Material fact
Defendants in 1964 entered into an agreement to purchase a motor vehicle from plaintiff. As the agreement predated the Tanzania Hire Purchase act, 1966, which Act would cover this transaction were it to occur today, the relevant law was found in the Contract Ordinance, Cap. 433, the sale of Good Ordinance, Cap. 214 and the common law. The vehicle was delivered in 1964. Despite the fact that the vehicle failed an inspection, defendants kept possession of the vehicle until August, 1965, at which time plaintiff repossessed it because defendants had not kept up their payments. Plaintiff in this action sought arrears for 9 unpaid monthly installments. Defendants refused to pay because they had expected a roadworthy vehicle. The contract contained a clause specifically waiving all warranties, both express and implied.
Held: (1) A disclaimer of warranties, no matter how widely expressed is “only available to a party where he is carrying out his contract in its essential respect ……. They do not avail him when he is guilty of a branch which goes to the root of the contract.” (Quoting Karsales (Harrow) Ltd. V. Wallis (1956) 2 All E.R. 866, at *\868. This case also involved the delivery of faulty vehicle. It was held there that defendant did not have to accept the wrecked vehicle which plaintiff tendered, notwithstanding that warranty of roadworthiness of the vehicle specifically disclaimed. This was because a car that is an undrivable wreck is so fundamentally different from a sound vehicle that its delivery does not satisfy the terms of the contract any more than delivery of 100 lbs. Of oranges would have sufficed. Thus it was in breach.)
(2) Assuming arguendo that the failure to deliver a workable vehicle constituted a breach going to the root of the contract, for the defendants to rely on that breach as a justification for their own non-performance, they should have refused delivery of the vehicle or returned the vehicle to the plaintiff upon learning of the breach. Having retained the vehicle, the defendants have converted what might have been a breach of a condition to a breach of a warranty, and their only remedy is by way of damages caused by the unsatisfactory stated of the vehicle (Citing National Cash Register Ltd. v. Stanley (1921) 3K.B. 292). But defendants have not advanced any claim for damages and consequently judgment must be entered in favour of plaintiff for the unpaid hire purchase instalments.
(3) If the facts do not appear quite clearly that is reflection on the record. The judge observed: “I cannot help reflecting that a great deal more went on behind the scenes than appeared on the fact of the record”.
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External links
http://kenyalaw.org/caselaw/cases/view/13594
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