Consumer Sales Flashcards
Lee v. Griffin (1861)
Facts – contract to make a pair of false teeth,
Held – test was to say that If purpose of transaction was to produce a new thing and supply that is a SOG
Young & Marten v. McManus Childs, Ltd. [1969] (HL)
Facts – contract to roof a building, required the roofing company to use tiles of certain type, they roofed building using specified type, unfortunately they used defective batch¸ had to remove and replace, who had to bare cost
Held – duty to supply particular type impliedly meant had to be good tiles, so SOG Act s14(1)/ (3 now) applies
Jones v Callagher [2004]
Facts – C installed J kitchen, J appealed against decision that although C breached by installing wrong colour units, since J had accepted he could not reject it, J argued had not accepted it
Held – had used cupboards etc. and the wrong colour would have been obvious immediately, sufficient time had elapsed
s1(4) Consumer Rights Act 2015
(4)In each case the Chapter applies even if the contract also covers something covered by another Chapter (a mixed contract).
St Albans City and DC v. International Computers Ltd. [1996]
Facts – supplied faulty computer software
Held – software itself is not goods, needs to be on physical item
Hazelwood Grocery Ltd v Lion Foods Ltd [2007]
Facts – C was foodstuffs manufacturer, purchased a quantity of chilli powder from D, express term was ‘the powder supplied was free from foreign and extraneous matter,’ contained a quantity of industrial dye which was semi toxic, all foodstuffs was recalled
Held – was a breach of implied condition of satisfactory quality s14(2), breach implied condition of must reasonably fit for purpose s14(3), breach of express term of not containing extraneous material, can reject and claim damages
The Hansa Nord [1976]
Facts – shipping case, (SoG law in UK), seller of citrus pellets in Florida, selling to a company in Germany, used English contract law, express term in contract that goods would be in good condition, it not one of the statutory terms (different from s14(2) &(3)), pellets deteriorated, 40% had lost quality, buyers rejected the goods but sent agent to buy them again for lesser price
Held – ‘in good condition’ was an express term of contract, was an intermediate term, received substantial benefit of contract, buyers were wrong to reject goods, was breach contract
Hong Kong Fir Shipping Co Ltd v Kawasaki Kaisen Kaisha [1962]
Held – 3rd type of term, intermediate terms, test did breaching party receive substantial benefit of contract, if yes can sue for damages, if not can rescind (Diplock LJ)
Daniels v Tabard and R White [1938]
Facts – manufacturers of lemonade, bought lemonade, drank it, contained something toxic In it, got ill
Held – seller was liable although when was supplied sealed to seller was sealed, (now seller could enter indemnity agreement for manufacturer), liability is strict according to SOGA, liability without fault
STRICT LIABILITY
Liability without fault – according to SoG law the seller is strictly liable for faults in the goods (even when manufacturers fault)
EXCLUSIONS AND LIMITATIONS OF LIABILITY IN SALE OF GOODS
Unfair Contract Terms Act 1977 s6 –>in commercial contracts parties are free to exclude implied conditions – subject to test of reasonable
Consumer Rights Act 2015 s 31-34 –> cannot exclude liability of trader to consumer, exclusion clauses will be non-binding s31(consumer can decide for it to binding), unenforceable (also based on fairness part 2) (stores can’t say no refunds)
s12 Sale of Goods Act 1979
Duty to pass on a good title
is of most significance in relation to sales by non-owners, and is therefore useful to know in ‘nemo dat quod non habet’ cases
s13 Sale of Goods Act 1979
Sale by description.
(1)Where there is a contract for the sale of goods by description, there is an implied [F12term] that the goods will correspond with the description.
(1A)As regards England and Wales and Northern Ireland, the term implied by subsection (1) above is a condition.]
(2) If the sale is by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
(3) A sale of goods is not prevented from being a sale by description by reason only that, being exposed for sale or hire, they are selected by the buyer.
