely used only when unusual precautions are taken, will not be of the required standard of quality if appropriate warning is not given or if they are more hazardous than they should be.¹¹⁸

This raises the question more generally of the significance of failures in information or warnings accompanying the goods, which has been such an important and prominent feature of the French law.¹¹⁹ Apart from the description of the goods,¹²⁰ are instructions or warnings accompanying goods and directed to their use relevant to their ‘satisfactory quality’? While there is no reason in principle why they should not be, most cases of this sort would involve consideration of the adequacy of the information in relation to the reasonable fitness of the goods to achieve their purpose and for this reason there is a tendency to treat them under the implied term of fitness for purpose found in section 14(3).¹²¹

A final possible ‘aspect’ of the goods’ ‘satisfactory quality’ which is omitted from the statutory test is their design, whether a failure in design affects their safety or their more general utility.¹²² However, even more than in the case of warnings or instructions, any failure in a product’s design is likely to be seen as going to their fitness for purpose and therefore mentioned in this way as an aspect of their ‘satisfactory nature’ or being dealt with under the distinct implied term of reasonable fitness for purpose.

(iv) The reasonable fitness of the goods for their purpose

According to section 14 (3) of the 1979 Act:

where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known…to the seller…any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller.¹²³

This provision, which has changed relatively little since 1893, has formed a very important basis of the seller’s liability to his buyer, long being seen as broader and less (p.240) problematic than the test of ‘merchantable quality’.¹²⁴ In the modern law it is also restricted to sales in the course of a business,¹²⁵ and does not apply ‘where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller’,¹²⁶ though reliance is presumed unless contrary proof is established, for example from evidence of sole reliance on the goods’ manufacturer rather than their immediate seller or of the buyer’s reliance on his own skill and judgment.¹²⁷

Moreover, the implied term as to fitness of the goods for their purpose differs from the term as to their ‘satisfactory quality’ in its overtly and exclusively functional concern, a concern which has both objective and subjective aspects.¹²⁸ Its subjective aspect is the more obvious on a first reading, for it provides that the term will be implied where the buyer makes known to the seller his particular purpose; where this is the case, it does not matter that the buyer’s purpose is unusual or not generally foreseeable. So, in a leading case, the defendant manufacturer of motor vehicles sold buses to the plaintiff, a bus company, for use in Bristol, which entailed heavy use in a hilly district.¹²⁹ The buses as supplied were suitable for touring purposes, but were built too lightly for this particular and known purpose, breaking down a lot and finally becoming useless: they were held to have been not reasonably fit for their purpose. However, soon after its enactment in 1893, the courts accepted that there could be an objective aspect of this implied term, the reference to a buyer making known his purpose ‘impliedly’ allowing them to hold that a normal purpose for use of the type of goods in question would be impliedly conveyed. In this way, the courts imposed liability for goods not reasonably fit for their normal or ordinary purpose, some of the early cases concerning claims for personal injuries or death caused by food, the courts holding that food and drinks sold must be fit for human consumption.¹³⁰ On the other hand, where a buyer has in mind a particular, unusual purpose which he does not communicate to the seller, the latter will not be liable if the goods are not reasonably fit for this purpose. For example, in one case, the plaintiff contracted dermatitis from wearing a tweed coat sold by the defendant, the plaintiff having abnormally sensitive skin: as she had not told the seller of her sensitivity, she could not recover as the goods were reasonably fit for their ordinary purpose.¹³¹

In either situation, the standard to be attained is one of reasonable fitness for the purpose. This qualification creates a threshold of significance or importance, but there is no requirement that the lack of fitness is such that the buyer (had he known of it) would not have bought the goods or would have paid a different price of the sort stipulated by French law’s liability for latent defects.¹³² Rather ‘reasonableness’ creates a mid-way point: the goods do not have to achieve the buyer’s purpose perfectly, but any slight fulfilment will not be enough.¹³³ So ‘a second-hand car is “reasonably fit for the (p.241) purpose” if it is in a roadworthy condition, fit to be driven along the road in safety, even though not as perfect as a new car’,¹³⁴ the reason for this distinction being that a buyer’s reasonable expectations are lower as regards second-hand as opposed to new goods.¹³⁵ At times, moreover, the courts have described the significance of the reasonable fitness of the goods for their purpose in terms reminiscent of the cost/benefit analysis in the tort of negligence. So, in Henry Kendall & Sons v. William Lillico & Sons Ltd. Lord Pearce observed, considering a sale of a touring car to a consumer:

