The Need to Update the Sale of Goods Act 1930 (Pakistan)

THE NEED TO UPDATE THE SALE OF THE NEED TO UPDATE THE SALE OF GOODS ACT, 1930 (PAKISTAN) By Muhammad Humzah Sheikh* Advocate High Court, Lahore Introduction The sale of goods is one of the earliest forms of business transaction, existing after the barter system. The old English law was usually to protect the right of both the parties than recognizing the binding force between the parties. The parties may not sue each other unless they showed that the parties benefited from the transaction. The need for the mercantile community to rely on the conditions laid down by the parties drove the common law to accept the sale transaction should be properly established and Sale of Goods Act 1893 (UK) was established which was later amended in the Sale of Goods Act of 1979 (UK). Sales of Goods play a vital role towards the national economy of the country as the whole manufacturing industry and the individual consumer relies on it. The introduction of Sale of Goods Act (1930) in Pakistan, intended to do the same by addressing multiple socio-legal problems concerning consumers' protection, as well as the rights of buyers and sellers in the commercial arena. Not only did it bring clarity as to the subject matter, pricing and the validity of the terms of sales contracts, this Act also implied certain terms into contracts when they failed to address vital points. Therefore, for the first time, law began ensuring the protection of consumers, empowering them with adequate rights and placing substantial duties upon the sellers in order to create a more equitable balance between buyers' and sellers' rights. However, expansion of trade worldwide along with the drastically changed nature of commerce has far outgrown this venerable enactment. The Sale of Goods Act (1930) was passed in India when it was a British Dominion and was adopted by Pakistan, upon its creation, as it was. Since then, although the Act has been amended in the UK to comply with the modern commercial needs, this is not the case in Pakistan. The system if amended could get rid of the economic problems faced today due to the out dated law. While looking at the history it can be encountered that the origin of the Sale of Goods Act comes from the United Kingdom which was later adopted by the former British colonies. However, it can be seen that the Sale of Goods was later amended in the United Kingdom updating its law according to Sale of Goods Act 1979 (UK) by the new Act and few major changes in 1994 and 1995. Moreover, Sale of Goods Act was amended through small significant amendments made by the Misrepresentation Act 19671, the Criminal Law Act2 and the Theft Act 19683. Furthermore, a significant amendment was seen through the Supply of Goods Act 19734. In addition, amendments were made by the Consumer Credit Act 19745 and the Unfair Contract Terms Act 1977; these amendments were incorporated to form the new Sale of Goods Act of 1979 in the United Kingdom6. While Pakistan a former colony of the British Empire is still based on the previous law which has become rigid and hard to follow. Post-Independence, Pakistan enacted the federal laws Revision and Deceleration Act 1951, under which it adopted several various Indian laws which governed both the country pre independence in which 1930 Sale of Goods Act was a part and was adopted in the Pakistani legal system7. There are several issues which need to be adhered, one of the main issues faced due to the out dated law is in respect to the consumer, as there is no or very low protection provided to protect the right of the consumer, however, there are some ways through which a buyer may be protected, a buyer may examine and reject the goods if they do not comply according to the contract, moreover if he does not examine the goods then he bound to accept them furthermore, may not reject them as the rule of the buyer beware is still enacted. The Sale of Goods Act of 1930 (Pakistan) is out dated and vague, custom and practices concerning the sales of goods have changed over the period of 80 years. My research aims to explore the upgrades needed to make the 1930 Act (Pakistan) workable and useful for consumers, so as to bring commercial certainty and allow economic growth which is being hampered by this dated law. The UK's Sale of Goods Act (1979) may be consulted for that purpose as it brought in much needed clarity to ambiguities that lingered at that time. We will begin with Section 13(1), which deals with the description of goods sold. Although, it protects purchasers, the same section also provides cover to sellers. This adds certainty to the law as it states that implied terms may only be breached if the buyer relied upon the description provided; where the buyer is an expert himself, reliance may not be established. This kind of certainty and protection for both parties is not available in the 1930 Act (Pakistan). Similarly, with the expansion of trade, the term "in the course of business" needed a wider meaning because Section 14(1) implies terms into the contract relating to quality and fitness for purpose, where a seller acts in the course of business. Lack of amendment of the