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CAVEAT EMPTOR


Sale of Goods Law is a consumer protection mechanism and is part and parcel of facilitative law.  The doctrine of Caveat Emptor has been and is still most inequitable because you are equating two unequal parties.  This consumer protection comes in to ameliorate the harshness of caveat emptor.  In justice is treating equals as unequals or treating unequals as equals.  In the law of contract caveat emptor treats unequals as equals and this is unjust and this was supposed to be cured by the Sale of Goods Act.  Sale of goods was an effort to assist the buyer who is not equal to the seller in knowledge.

Section 15, 16 and 17 of Sale of Goods Act Cap 31

These sections deal with amelioration of the doctrine of caveat emptor. Section 15: deals with two concepts, sale by description and sale by sample.  Where there is a sale by description there is an implied condition that the goods shall be of merchantable quality.   A sale by description is realistically a sale of goods which the parties can neither see and if they can see the goods there are certain elements in those goods which cannot be seen or touched and therefore the parties have to revert to a method of trying to define the goods to make sure that the minds of the parties meet, this is especially true in contracts for future goods.  The adjectives that try to explain the things that the parties can have the minds meeting other than through words e.g. you go to the Nairobi show the livestock section where Mr. Karanja a rancher visits Mr. Mwangi who is a breeder at his kennel and Mr. Mwangi has dogs that he is selling.  Karanja sees the dogs and he tells Mwangi since he is an expert in dog breeding to tell him what breed the dogs are.  Karanja says he is looking for watchdogs and he says he has been looking for the German Shepherds like the ones Mwangi is exhibiting.  Mwangi gets back to his kennel at home and loads 4 German shepherd dogs and takes them to Karanja who pays him and accepts the delivery.   The same night, the ranch is attacked and ravaged by 3 lionesses who clear all the sheep but the watchdogs not only do they fail to bark but they get scared and go to the watchman’s shed and bite the watchman out of fear?  Is there a breach of contract?  Was this a sale by description or a sale by sample?  The description was I want Watchdogs and Mwangi pointed exactly what Karanja pointed at. One of the issues under Section 15 is that when the buyer goes ahead and describes the goods, i.e. German Shepherd Watchdogs and goes further and points at the sample.  The goods which the buyer has identified cannot be exchanged with other goods.  The dogs after biting the watchman on examination were found not to be German Shepherds but were a cross breed between a local bitch and second generation German shepherds, but Karanja had pointed at those particular dogs.

S. 16


Under S. 16 there is no implied warranty of fitness for any purpose unless the buyer states the purpose for which he needs those goods, after expressing the purpose for which he needs the goods, it is not enough and he must rely on the judgment and the expertise of the seller.  Then there is an implied condition that the goods shall be fit for that purpose.  In Karanja and Mwangi’s case, Karanja has specifically told Mwangi that he needs watchdogs for protection and according to S. 16 (a) the goods should be fit for purpose, which would be to protect the farm against wild animals.  Is there a breach when the dogs do not protect but even bit the watchman and the sheep are killed by the lionesses?  Both the seller in this case would not know the goods.  The kind of purpose which the buyer is putting across to the seller can rarely meet the purpose for which the buyer wants the goods.  If the buyer knew what exactly he wanted, he would go and describe what he wanted.

Section 16 assumes that the buyer knows what he/she wants to buy.  The assumption is implied.
S. 16 (b)

The basic concept in this section is that if the buyer can identify defects just by looking at the goods, how can the seller be exempted from seeing the defects that the buyer is required to notice through examination.   The seller is not supposed to identify these defects and this is absurd.  It should only apply to manufactured goods and they are exempt in this Section.

S. 16 (c)

 If the goods are sold under their trade names, there is no implied condition as to its fitness for any particular purpose.  E.g. when you tell the pharmacist that I have a headache and I want Panadol to treat my headache, there is not implied condition that it will treat that headache and you have no action if the headache is not cured.  When you ask for goods on their patent name you are not relying on the judgment of the seller so there is no implied condition.
Section 16 is very far from protecting the consumer.

S. 17

Except for simple types of goods, it cannot apply to goods in modern technology. S> 17 (2) it is very hard to assess the quality just by checking the sample.  It is not often that the quality in the sample corresponds with the rest of the goods.  For example if you bought an orange after tasting the sample, it is rare that another orange is likely to taste exactly like the sample so it is hard to tell even with simple goods like oranges.  The consumer can taste and test and see-to-see defects but none of them operates it is still hard to tell.

Chapter 31 Laws of Kenya is a major legislation, which was enacted to try and bring parity between the amount of knowledge commanded between seller and buyer and consumer and manufacture, which was supposed to be ameliorated by Cap 31.  The Legislation however is either poorly drafted or did not see far enough in terms of technology to anticipate what the consumers needed to be protected from.

The consumer is by and large ignorant of the injurious effects in goods which she/he is supposed to know about but will never know about no matter how long the consumer examines the goods Sections 15 to 16 were supposed to protect the consumer through the doctrine of caveat emptor but the sections do not protect the consumer.

 
 
 

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