I would expect a tribunal of fact to decide that a car sold in this country was reasonably fit for touring even though it was not well adapted for conditions in a heat wave; but not, if it could not cope adequately with rain. If, however, it developed some lethal or dangerous trick in very hot weather, I would expect it to be found unfit. In deciding the question of fact the rarity of the unsuitability would be weighed against the gravity of its consequences. Again, if food was merely unpalatable or useless on rare occasions, it might well be reasonably suitable for food. But I should certainly not expect it to be held reasonably suitable if even on very rare occasions it killed the consumer.¹³⁶

This indicates that the implied term requires a buyer to tolerate some inadequacies in the goods and suggests that in determining their significance the likelihood and gravity of harmful consequences of any inadequacy must be assessed. What it does not say (unlike the position in negligence) is that these elements are to be balanced against the cost of any precautions to be taken to avoid the inadequacy.¹³⁷

More generally, in common with the position as regards ‘satisfactory quality’, both the price of the goods and their description may be relevant to the reasonableness of their fitness for purpose: cheap goods should not be useless, but their price is relevant to what can be expected of their efficiency. In some types of case, this is related to a judgment as to the nature of their job, and therefore the question of the disclosure of his purpose by the buyer.¹³⁸ Similarly, any description of the goods will be relevant to the question of breach as it will sometimes be enough to designate its purpose: for example, sale of a rubber ‘hot-water bottle’ imports a term that the goods should be ‘fit for use as a hot-water bottle under any circumstances in which such bottles are usually applicable, including the purpose of applying heat to any part of the human body’.¹³⁹ And where a person sells a second-hand car, if sold as a vehicle, then it must be reasonably fit for the purpose of being driven on the road and not dangerous,¹⁴⁰ but if it is sold as scrap, its unroadworthy character would not make it unfit for its purpose. Information accompanying the goods in the form of warnings or instructions may also be relevant to their fitness for purpose: for example, where a manufacturer of a chemical could reasonably foresee that it would be used in a context where it may be in contact with water, its lack of a warning that it would explode on such contact (p.242) rendered the chemical not reasonably fit for its purpose.¹⁴¹ However, here ‘a warning of a defect, however clear and unambiguous, is not necessarily decisive….[Section 14(3)] sets a standard that must be judged by considering the article concerned, the purpose for which it was, and was known to the seller, to be used, and all other relevant circumstances, including any warning about any particular defect in the article concerned’.¹⁴²

English courts have therefore seen the safety of the goods, their effectiveness for practical use and for commercial utility all as potentially relevant to their reasonable fitness. So, for example, mineral water is not reasonably fit for its purpose if it generates gas to an extent that the bottle containing it bursts and injures its buyer.¹⁴³ Sometimes, however, safety may not be enough. In Britvic Soft Drinks Ltd. v Messer UK Ltd.,¹⁴⁴ the defendant had sold carbon dioxide in bulk to the claimants for use in the preparation of soft and alcoholic drinks. It was later discovered that the gas had been contaminated by benzene, a carcinogen, owing to a leak in the heat exchanger in its manufacture. It was held that this contamination rendered the gas not reasonably fit for its purpose, even though it was not present in such quantities as to be injurious to health, because the presence of any carcinogen rendered the drinks into which the gas was to be incorporated un-saleable to the public who would not knowingly buy a food product accidentally containing a carcinogen in any quantities.¹⁴⁵ Interestingly, Tomlinson J thought that the public would take a different view of such a contamination where the carcinogen served a useful purpose such as preservation and had been ‘deliberately introduced as a result of a considered value judgment that its anti-bacterial properties outweigh its carcinogenic effects’.¹⁴⁶

We can see, therefore, that the term implied as to the satisfactory quality of the goods and as to their fitness for purpose have a very good deal in common: they both impose a standard which is explicitly relative—the quality must only be satisfactory, the goods reasonably fit; a number of factors may be relevant in judging the fulfilment of these standards, of which the goods’ description are important for both, but their price appears as rather more important for their ‘quality’ than their fitness for purpose; and there are different aspects of these standards, of which safety is clearly an important one. So, while the statutory form of the implied term as to the fitness of the goods for their purpose is left at large by the legislation, both factors and aspects are present in its application.