Pakistani Act has limited the scope of the statute by leaving out the modern types of business, thus limiting the rights of consumers. Furthermore, to cover the minor and substantial problems relating to the "satisfactory condition" of the goods, a practical objective test was introduced under the Section 14(2) of the 1979 Act (UK) whereas Pakistani law still applies the 'merchantable goods' test, again restricting buyers' rights. In addition, the lack of amendment of the 1930 Act (Pakistan) has also stultified the remedies available to buyers and in particular to consumer buyers. Given the fact that consumers are rarely if ever on an equal footing when it comes to the negotiation of contracts, the provision of more remedies to them is essential to maintain an equitable balance in contracts for the sale of goods. These and other similar defects are encumbering the development of commercial clarity, and hence economic growth, in Pakistan. My research seeks to identify the best way to modify the 1930 Act so as to bring the law into the 21st century while catering to the unique requirements of my jurisdiction as far as possible. 1. Statutory Implied Term of "Sale by Description" Whenever there is a contract for the sale of goods by description, the requirement that the goods supplied match their description is an implied term or condition of the contract. There have been always a debate as to whether there should have been an express obligation rather than an implied one in such cases because after all it is a sale by description. Before the law was codified, a distinction was drawn the sale of specific goods and sale of goods by description in a contract. In addition, the implied condition gave the buyer to reject the goods if the goods supplied by the seller were not in the exact condition specified by the description. Section 13(1) of Sale of Goods Act 1979 (UK) deals with the description of goods sold. Although it protects purchaser the same section also provides cover to the sellers. This section adds certainty to the law as it states that implied terms may only be breached if the buyer relied upon the description provided. Though, where the buyer is an expert himself, reliance may not be established. However, this kind of certainty is not provided in the Sale of Goods Act 1930 in Pakistan. The Sale of Goods Act 1979 (UK) has law as brought clarity to ambiguity which lingered with time. Moreover, the 1979 Act (UK) went through a lot of amendments and these would help to provide more clarity and certainty8 if these changes were adopted by the 1930 Act in Pakistan. 1.1 Statutory Implied Term of "Sale by Description" in Pakistan: Sale by description is provided in section 15 of The Sale of Goods Act 1930 (Pakistan) which states: "Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description ".9 This section states that the correspondence of goods being sold to their description as described in the contract is an implied condition. The description of goods may assume different forms and goods may be described by different names referring to a specific brand or quality. Thus, the seller must supply such goods which are of that specific brand or quality in the market10. The goods may also be described by the special features that they must possess. According to Lord Wright sales by description may include many situations as pointed out in Grant v Australian knitting Mills11: "It may also be pointed out that there is a sale by description even though the buyer is buying something displayed before him on the counter: a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing, but as a thing corresponding to a description e.g., woollen under garments, a hot-water bottle, a second-hand reaping machine, to select a few obvious illustrations." It was stated in the case of Gardiner v Grey12 that if the goods which have been sold to the buyer cannot be described as what they have been described as, the buyer may reject the goods13. Two things are necessary to enable the buyer to invoke the goods under this section. First, there should be a sale by description14 and, secondly the goods must fail to correspond with the description15. This happened in the case of Varely v Whipp16, where the item supplied did not correspond to the description of the goods mentioned in the contract and as the buyer had never seen the goods and had replied on the description alone the buyer therefore was entitled to return it. It was held in the case of Coachman v Hill17, that "every item in a description which constituted a substantial ingredient in the identity of the thing sold is a condition."18 Second, where the buyer has seen the goods, but still relies on the description of goods, the buyer still has the right to reject the goods under s15 of Sale of Goods Act 1930 (Pakistan)19. This could be illustrated in the case of Nicholson and Venn v Smith Marriott20; here the buyer went to for an auction of sale of a set of linen napkins and table cloth which was described as dating from the 17th century. The plaintiff being a dealer in antiques bought it and later found out it was actually from the 18th century and rejects the goods under s 1521. It was held they