INTRODUCTION
In contracts for the sale of goods governed by the Uniform Act on General Commercial Law (Uniform Act)Footnote 1 of the Organization for the Harmonisation of Business Laws in Africa (better known by its French acronym OHADA),Footnote 2 the seller's duties are principally governed by the notion of “conformity”. This notion is expansive, imposing an absolute liability on the seller for defects in the goods.Footnote 3 The duties of the parties to a contract of sale of goods are very important in commercial transactions. This is because the parties most often show concern as to what needs to be done and how it has to be done so as to achieve each other's interests in the transaction. It is not an over-statement to say that the parties' obligations are the core of a contract of sale, since the other requirements, notably the contract formation and the contractual terms, have no significance if the contractual parties fail to honour their respective obligations. So, the subsistence of a contract of sale largely depends on the parties fully performing their duties.
The Uniform Act and the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) impose three duties on the seller: delivery, conformity and guarantee. However, the seller's responsibility of ensuring conformity of the goods in accordance with the terms of the contract of sale is not particularly effective in affording protection to commercial buyers within the context of a sale of goods contract. At some point there is usually considerable confusion and uncertainty as to who to blame for any non-conformity of the goods to the terms of the contract. This duty is now not effective, as business practices by sellers today are to an extent characterized by deception, false pretence, misrepresentation and false promises. Consequently, this situation does not increase protection for commercial buyers of goods regarding their business with consumers. The importance of “conformity” today as a result of the ineffectiveness of the caveat emptor [buyer beware] rule occupies a considerable place in modern sales law. A sale of goods contract covers such an extraordinarily wide range of transactions that it seems necessary to set a single standard to guarantee the conformity of goods for commercial concerns. As a result, it could be said that the seller's duty of conformity today comes into operation more by operation of the law rather than through the agreed terms of the contracting parties.
The objective of this article is therefore to make an expository study of the concept of “conformity” as the basis of the seller's duty in delivering goods in accordance with the contractual terms under the contract of sale as governed by the Uniform Act. It will critically examine the seller's material and functional duties of conformity, then probe into the seller's responsibility to cure a non-conforming delivery of goods. The article also adopts a critical and analytical approach in interpreting the provisions of the Uniform Act and of foreign instruments regulating sale of goods contracts.
THE CONCEPTION OF CONFORMITY IN DOMESTIC SALES LAWS
An understanding of some particularities of domestic law as compared to international instruments is fundamental when interpreting “conformity of goods” in a sales contract, in order to avoid a misleading interpretation.Footnote 4 For instance, rules under the Uniform Act differ considerably from those in common law and make more subtle distinctions between the different kinds of defects. Under civil codesFootnote 5 as well as under the Uniform Act,Footnote 6 a hidden defect [défaut caché] is distinguished from an apparent defect [vice apparent]; the English Sale of Goods Act (SGA) [1893] distinguishes conditionsFootnote 7 from warranties.Footnote 8 Nevertheless, the concept of merchantable quality under common law is similar to the concept of conformity under the Uniform Act.
Implied conditions and warranties are not stated by the parties during negotiations or included in a contractual document, but nevertheless form part of the contractual provisions. Implied terms are classified as terms implied in fact and in law and are implied into every contract of sale. They are implied by law to ensure a minimum of business efficacy,Footnote 9 doubtless in accordance with the parties' paramount intention to create a workable contractual agreement.Footnote 10 Some contracts of sale are very detailed; the parties deal with all or most eventualities. However, in others, the only element that the parties deal with is identifying the goods to be sold and the price to be paid. Implied terms and other rules are designed in large measure to fill the gaps so as to guarantee an effective transaction for the parties.
The conditions of quantity, quality, description, packaging, particular purpose and sample or model are encapsulated into the concept of conformity in the Uniform Act.Footnote 11 Article 255 states:
“The seller shall deliver the goods according to the quantity, quality, specification, and packaging provided for in the contract. Where the contract is silent, the seller shall deliver goods in conformity with the purposes for which goods of that nature are generally used, and the goods must match the sample or model which was presented to the buyer by the seller. The seller also must deliver the goods that are packaged according to the usual method of packaging goods of the same nature or failing which, in a manner to ensure their conservation, and protection.”Footnote 12
These implied conditions deserve careful treatment because of the protection that they now offer the buyer of goods, who is almost invariably in a weaker position than the seller. These terms provide buyers with a healthier measure of protection against defective and sub-standard goods. This implies that, if any of the parties breaches any of these provisions, that breach shall be treated as a breach of condition and warranty. The terms (conditions and warranties) of a contract of sale of goods can be express or implied. These provisions have in fact moved the common law principle from caveat emptor to caveat venditor [seller beware].Footnote 13
THE CONCEPT AND NATURE OF CONFORMITY UNDER THE UNIFORM ACT
The notion of conformity under the Uniform Act is almost identical to that under the CISG.Footnote 14 However the Uniform Act provides no definition for this concept. In fact, conformity is a term with a variable content. Neither the Uniform Act nor the CISG actually defines “conformité”. In English, conformity is a noun derived from the verb to conform, meaning “agree with”.Footnote 15 From this, it becomes clear that the goods should agree with the terms of the contract for them to be in conformity. In other words, the concept of conformity concerns the difference between the object agreed in the contract and that delivered.