S13 CRA Notes
Not prevented by being a sale by description if goods are selected by buyer) (opposite of sale by description is normal specific goods although not always) –
no defences to s13, no qualification like s14(2 & 3)
doesn’t have to be in course of business, so if seller is private individual e.g. EBay, s13 still applies
if seller is not a trader the buyer cannot be a consumer – so if buy from a private individual the consumer rights act (s11) won’t apply, will have to use s13
s13 doesn’t just apply to private sales also applies to business sales
Most of commercial law is sale by description, buying commodity/ concept e.g. buying grain
Sale by description also includes buying by brand name e.g. buying a coke and they give you a Pepsi that’s a breach of s13
Relates to nature or Identity of Goods rather than just Quality
Can have breach of s13 even if good are perfect quality
Re Moore and Landauer [1921]
Facts – selling fruit in wrong packaging, fruit was still fit for purpose
Held – even though in perfect condition, was still breach of s13
Arcos v Ronaasen and Son [1933]
Facts – timber being sold to make barrels, timber was wrong thickness, made no difference to value, still fit for purpose
Held – had to be exactly that size or breach of s13 (law used to be taken very rigorously), can reject
s15A Sale of Goods Act 1979
Modification of remedies for breach of condition in non-consumer cases.
(1) Where in the case of a contract of sale—
(a) the buyer would, apart from this subsection, have the right to reject goods by reason of a breach on the part of the seller of a term implied by section 13, 14 or 15 above, but
(b) the breach is so slight that it would be unreasonable for him to reject them, the breach is not to be treated as a breach of condition but may be treated as a breach of warranty.
(2) This section applies unless a contrary intention appears in, or is to be implied from, the contract.
Wren v Holt [1903]
Facts – went into pub and ordered pint from Holdens brewery, when drank felt ill, contained arsenic, issue was , is this of satisfactory quality
Held – was not of merchantable quality, rule only applied in original SoGA if sale by description, this was held to be sale by description, beer was unfit quality but also didn’t match description so breach s13 and s14
Varley v. Whipp [1900]
Facts – second hand piece of agricultural machinery being sold, buyer hadn’t seen it, was being sold as new the previous year, only used to cut 50 or 60 acres, buyers relied on words by farmer as describing what he was buying, machine wasn’t new the previous year, was it a sale description as buying particular good?
Held – was a sale by description even though was a specific good as relied on description, so was breach of description s13,
Beale v. Taylor [1967]
Facts – sale of second hand car, seller described car in certain way including brand, when buyer got car, found was two different cars welded together, private sale so only s13 applies not 14(2)
Held – only half of car corresponded with description, description was term of contract, brand of car was term, brands are covered by s13, must be term of contract
Drake v. Thos. Agnew & Sons Ltd. [2002]
Facts – fine art sales, bought painting said to be by Van Dyke, was by someone else
Held – was this part of description, was the artist a term in the contract, Artist was a statement of opinion not a term, so no breach of s13, so couldn’t get money back
Harlingdon & Leinster Enterprises Ltd. v. Christopher Hull Fine Art Ltd. [1991]
Facts – case of fine art, Artist Munter, painting was forgery, parties were both art dealers (not like Drake v Agneu – Seller admitted wasn’t expert, Buyer was expert – less likely to be term)
Held – was statement that was work of Art and painted by Munter a term, even if was a term, (CoA) still had to prove relied on the statement for s13, if not can’t reject goods on breach of implied condition (controversial because reliance is a misrep rule was dissent Smith LJ) – as buyer was expert and seller wasn’t promising so no reliance
Reardon Smith Line v. Yngvar Hansen-Tangen [1976]
Facts – ship being built in Japan, contract between shipyard and shipping company, ship price went down, buyers wanted out, claimed that when ship was built in a different shipyard and had different number, claimed it wasn’t the ship they ordered, was same in every other way