he could do so, as he had relied on the description provided by the seller. However, on the question of whether the buyer is allowed to reject the goods in circumstances where there has been no reliance on the description by the buyer, 1930 Act (Pakistan) is silent and we need to consider how the Sale of Goods Act 1979 (UK) deals with such a scenario. The approach provided in the Sale of Goods Act 1930 (Pakistan) has been rigid and dated. There has been no protection provided towards the seller, as it seems the section has a biased approach towards the protection provided to the buyer. Thus, as seen in s13 of the Sale of Goods Act 1979 (UK) an implied term may only be breached where the buyer has relied upon the description provided; however, that where the buyer is an expert himself, reliance may not be established. This kind of certainty and protection to both parties is not available in the Sale of Goods Act 1930 of Pakistan which came into existence during the British Empire, which was later adopted by both India and Pakistan. 1.2 Statutory Implied Term of "Sale by Description" in the United Kingdom: The English law of contract can be seen to have drawn an important distinction between condition and warranties. A condition is an implied term of the contract which needs to be followed in order to make a valid contract, if not done so the contract may be taken as void. A breach of an implied term is taken as a breach that goes to the root of the contract, thereby entitling the innocent party to treat the contract as void. However, in case of breach of a warranty, the innocent will not be able discharge the contract but may claim for damages from the defaulting party. It may be seen that the distinction between conditions and warranties was established by the Sale of Goods Act of 1893 (UK) which went through various amendments over time. This was done so that it could provide certainty towards the sale by description. We may begin with section 13(1)22 which deals with the description of goods sold. "Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description."23 Where there is a sale by description or by sample, the implied condition in this section states that goods must correspond accordingly24, if they do not do so the buyer has the right to reject the goods. The major difference between the previous Sale of Goods Act25 in the UK and the 1979 Act (UK) is that when dealing with sale by description that previous Act made no distinction between specific goods and un ascertained goods, while the current Act26 lays down a clear distinction between them as whenever there is a sale of unascertained or future goods that sale is by description27. However, where the buyer does not deal as a consumer as per the Unfair Contract Terms Act 1977, the seller may be able to exclude his right in case of a breach, which will be explained later in this chapter. On the face of it, this seems similar to the Section 15 of the Sale of Goods Act 1930 (Pakistan), though the approach of the courts has recognized that the correspondence with the description of the goods was not the same as fitness for the purpose. The implied term of description may now be excluded by agreement between the parties or eliminated by the exemption clauses.28 Moreover, the courts have taken a wider approach towards it as they look to see whether the breach in question was a fundamental one or not29. If the breach was one which was minor the courts may not allow the buyer to repudiate the contract or discharge it.30 Further amendment in the Section was made by adding subsection (3) of Section 1331 to re-enact a provision added by the Supply of Goods (Implied Terms) Act 1973, so that uncertainty32 could be removed where the buyer himself selects the item from a self-service facility, as it states: "a sale is not prevented from being a sale by description by reason only that, being exposed to sale or hire, they are selected by the buyer"33 As seen from the wording of S 13(1) the implied term for description of goods is prescribed in favor of the buyer. Moreover, the enactment of subsection (3) provides more certainty towards the section and the protection towards the buyer. Although there may be some instances where the buyer has selected the good in a self-service facility and there is sale by description yet the buyer may not be able to reject the goods which will be explained later in this chapter34. These amendments have provided some protection towards the seller. This kind of amendment is needed in the Sale of Goods Act in Pakistan; so that certainty of law could be provided towards the sale by description and a more appropriate balance struck between the rights of buyers and sellers. Section 13 seems to be similar in various aspects to Section 15 of the 1930 Act (Pakistan). Where there is a sale by description; the terms of the contract need to be expressly mentioned or implied into the contract and the buyer must have placed reliance on them. Let us compare the different aspects of description separately. First, looking for a sale by description, the word description should be a part of the terms and conditions of the contract not a mere representation towards the