The term “conformity” is perceived in a double sense: material and functional.Footnote 16 Material conformity relates to the description of the goods, while functional conformity relates to the intended purpose of the goods. For the goods to conform under the Uniform Act, both material and functional conformity must be satisfied. This is the new approach adopted by the Uniform Act, as opposed to the former provision in the old act. Consequently, the seller has as an obligation to deliver the goods in conformity with the contract stipulation.Footnote 17
While material conformity relates to the quality, quantity, specification and packaging of the goods,Footnote 18 functional conformity relates to the fitness of the goods to the usual purpose or purposes for which goods of the same nature are used, or to such particular purpose, expressly or impliedly made known by the buyer to the seller.Footnote 19 Material conformity therefore consists of four elements derived from the contract: quantity, quality, description and packaging.
THE SELLER'S MATERIAL DUTY OF CONFORMITY
Quantity
Under the Uniform Act, unless otherwise agreed, the seller must deliver the goods to the buyer in the exact quantity stipulated in the contract of sale. Failure by the seller to comply with this obligation is tantamount to a breach of contract.Footnote 20 It may sometimes be the case that the seller delivers a quantity below or beyond the one requested. In this case, the buyer is entitled either to take delivery or refuse delivery of the excessive or reduced quantity.Footnote 21 One way or the other, if the buyer accepts delivery, the seller is entitled to payment at the contract price.Footnote 22 Thus, if the seller delivers less than the contractual quantity of the goods, the buyer has the option either to accept the goods and pay for them at the contract rate or reject them.Footnote 23 Where the quantity is above what was contracted for, the buyer may decide either to accept the goods as provided by the contract and reject the additional goods or he may accept the whole quantity and pay for the additional goods at the contract rate; alternatively he may reject the whole delivery.Footnote 24 Where the goods delivered are mixed with goods of a different description from those included in the contract, the buyer may either accept only the goods stated in the contract and reject the rest, or reject the whole delivery.Footnote 25 Statutory provisions related to the quantity of goods are subject to any trade usage, special agreement or course of dealing between the contracting parties.Footnote 26 Thus, as failure by the seller to deliver the correct quantity of goods entitles the buyer to reject the goods on the grounds of incorrect quantity,Footnote 27 the cases referenced above were held to have breached the statutory requirement of a sale by description.Footnote 28
It should be noted that the exactness of quantity requirement is not emphasized in article 255 of the Uniform Act, but is guided by the contractual stipulation of the parties.
Quality
The Uniform Act is also concerned with the issue of quality of goods in regulating a contract of sale of goods between a seller and a commercial buyer. Conformity of the goods is first and foremost conditioned by the “material” specification of the goods in the contract.Footnote 29 The view is that the Uniform Act does not provide any statutory definition of the term “quality”,Footnote 30 which has little substantive content. This tends to be meaningless in practice. It does not suffice for the buyer to be entitled to goods which conform to quality. What is the buyer entitled to expect under the contract? As an answer to this, the buyer is entitled to expect goods of satisfactory quality, that is goods suitable for reasonable usage. This reasonable use will certainly be for commercial re-saleability and not for personal consumption. This is the purport of article 255(2) of the Uniform Act. Clearly, fitness for all purposes is an important, indeed essential, element of the concept of conformity and remains important under the current provisions of the Uniform Act. So, the famous doctrine of caveat emptor remains the guiding principle under certain circumstances where the provisions of the act apply.Footnote 31
However, the notions of “quality” and “specification” can best answer the expectations of the parties.Footnote 32 This issue has been raised several times in the civil law world in general. Hence, the notions of “quality” and “specification”Footnote 33 have been defined by French case lawFootnote 34 and scholarsFootnote 35 as different, but complementary. The solution to this lies simply in the particular specification contained in a contract of sale provided by the buyer to the seller. This specification may among other things relate to the particular purpose for which the buyer wants the goods (in which case it could sue under article 255(1) of the Uniform Act), as the goods must be of not only merchantable but also satisfactory quality as well.
