some problems about fundamental terms

Editorial Committee of the Cambridge Law Journal

Some Problems about Fundamental TermsAuthor(s): J. L. MontroseSource: The Cambridge Law Journal, Vol. 22, No. 1 (Apr., 1964), pp. 60-82Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504923 .

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82 The Cambridge Law Journal [1964]

readily permit this result to be achieved. It divides the terms of

a contract into " conditions " and " warranties " and annexes a " claim to damages

" to a warranty. No definition is provided of "

condition," and the terms of the section invite the construction

placed on them by Fletcher Moulton L.J. that where there is a

failure to deliver " the kind of goods stipulated for " the buyer has

a " choice of the two remedies, either of rejecting the goods and

treating the contract as repudiated or suing for damages for delivery of the inferior article." 70 At first sight this dictum suggests that if

the goods are rejected there is no claim for damages. Nevertheless

closer inspection reveals that it is not inconsistent with the view

that the buyer may sue for damages whether or not he rejects the

goods delivered. An incident of treating a contract as repudiated is the right to damages for repudiation. However, whether or not

the " condition " of the Sale of Goods Act is to be regarded as

putting a buyer to his election either to reject or sue for damages the breach of a fundamental term gives the buyer a right to reject and to claim damages for breach.

(To be continued)

70 Wallis v. Pratt [1910] 2 K.B. 1003, 1014; [1911-13] All E.R. 992 I.

some problems about fundamental terms

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