A. The Right to Reject Non-Conforming Goods

Section 13 of the Sale of Goods Act addresses the consequences of breach of condition or warranty. Section 13(1) provides that where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of condition as a breach of warranty and not as a ground for treating the contract as repudiated.

This gives the consumer a choice:

1. they can treat the breach of condition as a ground for repudiation (rejecting the goods and treating the contract as at an end) o
2. they can treat the breach as a breach of warranty (keeping the goods and claiming damages).

The choice is important because the consequences differ substantially.

Section 13(2) provides that whether a stipulation is a condition or a warranty depends on the construction of the contract. A stipulation may be a condition even if called a warranty in the contract.

Section 13(3) provides a considerable limitation on the right to reject. Where a contract of sale is not severable and the buyer has accepted the goods, or where the contract is for specific goods and the property in the goods has passed to the buyer, the breach of any condition can only be treated as a breach of warranty and not as a ground for rejecting the goods, unless there is a term to the contrary.

This means that once the buyer accepts the goods, they cannot reject them for breach of condition. Their remedy is limited to damages for breach of warranty.

B. Acceptance of Goods

Section 36 of the Sale of Goods Act defines when a buyer is deemed to have accepted goods. A buyer is deemed to have accepted goods when:

(i) The buyer intimates to the seller that they have accepted them;

(ii) The goods have been delivered to the buyer and the buyer does any act in relation to them which is inconsistent with the ownership of the seller; or

(ii) After the lapse of a reasonable time, the buyer retains the goods without intimating to the seller that they have rejected them.

The third criterion is particularly important. A buyer who keeps goods for an unreasonably long time without rejecting them is deemed to have accepted them. What constitutes a “reasonable time” depends on the circumstances of the case, including the nature of the goods, the nature of the defect, and the difficulty of discovering the defect.

The Act does not define “reasonable time” conclusively. Section 56 of the Sale of Goods Act provides that the question of what is a reasonable time is a question of fact. This means that a court must decide based on the specific circumstances of each case.

C. The Right to Examine Goods

Section 35 of the Sale of Goods Act provides crucial protection for buyers. Section 35(1) provides:

“Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.”

Section 35(2) provides:

“Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.”

These provisions ensure that a buyer does not lose the right to reject goods simply because they have been delivered. The buyer is entitled to examine the goods before accepting them. If the buyer has not had a reasonable opportunity to examine the goods, the deemed acceptance provisions of section 36 do not apply.

The right to examine is particularly important in e-commerce and distance selling, where the buyer has no opportunity to examine goods before delivery. In such cases, the buyer is entitled to a reasonable opportunity to examine the goods upon delivery, and the right to reject the goods extends for a reasonable period after examination reveals a defect.

D. Delivery of Wrong Quantity or Description

Section 31 of the Sale of Goods Act addresses situations where the seller delivers goods that do not match the contract in quantity or description.

Section 31(1) provides that where the seller delivers a quantity less than contracted, the buyer may reject them, but if the buyer accepts the goods delivered, they must pay for them at the contract rate.

Section 31(2) provides that where the seller delivers a quantity larger than contracted, the buyer may accept the goods included in the contract and reject the rest or may reject the whole. If the buyer accepts the whole, they must pay for them at the contract rate.

Section 31(3) provides that where the seller delivers the goods contracted mixed with goods of a different description not included in the contract, the buyer may accept the goods in accordance with the contract and reject the rest or may reject the whole.

These provisions give the buyer great flexibility. They can accept part and reject the rest or reject the whole. They cannot, however, accept the whole and then refuse to pay the contract rate for the excess or the mixed goods.

E. Estimates and Overcharging

Section 6 of the Consumer Protection Act addresses estimates. Section 6(1) provides:

“If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than ten per cent.”

Section 6(2) provides:

“If a supplier charges an amount that exceeds the estimate by more than ten per cent, the consumer may require that the supplier provide the goods or services at the estimated price.”

This provision protects consumers from unexpected price increases. If a supplier provides an estimate, they cannot charge more than 10% above the estimate without the consumer’s consent. If they do, the consumer can insist on the estimated price.

Section 6(3) clarifies that nothing prevents a consumer and supplier from agreeing to amend the estimate or price if the consumer requires additional or different goods or services. However, the amendment must be agreed before the work is done, not after the consumer receives an unexpectedly high bill.

F. Late Delivery

Section 21 of the Consumer Protection Act addresses late delivery. Section 21(1) provides:

“A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier—
(a) does not make delivery within thirty days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing;

or
(b) does not begin performance of his, her or its obligations within thirty days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing.”

If the delivery date or commencement date is not specified, section 21(2) provides that the consumer may cancel the agreement if the supplier does not deliver or commence performance within thirty days after the date the agreement is entered into.

Section 21(3) provides that if, after the specified period has expired, the consumer agrees to accept delivery or authorise commencement, the consumer may not cancel the agreement under this section. This prevents consumers from agreeing to delays and then using the delay as a ground for cancellation. Section 21(4) defines when a supplier is considered to have delivered or commenced performance. Delivery or commencement is considered to have been attempted, and therefore the consumer’s right to cancel does not arise, if:

(a) delivery was attempted but was refused by the consumer at the time that delivery was attempted or delivery was attempted but not made because no person was available to accept delivery for the consumer on the day for which reasonable notice was given to the consumer that there was to be delivery; or

(b) commencement was attempted but was refused by the consumer at the time that commencement was attempted or commencement was attempted but did not occur because no person was available to enable commencement on the day for which reasonable notice was given to the consumer that commencement was to occur.