Where Reported

Case Digest

FOR EDUCATIONAL USE ONLY

Douglas v Glenvarigill Co Ltd

Court of Session (Outer House)

05 February 2010

Case Analysis

[2010] CSOH 14; 2010 S.L.T. 634; 2010 G.W.D. 7-129; Official Transcript

Subject: Sale of goods

Keywords: Breach of contract; Cars; Contracts of sale; Defective goods;

Reasonable time; Rejection; Scotland

Summary: In the case of a latent defect, time began to run for the

purposes of the Sale of Goods Act 1979 s.35(4) as soon as the goods

were delivered, albeit some level of delay in rejection might be reasonable

if the defect was not immediately apparent, and it was too late to reject

the goods after a period of 15 months without previous complaint.

Abstract: The owner of a vehicle (D) raised an action against G, from

whom he had purchased the vehicle, on the basis that G had breached the

Sale of Goods Act 1979 s.14. D sought declarator that he was entitled to

reject the vehicle, repayment of the purchase price, and damages of

£15,000 in respect of losses arising from the breach. D had taken delivery

of the vehicle in February 2005. He gave evidence that as of March 2006

the vehicle began to experience problems, and had suffered a

spontaneous and rapid loss of power on one occasion, and had shut down

into safety mode, slowing the vehicle significantly, on another. The vehicle

was returned in May 2006 for initial repair but broke down immediately on

collection. D intimated to G that he wished to reject the vehicle but G

refused to accept the rejection and delivered the vehicle to D's home. The

problems persisted and the vehicle was placed in storage. During that

time a consultant automotive engineer (B) examined the vehicle on D's

behalf and concluded that the problems had arisen from a defect with the

communications hub. G subsequently made the necessary repairs. G

submitted that (1) D had stated in evidence that he was satisfied with the

vehicle at the time of delivery and that serious problems did not arise

until 13 months later; further, evidence given by B was to the effect that it

was merely possible that the defect existed at the time of sale; (2) the

defect was ultimately found to be of a fairly trivial nature, and there was

little evidence that, when the problems occurred, the vehicle's occupants

were ever in any danger; there had accordingly been no breach of s.14;

(3) D was entitled to damages however certain sums claimed were not

due. The vehicle did not require to be placed in storage and could have

been left on the street, and neither comprehensive insurance nor road tax

was necessary when the vehicle was in storage. D contended that if he

had failed to timeously reject the vehicle and was deemed to have

accepted it pursuant to s.35(4), his actions had amounted to a valid

rescission of the contract under s.48C.

Decree granted for £13,459.92. (1) It could reasonably be inferred that

the defect existed from the date of delivery. There was nothing to cause it

to arise at a later date, interference of any sort was inherently unlikely,

and there was no evidence of such interference when B made his

examination. (2) The defect was extremely serious albeit easily remedied.

A vehicle which experienced a rapid loss of power and which would

unexpectedly shut down into safety mode created a clear and obvious risk

of danger to the vehicle's occupants and other road users due to its

inability to travel at the same speed as other traffic. D had accordingly

demonstrated a breach of s.14. (3) In the case of a latent defect, time

began to run for the purposes of s.35(4) as soon as the goods were

delivered, albeit some level of delay in rejection might be reasonable if

the defect was not immediately apparent. If it had been intended that the

period should run from the appearance of a defect that would have been

expressly provided. Further, rejection was a relatively drastic remedy, and

at a certain stage commercial closure was required to permit the parties

to arrange their affairs on the basis that the goods had been effectively

sold. In any event, damages remained as an alternative remedy, thus a

buyer was not left without recourse against the seller. (4) A reasonable

time within the meaning of s.35(4) had elapsed from delivery of the

vehicle to the time it had been taken for initial repair, without intimation

of rejection. D was thus deemed to have accepted the vehicle. There was

no basis in the authorities for rejection where a latent defect manifested

itself for the first time more than a year after delivery, moreover, in the

present case, it appeared that D had had uninterrupted use of the vehicle

from delivery to the time the major problems manifested themselves, and

further, had waited until they re-appeared before taking the vehicle for

repair. (5) D was entitled to damages of £13,459.92. It was appropriate to

reimburse him for the cost of G's final examination and subsequent

repairs, and further, in respect of the storage costs where the vehicle

might otherwise have suffered damage or deterioration. D was also

entitled to the wasted costs of comprehensive insurance and road tax

from the date the vehicle was taken for initial repair until it was placed in

storage. Further awards were due in respect of inconvenience, a

diminution in the value of the vehicle due to G's initial incompetent

remedial work, and depreciation. (6) D's submissions on rescission were

not sufficiently detailed and he could not rely on s.48C. However, to allow

resolution of the true issue in dispute, D was entitled, if he so wished, to

have the case put out by order so as to make further submissions in this

All Cases CitedSort by: Most Recent

regard.

