McGILL LAW JOURNAL
(Vol. 19, No. I
Sales by Sample in the Province of Quebec
Introduction
Inferring contractual intent is undoubtedly one of the most
difficult and delicate of judicial tasks. Faced with ad hoc and fre-
quently conflicting testimony, the courts are forced to assess the
credibility of opposing witnesses, draw the relevant factual con-
clusions, and impute an intent in relation to a contingency which
the parties may never have even considered when transacting the
bargain in question. What the litigants said, or what they did,
or what they said in conjunction with what they did, is only
relevant to the extent that the behaviour in question illuminates
a reciprocal intention. It is not surprising to find, therefore, that
judicial inferences of the prior intention of the parties are fre-
quently speculative and unpredictable.
The judicial assessment of conduct precedent to the formation
of the contract of sale is not immune from the vagaries of the
fact-finding process. As a result, the legal consequences which
attach to behavioural patterns frequently associated with the con-
tract remain largely uncharted: witness, for example, the hopeless
morass surrounding the controversy relating to the promise of sale.
In view of the seemingly endless judicial and doctrinal debate
concerning the meaning of article 1476 C.C., which has persisted
and even escalated over the last century, I will spare the reader
further exposure to this deadly controversy. Rather, it is my
purpose to discuss the legal implications of a different prelim-
inary arrangement which, although less often relied upon, is never-
theless of equal analytical significance, and, in this observer’s view,
poses equally thorny analytical difficulties.
Quebec courts have on more than one occasion invoked common
law authorities:’ when resolving disputes involving sample sales, a
practice subsequently criticized by the Court of Appeal Hence,
although there is one decision holding that a sale will merely be
one by description unless the contract expressly describes the trans-
action as being a sale by sample,3 the Court relied upon English
1 See the authorities cited in: Kayser & Co. Ltd. v. C. & G. Lingerie Co. Ltd.,
[1963] C.S. 504, at pp. 505-506.
2 Monsanto Oakville Ltd. v. Dominion Textile Co. Ltd., [1965] B.R. 449, at
pp. 450-451.
3 Kayser & Co. Ltd. v. C. & G. Lingerie Co. Ltd., op. cit., at pp. 505-506.
1973]
NOTES
authorities having little relevance in this jurisdiction. As a result,
it would appear fair to say that a sale by sample is a sale em-
bodying an unambiguous arrangement, either verbal or written,
express or implied, that the object of the contract will correspond
precisely with sample merchandise which the buyer has seen, ex-
amined, and, presumably, found satisfactory for his purposes.4 In
assessing the intent of the parties, there has been a pronounced
judicial tendency to examine the conduct of the buyer when ac-
cepting the merchandise in question. It is clear that the purchaser
who receives merchandise without manifesting any concern as to
whether it conforms to the sample will have difficulty in subse-
quently contending that the transaction was in fact a sale by
sample.5
What legal consequences should result from an agreement of
this nature? Does it constitute a conventional guarantee in addition
to the legal warranty of the vendor against latently defective mer-
chandise? Does any disparity between the sample and the merchan-
dise ultimately delivered automatically engage the vendor’s respon-
sibility, regardless of its nature or materiality? If so, is the basis
of the buyer’s remedy founded in article 1065 C.C. or 1526 C.C.?
Do any legal consequences result from the buyer’s approval of the
sample and from his instructions to the seller to deliver merchan-
dise in accordance with it? Does the arrangement in any way ex-
onerate the seller from the liability to which he would otherwise
be subject? For example, does it confine the latter’s responsibility
to warrant the purchaser against latent defects to the delivery of
merchandise which complies with the sample? In responding to
questions such as these, the courts appear to have established two
distinct sources of vendor’s liability. We will examine and assess
each in turn.
In Walker & Co. Ltd. v. Wiselberg, (1924) 36 B.R. 105, Allard, I., at p. 108,
endorses the following definition proposed by Baudry-Lacantinerie, 3e 6d.,
Volume de la vente, at p. 179:
L’6chantillon est une petite quantit6 de marchandise qui est pr61evde sur
une quantit6 plus grande de marchandise semblable offerte en vente et
que le vendeur remet h l’acheteur pour lui faire connaitre les qualit~s de
l’ensemble.