Held – can’t pretend it’s a different ship, it was the ship they ordered, identity of ship was same as contract, can’t be over technical
Christopher Hill Ltd v Ashington Piggeries [1972]
Facts – farmer in Northumberland, breading mink for coats, was using Norwegian animal feed, was a compound of specific foods, was being manufactured by 3rd party, seller was selling to buyer, compound contained toxic agent, want poisonous per se just to the mink, they all died
Held – was there a breach of all 3 sections, was a breach of s14(2 &3) because not of merchantable quality or fit for purpose, wasn’t a breach of s13 because specific food was supplied , correct good was supplied, identity was correct, was just not fit for purpose so s14 not s13
Pinnock Brothers v Lewis and Peat Ltd [1923]
Facts – sale of animal food, food was copra cake, fed to cattle, had a large amount of castor beans added in, was damaging to animals, there was disclaimer of liability for defects of quality (only covers s14)
Held – no s14 as disclaimed, was there a breach of s13, the mixing in of other substance was so excessive that it was no longer goods selling but something else, foreign agent was so large that changed identity of the good, so didn’t conform with description so was breach of s13
Stevenson v Rogers [1999]
Facts – seller of fishing boat was also owner, used it for his job, boat had a few things wrong, buyer wasn’t happy, wanted to sell for breach 14(2), D claimed not covered as not course of business he was a fisherman not boat sales man
Held – CoA, if sale is for commercial purpose, even if not sellers daily trade it will still be in course of business, was selling boat to buy another one was commercial purpose, doesn’t need regularity, as long as not based on personal use or enjoyment
s14(2) Sale of Goods Act 1979
(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.
(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.
(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—
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
(e) durability. (normally 6 months)
(2C)The term implied by subsection (2) above does not extend to any matter making the quality of goods unsatisfactory— (defence element)
(a) which is specifically drawn to the buyer’s attention before the contract is made,
(b) where the buyer examines the goods before the contract is made, which that examination ought to reveal, or
(c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.]
Christopher Hill, Ltd. v. Ashington Piggeries [1972]
Facts – farmer in Northumberland, breading mink for coats, was using Norwegian animal feed, was a compound of specific foods, was being manufactured by 3rd party, seller was selling to buyer, compound contained toxic agent, want poisonous per se just to the mink, they all died
Held – was there a breach of all 3 sections, was a breach of s14(2 &3) because not of merchantable quality or fit for purpose,
B.S. Brown & Sons, Ltd. v. Craiks, Ltd. [1970] (HL)
Facts – commercial case, b2b, buyer was purchasing cloth to making clothing, seller did not know buyers purpose [s14(3)], cloth could have been used for many things, if used for industrial purpose would be cheaper, if it was for clothing would be of high price, he purchased it a low price
Held – at price paid the buyer couldn’t expect it be of quality for clothes, price was relevant to quality
Henry Kendall & Sons, Ltd. v. William Lillico & Sons, Ltd. [1969] (HL)
Facts – goods described as certain kind, animal food
Held – descriptive words were crucial to quality, made difference to what quality were expecting
M/S Aswan Engineering Establishment Co. v. Lupdine (Thurgar Bolle, third party) [1987]
Facts – items being bought to be used in hot climate, not appropriate for goods
Held – when using goods for another purpose [14(2)B] , has to be fit for normal purpose even in another climate
Bernstein v. Pamson Motors (Golders Green) Ltd. [1987]
Facts – car broke down after 3 weeks, after 140 miles, seller tried to reject as buyer had driven for a bit and tested
Held – not of merchantable quality, lost right to reject
Rogers v. Parish (Scarborough) Ltd. [1987]
Facts – 2nd hand cars, before 1994 rules,