(v) Comparisons with French law

How do the English and French treatments of the bases of a seller’s liability to his buyer for failures in quality, safety and fitness for purpose compare?

(p.243) First, the law in both systems has changed considerably and in a number of ways, particularly since the 1960s or 1970s. English law’s traditional commercial model of sale has given way to an increasing concern to tailor the bases of liability to the requirements of consumer sales, as can be seen in the reshaping of the term as to the goods’ quality, in the presumption of reliance on the seller’s skill in the term as to their fitness for purpose,¹⁴⁷ and the extension of the categories of those sellers caught by the first of these terms to all those selling in the course of a business.¹⁴⁸ If there is a traditional model for the French law of sale visible from its bases of seller’s liability, it is simply a reflection of the domain of droit civil, applicable to all private law contracts and with no particular assumptions made as to the commercial or individual nature of the contract, a generality reinforced by the law’s application to immovable as well as to movable property.¹⁴⁹ While we do not see the sort of overt shift in orientation towards consumer sales in the French jurisprudence which is visible in English law, many of the developments of the last 40 years have been particularly important for consumers, notably, the imposition of liability in damages on all vendeurs professionnels,¹⁵⁰ and the development of obligations d’informations and obligations de sécurité.¹⁵¹

Secondly, while the conceptual starting points of the two systems were very different, there is a degree of convergence. So, the traditional understanding of liability under the garantie légale was that it rested on a latent physical defect which was sufficiently serious that the property was no longer fit for its purpose, but this evolved so that lack of fitness is now used to define when the property suffers from a defect.¹⁵² Liability for ‘contractual non-conformity’ is also said to rest on a défaut, the defect here being simply the failure of the property to conform to an express or implied contractual stipulation¹⁵³ (there is no reference as such to defect in the law of obligations d’information).¹⁵⁴ By contrast, while the English law of implied term did not take as its foundation the presence of a defect, whether physical or otherwise, but rather either a failure to keep to what was promised (as in sale by description) or a failure in the commercial usefulness of the goods (as in ‘merchantable quality’ and fitness for purpose),¹⁵⁵ there has been a noticeable shift towards use of the language of defect, appearing as an explicit ‘aspect’ of the standard of the goods’ satisfactory quality (‘minor defects’).¹⁵⁶ This shift in part reflects the concern to ensure that the law is suitable for consumer sales of new goods, but it may also reflect a concern in the courts to enable suit up the chain of supply so as to allow liability to rest with the person responsible for the inadequacy of the goods.¹⁵⁷ The modern English law, therefore, combines a strong functionalist approach with a recognition that some defects should give rise to a remedy even if the goods are fit for their purpose.

This leads me, thirdly, to consider the different treatments of ‘aspects’ of inadequacy of the goods. Here, English law has taken a very open approach, firmly including the safety of goods as a possible aspect of their quality or of their fitness for purpose¹⁵⁸ and seeing failures in the supply of information by a seller relating to the goods (warnings, (p.244) instructions or descriptions) as possible elements in their quality or fitness for purpose.¹⁵⁹ By contrast, French law has taken a rather more compartmentalised approach. While French courts have accepted that ‘defects’ in goods includes physical defects, defects in design or failures in the supply of information relating to them,¹⁶⁰ from their inception obligations d’information have tended to attract those cases where the substance of a claimant’s case is that the seller has failed to inform or warn him properly, whether as to the utility or the safety of the goods.¹⁶¹ And while earlier cases concerning liability for latent defects could concern unsafe as well as unsuitable goods,¹⁶² since the 1990s French courts have channelled cases concerning unsafe goods towards the law of obligations de sécurité, and away from either obligation de conformité or the garantie légale.¹⁶³ This judicial approach has been supported by a body of jurists, arguing against the ‘mixing up’ of issues of safety and contractual conformity.¹⁶⁴