Planiol and Ripert, Droit Civil Frangais, 2e dd., (1956), t. 10, n. 305, at p. 379,
suggest a sale by sample:
… est celle dans laquelle l’acheteur n’a donn6 son engagement que sur
la pr6sentation d’un 6chantillon destin6 kt lui faire connaitre et appr~cier
la qualit6 de la marchandise.
5 Walker & Co. Ltd. v. Wiselberg, op. cit., at p. 108; Guest v. Douglass, (1891)
20 RL. 20, at p. 23 (C.A.); Loynachan v. Armour, (1904) 25 C.S. 158, at p. 163;
Neiss v. Noiles, [1945] Ri. 253, at p. 255 (C.S.).
McGILL LAW JOURNAL
[Vol. 19, No. I
The Responsibility of the Vendor Selling by Sample
a. The merchandise must conform to the sample
Although the courts have not characterized the undertaking by
the vendor as an express guarantee, they have nevertheless con-
sistently held that the merchandise ultimately delivered must con-
form strictly to the sample., The buyer who seeks rescission has,
understandably, the burden of demonstrating the discrepancy be-
tween the sample and the merchandise actually delivered 7 which
must, however, have been unapparent at the time of the sale.8 In
order to recover, he must institute proceedings with reasonable
diligence in accordance with the terms of article 1530 C.C.,’ although
there is authority that an informal tender by the buyer, if unlaw-
fully refused by the seller, will eliminate the need for compliance
with this requirement. 10 It is clear that the buyer concluding for
damages or rescission here,”- as elsewhere, 2 loses any right of
action in respect of merchandise which he may have resold, al-
though, if he has not been negligent, he is still entitled to have
the sale set aside and to tender back that part of the shipment
which may still remain in his hands.” The law remains unclear,
however, as to whether the purchaser may tender back the entire
shipment if only part of the merchandise is unsatisfactory. 4
Quebec courts have been generally predisposed to treat this aspect
of the vendor’s liability as being subsidiarily annexed to the legal
warranty against latent defects. Judicial insistence that the buyer’s
acceptance of merchandise which does not correspond with the
6Leduc v. Shaw, (1863) 13 L.C.R. 438 (CA.); Guest v. Douglass, op. cit., at
p. 23; Joseph v. Morrow, (1860) 4 L.CJ. 288 (C.S.); Loynachan v. Armour, op.
cit., at p. 162; Desmarteau v. Harvey, (1873) 23 RJ.R.Q. 211 (C. de Rev.). For
a decision of the Cour de Cassation to the same effect, see: Stourdza v. Bd-
choff-David et Cie, Civ., 23 juin 1914, D.P. 1916.1.93.
7 Guest v. Douglass, op. cit., at p. 23. For French authority to the same
effect, see: Martin v. Borgeaud, Req., 26 ddcembre 1922, D.P. 1924.1.23.
8 Guest v. Douglass, op. cit., at p. 23; Neiss v. Noiles, [1945] R.L. 253, at p.
255 (C.S.); Cedillot v. Lalonde, [1951] C.S. 379, at p. 380.
9 Joseph v. Morrow, (1860) 4 L.CJ. 288 (C.S.); Loynachan v. Armour, op. cit.,
at p. 162; Cedillot v. Lalonde, op. cit., at p. 381.
lOLeduc v. Shaw, (1863) 13 L.C.R. 438 (CA.).
“iRescission: Loynachan v. Armour, op. cit., at p. 163; damages: Sports Togs
Inc. v. Telio Trading Co. Inc., [1970] C.S. 261, at p. 273.
12Rondelet v. Legrand, [1972] R.L. 285, at p. 288 (Prov. Ct.); Mdnard v. Des-
loges, [1949] R.L. (n.s.) 123, at p. 128 (C.S.).
“3Loynachan v. Armour, op. cit., at p. 163.
14 Desmarteau v. Harvey, (1873) 23 RJ.R.Q. 211 (C. de Rev.); and Lamer v.
Beaudoin, [1923] S.C.R. 459.