buyer35. This was seen in the case of Heilbut, Symons & Co v Buckleton36 where the descriptive words were taken into account as being a part of the contract as the buyer had relied on them, and it was held that they were not an inducement towards the buyer to make him enter into the contract. Though, it can be seen that the word description has a narrower meaning than that used for the purpose of Trade Description Act37. This was because the more narrow the meaning the more precise it is, as for example a person who wants to buy oranges from a bulk when there are various types of bulk he needs to make his description precise. Until he makes the description of goods clear he may not hold the seller liable if he provided him with oranges from the wrong bulk. This kind of certainty is not present in the Sale of Goods Act of 1930 (Pakistan). Though from the wording it seems the law between the UK and Pakistan to be the same, this is not the case because the Trade Description Act of 1968 in the UK clarified how narrowly the meaning of description should be construed in the context, as there could be various meaning deprived from different words. Though it may seem that there has been some increase in the protection afforded to the seller, there have also been major amendments that increased the protection of buyers. It can be seen that the old concept of caveat emptor or 'buyer beware', applies in such scenarios where the buyer has seen the goods before buying them and thus may not hold the seller liable for any default38. In addition, the goods may not be of the description which the buyer wanted to buy and still he may not reject them if he saw the goods beforehand. It was where the goods were sold by sale of description that they had to be merchantable. However, this concept has been modified after the amendment of 'merchantable quality' to 'satisfactory quality'39 which will be discussed further in the next chapter. When it comes to the sale of goods by description the courts tended to extend the category in order to protect the buyer, meaning the sale should be of such specific goods which the buyer wants to buy otherwise the buyer may reject the goods. Moreover, even if the buyer has seen the goods the seller would still be bound by sale by description as long as it is a sale by other hand. Though, it may be seen that there is a loophole for the sellers to get away in the Sale of Goods Act 1930 (Pakistan) when it comes to sale by description as it is still based on merchantable quality, while the UK Act has provided a more certain approach towards the law regarding sales by description. According to section 13(1) the goods sold must correspond with the description implied in the contract. A perfect illustration could be drawn from the case of Beale v Taylor40, here the buyer went to buy a car which was illustrated as being dated 1961, although it was not so. It was held as the buyer had relied on the description provided by the seller the seller that the seller was accountable. Moreover where there is even a small difference in the way of packing, and no difference in the monetary value of the product or quality, the buyer may still reject the goods for failing to match their description as per the case of Moore & Co v Landauer & Co.41 The major difference which could be encountered between the Sale of Goods Acts in Pakistan and the UK is where there has been no reliance by the buyer on the description and the sale is by description. The seller would not be held accountable for any breach in the UK in such cases. Moreover, where the buyer is an expert, reliance may not be established as the buyer will know better than the seller in such circumstances. This may be illustrated by the case of Harlington & Leinster v Christopher Hull Fine Art.4242 The claimant had bought a painting for 6000 made by a German painter called Munter, however, they later found out that the painting was not by Munter. The buyer had sent an expert to inspect the painting at the time of the sale and it was held that the buyer did not have the right to reject the goods as they had sought advice from an expert, and moreover, they had no protection under Section 13 as they did not rely on the description provided by the seller but relied on the competence of the expert in this matter43. In the case of Ashington Piggeries LTD v Christopher Hill Ltd44 Lord Diplock took the approach that the implied term describing the sale by description should be constructed more narrowly in the case of specific goods so that it could be decided whether the buyer has reject the goods as they did not correspond to the exact description. The wording towards the description should clarify and identify the goods which need to be supplied, rather than just identifying a corresponding item. Moreover, it is at the court's discretion to decide whether a specific term would be implied or not and may reject it if does not seem to be one. As illustrated in the case of Reardon Smith Line Ltd v Yngvar Hansen-Tangen45 as Lord Wilberforce explained that the ambit of section 13 is to find the essential wording which identifies the item. He further more stated the previous cases as 'excessively