The Uniform Act provides that, in the absence of any agreement to the contrary, goods must be “fit for the purposes for which goods of the same description would ordinarily be used”.Footnote 36 This standard “does not require that the goods be perfect or flawless, unless perfection is required for the goods to fulfil their ordinary purpose”.Footnote 37 On the other hand, the Uniform Act does not specify the standard positively required regarding minimum acceptable quality. Various courts and academic literature have supported at least three standards: merchantable, average and reasonable quality.Footnote 38 The first two standards depend upon standards and practices external to the parties, while the third relates in part to the party's expectations.Footnote 39
The phrase “conformity” used in the Uniform Act must therefore be amended to suit modern commerce and to avoid a flood of unnecessary cases in our law courts.Footnote 40 This is so because reference to conformity does not adequately convey the concept of acceptable quality of the goods. Consequently, particular attention should be given to this point under the Uniform Act, in order to understand clearly the seller's duty under the phrase “conformity”. This is mere an umbrella term which embodies many issues to be deciphered by one's ingenuity. Regard should be given to the change in terminology introduced in England by the Sale and Supply of Goods Act 1994.Footnote 41 Goods are considered to be of satisfactory quality “if they meet the standard that a reasonable person would regard as satisfactory, taking cognizance of any description of the goods, the price (if relevant) and all the other relevant circumstances”.Footnote 42 This suggests that the description goes to the essence of what it is that the seller has contracted to sell, so that whether goods are of satisfactory quality almost inevitably depends on the description under which they are sold.Footnote 43
Description
As explained above, under the Uniform Act, the seller's contractual duty is to deliver quality goods in consonance to the specification given by the buyer. In fact, quality and specification are complementary under the Uniform Act. In particular, there are instances where contractual agreements on sale accurately determine the technical specifications expected of the goods or when the parties define the label of goods to be manufactured following the exact ingredients or products to be used. Most often, the seller is required to deliver goods identical to a sample made available to the buyer.
In case there is a failure to comply with the description of the goods (the exact technical specification, model or sample) the result will be non-conformity of the goods.Footnote 44 The delivery of something entirely different from what had been agreed might be considered “non-delivery” and lead to an immediate right for the buyer to avoid the contract.Footnote 45 The Uniform Act does not differentiate between the delivery of aliud pro alio [the wrong goods] or peius [non-conforming goods]. Delivery of aliud or of peius both fall within the unique concept of “non-conformity”, are a total deviation from the seller's obligation to perform according to the contract stipulations and, therefore, are subject to the same remedies.Footnote 46
Furthermore, if the required specification or description of the goods has been met, the goods must also conform to the required usage determined in the contract. If this was not determined in the contract, the goods must satisfy the common usage of goods of the same kind. Thus, non-conformity of this requirement amounts to a breachFootnote 47 and the remedies available for the buyer will be similar to those for non-conformity regarding the quality of the goods.Footnote 48
Implied warranties of quality in connection with sales or contracts for the sale of goods by description must usually be proved by evidence of facts that are extrinsic to the contract. Again, when the sale or contract of sale is oral, any evidence necessary to show the presence of those elements is ordinarily admissible. At least, it is never excluded because it is parol evidence. The Cameroonian case of Joseph Neba Abongwa v Ngang Cletus Achu Footnote 49 is illustrative.
Packaging
The importance of packaging is considerable in the modern turnover of goods. Its purpose is not only to protect the product but also to present it to the buyer in an attractive manner for commercial use. However, it is important to point out that packaging requirements are closely connected with delivery of the goods, so any packaging defects may become quality defects of the goods, particularly when the goods are sold in their so called “original packaging”, without which they would not be put on sale. In the latter case, the packaging is “incorporated” into the goods and is considered to be an integral part of the very goods to be delivered.
Packaging is defined as all containers or other products used for the containment of goods, for facilitating their transport or their presentation to the public.Footnote 50 Packaging is an important contractual duty under the Uniform Act. It applies to sales and includes secondary packaging destined for commerce and by extension to households. The Uniform Act thereby channels all liability directly concerned with the packaged product onto the seller. The scope of the Uniform Act is more limited here because it concerns sellers and commercial buyers;Footnote 51 persons responsible for putting the packaged products in the market for the first time are under a duty to ensure the disposal of the packaging of their products with a view to their marketing. Essentially, this duty is most important for the commercial buyer, because he has an obligation to resell the products to the end-user in the condition in which he bought them. This plays an essential role, as the end-user expects to receive quality packaged goods directly from the commercial buyer, because it is the end-user who finally separates the packaging from the product in order to use or consume it.
