A Further Comment on Warranty in Sale
J. J. Gow *
If Professor Durnford’s latest defence of the law of sale in
Quebec proves anything it proves his innate conservatism both as
a social animal and as a Quebec lawyer. As illustration, two quo-
tations from his “Apparent Defects in Sale Revisited” 1 may serve.
The first, in support of his position that the modern buyer of an
object of worthwhile magnitude 2 will protect himself by retaining
an expert unless he is able to obtain an express guarantee, is “If
I may be permitted to refer, as did Professor Gow, to a principle
of Roman law, I would like to cite a maxim that I feel still has
relevance even in this twentieth century welfare state of ours:
Vigilantibus non dormientibus juvat leX”. 3
Without shadow of a doubt Professor Durnford’s psyche can
resist all the blandishments of the modern salesman. He is fortu-
nate. Even so, perhaps the writer may be permitted to stress that
the principle of the Civil (Roman) Law to which he referred,
namely bona fides, was a principle of the substantive law of sale 4
whereas the adverse maxim is primarily part of the law of pres-
cription.
The second, rejecting the not very hopeful suggestion made by
the writer that Canada might look forward to a Uniform Sale of
Goods Act, is “it is unthinkable that the Quebec Civil Code pro-
visions on the contract of sale should be replaced by a Uniform
Sales Act, as the same would undoubtedly be quite different in its
approach. As Quebec already has its own civil law system, why
introduce another which would inevitably lead to confusion because
of the differences of language and style ?”5 Assuming by “another”
is meant not merely another civil law system, but any other sys-
tem of law whatever, the French always excepted, then Professor
* Professor of Law, McGill University.
1 (1964) 10 McGill L.J. 314.
2 It is not clear from Professor Durnford’s text to whom the magnitude refers:
what may be insignificant to the inhabitant of a chateau in Outremont may be
of considerable magnitude to the cave dweller on the Lakeshore.
3 Op. cit. p. 359.
4 10 McGill L.J. at p. 249.
5 Op. cit., p. 360.
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Durnford does not stand alone. In the recent decision on sale of
Monsanto Oakville Ltd. V. Dominion Textile Co. Ltd.,” Tremblay,
C.J. could say, “C’est une question de fait que le premier juge n’a
pas d~terminde parce qu’il a ddcid6 la cause en se basant sur des
autoritds am~ricaines et des decisions rendues en vertu de lois en
vigueur dans les autres provinces canadiennes. Il me faut done
rfsoudre cette question sans son aide.” The message is clear –
in
sale there will be no co-operative federalism !
Notwithstanding this Quebec rejection of a plea for co-opera-
tion in a sphere of law which affects the country as a whole, the
writer dares to submit that this rejection has been far too hasty
and without proper consideration being given either to the plea or
the evidence supporting it. In this article he hopes to show that
co-operation, such as suggested by him, not only in no way threat-
ens any violation of Quebec’s “sacred rights” but seems to have
been welcomed, in an as yet restricted but not unimportant sphere,
by countries whose claims to be inheritors of the Civil Law are no
less legitimate than those of Quebec.
Before proceeding to the evidence it may be worthwhile to dwell
for a moment on the nature of the plea for co-operation. It was,
and is, not as Professor Durnford’s language above quoted seems
to suggest that the law of sale in Quebec be abandoned and re-
placed by .the law of the English Sale of Goods Act. It was, and
is, a plea that the advantages of each system can be incorporated
into a Uniform Act. It is true that in many spheres the techniques
of the Common Law and of the Civil Law do not permit of worth-
while co-operation. For example, there is no point in seeking to
combine cause, as a ground of obligation, with English considera-
tion, although probably each could be eliminated with considerable
advantage to the legal systems concerned. 7 On the other hand the
6 Unreported judgment of the Quebec Court of Queen’s Bench, District of
Montreal, no. 7469.
7 In England the substantial abolition of consideration was recommended in
1937 by the Law Revision Committee. Cause as a ground of obligation is almost
indigenously French and outwith the main stream of Civil Law thinking –
“… if
those who framed the Code Civil had appreciated the fundamental principles of
the law of contract as clearly as did Grotius, Vinnius and Voet, and indeed their
own Molinaeus, they would have saved the world a nightmare of confusion from
which it has not even yet recovered. It is satisfactory, however, to note that the
German Code … has returned to the pristine simplicity of the law as it obtained
among the foremost nations of the Continent of Europe until the Code Napoleon,
under the influence of Domat and of Pothier, who unfortunately was himself
influenced by Domat, led them astray” –
per Villiers, A.J.A., rejecting both
cause and consideration in Conradie v. Rossouw 1919 A.D. (S. Africa) 279 at
p. 323.