technical and due fresh examination.' Though Section 13 is an implied term, it can now be removed from the contract by the exclusion and limitation clauses. The seller may exclude his liability for a breach of section 13 and may stop the buyer from rejecting the goods. However, this may not mean that a seller sells a goods which totally fails to correspond to the description. The exclusion clauses are inserted into the contract to limit one of the contracting party's liabilities for the breach of the contract46. These clauses are usually under the Unfair Contract Terms Act 1977 and the Unfair Consumer Contracts Regulations 199947. If there is an exclusion clause in the agreement and the parties have signed the contract then even if one of the parties does not know about the clause he would still be bound by it as per the case of L'Estrange v Graucob.48 However, if there has been a misrepresentation the contract would become null and void and so will the exclusion clause as was held in the case of Curtis v Chemical Cleaning Co.49 It can be seen that s6(3) and (6) of Unfair Contract Terms Act50 has the power to exclude Section 13 of Sale of Goods Act. This leads to the buyer not being able to reject the goods as his rights would be limited by the exclusion clause. Though, it can be seen that the effect of the exclusion may be minimum or limited when talking about Section 13 as the law of description is an expressed one and if the seller sells something which is corresponding however not the exact it may not exclude Section 13. However, it is on the court's discretion to exclude liability as in the case of Hughes v Hall51 the exclusion clause was granted. Moreover, where the time is of essence and the buyer has expressly or impliedly mentioned this in the contract it will hard to exclude the buyer's right to reject the goods. Furthermore, if the fitness and quality are a condition and the sellers fails to meet them still he would not be able to exclude buyers' right to reject. If the buyer is also the consumer of the goods no exclusion clause would apply. Moreover, he would be allowed to reject any such good which the court considers to be unfair on the part of the consumer, as unfair terms shall not be binding on the consumer. Schedule 252 lists a number of terms which are regarded to be unfair towards the consumer. Returning to the Sale of Goods Act in Pakistan it can be seen that none of the above mentioned protections are provided to consumers, as still he would be dealt only as buyers and not as consumers. Major amendments need to be made in this aspect as mentioned in Schedule 2.53 Moreover, the provision of an exclusion clause which protects the seller as it halts the buyer from rejecting the goods. Such kinds of amendments are to provide a more certain approach to law and fix how rigid and dated it is today. Providing commercial clarity which would hence lead to economic growth in the country as both sellers and buyers would be where there is a sale by description and the buyer has not relied upon the description and has gone for his own understanding in such scenarios the court may not hold the seller liable if there is held to have been a breach. The most important amendment should be made where the buyer is an expert and has knowledge of what he is purchasing as illustrated above, the seller should not be accountable as reliance cannot be established, thus providing legal cover towards the seller. This kind of certainty and protection towards both parties is not currently found in the Sale of Goods Act 1930 (Pakistan), thus, the legislature should focus on these aspects by taking law into account the current British as it represents the continuation of legal development in commercial law. 2. Statutory Implied Term as to Quality and Fitness It can be seen that sales law started to develop in the late 18th and 19th centuries54. The principles evolved from the then prevailing disputes between the merchants. Therefore the previous law was developed taking into consideration the practice and expectations of the merchants rather than the judicial view55. However, there was a further set of amendments in 1973 Supply of Goods Act in the UK which gave the new principle based on the 'merchantable quality'. However, this did not fit the needs of the modern consumer and was therefore amended in 199456 and then in 199557 to remove the obstacles which hampered the way of the consumers in the modern consumer and commercial transactions. The 20th century had some major changes toward the consumer protection which could be seen from the previous chapter, as the protection towards the consumer was given vital importance and still remains an important objective. With the expansion of trade, the term "in the course of business" needed a wider meaning because Section 14(1) of Sale of Goods Act 1979 (UK) implies terms into a contract relating to quality and fitness for the purpose, where a seller acts in the course of business. Lack of amendment of the Pakistani Act has limited the scope of the statute by leaving out the modern types of business, thus limiting the rights of the consumer. Furthermore, to cover the minor and substantial problems relating to "satisfactory condition" of the goods, a practical objective test was introduced under the Section 14(2) of the Sale of Goods Act of 1979 (UK), whereas Pakistani law still applies the "merchantable goods" test in Section 16(2) of the Sale of Goods Act 1930 (Pakistan), again restricting buyers' rights. 