Judge: Lord Drummond Young

Counsel: For the pursuer: Clark QC. For the defender: Gillies (Solicitor

Advocate).

Solicitor: For the pursuer: Balfour & Manson. For the defender:

McGrigors LLP.

J&H Ritchie Ltd v Lloyd Ltd

[2007] UKHL 9; [2007] 1 W.L.R. 670; [2007] 2 All E.R. 353; [2007] 1 All

E.R. (Comm) 987; [2007] Bus. L.R. 944; [2007] 1 Lloyd's Rep. 544; 2007

S.C. (H.L.) 89; 2007 S.L.T. 377; [2007] 1 C.L.C. 208; (2007) 157 N.L.J.

403; (2007) 151 S.J.L.B. 397; 2007 G.W.D. 9-171; Times, March 8, 2007;

Official Transcript; HL; 2007-03-07

Fiat Auto Financial Services v Connelly

2007 S.L.T. (Sh Ct) 111; 2007 G.W.D. 15-293; Sh Ct (Glasgow); 2006-

12-19

Lamarra v Capital Bank Plc

2007 S.C. 95; 2006 S.L.T. 1053; 2007 S.C.L.R. 719; 2006 G.W.D. 33-686;

IH (Ex Div); 2006-10-10

Mack v Glasgow City Council

[2006] CSIH 18; 2006 S.C. 543; 2006 S.L.T. 556; 2006 Rep. L.R. 95;

2006 Hous. L.R. 2; 2006 G.W.D. 15-287; IH (Ex Div); 2006-03-30

Jones v Callagher (t/a Gallery Kitchens & Bathrooms)

[2004] EWCA Civ 10; [2005] 1 Lloyd's Rep. 377; Official Transcript; CA

(Civ Div); 2004-01-13

Clegg v Andersson (t/a Nordic Marine)

[2003] EWCA Civ 320; [2003] 1 All E.R. (Comm) 721; [2003] 2 Lloyd's

Rep. 32; (2003) 100(20) L.S.G. 28; Times, April 14, 2003; Official

Transcript; CA (Civ Div); 2003-03-11

Truk (UK) Ltd v Tokmakidis GmbH

[2000] 2 All E.R. (Comm) 594; [2000] 1 Lloyd's Rep. 543; QBD (Merc);

1999-12-22

Charles Henshaw & Sons Ltd v Antlerport Ltd

[1995] C.L.C. 1312; Scotsman, June 28, 1995; OH; 1995-06-02

Rogers v Parish (Scarborough) Ltd

[1987] Q.B. 933; [1987] 2 W.L.R. 353; [1987] 2 All E.R. 232; [1987]

R.T.R. 312; (1987) 6 Tr. L.R. 55; (1987) 84 L.S.G. 905; (1987) 131 S.J.

223; CA (Civ Div); 1986-11-05

All Cases Citing

Significant LegislationCited

Legislation Cited

Bernstein v Pamson Motors (Golders Green) Ltd

[1987] 2 All E.R. 220; [1987] R.T.R. 384; Times, October 25, 1986; QBD;

1986-10-24

Smith v Park

1980 S.L.T. (Sh. Ct.) 62; Sh Pr; 1979-03-22

Mechans Ltd v Highland Marine Charters Ltd

1964 S.C. 48; 1964 S.L.T. 27; IH (2 Div); 1963-11-22

Burrell v Harding's Executrix

1931 S.L.T. 76; OH; 1930-12-09

Nelson v William Chalmers & Co Ltd

1913 S.C. 441; 1913 1 S.L.T. 190; IH (Ex Div); 1912-12-17

Munro & Co v Bennet & Son

1911 S.C. 337; 1911 1 S.L.T. 120; IH (1 Div); 1910-12-23

Aird & Coghill (A Firm) v Pullan & Adams (A Firm)

(1904) 7 F. 258; (1904) 12 S.L.T. 603; IH (2 Div); 1904-12-22

Hick v Raymond & Reid

[1893] A.C. 22; [1891-4] All E.R. Rep. 491; HL; 1892-12-16

Hadley v Baxendale

156 E.R. 145; (1854) 9 Ex. 341; Ex Ct; 1854-02-23

Mentioned by

Richford v Parks of Hamilton (Townhead Garage) Ltd

Official Transcript; Sh Ct (South Strathclyde) (Hamilton); 2012-01-10

Sale of Goods Act 1979 (c.54) s.14

Sale of Goods Act 1979 (c.54) s.35(4)