No. 1] FURTHER COMMENT ON WARRANTY
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37
respective dogmas of the law of sale both in the Common Law and
the Civil Law have for long enough been tending to converge. This
tendency has permitted recent co-operation by both systems (al-
though other systems were involved) and the co-operation has
resulted in the Conventions relating to a Uniform Law on the
International Sale of Goods which opened for signature on July 1,
1964, and to which reference will be made later. Is the law in
Quebec so different from all others that on a priori grounds co-
operation is impossible ?
The most important essentials of a contract of sale are –
(i) the formation of the contract
(ii) the evidentiary requirements
(iii) the conveyance of ownership
(iv) the remedies of the buyer
(v) warranty against eviction.
(i) The Formation of the Contract
Here the Quebec law and the Common Law are scarcely at odds.
In Quebec the breakthrough of consent, as the ground of obligation,
from the Roman consensual contracts into the innominate contracts
has long been recognized. Thus, la vente synallagmatique arises out
of the interdependent promises.8 In the Common Law one promise
is good consideration for another, therefore an agreement to sell
is a valid contract.9 Neither is, of course, a sale stricto sensu,
although under certain circumstances each may be, as will be seen.
(ii) The Evidentiary Requirements
In Quebec, if the matter is not commercial, as a general rule
proof must be made in writing (1233 C.C.), but even if the matter
is commercial upon any contract for the sale of goods in which the
sum of money or value in question exceeds fifty dollars, no action
or exception can be maintained against any party unless the buyer
has accepted or received part of the goods or given something in
earnest to bind the bargain. (1235 C.C.). This restriction is almost
indistinguishable from that which, by section 4 of the Sale of Goods
Act, 1893, used to apply in England,10 but which has repealed in
1954.11 No injurious results to Quebec would flow from the repeal
of article 1235 (4) C.C.
S Cousineau v. Gagnon (1914) 23 B.R. 309.
9 S.G.A. s.l. (‘S.G.A.” refers to the U.K. Sale of Goods Act, (1893), which is
substantially reproduced in the provinces of Canada outside Quebec).
1o Marchand v. Dalfen & Sand [1955] C.S. 462.
11 Law Reform (Enforcement of Contracts) Act, 1954.
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(iii) The Conveyance of Ownership
A distinctive feature of Civil emptio venditio was that even
where the emptio was perfecta, that is the parties were agreed
upon the thing to be bought and sold and on the price to be paid,
there was no conveyance of the ownership to the buyer; that re-
quired delivery traditionibus et usucapionibus dominia rerum, non
nudis pactis transferuntur. This simple rule had many advantages;
for example, it avoided the need to protect by a fiction 12 third
parties who took in good faith from a seller who had already
bound himself to sell to another the thing which he delivered to
the third party.
For long enough the English rule has been otherwise, namely,
that not only the bargain but the sale can be effected by agree-
ment.13 Originally French law agreed with the Civil Law, but sem-
ble the needs of business required change. This was effected by the
clause de constitut ou de pr~caire, and finally, the Codifiers, Pothier
notwithstanding, adopted the English rule. Quebec law is no dif-
ferent.1 4 The concept of bargain and sale creates difficulties which
afflict both Quebec and English law, namely the protection of third
parties taking in good faith from the dishonest seller,15 and the need
to postpone the sale of an uncertain or indeterminate thing until
it has been so individualised that the bargain can fasten upon it.
Thus art. 1026 C.C. says “if the thing to be delivered be uncertain
or indeterminate the creditor does not become the owner of it until
it is made certain and determinate, and he has been legally notified
that it is so.” English law is almost identical –
“where there is a
contract for the sale of unascertained goods no property in the
goods is transferred to the buyer unless and until the goods are
ascertained”, and detailed rules for ascertaining the intention of
the parties as to the passing of the property are supplied by the
statute.16
(iv) Remedies of the Buyer
The other distinctive feature of the Civil Law was the redhibi-
tory remedy of the buyer.’ 7 It had two features –
(i) that if at
the time of the contract and unknown to the buyer the thing bought
12 Compare art. 1027 C.C. with s. 21 S.G.A.
13 The history is discussed in Cochrane v. Moore (1890) 25 Q.B.D. 57.
14 art. 1025, 1472.