Fourthly, where it is concerned with the buyer’s purpose, French law starts from an objective view, looking at the normal purpose of the type of property in question, but where the buyer has communicated a special purpose, any failure of fitness for this purpose can give rise to liability either under the garantie légale or for non-conformity¹⁶⁵ a position very similar to that in the English law of implied term of fitness for purpose.¹⁶⁶ And in both systems, a seller may in appropriate circumstances be liable in respect of the goods’ failure to fulfil the foreseeable special purpose of the buyer: in English law, if the buyer’s purpose was ‘impliedly made known’ to the seller; in French law, by holding that the seller ought to have informed the buyer of the inappropriateness of the goods for his purpose under the law of obligations d’information.¹⁶⁷

Fifthly, one apparent difference between French and English laws disappears significantly on examination. In French law, liability under the garantie légale is restricted to hidden defects, meaning that a defect was not known and should not have been known to the buyer on sale, taking into account his degree of expertise.¹⁶⁸ While in English law there is no general requirement that any failure in quality or function should be hidden from the buyer, its apparent nature may be significant. So, it is provided that the implied term as to satisfactory quality ‘does not extend to any matter making the quality of goods unsatisfactory (a) which is specifically drawn to the buyer’s attention before the contract is made [or] (b) where the buyer examines the goods before the contract is made, which that examination ought to reveal’.¹⁶⁹ This differs from the French position only as regards the case where a buyer did not examine the goods, but ought to have done so in circumstances where this would have revealed the goods’ unsatisfactory quality.¹⁷⁰ The hidden nature of any defect is less prominent as regards the implied term as to the fitness for purpose, but a warning or instructions for use of otherwise unsafe or unsuitable goods may make them reasonably fit for their (p.245) purpose,¹⁷¹ and where a buyer ought to have known that the goods are not reasonably fit for his own purpose, a court is likely to hold that he has not relied or that it was unreasonable for him to rely on the skill and judgment of the seller.¹⁷²

Finally, and perhaps most strikingly, while in French law failures in safety and the supply of information have been separated off from the mainstream of contractual quality, its standards of quality which rest on ‘defect’ (vice caché or défaut de conformité) remain very broad and open compared to the English. French courts are not provided by their Code with any factors to take into account in establishing the existence of a defect nor any guidance as to what ‘aspects’ such a defect may possess. This does not mean that French courts do not take into account similar factors in deciding the question of ‘defect’ as English courts do under the statutory implied terms (for example, any description of the goods and whether they were new or second-hand),¹⁷³ but this is a matter of extrapolation rather than forming an explicit element in the legal justification of their decision. For in French law, the existence and seriousness of the defect are treated as issues of fact for the ‘sovereign assessment’ of the juges du fond, and are decided in practice by expertise in all but the simplest cases.¹⁷⁴

Overall, the evolution of the English implied term of ‘satisfactory quality’ has remarkable similarities at a level of legal technique with the ‘negligence issue’ in tort.¹⁷⁵ At one time juries had made a global and unexplained assessment of the quality of goods (as they did of negligence),¹⁷⁶ but their disappearance led to a judicial exploration of the circumstances which would argue for or against breach of the implied terms of quality or fitness for purpose. While it is said that breach remains an issue of fact,¹⁷⁷ this did not prevent the courts from carving out elements to which future courts should look in making their evaluation of future facts. But unlike the structuring of what is required of a reasonable person in negligence,¹⁷⁸ in the codified law of sale of goods, the legislator set out and sought to improve the structuring which the courts had created. Here again, English lawyers have found further legal elements as a result of treating different cases differently (distinguishing ‘factors’ and ‘aspects’); French courts are content with the law more general and open, leaving distinguishing features between cases as differences of fact.

