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Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V1) 1 CLR 132
1890 December 11
[BOVILL, C.J. AND SMITH, J.]
HADJI HAFIZ MUSTAPHA MEHMET
Plaintiff,
v.
NICOLA YANNI TZINGO
Defendant.
SALE OF SPECIFIC GOODS—IMPLIED WARRANTY, FREEDOM FROM DEFECTS—MEJELLE, ARTICLES 336, 336, 338, 342 AND 343.
On a sale of goods there is an implied warranty that the goods sold are free from all defects unless the vendor declare that he will not so warrant them, or unless the seller states that he will accept them with all defects.
The plaintiff purchased from the defendant two mares. Nothing being said by either party at the time of the sale as to their state or condition. On the day of the sale, and after taking delivery of the mares, the plaintiff discovered that one of them was broken-winded.
HELD (reversing the decision of the Court below): That the plaintiff was entitled to rescind the sale.
APPEAL from the District Court of Nicosia.
The action was brought to recover the sum of £4, paid by the plaintiff to defendant as part payment of the price of two mares, and which plaintiff sought to recover back, on the ground that he had a right to rescind the contract of sale as one of the mares was broken-winded.
The fact, as admitted, were, that on the 23rd of June, 1890, the plaintiff purchased from the defendant two mares and paid £4 in part payment of the price. He took the mares home, and then discovered that one was broken-winded. The next day he returned the mares to the defendant, who refused to accept them.
This action was then brought.
The defendant called a witness to prove that the plaintiff saw the horses at work on a thrashing-floor before he agreed to purchase them.
The District Court held, that as he had seen the horses at work and was apparently satisfied, he must be bound by his contract. There was no evidence either that the vendor stated that he would not warrant them free from all defects, or that the purchaser stated that he would accept them with all defects.
Judgment for the defendant.
The plaintiff appealed.
The Queen's Advocate, for the appellant, contended that in the absence of any stipulation to the contrary, the vendor is bound to deliver the thing sold free from all defects, unless the purchaser has agreed to accept it with all defects.
Diran Augustin for the respondent.
Judgment: We are of opinion that the judgment of the District Court cannot be upheld.
Under Article 336 of the Mejelle, on a sale of specific chattels the thing sold must be free from all defects unless (1) the vendor at the time of the sale declares that he will not warrant the goods to be free from all defects (Article 342), or (2), unless the purchaser agrees to accept the goods with all defects (Article 343). If subsequently to the sale the purchaser discovers a defect in the goods which existed prior to the sale, he has the right to rescind the contract (Article 337).
In the present case the defendant sold to the plaintiff two mares, nothing being said at the time of the sale as to their state or condition; the defendant did not say that he would warrant them to be free from defect, and the plaintiff, did not say that he would accept them with all defects. On the evening of the day on which he bought them, the plaintiff discovered that one of the mares was broken-winded, and he thereupon returned the mares to the defendant who refused to receive them. The plaintiff thereupon brought this action to rescind the contract and to recover back from the defendant the £4 which he had paid in part payment for the mares.
We are of opinion that this was a case of simple sale, and that there was an implied warranty on the part of the defendant that the mares were free from defect. A defect is defined, in Article 138, as anything which, in the opinion of experts, diminishes the value of the thing sold. The fact that one of the mares was broken-winded shews that there was such a defect, and we therefore hold that the plaintiff has established this right to have this contract rescinded and is entitled to recover back the £4.
Appeal allowed.