15 Compare art. 1027 with s. 21 S.G.A.
16 s.s. 16, 17, 18 S.G.A.
17 Described in 10 McGill L.J. at pp. 248-250.
No. 1] FURTHER COMMENT ON WARRANTY
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39
suffered from a defect which destroyed or impaired its usefulness
for the purpose for which things of that kind were ordinarily in-
tended to be used, then (ii) the buyer could have the contract set
aside, and recover the price if paid.’
Quebec law has retained the second feature but, under the in-
fluence of French law,’9 has so glossed the actio redhibitoria as to
depart from the Civil Law philosophy caveat venditor and approxi-
mate to that of the former Common Law caveat emptor. Briefly,
and according to Professor Durnford, the position in Quebec Law
is that, unless the seller is the manufacturer of the thing sold, the
buyer, if he wishes to ensure that he will not be deprived of the
redhibitory remedy, is under a duty prior to the conclusion of the
contract to examine the thing for defects. Should he not possess
in himself the competence to make a worthwhile examination he
must engage an expert so to do.
The Common Law had nothing analogous to the actio redhibi-
toria. “In the bargain and sale of an existing chattel, by which the
property passes, the law does not (in the absence of fraud) imply
any warranty of the good quality or condition of the chattel so
sold”.20 Then, because of the growth of an industrial society, an
exception was made where an order was given for the making or
supplying of an article. The manufacturer had to supply an article
reasonably fit for the purpose for which it was ordinarily used.
Later still the same duty was imposed upon a dealer.2’1 Still later
there came the development of the doctrine of fundamental obliga-
tion based upon the theory of description. 22 The buyer need not make
an examination prior to completing the bargain. The Common Law
has in spirit approximated to the Civil Law position that a seller
acted fraudulently 23 who did not supply a price – and use – worthy
commodity. The Common Law is perhaps not so generous in its
attitude towards the buyer’s right to have the contract set aside.
Quite often his remedy may be restricted to damages.2 4
The two systems are not too far apart. What is more important
is that no root principle is involved. Were Quebec to modify the
application of arts. 1522, -3-4 C.C. Quebec lawyers would still be
maitres chez eux.
iS He could not, of course, retain the goods.
19 “Apparent Defects in Sale Revisited” –
20 Per Parke B. in Barr v. Gibson 3 M & W. 390.
21 Compare Jones V. Just (1868) L.R. 3. Q.B. 197 with s. 14 S.G.A.
22 See 10 McGill L.J. at p. 251.
23 This does not mean that the seller was dishonest in fact.
24 The above is necessarily a grievous over-simplification.
10 McGill L.J. at pp. 348-356.
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(v) Warranty against Eviction
In the Civil Law the seller was bound to guarantee the buyer
undisturbed possession, so that if the thing were recovered from
the latter by a third party on the strength of a superior title the
seller had to indemnify him. The Quebec law is in the civilian tra-
dition.25 At Common Law the seller affirms that he is owner, that
is he warrants title.28 The difference in principle, if any, seems
insubstantial. 27
There is nothing in the foregoing description of the two systems
to suggest that on a priori grounds co-operation is either unthink-
able or impossible. Is then co-operation impossible as a matter of
applied legal science ? The recent Uniform Law on the Interna-,
tional Sale of Goods suggests a negative answer. Some of the Civil
Law countries which participated in the Conference which created
the Uniform Law were Austria, Belgium, Germany, Italy, Luxem-
bourg, Netherlands, Portugal and Spain, and Quebec lawyers need
have no anxiety, France too participated. There are two Conven-
tions, one described as a Convention Relating to a Uniform Law
on the Sale of Goods. It refers to the performance of a contract
of sale and for convenience is hereinafter referred to as “Uniform
Law”. The other relates to the Formation of Contracts for the Inter-
national Sale of Goods and is hereinafter referred to as “Uniform
Law” (Formation).
On the essentials already canvassed the Uniform Law and the
Uniform Law (Formation) provide
(i) The Formation of the Contract.
The Uniform Law does not as such concern itself with the for-
mation of the contract (art. 8), but it presupposes a contract en-
tered into by offer and acceptance (art. 1), and elaborate provi-
sions dealing with the mechanics of offer and acceptance are con-
tained in the Uniform Law (Formation).
(ii) The Evidentiary Requirements.
The Uniform Law applies to “sales regardless of the commer-
cial or civil character of the parties or of the contracts” (art. 8).
The Uniform Law (Formation) declares that “An offer and ac-
25 art. 1508 C.C. et sequ.