Packaging, just like the quality and quantity of the goods, constitutes in the Uniform Act a fundamental element in the conformity definition of the goods.Footnote 52 Therefore, if the parties' contract determines the safety and type of packaging, the seller must conform to them. If the contract is silent on this requirement, the parties must refer to trade and usage in the context of their contractual agreement.Footnote 53 This is true of goods in general; the use and quality of the packaging may also be regulated and the seller is bound to observe those regulations, as the products in question cannot otherwise be put on sale. In this regard standards and usages may also exist and the seller (or the buyer, depending on who is to provide the packaging according to the contract) is bound to observe those standards and usages. Non-conformity of the packaging amounts to a breach of contract.Footnote 54 This was illustrated in the case of Société Madelach v Société Ferex,Footnote 55 where the Court of Appeal in Douala, Cameroon pronounced the cancellation of a contract of sale between two companies as the goods did not conform to the contract as they were delivered in 100 kg packs, instead of the 50 kg requested by the plaintiff. In today's international sales contracts, contractual parties are also called upon to respect rules on packaging in accordance with the buyer's location rules on environmental law.Footnote 56
There are a number of issues connected with the specific problem now under consideration, that is the liability of the seller / dealer of packaged products. The fundamental reason for the stringent liability with respect to sales of such products, especially sales of food, is the need to protect public health and safety. It would seem that the OHADA laws on conformity should be extended to sales where there is substantial degree of injury, not necessarily personal but also economic loss to the buyer's business. Yet the Uniform Act does not seem to have gone far enough. Certainly, it has not imposed such a rigid liability for personal injury, because the entire warranty provisions under the Uniform Act are placed on the basis of the tort of negligence. This appears to fall under the domain of consumer law, since the Uniform Act does not cover goods for personal consumption or use.Footnote 57
THE SELLER'S DUTY OF FUNCTIONAL CONFORMITY
The seller's duty of functional conformity relates to the purpose for which the goods are bought under a sale of goods contract. Contracts for the sale of goods are by far the most common type of contract and often concern goods of a utilitarian nature, with a clearly defined purpose. People enter into agreements every day to buy goods for diverse reasons. The most obvious, of course, is to enjoy and acquire their ownership and use them for different purposes. However in commercial transactions, traders, not being consumers, are not interested in the goods as such, but rather in the profit that can be made, or the loss that can be avoided, by reselling them
Most, if not all, contracts, whether they involve goods, real property or services, are necessarily economic activities. This is even more so in the case of contracts that are subject to the Uniform Act: contracts of sale of manufactured goods purchased for resale. Importantly, the utility of this type of goods for the commercial buyer may be influenced by a broad range of factors. The buyer may choose particular goods based on their brand or reputation. The environmental and social practices involved in their manufacture may also be significant. Moreover, consumer tastes and preferences matter to the commercial buyer, as the brand of goods may rise or fall in the market.
In order to make sense of the web of circumstances in which these complex transactions occur, it is therefore appropriate to examine the fitness of the goods for the usual purpose or purposes for which goods of the same description would ordinarily be used, or for any specific purposeFootnote 58 expressly or impliedly made known by the buyer to the seller.Footnote 59
One way to satisfy functional conformityFootnote 60 is for the seller to be able to meet the obligation to guarantee hidden defects in the goods.Footnote 61 This duty is examined below.
Fitness for ordinary use
Lord Diplock's statements in the case of Ashington Piggeries v Christopher Hill Ltd Footnote 62 define the fitness of goods for ordinary use as goods of a kind, those verbally identified by a description that is sufficiently broad to include goods intended for use for the particular purpose requested by the buyer in the contract.
According to the Uniform Act, delivery of goods under a contract of sale does not satisfy the conformity requirement unless and until the goods are fit for the purpose or purposes for which goods of the same description would normally be used.Footnote 63 This raises the problem of measuring how fitness for ordinary use is met. The author suggests that an objective test should be used to determine ordinary use. Thus, whether or not the goods are fit for the purpose or purposes for which goods of that description are ordinarily used must be determined in the opinion of a reasonable person in the same trade as the parties to the contract.Footnote 64
However, if any precise purpose was brought to the seller's knowledgeFootnote 65 at the time the contract was concluded, goods which do not meet that purpose will not conform with the contract, even if they do satisfy the ordinary purpose test.Footnote 66 Generally, for convenience, courts are first required to attempt to determine whether any indication as to the usageFootnote 67 of the goods was brought to the seller's attention before seeking a reasonable man position as to what amounts to ordinary use.Footnote 68
Fitness for a particular purpose
The Uniform Act makes clear that goods under the contract do not conform unless and until they fit the specific or particular purpose that the buyer made known to the seller at the time the contract was concluded.Footnote 69 It may sound as if the requirement related to the fitness for ordinary use overlaps with that related to the fitness for a particular purpose. Nevertheless, it should be pointed out that two elements distinguish them. Prima facie, the aim of this provision is to protect a buyer who acquires goods after informing the seller of the particular purpose or purposes for which the goods will be used.
First therefore, the provision related to the fitness for a particular purpose can only be used where the buyer makes known to the seller the specific or particular purpose for which he intends to use the goods. It follows that the more accurate the particular information related to the goods is, the more the seller must ensure he accurately satisfies the buyer's needs.
The second aspect of the provision relates to reliance. In the case of a sale between professionals, for instance, where the seller is an expert in the field of the contracted goods, it is reasonable that the buyer relies on the seller's skill to deliver the exact goods, as specified.
