Sale by Sample under Section 17 of the Sale of Goods Act, 1930: When a Sale Is by Sample, Correspondence of Bulk with Sample, the Opportunity to Compare, and Latent Defects

In many trades the buyer does not inspect the whole consignment before buying. He sees a small quantity of the goods, a sample, and buys on the footing that the rest will be like it. Section 17 turns that expectation into three implied conditions: that the bulk will correspond with the sample in quality, that the buyer will have a reasonable opportunity to compare the two, and that the goods will be free from any defect making them unmerchantable which a reasonable examination of the sample would not have revealed. The last condition recognises that a sample can only show what can be seen.

1. The Section

Section 17, Sale of Goods Act, 1930

(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

(2) In the case of a contract for sale by sample there is an implied condition (a) that the bulk shall correspond with the sample in quality; (b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; (c) that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

2. When Is a Sale by Sample?

It must be a term of the contract. The mere fact that a sample was shown during negotiations does not make the sale one by sample. The parties must have agreed, expressly or by implication, that the sample is the standard to which the goods must conform.
Written contracts that make no reference to a sample may not be treated as sales by sample, since the written terms are taken to state the bargain.
Trade practice may supply the implication, as where a commodity is customarily bought on samples drawn from the lot.

The three implied conditions, and the cases that explain the third

3. The Three Conditions

Correspondence in quality. The bulk must match the sample in quality. The comparison is of quality, not every incidental feature, but a real difference entitles the buyer to reject.
Reasonable opportunity to compare. The buyer is entitled to examine the bulk against the sample before he is taken to have accepted it. Section 41 reinforces this: a buyer who has not previously examined goods is not deemed to have accepted them until he has had a reasonable opportunity of doing so.
Freedom from latent defects. The goods must be free from any defect making them unmerchantable which a reasonable examination of the sample would not reveal. A defect visible in the sample is taken to have been accepted; a hidden one is not.

📖 Drummond v. Van Ingen, (1887) 12 App Cas 284 (HL)

Facts: Cloth was sold by sample to merchants who intended to sell it on to clothing manufacturers, as the sellers knew. The bulk matched the sample, but both the sample and the bulk had a latent defect that made the cloth unfit for making garments, which ordinary examination would not have revealed.

Held: The House of Lords held the sellers liable. The office of a sample is to present to the eye the real meaning of the contract as to quality, so far as it can be seen; it is not a guarantee against defects that cannot be discovered by looking at it. Correspondence with the sample was therefore not enough, where the goods had a hidden defect making them unmerchantable.

Ratio: A seller by sample is not protected merely because the bulk matches the sample, if both share a latent defect not discoverable by reasonable examination. The principle is Section 17(2)(c).

📖 Godley v. Perry, [1960] 1 WLR 9

Facts: A boy bought a plastic catapult from a shop, and it broke in use, injuring his eye. The shopkeeper had bought his stock from a wholesaler by sample, and had tested the sample by pulling back the elastic. The defect, a brittle frame, was not apparent on that test.

Held: The retailer was liable to the boy for breach of the implied conditions of merchantable quality and fitness, and recovered in turn from the wholesaler. The sale to the retailer was by sample, and the defect was one that a reasonable examination of the sample would not have revealed, so the condition in Section 17(2)(c) was broken.

Ratio: A buyer by sample who makes a reasonable examination of the sample is protected against defects that examination would not reveal.

4. Sale by Sample and Sale by Description

A sale may be by sample alone, by description alone, or by both. Where it is by both, the last limb of Section 15 provides that it is not enough for the bulk to correspond with the sample if the goods do not also correspond with the description. The comparison between the two kinds of sale is dealt with in a separate note.

5. The Position Stated Shortly

A sale is by sample only where the contract, expressly or impliedly, makes the sample the standard.
Section 17(2)(a): the bulk must correspond with the sample in quality.
Section 17(2)(b): the buyer must have a reasonable opportunity to compare them, supported by Section 41.
Section 17(2)(c): the goods must be free from unmerchantable defects not apparent on reasonable examination of the sample.
Drummond v. Van Ingen: matching the sample is no defence to a latent defect.
Godley v. Perry: a buyer who examines the sample reasonably is protected against hidden defects.