26 S. 12 S.G.A.
27 Compare art. 1519 C.C. with Butterworth v. Kingsway Motors Ltd. (1954)
1 W.L.R. 1286.
No. 1] FURTHER COMMENT ON WARRANTY
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41
ceptance need not be evidenced in writing and shall not be subject
to any other requirement as to form. In particular, they may be
proved by means of witnesses”. (art. 3). This is the position in
the Common Law.
(iii) The Conveyance of Ownership.
The Uniform Law does not, except as otherwise expressly pro-
vided therein, concern itself with the effect which the contract may
have on the property in the goods sold (art. 7). As shown above
the Common Law concept of bargain and sale has been adopted
both by French and Quebec law. The existence of this concept is
recognized by the Uniform Law which
in connection with the
passing of the risk where the contract relates to a sale of unas-
certained goods speaks of appropriation to the contract of the goods
by the seller and the giving of notice to the buyer (art. 98 (3)).
(iv) The Remedies of the Buyer.
The Uniform Law contains elaborate provisions in the matter
of the obligations of the seller as regards the conformity of the
goods with the contract. Only the provisions directly related to the
redhibitory remedy are mentioned, although the remedy of lack of
conformity embraces much of the law contained in the Sale of Goods
Act, and is much more specific and detailed than the provisions of
the Quebec Code.
Article 33
(1) provides –
“The seller shall not have fulfilled
his obligation to deliver the goods where he has handed over…
(d) goods which do not possess the qualities necessary for their
ordinary or commercial use”;
No duty to examine the goods prior to the making of the con-
tract is imposed on the buyer, but the seller is not liable for the
consequences of lack of conformity of the kind referred to in sub-
(d) “if at the time of the conclusion of the contract
paragraph
the buyer knew, or could not have been unaware of, such lack of
conformity” (art. 36). The effect of “could not have been unaware
of” is that if the buyer ex proprio motu does examine the goods prior
to the conclusion of the contract there is imputed to him “what
should have been known to a reasonable person in the same situa-
tion” (c.f. art. 13). 28
There is a duty on the buyer promptly to examine the goods
after they have handed over to him, (art. 38) and this is relevant
28 Compare the test suggested in 10 McGill L.J. at p. 245.
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to his right to rely on a lack of conformity (art. 39). Among the
remedies given the buyer for lack of conformity is the right to
declare the contract avoided, (art. 41 (b)) and to recover damages
equal to the difference between the contract price and the current
price at the date of avoidance (art. 84).
(v) The Warranty against Eviction.
The Uniform Law does not deal with the whole of this problem,
but provides that when the goods are, unknown to the buyer, sub-
ject to a right or claim of a third person, and the seller refuses
to comply with the request of the buyer to free the goods from
such right or claim, the buyer may declare the contract avoided,
and claim damages (art. 52); but the rights conferred upon the
buyer by article 52 exclude all other remedies based on the fact
that the seller has failed to perform his obligation to transfer the
property in the goods or that the goods are subject to a right or
claim of a third person (art. 53). 29
The Uniform Law is much more comprehensive in its scope than
would appear from the brief excerpts quoted above. “Goods”’80 are
not explicitly defined but clearly are in the main corporeal move-
ables, the Law being declared inapplicable to sales of incorporeal
moveables, such as rights of credit, registered ships or aircraft, and
of electricity (art. 5). The Law has most elaborate provisions as
to remedies and the quantum of damages; inter alia it gives the
seller a remedy almost indistinguishable from the Common Law
right of stoppage in transitus (art. 72) but says nothing of a right
to revendicate, and its provisions on risk merit carefut scrutiny.
There is no scientific reason why it could not form the basis of
the preparation of a Uniform Law within Canada. Any fears that
such a law might “lead to confusion because of the differences of
language and style” may be unreasonable. The International Uni-
form Laws have been done in the French and English languages,
both texts being equally authentic (arts. XV and XIII of the
Conventions). What more can one ask for ?
29 Compare arts. 1508 to 1521 C.C.
3o The promulgation of the Uniform Laws confirms the suggestion implied in
the writer’s plea that the sale of “goods” in modern times has little to do with
the sale of immoveables. Professor Durnford’s inference that the writer is content
with the law in Quebec relating to immoveables is incorrect (10 McGill L.J. at
p. 346) –
the truth is that the writer has not given a single thought to the law
as it affects immoveables:
there are some domestic mysteries best left alone
by a non-Quebecer.