Held – car was more than just a vehicle, needed appropriated degree of comfort, handling and pride owner has in appearance, all included in quality, not just a transporter, standard of satisfactory quality varies with price, market aimed at, is it new, is it sold as new, is it 2nd hand, appearance, performance, finish
Clegg v. Olle Andersson (trading as Nordic Marine) [2003]
Facts – building a yacht for a lot of money, requirements of yacht was known to seller,consumer case, when yacht was delivered the buyer realised that the keel was too heavy, issue was what effect was having too heavy a keel is, didn’t really cause a big problem was just heavy, meant it didn’t perform as well as wanted, worked well, wasn’t dangerous, just wasn’t what wanted, buyer decide in agreement with seller that they will discuss whether boat was of satisfactory quality, important because until 1994 if you accepted an offer to repair you lost right to reject, now s35(6) means allowing repair doesn’t mean lose right to reject, buyers agreed to allow repair, for 6 months sellers tried to find way to fix, yacht still didn’t get fixed, buyer rejects
Held – how do you define satisfactory quality (CoA) (B Hale), test is not whether reasonable person would find goods acceptable, but means objective comparison of state of goods with the standard of what a reasonable person would find acceptable, they were entitled to reject good because a high priced quality product should be more than just free from minor defects , be of a quality of a kind that the buyer had truly bargained for, if reasonable buyer was told that a quantity of led would have to be removed in unspecified way from keel of quarter of a million pound boat, with unknown consequences to safety and performance, obvious that unsatisfactory, buyers had allowed sufficient time didn’t have to give unlimited time
Thain v Anniesland Trade Centre 1997
Facts – bought car from dealer 2nd hand, 5 years old, declined option to purchase 3 month warranty, (warranty is separate contract with dealer), after 2 weeks gearbox was worn, many flaws, dealer offered an alternative car (normal consumer remedy is repair or replacement) she declined (within her rights), she can reject if not within satisfactory quality (within 30 days under Consumer rights law or reasonable time under SoG Law), claimed not of satisfactory quality – 14(2)B durability
Held – durability, 2nd hand car for small amount of money was pot luck, car was of satisfactory quality
Crowther v. Shannon Motor Co. [1975]
Facts - C, relying on their skill and judgment, bought a second hand car from S Co. After being driven for over 2,000 miles in the three weeks after sale the engine seized and had to be replaced. The previous owner gave evidence that the engine was not fit for use on the road when he sold it to S Co
Held - The fact that a car does not go for a reasonable time after sale is evidence that the car was not fit for the purpose at the time of sale.
Geddling v. Marsh [1920] (KBD)
Facts – mineral water contained in glass bottle, bottle was returnable, the bottle broke and person was injured, were goods supplied of merchantable quality, D tried to claim water was fine
Held – container also had to be of satisfactory quality, goods supplied includes packaging
Wormell v. RHM Agriculture (East) Ltd. [1987] (CoA)
Held – the instructions which go with goods also have to be of satisfactory quality
Lamarra v Capital Bank plc [2006]
Held – the fact that the manufacturer gives a warranty does not affect the statutory right to make a claim for satisfactory quality
S14(3) Sale of Goods Act 1979
Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known
(a) to the seller, or
(b) ….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 or credit-broke
Priest v. Last [1903]
Facts – hot water bottle exploded
Held – liable under 14(3), only ever sold for that purpose ,not fit for it [what is the difference between 14(2) &(3) - is overlap – common purpose is covered by 14(2), but on sliding scale e.g. varies on price, 14(3) doesn’t vary just reasonably fit for purpose – objective standard – s13 is strict liability], SoGA allows buyer to sue for personal injury
Griffiths v. Peter Conway Ltd. [1939] (CA)
Facts – bought a coat, when started wearing it , it irritated his skin disease, sued on basis that skin disease was caused by coat, so not reasonably for tor purpose