(vi) Strict liability and defences: reasonable standards and reasonable care

Liability under the statutory implied terms is a well-known example of a contractual strict liability in the sense that negligence in the seller is irrelevant to their breach. This position was established by the courts at common law¹⁷⁹ and then applied to liability (p.246) under section 14 of the Sale of Goods Act in Frost v Aylesbury Dairy Co. Ltd. in 1905.¹⁸⁰ There the defendant sold milk to the plaintiff and his family on the basis that it would be ‘pure and unadulterated’, but which was infected with typhoid with the result that his wife died. The Court of Appeal upheld the jury’s verdict for the plaintiff on the ground of breach of the statutory implied terms, holding that it was no defence for the sellers to establish that the typhoid in the milk was a ‘latent undiscoverable defect’.¹⁸¹ This strict approach has been applied equally to non-manufacturing sellers, such as distributors or retailers.¹⁸² As Lord Diplock later observed in relation to the implied term as to fitness for purpose, it does not matter ‘that in the then state of knowledge no one could by exercise of skill or judgment detect the particular characteristic of the goods which rendered them unfit for that purpose’.¹⁸³

On the other hand, the standards imposed by the statutory implied terms are not themselves absolute standards: goods need only be of ‘satisfactory quality’ and reasonably fit for their purpose.¹⁸⁴ So, as regards safety, some judges have said that goods do not have to be absolutely safe, even if they are described in terms which draw attention to their safety.¹⁸⁵ In 2002 in Medivance Instruments Ltd. v Gaslane Pipework Services Ltd., a gas-fired convector heater had overheated and ignited adjacent packaging, causing a large fire in a factory. The factory owners who had bought the heater alleged that their seller was in breach of both statutory implied terms because it had not been supplied with sufficient protection in the event of overheating on fan failure, either by a thermostat device or a suitable guard, and they pointed out that other similar heaters did possess such protection and this could be supplied relatively cheaply and easily.¹⁸⁶ On the other hand, the sellers noted that the relevant British Standard contained no such requirement or recommendation, despite running to 30 pages of fairly small print.¹⁸⁷ At trial, the judge found that the heaters were both of merchantable quality and reasonably fit for their purpose, being ‘satisfied that the degree of risk does not require the installation of a different sort of heater than that provided’.¹⁸⁸ This decision was upheld by the Court of Appeal on the basis that the clear and unambiguous warnings which accompanied the heaters would (if followed) have enabled the fire to have been avoided. So, in determining what is ‘satisfactory’ or ‘reasonably fit for its purpose’ the courts sometimes look at the same sort of balancing of considerations of risk and precaution as they do under the tort of negligence.

At a formal level, these decisions and the ‘strictness of liability’ can be reconciled by saying that while the courts may sometimes need to follow a cost/benefit analysis in determining whether goods are of ‘satisfactory quality’ or reasonably fit for their purpose, having come to that view, the presence or absence of negligence in the seller is irrelevant to liability. Moreover, while ‘foreseeability’ is relevant in the sense that the normal purpose of the buyer for the goods goes to breach of the term as to their (p.247) ‘satisfactory quality’,¹⁸⁹ and may form the basis of the implication of the term as to the in fitness for purpose, once a court has come to a view that the goods are not ‘satisfactory’ or reasonably fit for their purpose, the seller’s knowledge or reasonable foresight of the circumstances which bring this about are irrelevant: the seller undertakes that the goods will be of satisfactory quality and reasonably fit for their purpose and is not (as in the tort of negligence) held liable only for a failure to act reasonably in the face of a risk of a particular type and degree.

However, in my view, these neat reconciliations offer little true explanation of the contrast of approach to be seen in the cases. Instead, it appears that where safety is in issue, the courts in fact have sometimes distinguished between cases of manufacturing or processing defects, such as typhoid in milk, where negligence is truly irrelevant to liability as the seller is held to have promised their absence, and cases of failures in design (including any warnings or instructions accompanying a product), where a cost/benefit analysis is relevant as the seller cannot be expected to promise a perfect design. This could be seen to lie behind the position of Tomlinson J in Britvic Soft Drinks Ltd. v Messer UK Ltd. who distinguished the case before him (in which a carcinogen had been accidentally introduced into a substance used in making drinks) and the case of the deliberate use of a carcinogen for a useful purpose:¹⁹⁰ the first case is a defect in process, the second an alleged defect in design.