19731
NOTES
sample precludes recovery, unless the disparity was latent, is consis-
tent with this tendency as is the rule that the buyer must bring his
action with reasonable diligence. It is submitted that this treatment
of the legal relationship between the parties denies the true purpose
of the arrangement, which is to establish an independent conven-
tional source of liability irrespective of and in addition to any legal
warranties to which the seller may -be subject.
There are, of course, cases scattered throughout the jurispru-
dence of this jurisdiction which suggest that the rules delimiting
the recourses of the buyer, where the seller breaches his warranty
against latent defects, apply to conventional guarantees as well. By
way of example, lofty authorities such as Mignault 15 and Anglin,
JJ.1 have, while participating in different judgments rendered by
the Supreme Court of Canada, contended that article 1526 C.C.
applies to conventional guarantees 17 and that articles 1527 and
1528 C.C. restrict the measure of damages resulting from the breach
of a conventional stipulation “incident to a contract of sale”;’ 8 and
in his exhaustive treatment of the buyer’s obligation to sue with
diligence when taking the redhibitory action,’ 9 Dean Durrford has
pointed to the substantial, if equivocal body of jurisprudence which
holds that article 1530 C.C. applies to actions based on express
guarantees as well as those premised upon the vendor’s warranty
against latent defects.
These judicial opinions, it is submitted, and with the greatest
respect, are incorrect, for they fail to distinguish between rights
of action which result from a presumptive intent enunciated in
the Civil Code and a judicially inferred intent gathered from the
behaviour whether written, verbal or otherwise of the parties. The
distinction is significant, because a specific remedy applicable to
the breach of a particular obligation is inextricably linked to that
obligation, and to nothing else. Thus, the redhibitory action, for
example, embodies the right to rescind the contract of sale pur-
suant to the breach of the vendor’s warranty against latent defects;
it does not arise in relation to the breach of a conventional obliga-
tion undertaken independently of the legal obligation presumptively
15 Lamer v. Beaudoin, op. cit., at p. 473.
16 Samson & Filion v. The Davie Shipbuilding & Repairing Co., [1925] S.C.R.
202, at p. 218.
17 Lamer v. Beaudoin, op. cit., at p. 473.
18 Samson & Filion v. The Davie Shipbuilding & Repairing Co., op. cit., at
p. 218.
19 John W. Durnford, The Redhibitory Action and the “Reasonable Diligence”
of Article 1530 C.C., (1963) 9 McGill L.J. 16.
McGILL LAW JOURNAL
[Vol. 19, No. I
assumed by the vendor. To this, the remedies embodied in article
1065 C.C., with the attendant restrictions of articles 1074 and 1075
C.C., and the prescriptive limitations contemplated by article 2242
C.C., apply. The same rules, therefore, should govern the buyer’s
right of action against the vendor who, having agreed to a sale by
sample, has nevertheless delivered merchandise which does not
correspond with the sample which forms the basis of the contract.
b. The vendor’s warranty against latent defects
Does the purchaser’s approval of the sample impliedly relieve
the vendor of any liability other than that of delivering merchan-
dise which conforms to the sample? Although there are cases
which suggest, either expressly 20 or by implication,2′ that the pur-
chaser who has had the opportunity to examine and approve the
sample will encounter some difficulty in pursuing an action for
latent defects after he has accepted merchandise which conforms
to the sample, the courts have not as yet explicitly formulated the
criteria which govern the buyer’s recourse. Two recent cases would,
however, appear to suggest that a significant, if not controlling
consideration, is the complexity of the tests which the buyer would
have had to employ in order to discover that the merchandise, as
represented by the sample, was not fit for the purpose for which
it was intended. Thus, in one case, a defect which “could easily
have been determined”, 2 was held to be apparent while, in the
other, it was held that “technical or chemical tests” 23 were an
inappropriately onerous burden to place on a buyer’s shoulders,
even when he was purchasing on the basis of a sample which he
had approved after having had ample time to effect the necessary
tests. In this respect, therefore, there appears to be a clear analogy
with the obligation of inspection which the courts have imposed
upon the purchaser of immoveable property. Thus, while inexpe-
rience and naivet6 will not mitigate the negligent oversight of
defective immoveable property,24 although the latter has on occa-
sion been held to excuse the buyer of moveable property,2
1 it has
2 0 Guest v. Douglass, (1891) 20 R.L. 20, at p. 23 (C.A.); Monsanto Oakville Ltd.
