• In the case of Couchman v Hill [1947] KB 554 it was found that statements made where the facts are within the seller’s knowledge but not the buyers, are likely to be a term of the contract and not a mere puff. 

Facts of the Case

  • The claimant purchased a heifer at auction belonging to the defendant which was described in the sale catalogue as “unserved”.
  • The catalogue stated that the sale would be subject to the auctioneers’ usual conditions that tall the lots must be taken subject to all faults or errors of description.
  •  The conditions of sale, which were exhibited at the auction, started that the lots were sold “with all faults, imperfections and errors of description”.
  • At the sale C asked both D and the auctioneer whether they could confirm that the heifer in question was unserved to which they both replied “yes”.
  • The heifer was found to be in calf and died as a result of carrying a calf at too young an age.
  • In an action in the County Court for damages for breach of warranty the County Court judge held that the value of the confirmation by D and the auctioneer that the heifer was unserved was destroyed by the conditions of sale and gave judgment to D
  • C appealed.
  • C argued that the statements of the vendor and the auctioneer confirming that the heifer was unserved amounted to an express oral warranty which prevent the qualifying stipulations in the catalogue and in the conditions of sale form applying to this sale.

Issues in Couchman v Hill [1947] KB 554

  • Was it the intentions of the parties to disregard the statements made and follow the written stipulations at the fall of the auctioneer’s hammer.

Held by Court of Appeal

  • Appeal allowed

Scott LJ

  • The court found that the description of the cow as a heifer was a term of the contract, and the condition of the cow was within the knowledge of D and would be reasonably relied upon by C.
  • It was not the true intentions of the parties to disregard the oral statements as soon as the hammer fell and follow the written stipulations from then.

“There was a good deal of discussion as to whether the description ” unserved ” constituted a warranty or a condition. I have, in what I have said so far, deliberately refrained from expressing a view thereon, but as a matter of law, I think every item in a description which constitutes a substantial ingredient in the ” identity ” of the thing sold is a condition, although every such condition can be waived by the purchaser, who thereupon becomes entitled to treat it as a warranty and recover damages. I think there was here an unqualified oral condition, the breach of which the plaintiff was entitled to treat as a breach of warranty and recover the damages claimed.

One final word. The printed condition that the vendor will take no responsibility for errors of description of things or animals specifically offered for sale on inspection is reasonable for visible defects, but for qualities or attributes which are invisible it is not reasonable. It may well become a mere trap for the unwary. The point deserves consideration by the auctioneers associations. The appeal should, therefore, in my opinion, be allowed. “ p.559

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