How does this rather variable approach compare to the French view of the various bases of seller’s liability? Liability under the garantie légale, for contractual non-conformity and for failure to perform an obligation de sécurité under the case law of the 1990s all rest on proof of a defect and while these defects are variously described, French law clearly asserts that liability arises without the need for the buyer to show faute and without the possibility of the seller escaping liability by proving its absence.¹⁹¹ If one were to go further and ask whether French courts actually take into account the sorts of considerations of risk and cost which English courts have in determining the existence of such defects, the only sure response is that one cannot tell as we cannot draw aside the veil of the pouvoir souverain d’appréciation nor read the reports of the experts. On the other hand, there is much more ambiguity of approach as regards the duties required of sellers under contractual obligations d’informations, where the formal position is that fault is needed for liability to be established, though the courts have reversed the burden of proof.¹⁹² And French courts take different views of the practical content of these obligations according to the status of the parties to the contract and the subject matter of the information (in particular, whether it goes to the safety of the goods or merely to the effectiveness).¹⁹³

I have earlier described how French law’s treatment of the defences to liability form an important element in the degree of strictness of the liability in the seller and that this focuses on force majeure or the faute of the buyer.¹⁹⁴ What is the position of English law with regard to these sorts of situation?

(p.248) First, French law defines force majeure as an event, action or circumstances which make performance of an obligation impossible, which are unforeseeable and which are exterior to the thing’.¹⁹⁵ Force majeure is not a defence to liability under the garantie légale¹⁹⁶ and where liability under the ‘general law’ is based on obligations de résultat, force majeure cannot be seen in defects in the property supplied as they are not exterior to the thing’.¹⁹⁷ For this reason, it is said that under the garantie légale or the law of ‘contractual non-conformity’, the seller is liable for ‘development risks’ in the property sold.¹⁹⁸ On the other hand, a supervening event or action may break the chain of causation between any defect in the property sold and a claimant’s harm,¹⁹⁹ though sometimes French courts prefer to hold jointly liable those involved in the chain of failure which has led to the claimant’s harm.²⁰⁰ In sum, while the way in which the defect arose is irrelevant to liability, the defect must contribute to the claimant’s harm.

While English law does not possess a notion of force majeure as a defence to non-performance of a contractual obligation,²⁰¹ the undiscoverable or unpreventable characteristic of any failure in quality or fitness for purpose of the goods is no defence to liability under section 14 of the 1979 Act.²⁰² On the other hand, as in French law, English law requires that a claimant’s harm was caused by the defendant’s breach of contract. In English law, many of the cases in which the causal link has been said to have been broken concern claims for an indemnity by a buyer where it is alleged that the buyer’s own fault caused the harm,²⁰³ but in other cases an English court may choose to impose joint and several liability rather than say that a seller’s breach of contract was causally unrelated to the buyer’s harm. For example, a seller sells a second-hand vehicle described as in want of minor repair and its buyer sends it to another person for repair; the buyer drives the car whose brakes fail causing injury; here, the seller would be in breach of the terms implied by section 14 in delivering an unroadworthy vehicle and this could well be seen as contributing to the buyer’s harm, even if the intervening repairer were found negligent in failing to detect and repair the defective brake.

By contrast, at first sight the English and French approaches to the defence of contributory negligence are radically different. For French law accepts that a seller may escape or reduce his contractual liability under any legal basis on the ground of the buyer’s fault, whereas English law denies a seller the defence of contributory negligence in respect of liability for breach of the statutory implied terms in the 1979 Act.²⁰⁴ However, a closer look shows that the two laws are not as far apart as this suggests.

In French law, a first category of situation concerns ‘fault’ committed by a buyer in the course of purchasing the goods. For example, French courts have reduced a seller’s liability in damages on the ground that the buyer ought to have been aware of the (p.249) defect on sale, a compromise between full liability and its denial on the ground that the defect was not ‘hidden’ from the buyer.²⁰⁵ Here English law would distinguish between cases where the buyer examined the goods before sale and ought from such an examination to have discovered their defect (where the seller is not liable),²⁰⁶ and cases where the buyer did not examine the goods even where he had an opportunity to do so (where the seller is liable in full): in English law in neither case is liability reduced.