The meaning of the provision “particular purpose” shall be understood to include “specific” as opposed to “general”,Footnote 70 notwithstanding that the purpose may be a general one, for instance clothes to be worn. In MacGill v Talbot Footnote 71 a car collector made known to the seller that he wanted a Rolls Royce that was reasonably fit for the purpose of economic restoration. It was held that the specific purpose for which the car was to be used had been communicated.
Sale by sample
Sale by sample is most often employed in respect of the sale of generic goods. Instead of describing the subject-matter of the contract, the contracting parties may determine that quality should be identical to that of a sample. This type of sale is particularly common in cases of sale through agencies, travelling salesmen who bring small quantities of articles that can give the prospective buyer a complete picture of the quality and other properties of the goods.Footnote 72
Under the Uniform Act, as under common law, it must be emphasized at the time a description of the quality of the goods is given that the sample will be considered to have been used to identify the goods or to determine their quality and properties. If the goods delivered do not conform to the sample, the Uniform Act will regard this as lack of conformity. What is essential is whether the sample has been used as a term of the contract or not. The goods do not conform with the contract unless they possess the qualities which the seller has held out to the buyer as a sample or model.Footnote 73 Thus, from the provisions of the Uniform Act, it can clearly be understood that, in a contract of sale, a sample is the exclusive standard of quality of the goods and, in such a case, any variation from the sample entitles the buyer to dissolve the contract. There must be full conformity of the goods to the sample, if so contracted.
Unfortunately, the Uniform Act is silent on cases where the sample or model is shown during negotiations but there is no reliable proof in the contract nor can it be proved with certainty in some other way that the parties intended the quality of the goods to conform to the sample in every respect. The Uniform Act contains no provisions on a sale by sample that could be unconditionally used to determine full conformity. Much regard should be given to the intent and conduct of the parties during their negotiations. Nevertheless, from the spirit of the law, a sample is an appropriate method for determining the quality and properties of the goods, when considering the specific purpose to which a commercial buyer attaches much importance for his business. Therefore, the seller shall be held liable for non-conformity if the goods delivered do not conform to the sample.
Another important consideration arises regarding whether a buyer who bought goods by sample is still entitled to make a case against the seller for inherent vice if the goods delivered conform to the sample. Under the Uniform Act, this kind of a commercial problem does not prevent the buyer from having recourse to the remedies recognized in cases of inherent vice.Footnote 74 Furthermore, the Uniform Act imposes on the seller an obligation to guarantee the goods.Footnote 75 Presumably, this is regardless of whether the sale is by sample. This protects the buyer, because goods sold by sample must necessarily be suitable for resale. Accordingly, regardless of the fact that the sample had a latent defect, there is an assumption that the goods must be merchantable.
In common law jurisdictions, sale by sample is governed by provisions derived from those in the SGA.Footnote 76 There is a contract for sale by sample when there is an express or implied term to that effect in the contract. In respect of a sale by sample, English law provides “an implied condition that the goods be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample”.Footnote 77 Furthermore, if any sample is made part of the basis of the contract of sale, this creates an essential condition of the contract, that is, an express warranty that the entire goods shall confirm to the sample.Footnote 78 In short, the existence of a contract of sale by sample is a question of law as opposed to a matter of fact. In other words, a seller providing to the buyer an item for inspection does not amount to sale by sample, unless there is evidence of a clear intention of the parties wishing to contract as such.Footnote 79 Similarly, in the case of a written contract, there must be written evidence that the parties intended to contract as such. It follows that, with a written contract, parol evidence will be immaterial in determining whether or not there was a sale by sample.Footnote 80 Therefore, for an effective sale by sample, the parties must either expressly or by implication make this clear, as stated in the leading case of Ernest Friedrischdorf and Co v Fuja.Footnote 81
Usual packaging
Unless and until the goods are packaged in accordance with the contract, there is non-conformity of the goods.Footnote 82 This seller's obligation is therefore emphasized within the same provision requiring, in the absence of a contrary stipulation between the parties, the goods to be packaged or contained in the usual method for packaging goods of the same nature, or in a manner to ensure their conservation and protection.Footnote 83
Because assessing conformity of the goods and the passing of risk occur at the same time, any damage occurring after that point will be borne by the buyer. If the goods are damaged while in transit and such damage is due to inadequate packaging by the seller, that will be treated as non-conformity already present at the time the risk passed.Footnote 84 This is so because the transfer of title over goods shifts the risk of loss. The seller will therefore be liable for non-conformity.Footnote 85
What in fact amounts to usual packaging is best determined by a reasonable man, usually a trader in the same trade or transactions, in addition to any relevant trade usages.Footnote 86 Generally however, determination of what packaging is adequate for the goods will depend on the nature, description and / or condition of the goods in the sale contract.