Held – reasonableness depends on what seller knew about buyer, came to shop but didn’t tell about skin disease so was not reasonable, P had to tell shop or they wouldn’t be liable
Wallis v. Russell [1902]
Facts – child went to fishmonger, asked to buy 2 fresh crabs to eat, child acting agent for grandmother, tells fishmonger what wants, seller gives them, grandmother eats them and is ill, not fresh (14(2), purpose was for eating
Held – not fit for eating, 14(3), relied on fishmongers skill and knowledge, seller had chosen based on knowledge
Slater v Finning [1977]
Facts – fishing boat had problem with engine, owner went to buy new parts, put new piece of equipment in, didn’t explain what was wrong
Held – seller of new bit of equipment didn’t know what problem was, didn’t know was problem, boat had abnormality, buyer has to tell buyer about problem, seller can’t be expected to get something fit for purpose, was not reasonable
Ingham v Emes [1955]
Facts – woman went to hairdresser, bought conditioner, allergic reaction. Normally contract for work and materials, but if also provides goods its covered by SOGA
Held – hairdresser weren’t liable unless customer told the hairdresser that she had allergy, was abnormal
Henry Kendall & Sons v. William Lillico & Sons, Ltd. [1969] (HL)
Held - A buyer may still rely on a seller’s skill and judgement even though (b) he is a member of the same trade association as the seller (i.e. has equal knowledge)
Cammell Laird & Co. Ltd. v. Manganese Bronze & Brass Co. Ltd. [1934] (HL)
Facts – suppliers of ship propellers according to buyers specification, sellers skills and knowledge were relied upon which weren’t included in specification, bits relied on was materials (but buyer relied on own skill for specification), the defect was the metal wasn’t thick enough
Held – sellers was liable even though buyer had given instructions, because the metal was relied upon sellers skill and judgement, s14(3), (Can rely on some bits of contract and not others – depends on what the seller knows what the person is using it for)
Crowther v. Shannon Motor Co. [1975] (CA)
Facts – 2nd hand car, £393, within short period engine needed replacing
Held – because such a short time was not reasonably fit for purpose s14(3)
s15 Sale of Goods Act
Sale by sample.
(2) In the case of a contract for sale by sample there is an implied term—
(a) that the bulk will correspond with the sample in quality;
(c) that the goods will be free from any defect,
[making their quality unsatisfactory], which would not be apparent on reasonable examination of the sample.
Overy v Paypal
Held – a contract would be treated as having been concluded for a purpose outside the person’s business, only if the business purpose was negligible and the focus was on their private consumer consumption
s2(2) Consumer Rights Act 2015
“Trader” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
s2(3) Consumer Rights Act 2015
“Consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
Gary Patchett v Swimming Pool and Allied Trades Association Ltd (SPATA) [2009]
Facts – S was trade association for swimming pool installers, P wanted pool, found details of installers on S website, contracted with installer C, C was not full member so not vetted, C began work and went insolvent, P sued S for C lack of care and skill and cost of finishing the job, as claimed had relied on statements on S website
Held – not liable as although S knew people would rely on them, they are expected to make further enquires
Golden Ocean Group Ltd v Salgaocar Mining Industries PVT [2012]
Facts – terms of charter party negotiated via email
Held – conclusion of commercial contracts through electronic means such as email was common place, signing an email is a valid signature
CONNECTED LENDER LIABILITY
Connected lender liability under section 75 of the Consumer Credit Act 1974 is an exceptional form of no-fault liability.
It applies in certain circumstances to make a credit provider jointly an severally liable with the supplier of goods or services bought on credit where those goods or services are defective.
So, a person who buys a computer that does not work using credit provided by a third party (such as a credit card) can sue the shop (on or off line) or the third party .
creditor.