Secondly, French courts sometimes hold a purchaser to have been ‘at fault’ in using goods for an unspecified and unsuitable purpose, this allowing them to reduce or exclude liability in the seller.²⁰⁷ In English law, where a buyer’s use is not an ordinary one, a court would deny liability not on the ground of ‘fault’ in the buyer, but rather on the ground that there is no breach, since any particular purpose to which the goods are to be put must be communicated, expressly or impliedly to the seller.²⁰⁸ So, for example, where market gardeners bought water which contained a tiny concentration of a herbicide for use on their tomatoes which were grown hydroponically and which were damaged as a result, there was no breach of the implied term that the water be reasonably fit for its purpose as the growers had not communicated their special needs to the sellers.²⁰⁹

Thirdly, French courts have sometimes held the buyer at fault where his own design for the product sold by the seller proved unsatisfactory.²¹⁰ Here, English law would say that while the goods are not reasonably fit for their particular purpose, the buyer has relied on his own skills and judgment rather than on the seller’s and on this ground cannot recover.²¹¹

Fourthly, French courts have excluded or reduced a seller’s liability on the ground of the buyer’s ‘fault’ in using the goods. This fault may take a number of forms. In some cases, it consists of failing to follow instructions or warnings accompanying the goods, whether these are clear or unclear and inadequate.²¹² Here, an English court is likely first to consider whether there is breach of any of the implied terms, which would depend on the need for and adequacy of the information supplied in the context. So, for example, in one case the plaintiff bought raw pork but failed to cook it through: the court held that there was no breach of the implied terms in respect of the food-poisoning that resulted since the pork was ‘merchantable’ if cooked properly according to accepted standards.²¹³ On the other hand, if there is a breach, the question arises squarely as to the effect of a buyer’s failure to act carefully in using the goods. Here, an English court cannot reduce the seller’s liability on the ground of the buyer’s contributory negligence, but can exclude it altogether if the buyer’s conduct is so unreasonable as to break the chain of causation between the seller’s breach and his own harm, this sometimes being treated as an example of the general duty in an injured party to mitigate his own damage.²¹⁴ Sometimes, though, the courts have preferred to express their decision in terms of the ambit of the implied term, rather than the requirement of causation. So, for example, in Lambert v Lewis an owner of a trailer bought a (p.250) coupling from a retailer and the coupling broke causing an accident.²¹⁵ In these circumstances, the House of Lords held that the statutory implied terms did not extend as far as ‘a warranty that the coupling could continue to be safely used to tow a trailer on a public highway notwithstanding that it was in an obviously damaged state’.²¹⁶ There was therefore no need to hold that the failure in the owner to stop using the coupling after he could see that it was damaged broke the chain of causation between any breach of contract by the retailer and the loss which he suffered as a result of the accident.²¹⁷

On the other hand, knowledge of a defect in the goods by a buyer who then uses them harming himself or others may not be necessary for a break in the causal link.²¹⁸ In Bostock & Co. Ltd. v Nicholson & Sons. Ltd. the plaintiffs had contracted to buy from the defendants sulphuric acid, commercially free from arsenic, for use in the manufacture of glucose.²¹⁹ The plaintiffs used the acid and then sold the glucose to brewers who used it to make beer, which poisoned a large number of persons, some of whom died.²²⁰ Here, the court held that the plaintiffs by the exercise of ordinary care might have discovered the presence of arsenic in the acid. So, while they could recover damages for the cost of the acid and the value of the other goods mixed with it and spoilt on the ground of breach of an implied term that the goods would correspond with their description, they were not entitled to damages in respect of their liability to the brewers nor to damage to the goodwill of their business as these did not flow ordinarily from the breach of contract but rather from the act of the plaintiffs in manufacturing and selling poisonous glucose to brewers for use in the brewing of beer.²²¹

Overall, therefore, we can see that French law’s acceptance of the defence of faute de la victime to claims by buyers against their sellers gives to its lower courts a power to apportion liability on the basis of what they consider fair in the circumstances. In English law, ‘there [is] no room for contributory negligence [in contract], although, in the assessment of damages, causation and the plaintiff’s duty to mitigate his loss [are] very relevant’.²²² While English courts do possess a certain flexibility in apportioning losses under the law of mitigation, use of causation tends to result in all or nothing for a claimant. And in other cases where a French court apportions liability by invoking faute de la victime, English law denies liability for absence of any breach.