WARRANTIES

1) Quiet Possession
There is an implied warranty that the buyer shall have and enjoy quiet possession of the goods.

2) Free from Charge or encumbrance
There is an implied warranty that the goods shall be free from any charge or encumbrance not made known to the buyer when the contract was made.

Terms Implied By Courts of Law
Courts of law reluctantly imply terms in contracts as it is the duty of the parties to agree as to what the contractual terms shall be.
However in certain circumstances, courts are called upon to imply terms in contracts and do
so for 2 reasons:

  • To give effect to the intentions of the parties.
  • To facilitate commercial transactions or give business efficiency.

Courts of law imply terms in contracts on the basis of:
1. The reasonable by stander test.
2. Trade usages and customs.

1. REASONABLE BY-STANDER TEST
Under this test a court will imply into a contract any term which a reasonable person overhearing
the contract being made would have implied.

2. TRADE USAGES & CUSTOMS
A court of law may imply a trade usage or custom into a contract if it is proved that the transaction was subject to it. The party relying on the trade custom must prove that:
1. The custom exists.
2. Is certain.
3. Is reasonable.
4. Is known to the parties.
5. The parties had not exempted the custom from their transaction. It was so held in

Halilal Shah and Champion Shah v. Standard Bank Co. Ltd. In Fluery and King v. Mohamed Wali & Another, the plaintiff bought 1000 hand kerchiefs from the defendants and the same were delivered in batches of 30. The plaintiff took delivery but sued the defendant for a reduction in the purchase price. It was proved that in Zanzibar there was a trade usage that handkerchiefs bought in bulk were supplied in dozens. The court implied the custom into the contract and held that the plaintiff was entitled to the reduction in the price as he had to unpack and repack the pieces in dozens.

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