80 Chapter 3The terms of the contract
Christopher Hull Fine Art Ltd (1991)the Court of Appeal held that two paintings had not
been sold by description. The paintings had been described as being by a German expres-
sionist called Munter. The buyer was an expert in German expressionist painting, but the
seller had made it plain that he was not. In fact, the paintings were fakes and were worth
only 1 per cent of the price which the buyer paid. Section 13(1) provided no help to the
buyer. The paintings were not sold by description because the description was not an
important term of the contract on which the buyer relied. The buyer did not rely on the
term, he relied on his own expertise. However, when unascertained goods are sold in a
commercial context it is presumed that the buyer does rely on any description of them.
Unascertained goods are identified onlyby description, so that any goods matching the
description can be supplied under the contract. They are contrasted with specific goods,
which are identified and agreed upon, before the contract is made, as the particular goods
which must be supplied. (For further detail, and an example of the two types of goods, see
p. 183 in Chapter 7.) Finally, the description must be a substantial ingredient in the identity
of the thing being sold, so that it identifies the commercial characteristics of the goods which
are being bought. However, when unascertained goods are sold in bulk it is likely that s. 13
will require exact correspondence with all aspects of the description.Since s. 13 can apply only where the description is a term of the contract, the real signific-
ance of s. 13 is that it makes the term a condition, rather than a warranty or an innominate
term. So breach of s. 13 will always give the buyer a right to terminate the contract and get
his money back (subject to ss. 15A and 35 considered below). Breach of a warranty would
not give this right and breach of an innominate term might not.
Having decided that a sale was made by description, we then need to examine how
closely the description must be adhered to. A rule expressed in Latin, de minimis lex non
curat(the law is not concerned with trifles) has always been a general principle of the
common law. The effect of the rule here is that if the failure to match the description was
very trivial the seller will not breach s. 13(1). However, the following case shows that where
goods are sold by description in a commercial context the description must be very closely
adhered to.Arcos Ltd vEA Ronaasen & Son (1933) (House of Lords)The seller contracted to sell a quantity of wooden staves which were to be used for mak-
ing cement barrels. The goods were unascertained. The staves had been described as ‘half
an inch thick’. Ninety per cent of the staves were between half an inch and five-eighths of
an inch, but 10 per cent were over five-eighths of an inch. The buyer rejected all of the
staves, even though they were perfectly fit for making cement barrels. He did this because
the market price of such staves had dropped.
HeldSection 13(1) was breached because the staves did not correspond with the descrip-
tion by which they were sold. The buyer could therefore treat the contract as terminated
and was entitled to all of his money back.
CommentThis case differs from Harlingdon & Leinster Enterprises Ltd vChristopher
Hull Fine Art Ltdin that the contract was for the sale of unascertained goods and so the
buyer had to rely on the seller’s description. In Harlingdonthe goods were specific and the
buyer did not rely on the seller’s description.