2.1 Statutory Implied Term as to Quality and Fitness in Pakistan: In the Pakistani Act Section 1658 deals with implied conditions as to quality and fitness, while in the United Kingdom Act it is dealt in section 1459. As both laws are based on common law it can be seen that in common law the law was reluctant to imply the terms of quality and fitness, while the relying upon the general principle of caveat emptor. This was a concept of letting the buyer beware of what he is buying and if he or she is not sure about the seller or the product they should make inquiries about it60. However, if the seller had made a false or misrepresentation of the goods sold he could be liable. Though, if he did not make a misrepresentation and made a true statement which he backed by a warranty and if there is still breach in the contract, the contract would not be held null and void but the seller would be liable for damages to the buyer61. The Pakistani Sale of Goods Act 1930 is still based on the principle of caveat emptor meaning the buyers beware. As the wordings of section 16 are a restatement of this principle, the wording goes as follow: "Subject to the provision of this Act and other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale"62 However, there are exceptions mentioned where the effect is known to the buyer, if the buyer does not know the defect than it is the obligation of the seller to tell him about it. The principle deprived from the wording of the section is that the buyer is relying on his own skills and judgment for which he or she cannot hold the seller liable63. However, this rule could be seen to be derived originally when goods were mostly sold in the open market and the buyer had the opportunity to satisfy himself as to the quality or the fitness of the goods. In common law it has been illustrated that except in the case where there is a risk of fraud where the buyer buys the goods under his own risk he may not hold the seller liable until there is a condition or a warranty. An example would be where A sells goods to B and it turns out the goods were defective and A did not know about the defect and B buys the goods and later find out about the defect B has to pay the full price and would be entitled to reject the goods or claim for damages. It can be illustrated by seeing this section that it starts with the rule involved in the maxim of caveat emptor, and proceeds towards the two exceptions laid down in subsections (1) and (2). Which states that there is no implied warranty or condition towards quality except laid down in the two subsections. Subsection (1) states that there is an implied condition as to the fitness of the goods as the goods must be fit for the purpose they are required, while subsection (2) states that there has to be an implied conditions that the goods are of merchantable quality. If the buyers needs to protect him from getting the wrong quality or fitness of the goods he needs to have an implied condition or warranty in the contract. The question here is 'what is fitness?' Fitness is that the goods being sold does not have to fit generally for purpose, but should be fit for the purpose notified by the buyer. However, condition and warranty may only be established, where the sale is by description, the seller is has been told the purpose the goods need to be used and moreover, the buyer relied on the skill of judgment of the seller than his own. So it may be said that the rule of caveat emptor only applies where the buyer buys a specific goods, while where he has placed an order for the supply of goods he would fall under the two exemption subsection and would be deemed to have a condition other a warranty. Moreover, where the buyer has placed such an order and goes for inspection of goods before delivery would not exclude the liability of the seller providing the goods under a condition or warranty64. In cases where the sale is under a trade name or specified article there will be no implied condition towards fitness, where the buyer ask for a service or any machine to hire it purpose is to do what it is required. However, it may be argued that the thing sold does not bring in the exclusion clause that the goods should not be fit for the purpose. Though if the buyer expressly states that he relies on the skills and judgment of the seller than in such a scenario the seller may not exclude the fitness test and may be held accountable. Now coming towards subsection (2), the second exception has an implied condition as to merchantable quality. Though, the first part focuses that the goods bought need to be by sale of description which has been discussed thoroughly in the previous chapter. However, the important aspect here is that that the goods must not only correspond to the description but must also be of merchantable quality. The goods supplied to the buyer needs to salable goods, with