Generally, after seeing the sample of the bulk, the buyer expects to receive goods identical to those he inspected. In other words, the goods, and also their packaging, shall correspond to the description or sample. The SGA makes it clear that, where there is a contract for sale by description, there is an implied condition that the goods shall correspond with the description. In the case of both sales by sample and by description, it is not sufficient that the bulk corresponds with the sample if the goods do not also correspond with the description.Footnote 87
DEFECTS EXAMINED BY THE BUYER
Arguably, the notion of conformity falls within the meaning of the subjective understanding of a “defect”.Footnote 88 This raises at some point confusion and uncertainty in determining the seller's liability for non-conforming goods due to hidden, latent or apparent defects. The OHADA law has not adequately dealt with these issues in order to show clearly when the seller may be liable for a lack of conformity. In fact, the strong implication is that the burden of proof has shifted onto the buyer in order to establish the seller's liability. In practice, the buyer's examination of the goods is not to ascertain their actual condition but rather to reveal any aspects of non-conformity.Footnote 89 This basic duty has been rather modified under the new Uniform Act in several respects, imposing on the buyer the duty to give notice of any defects. There remains, however, a serious problem about the kind of defects which the buyer is expected to report to the seller. A clear distinction must therefore be made between the seller's responsibility for apparent defects and for hidden defectsFootnote 90 discovered by the commercial buyer.
Pursuant to article 258 of the Uniform Act, no difficulty arises as to defects which would have been apparent on a reasonable examination of the goods by the buyer immediately after delivery. On this score, the buyer must give notice of a lack of conformity discovered within one month from the date of delivery. Basically, appraisal by the buyer of the seller's compliance with his duty of conformity operates from the moment delivery has been effected.Footnote 91 If he fails to observe these requirements, the buyer will be deprived of his right to claim redress for non-conformity.
Also, the buyer must give notice of a hidden defect within one year from the moment when it was revealed or ought to be known.Footnote 92 To this effect, notice is therefore necessary in order to give the seller the opportunity to cure any deficiency in exercising his duty of conformity. The extension of this timeframe is commendable because it gives the commercial buyer sufficient time to gain full knowledge of any hidden defects. However, the problem is far more extensive, because some sorts of goods are sold that require something to be done to them to make them fit for their commercial purpose. Consequently, in the case of any hidden defects, the buyer will be fortunate to have full knowledge of them.
There is a problem about hidden defects that are only dangerous because they are hidden. It is not certain that an opportunity to inspect goods conditioned in certain forms of packaging, such as frozen goods or tinned foods, will reveal the true facts about the goods. The question is thus a double one: is a seller or retailer who sells food products in an ordinary tin or other sealed container responsible for injury to his customers either from some foreign article in the can or from unwholesomeness of the food; and is the seller who sells food products in bulk, which are defective in some way for which the retailer cannot reasonably be held at fault, liable for injuries resulting to his customers from the defect?Footnote 93 Hence it is understandable why the Uniform Act regulating the quality of goods provides that the seller shall be liable to deliver the goods “in the usual manner” that the goods are packaged.Footnote 94
As a general rule under the Uniform Act, conformity of the quality of the goods will be met if and only if the usage criterion is also satisfied.Footnote 95 It follows therefore that there is a breach of contract, as a consequence of the non-conformity of the material or functional quality or of both.Footnote 96 Moreover, if essential, such a breach may give rise to a fundamental breach,Footnote 97 enabling the buyer to avoid the contractFootnote 98 or to claim for substitute delivery.Footnote 99 The commercial utility of the goods seems to be the guiding rule to the commercial buyer under the Uniform Law in ascertaining the seller's responsibility. However, the best guide to the appropriate quality should be the parties' expectations.Footnote 100
These examples regarding the determination of hidden defects in goods can never solve all the problems related to quality. The role of article 255(2) of the Uniform Act is to aid in construing the agreement of the parties. The question is this. What was the parties' understanding of the contractual provision describing the quality of the goods? More precisely, in the language of article 255(2), what was the parties' understanding of the “purposes for which goods of the same description would ordinarily be used”? Since the problem concerns fitness for the “ordinary” use of goods described in the contract, serious misunderstandings should be infrequent.
THE SELLER'S DUTY TO CURE A NON-CONFORMING DELIVERY BEFORE THE BUYER'S ACCEPTANCE OF THE GOODS
It remains a duty on the part of the seller to deliver the conforming goods to the buyer for acceptance in accordance with the terms of the contract. The Uniform Act basically gives the seller an unfettered right to cure any non-conformity before the date set in the contract for delivery.Footnote 101 It is a right because the time for the seller's performance has not yet expired within the contract time agreed with the buyer. The seller can exercise this right by delivering a part or a missing quantity or new goods to replace goods that do not conform to the contract, or by curing any defect in goods that do not conform to the contract. The seller's right to cure before the date of performance depends on whether he reasonably believed that a non-conforming tender was acceptable to the commercial buyer. By way of explanation, the Uniform Act does not explain the circumstances that may lead the seller to cure in anticipation of delivery of the goods to the buyer. By inference, the language of the Uniform Act suggests that the seller's right to cure before the delivery date may only arise if he actually knew of the non-conformity of the tender at the time of performance. The question is to know what may push the seller to remedy any defect before delivery of the goods to the buyer.