Sale of Goods Act 1979 (c.54) s.48C

COMMISSION DIRECTIVE 94/44 OF SEPTEMBER 19,

European Consumer Sales Directive

Sale and Supply of Goods Act 1994 (c.35) s.2(1)

Sale and Supply of Goods to Consumers Regulations 2002 (SI 2002/3045)

Sale of Goods Act 1893 (c.71)

Sale of Goods Act 1893 (c.71) s.158(1)

Sale of Goods Act 1893 (c.71) s.15B

Journal Articles

Sale of Goods Act 1893 (c.71) s.35

Sale of Goods Act 1893 (c.71) s.35(4)

Sale of Goods Act 1893 (c.71) s.48C

Sale of Goods Act 1979 (c.54)

Sale of Goods Act 1979 (c.54) s.14

Sale of Goods Act 1979 (c.54) s.158(1)

Sale of Goods Act 1979 (c.54) s.15B

Sale of Goods Act 1979 (c.54) s.15B(1)

Sale of Goods Act 1979 (c.54) s.15B(1)(b)

Sale of Goods Act 1979 (c.54) s.35

Sale of Goods Act 1979 (c.54) s.35(1)(a)

Sale of Goods Act 1979 (c.54) s.35(1)(b)

Sale of Goods Act 1979 (c.54) s.35(2)(a)

Sale of Goods Act 1979 (c.54) s.35(4)

Sale of Goods Act 1979 (c.54) s.35(6)

Sale of Goods Act 1979 (c.54) s.35(6)(a)

Sale of Goods Act 1979 (c.54) s.48A

Sale of Goods Act 1979 (c.54) s.48A(2)(a)

Sale of Goods Act 1979 (c.54) s.48A(2)(b)

Sale of Goods Act 1979 (c.54) s.48B

Sale of Goods Act 1979 (c.54) s.48C

Sale of Goods Act 1979 (c.54) s.53A

Sale of Goods Act 1979 (c.54) s.53A(1)

Sale of Goods Act 1979 (c.54) s.59

Defective cars, acceptance and remedies

Acceptance; Breach of contract; Cars; Defective goods; Reasonable time;

Rejection; Scotland; Supply of goods.

Cons. L. Today 2011, Feb, 3

Faulty goods, rejection and connected lender liability

Consumer credit agreements; Contracts of sale; Defective goods; Linked

transactions; Reasonable time; Rejection; Rescission; Scotland.

Books

Edin. L.R. 2011, 15(1), 111-115

Benjamin's Sale of Goods 8th Ed. Incorporating Second

Supplement

Chapter: Chapter 12 - Remedies in Respect of Defects

Documents: Section 2. - Breach of Contractual Term

Benjamin's Sale of Goods 8th Ed. Incorporating Second

Supplement

Chapter: Chapter 12 - Remedies in Respect of Defects

Documents: Section 3. - Additional Rights of Buyer in Consumer Cases

Benjamin's Sale of Goods 8th Ed.

Chapter: Chapter 12 - Remedies in Respect of Defects

Documents: Section 2. - Breach of Contractual Term

Benjamin's Sale of Goods 8th Ed.

Chapter: Chapter 12 - Remedies in Respect of Defects

Documents: Section 3. - Additional Rights of Buyer in Consumer Cases

Chitty on Contracts 31st Ed. Incorporating First Supplement

Chapter: Chapter 43 - Sale of Goods

Documents: Sub-section (a) - Additional Remedies of the Buyer in

Consumer Cases

Chitty on Contracts 31st Ed. Incorporating First Supplement

Chapter: Chapter 43 - Sale of Goods

Documents: Sub-section (c) - Examination and Acceptance

Chitty on Contracts 31st Ed.

Chapter: Chapter 43 - Sale of Goods

Documents: Sub-section (a) - Additional Remedies of the Buyer in

Consumer Cases

Chitty on Contracts 31st Ed.

Chapter: Chapter 43 - Sale of Goods

Documents: Sub-section (c) - Examination and Acceptance

Gloag and Henderson: The Law of Scotland 13th Ed.

Chapter: Chapter 12 - Supply of Goods

Documents: Chapter 12 - Supply of Goods

Prescription and Limitation of Actions (SULI) 2nd Ed. Johnston

Chapter: Chapter 4 - The Beginning and End of the Prescriptive Period

Documents: Contract

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