Is Section 13 of the Sale of Goods Act 1979 a Myth?

It has been almost four decades since the Sale of Goods Act 1979 received Royal Assent, and the commercial sector has changed significantly since.

The judiciary has carried the responsibility of interpreting the Act in ways that keep pace with modern commercial practice. Section 13 has become one of the more problematic provisions, as courts have repeatedly rejected claims brought under it.

This article explores the case law surrounding s.13, focusing particularly on the Court of Appeal’s decision in Brewer v Mann [2012] EWCA Civ 246, which complements the earlier ruling in Harlington v Christopher Hull [1990] 1 All ER 737.

It also considers the issues raised in Ashington Piggeries Ltd v Christopher Hill Ltd [1972] 1 AC 441, demonstrating that not all words form part of a contractual description.

There is also an examination of how s.13 has evolved, especially following the introduction of s.15A by the Sale of Goods Act 1994, and assesses the relationship between ss. 13 and 14 to determine whether s.13 has become redundant.

There is considerable confusion surrounding s.13, as it applies only where there is a sale by description. For a sale to be by description, the buyer must rely on the description, and that description must have influenced the decision to enter the contract. If the buyer does not rely on the description, or if it was not influential, then it cannot be considered an essential term of the contract. Without an essential term, s.13 cannot apply.

This principle was illustrated in Harlington v Christopher Hull [1990] 1 All ER 737, where the court held that the seller’s opinion about the attributes of a painting did not amount to a contractual description because the buyer did not rely on it.

The painting was described as a Münter, but the buyer, an expert, did not rely on the seller’s statement. The court suggested that only a guarantee of authenticity would elevate such a statement to an express term capable of engaging s.13.

The Court of Appeal confirmed this approach in Brewer v Mann [2012] EWCA Civ 246. The buyer purchased a Bentley described as a 1930 Speed Six.

Fourteen months later, she discovered that the engine was from 1927 and sued for breach of s.13. The Court of Appeal held that there was no breach. The car was correctly described as a 1930 Speed Six because, in the second‑hand car market, originality is assessed by reference to the chassis number and the presence of original components.

The dealer’s statements about originality were treated as reasonable opinion rather than statements of fact. The court also noted that the price paid may indicate how much originality the buyer expected, but that a buyer seeking a guarantee of provenance must pay for it. This reasoning mirrors the approach in Harlington.

These cases demonstrate that relevance is not the same as reliance. A buyer may consider a description relevant, but unless it is influential and intended to form an essential term, s.13 cannot apply.

The House of Lords reinforced this in Reardon Smith Lines v Hansen Tangen [1976] 1 WLR 989. A tanker was built in yard 354, but was constructed elsewhere. The buyer attempted to rely on s.13, arguing that the description had not been met. The court rejected the claim, holding that the yard number was not intended to be an essential term of the contract. Without an express term, s.13 could not apply.

Even where the buyer relies on words, not all words constitute part of the description. In Ashington Piggeries Ltd v Christopher Hill Ltd [1972] 1 AC 441, the buyer argued that the herring meal supplied did not correspond with the description. The seller had used Norwegian herring meal containing a preservative that caused a chemical reaction, producing DMNA and resulting in illness in mink.

The House of Lords held that there was no breach of s.13 because the identity of the product remained herring meal. The defect related to quality, not description. Lord Diplock stated that the defect “went to quality, not identity as herring meal.” The buyers relied on Pinnock v Lewis & Peat [1923] 1 KB 690, but the court distinguished it on the basis that DMNA was not an added ingredient.

There is a clear relationship between ss. 13 and 14. In Toepfer v Continental [1974] 1 Lloyd LR 1, Lord Denning used the example of newly laid eggs, explaining that “new laid” forms part of both description and quality.

If a buyer cannot succeed under s.13, they may attempt to argue that the defect relates to quality under s.14. However, s14 applies only where the seller acts during business, limiting its usefulness.

Historically, s.13 required strict compliance. In Arcos v Ranaason [1933] AC 470, staves that were one‑sixteenth of an inch oversized breached s. 13. In Re Moore & Landauer [1921] 2 KB 519, fruit tins packed in the wrong quantities breached s.13 even though the buyer suffered no loss.

Section 15A now allows courts to treat minor breaches involving business buyers as breaches of warranty rather than condition, reducing the availability of rejection.

Section 13(3) confirms that a sale may be by description even if the buyer examines the goods. In Beale v Taylor [1967] 3 All ER 253, a car described as a 1961 white Herald convertible was found to contain parts from different models.

The court held that s.13 applied despite the buyer’s inspection. This contrasts with the modern approach in Brewer v Mann, where statements about originality were treated as opinion unless guaranteed. Where the buyer has not seen the goods, the sale is almost certainly by description, as in Varley v Whipp [1900] 1 QB 513, where a sewing machine described as nearly new was found to be heavily used.

This raises the question of whether s.13 is redundant.

If an express term is required for s.13 to apply, then why rely on the section at all? Section 13 remains valuable because it is an implied condition. A breach of an express term may be treated as a warranty, depending on the seriousness of the breach, thereby limiting the buyer to damages.

Section 13, however, allows rejection and refund, along with damages for any loss suffered. Although s.15A restricts its scope, s,13 continues to play an important role in protecting buyers.