However, the Uniform Act has suggested some situations that the seller may find it necessary to cure. This may include delivering a missing part or a missing quantity, or new goods to replace goods that do not conform to the contract, or remedying any defect of conformity.Footnote 102 The choice is left to the seller, so long as cure is possible by any means within a reasonable time. This was illustrated in the case of Société Industrielle des Tubes d’Acier SA v Société Française d’Importation et d’Exportation de Produits Metalliques SA,Footnote 103 where the Court of Appeal in Ouagadougou, Burkina Faso pronounced the cancellation of a contract of sale between the two companies due to a lack of conformity of delivery of the right quantity of goods as requested by the defendant. Therefore, it must be clear that the seller's non-performance in not delivering conforming goods within this context is considered to be a non-fundamental breach of contract because the seller has the opportunity to cure the situation in order to afford satisfaction to the buyer. The purpose of the law here is geared at preserving the contractual bond between the parties under their contract of sale. In this view, “cure” may be effected in one of two ways, depending on the type of goods. A commercial buyer presented with defective goods may elect not to reject them but to allow the seller to replace or repair them before the expiry of the time set for delivery. The form that “cure” would take would vary according to whether the contract was for unascertained or specific goods. Under a contract for unascertained goods the seller could “cure” by delivering replacement goods matching the contract description. Under a contract for specific goods, the seller could only “cure” by repairing the goods.Footnote 104
A final approach is arguably that the Uniform Act should consider whether “the exercise of such right by the seller causes damage or expenses to the buyer”.Footnote 105 This is rather insufficient, as the courts should rather pay attention to the severity of the breach, even if it does not cause any harm to the buyer. It seems reasonable that, the greater the non-conformity, the less reasonable the seller's belief that the goods will be acceptable, but it is not stated as such in the Uniform Act. In other words, the Uniform Act, as compared to legislation in other legal systems, is silent on the fundamentality of the seller's breach.Footnote 106 The Uniform Act does not expressly state that non-conformity must be minor or severe for the seller to have a right to cure. Thus, is the seller allowed to cure only mostly minor non-conformities, in order to satisfy the buyer's reasonable expectations? It is, however, regrettable that the new Uniform Act, as compared to the old act, does not define or distinguish between the issues of “fundamental breach” or what comprises substantial non-conformity.Footnote 107
However, it is also relevant to note that, upon the seller's breach due to failure to deliver conforming goods, avoidance of the contract can only be made possible through a petition by the buyer to the competent court, depending on the nature and gravity of the breach.Footnote 108 Avoidance of the contract due to failure to deliver therefore requires judicial intervention under the Uniform Act, whereas it can be unilateral under the CISG.Footnote 109 As a matter of fact, it is expressly clear that OHADA favours the judicial process of cancelling a contract,Footnote 110 as well as the anticipated action for avoidance when, before the date for performance of the contract, it appears that one party will not fulfil an essential part of his obligation due to circumstances beyond his control.Footnote 111 The buyer may apply to the court for cancellation of the contract if the seller's breach is serious, provided the buyer had notified the seller of his decision. The buyer nevertheless retains all other remedies, such as the right to claim damages or a reduction in price. Arguably, this position in the Uniform Act revolves around the issue that the fundamentality of the seller's breach must be raised by the buyer. Consequently, the buyer has the right to avoid the contract if he can establish to the courts the existence of the seller's fundamental breach of contract. This was raised in Banque Agricole et Commerciale du Burkina v Guouo Seydou et Autres,Footnote 112 where the defendant failed in its obligation to deliver the requested computers in accordance with the terms of the contract. Thus, the issue of fundamentality of breachFootnote 113 is left for the judge to interpret. The burden of proof lies with the buyer. One reason for incorporating such onerous standards into the Uniform Act is to protect the seller.
The emphasis in these examples is less on the seller's knowledge of the defect or reasonable belief in the acceptability of the non-conforming delivery than on the basis of the parties' agreement. It is of prime importance that the buyer should receive what he bargained for, instead of the seller relying on the likelihood of the goods being acceptable to the buyer upon delivery. This was the case in Unilever v SODISPAM.Footnote 114 In other words, the seller's duty of correct deliveryFootnote 115 favours the parties' expectations under the contract, rather than the seller's reasonable belief that the goods will be accepted.