V. Dominion Textile Co. Ltd., [1965] B.R. 449, at pp. 450-451.
21 Cedillot v. Lalonde, [1951] C.S. 379.
2 2 Monsanto Oakville Ltd. v. Dominion Textile Co. Ltd., op. cit., at p. 452.
2Sports Togs Inc. v. Telio Trading Co. Inc., [1970] C.S. 261, at p. 268.
24For an extensive review of the relevant authority, see: John W. Durn-
ford, What is an Apparent Defect in the Contract of Sale?, (1964) 10 McGill
LI. 60.
25 See, e.g.: Bourget v. Martel, [1955] B.R. 659.
19731
NOTES
been held that there are limits to the extent to which the buyer
is expected to go when making the necessary inspection 6 In the
case of sales by sample, these limits presently dictate that the buyer
will preserve his recourses by ensuring, before he accepts the mer-
chandise in question, that a serious and careful examination has
been made by an informed observer in accordance with the pre-
vailing customs in the relevant industry.
It is significant to note that, with the exception of Mr. Justice
Casey, dissenting, in Monsanto Oakville, none of the judges par-
ticipating in these decisions made a serious effort to evaluate the
intentions of the parties. Citing tenuous authority,27 Tremblay, C.J.,
with whom Hyde, J. concurred, merely held that the restrictions
of article 1523 C.C. applied to sales by sample, and proceeded to
hold that the defect was apparent, thereby negativing liability. Mr.
Justice Batshaw, on the other hand, seemed to virtually ignore
the fact that a sample had been delivered to the buyer before the
agreement had been consummated in Sports Togs. Indeed, the
authority upon which he placed primary reliance –
a decision of
the Cour d’Appel de Paris 28 _
in holding that the fabric was tainted
with a latent defect, did not even involve a sale by sample.
Do these decisions properly reflect the intentions of the parties?
Precisely what should a vendor reasonably infer from a purchaser’s
request to examine part of the merchandise to be delivered in
order to determine whether it meets his specifications? Can diffi-
culties such as those which arose in Monsanto and Sports Togs
be effectively resolved within the framework of the distinction
between latent and apparent defects? In my view, they can-
not. It is hopelessly artificial for a court to attempt to resolve
disputes such as these without adequately canvassing and imple-
menting the intent of the parties as manifested by their behaviour.
And their behaviour is, in the absence of proof to the contrary,
proof clearly lacking in Sports Togs, presumptively consistent with
26The buyer, for example, need only have or obtain, when effecting the
examination, the generalized expertise of the engineer or architect; he -need
not consult an expert in each of the building trades: E. & M. Holdings Inc.
v. Besmor Investment Corp., [1961] B.R. 376, at p. 379; and when he purchases
property newly built by the vendor himself, he need not consult an expert
at all: Rothstein v. Int’l Construction Inc., [1956] C.S. 109; Tellier v. Proulx,
[1954] C.S. 180; Laurier Vachon Ltde. v. Gdrard, [1968] B.R..497, at p. 499.
27 Planiol et Ripert, op. cit., at pp. 379-380, who themselves equivocate on
this issue.
28 Mouton v. Peignon, D.H. 1924.1250.
McGILL LAW JOURNAL
[Vol. 19, No. I
an intent to exonerate the vendor from the legal warranty against
latent defects. The courts need only, within the parameters of public
policy,29 give effect to that intent.
David Cayne *
29 There is substantial authority to the effect that public policy prohibits
the manufacturer or specialized merchant vendor from contractually excluding
or limiting the extent or consequences of the vendor’s warranty against latent
defects in relation to which he had actual or presumed knowledge. See, by
way of example only: Touchette v. Pizzagalli, [19381 S.C.R. 433, at pp. 438439;
Longprd v. St-Jacques Automobile Ltde, [1961] C.S. 265, at p. 266; Joyal v.
Vanasse, [1967] R.L. 467, at p. 473 (Prov. Ct.); Roy v. Ostiguy, [1956J R.L. 527,
at p. 531 (C.S.).
* Of the Faculty of Law, McGill University.