Goods between £100-30,000
THE E-COMMERCE (EC DIRECTIVE) REGULATIONS 2000
These are not restricted to consumer contracts but also apply to ‘business to business’ dealings
Information required (reg 6) – name of service provider, address, details e.g. email
Identify the seller (reg 7), promotions etc
Accessible information (reg 9) - steps to concluding contract
Placing the order (reg 11), acknowledge receipt
Customer may bring an action for breach of statutory duty (reg 13)
Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013 reg5
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
& other definitions e.g. goods
Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013 - SCHEDULE 2 and Reg 13
Pre contractual information for distance/ off-premises contracts: there is a list of information that is treated as included in the contract
PART 2 Chapter I: INFORMATION REQUIREMENTS - CC(ICAC)R 2013
Reg 9 - Information ‘On premises’ Contracts
Reg 10 - Information ‘Off Premise’ Contracts – information listed in sch 2
Reg 13 - Before making distance contracts - information listed in sch 2
Reg 14 - Requirements for Distance Contracts by Electronic Means – must make known requirement to pay and the information in sch 2, website has to be clear
R29 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Right to Cancel in cancelation period
The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—
(a) regulation 34(3) (where enhanced delivery chosen by consumer);
(b) regulation 34(9) (where value of goods diminished by consumer handling);
(c) regulation 35(5) (where goods returned by consumer);
(d) regulation 36(4) (where consumer requests early supply of service).
(2) The cancellation period begins when the contract is entered into and ends in accordance with regulation 30 or 31.
R30 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Normal Cancellation Period -14 days
(1) The cancellation period ends as follows, unless regulation 31 applies.
(2) If the contract is—
(a) a service contract, or
(b) a contract for the supply of digital content which is not supplied on a tangible medium,
the cancellation period ends at the end of 14 days after the day on which the contract is entered into.
R31 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Breach of Information Requirements
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended under regulation 30.
R32 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Exercise of right to Withdraw
(1) To withdraw an offer to enter into a distance or off-premises contract, the consumer must inform the trader of the decision to withdraw it.
(2) To cancel a contract under regulation 29(1), the consumer must inform the trader of the decision to cancel it.
(3) To inform the trader under paragraph (2) the consumer may either—
(b) make any other clear statement setting out the decision to cancel the contract.
R33-35 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Reg 33 - Effect of Cancellation, ends obligations
Reg 34 - Reimbursement by Traders
Reg 35 - Return of Goods in event of Cancellation
Part 5 - Consumer Contracts (Information, Cancellation and Additional Charges) Regulation 2013
Reg 42 Time for delivery of goods, - if not specified not more than 30 days
Reg 43 Passing of Risk - until in physical possession of consumer
s1(4) Consumer Rights Act 2015
other types of contract in the act are covered – doesn’t have to be exclusively a sale of goods contract e.g. sale for goods with services will now be covered as a mixed contract
s3-8 Consumer Rights Act 2015
Goods covered by the Act
5 - Sales contracts
6 - Contracts for the hire of goods
7 - Hire-purchase agreements
8 - Contracts for transfer of goods
s9 Consumer Rights Act 2015
Goods to be of Satisfactory quality
(1) Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.
(2) The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of—
(a) any description of the goods,
(b) the price or other consideration for the goods (if relevant), and
(c) all the other relevant circumstances
(3) The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—
(a) fitness for all the purposes for which goods of that kind are usually supplied;
(b) appearance and finish;
(c) freedom from minor defects;
(d) safety;
(e) durability.
(4) The term mentioned in subsection (1) does not cover anything which makes the quality of the goods unsatisfactory—
(a) which is specifically drawn to the consumer’s attention before the contract is made,
(b) where the consumer examines the goods before the contract is made, which that examination ought to reveal, or
(c) in the case of a contract to supply goods by sample, which would have been apparent on a reasonable examination of the sample.
(5) The relevant circumstances mentioned in subsection (2)(c) include any public statement about the specific characteristics of the goods made by the trader, the producer or any representative of the trader or the producer.
(6) That includes, in particular, any public statement made in advertising or labelling.
(7) But a public statement is not a relevant circumstance for the purposes of subsection (2)(c) if the trader shows that—
(a) when the contract was made, the trader was not, and could not reasonably have been, aware of the statement,
(b) before the contract was made, the statement had been publicly withdrawn or, to the extent that it contained anything which was incorrect or misleading, it had been publicly corrected, or
(c) the consumer’s decision to contract for the goods could not have been influenced by the statement.
(8) In a contract to supply goods a term about the quality of the goods may be treated as included as a matter of custom.
(9) See section 19 for a consumer’s rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