THE SELLER'S DUTY TO CURE A NON-CONFORMING DELIVERY AFTER THE DATE OF PERFORMANCE
The seller's right to cure after the date of performance depends on whether a non-conforming delivery was acceptable to the buyer. By article 258 of the Uniform Act, the seller is allowed to cure after the delivery date only if he actually knew of the non-conformity of the tendered goods at the time of performance, as identified to him by the buyer. As already discussed, the buyer must report to the seller any defects which he may have happened to discover after accepting delivery. Here, there is less difficulty on the part of the buyer to exercise such a right because it will mostly concern apparent defects. The perishability of the goods, cost of repairs by the seller and time the buyer must wait are some important factors to be considered that may affect the buyer's business.
Another problem revolves around the express language of article 259 of the Uniform Act, which does not suggest the possibility for the seller to cure hidden defects. However, it could be inferred that cure is not excluded, considering the one year period accorded to the buyer to make a complaint regarding defects. Perhaps the most troubling question is whether the seller may cure a material breach in a situation where the buyer has taken delivery of the goods, and then gives notice that he is revoking that acceptance as a result of the seller's lack of conformity. This was the case in Mejo M'Obam Moise v Société Anonyme LABOREX Cameroun.Footnote 116
It is easier to predict when a seller has a right to cure late or non-conforming performance under the Uniform Act as a result of the discovery of hidden defects. Even if the buyer's rejection or revocation is timely within a one year period, giving the seller the possibility to cure during that timeframe, the Uniform Act is rather silent on the timeframe for the seller to cure after the buyer's revocation of acceptance regarding such defects. In this situation, the seller should strive to minimize the buyer's economic loss.Footnote 117 A re-tender is not necessarily too late because the contract date for delivery has passed. It can be concluded that the rules as to time for a re-tender are the same as those for the original tender stipulated in the contract.Footnote 118 For the sake of a good trading relationship, time is of the essence for the business of the commercial buyer, especially in large scale commodity dealings with consumer buyers.Footnote 119 An agreement to replace or repair defective goods is therefore not a rescission or variation of the original contract of sale, but simply an action to execute a fresh act of performance. However, it would depend on the circumstances and on the mutual agreement of the parties. It is worth noting that the Uniform Act has allowed buyers to reject or revoke acceptance, despite the seller's willingness to repair, in situations in which it is plausible that the cost of the seller's investment outweighs the benefits conferred upon the buyer.Footnote 120 By analogy, the law would not allow the buyer to refuse a cure where the cost of cure to the seller and the cost to the buyer of waiting are low or when the buyer's refusal to allow cure was motivated by a change in the market price or his information about the goods. Resources are scarce relative to society's needs and, hence, wasting resources should be prevented.Footnote 121
CONCLUSION
The concept of conformity in the OHADA Uniform Act on General Commercial Law is an umbrella term which encompasses many factors that the commercial buyer may expect. So far as the seller's material duty of conformity is concerned, it is common for the quality or description of the goods to incorporate some elements that are not part of the physical characteristics of the goods, and requirements such as good manufacturing practices and ethical values should not be seen as novel. The prime consideration in determining the seller's material obligation of conformity under the Uniform Act is the parties' intention. The text of the Uniform Act emphasizes the need to uphold the parties' intention, including reference to any trade usages. The notion of ethical and good manufacturing practices will often form part of these trade usages.Footnote 122 Article 255 of the Uniform Act is structured to create rules of interpretation rather than of binding force.
The seller's act in exercising his material duty of conformity is not enough. The seller is also expected to deliver goods which will satisfactorily serve the purpose for which commercial buyers intend to use them. As the seller's duty of conformity is expansive, imposing absolute liability, it is critical for the buyer to articulate clearly the purpose(s) for which he intends to use the goods, to define the seller's functional duty of conformity. This is especially important for goods such as manufactured goods, where the quality of the goods is relevant for their saleability by the commercial buyer in order to meet consumer expectations. The utility of the goods for re-sale matters to the commercial buyer in the first place. That is why the seller under the Uniform Act is under a duty to deliver goods for the required purpose.
The seller's expected obligation to deliver goods in accordance with the contract specifications is often not the case in practice. In most cases the seller is not to blame for ensuring any lack of conformity. The buyer also has a responsibility for ensuring conformity. Thus, since doing business is at the heart of the mind of the commercial buyer, the Uniform Act gives him the opportunity to examine goods supplied to him by the seller to determine the existence of any deficiency. Deficiencies could take the form of latent or hidden defects that may be inherent in the goods. This situation seems to show how the principle of caveat venditor confronts the principle of caveat emptor. Arguably, this is a difficult task, given the increasing sophistication of goods being manufactured today. The bare eyes of a buyer cannot detect deficiencies existing in some kinds of goods, so he must employ technical methods. Time limits have also been specified for the buyer to report any lack of conformity to the seller for a possible remedy. The buyer's right to examine the goods could be said to contribute to ascertaining the quality of goods in the market. The commercial buyer cares because his customers are fundamental to him when he re-sells the goods.