a warranty of being merchantable quality.65 Meaning even if the good is what it is described to be but it is not of merchantable quality the buyer has the right to reject the goods, even if the seller is not the producer or the manufacturer he is still bound by the provision regarding merchantable quality. The section further states that if the buyer has examined the goods in advance the seller would not be liable for any breach, though this concept would be overlooked and would not benefit the seller where the goods did not meet with the description.66 The concept quality, fitness or condition of good was excluded on where goods were on the "as is where is" basis. Where the seller had this term in the contract he was not liable if the goods were faulty. Moreover, the buyer later may not be able to raise an appeal that the quality presented was otherwise than what was agreed.67 However in the case of S. Zahur Ahmed v Howards (Coloney) Ltd68 the seller sold almonds to the buyer, the buyer later complained the goods sold are defective and what was seen and had sold them further at a loss. The seller argued that the goods where according to the sample so he would not be liable for any damages. However, the court decided that the merchantable quality was an implied condition and the seller was liable even the buyer had seen the goods before. Moreover, the buyer may be able to claim damages for the loss he had suffered. If any case fells outside the ambit of the case discussed then there is no implied condition or warranty as to the quality, fitness or merchantable. Merchantable quality in itself is an implied condition and not a warranty the goods sold to the buyer should not only correspond to the description but should also be of merchantable quality. Example, where there has been a sale of a car horn though the horn supplied works properly and fits the description but due to the packing has some scratches, this would give the right to buyer as they meet the required merchantable quality. Moreover, where the seller sells the goods that is dangerous he has an implied condition to tell the buyer about it, even if the buyer did not buy the good by description. Seller is under an obligation to tell the buyer unless known about any defect in the good as in the case of Wafaq-i-Pakistan v Awanunnas69, where the defect is known to the buyer, seller may not be obliged to do so. 2.2 Statutory Implied Term as to Quality and Fitness in United Kingdom: Now coming towards The Sale of Goods Act 1979 in the United Kingdom, before moving towards the amendments which were made in the act and how it changed the scope of Section 14, it is essential to look at the previous law and why were the changes made with the course of period. Before moving forwards lets go back to the Sale of Goods Act of 1893 (UK), whose wording are similar to the Pakistani Sale of Goods Act as section 14(2) states that "Where the goods are bought by description from a seller who deals in goods of that description (whether he be the manufacture or not), there is an implied condition that the goods shall be of merchantable quality"70 However, the old Act went through some major amendments, this chapter will be focusing on two kinds of amendments as discussed above first in respect to the limitation of the implied term in situations where the sellers sell in the course of business and secondly the emergence of 'satisfactory quality' which replaced the 'merchantable quality' test. 2.2.1.1 "In the course of Business": One of the major differences could be encountered where the seller sells the goods in the course of business, the two exceptions to quality and fitness contained in S 14(2) and (3)71 may only apply in such a scenario. These subsections have provided a vital change and have established a protection towards the buyer who is the consumer when he buys the good from a manufacturer. It can be illustrated from s14(2) that amendment has provided a better of protect towards the consumer and has raised the standards of quality as well. However, this is limited only where the goods have been sold by the seller in course of business as illustrated above. The principle of 'in the course of business' was laid down in the case of Stevenson v Rogers72, in which it was held that sale of the fishing boat fell under the ambit of 'in the course of business' s14 (3) and in the ambit of section 14(2) and was held that the boat had to be of satisfactory quality. Moreover, it had been noted in the court if the original wording was taken in to account of the Sale of Goods Act 1893(UK) it would had a limited liability as the term the seller worked with was "in goods of that description". Sale here is such where the buyer relies on the seller's skills and judgment in which he makes known to the seller about the special purpose the goods would be used for and should be reasonably fit for the purpose73. The description would vary from case to case. However, where a trader only deal in cricket goods and the buyers persuades him to get golf clubs, that thing would not fall under a sale of goods of that description as it was not in his normal course of business to do so. Moreover, the goods may be of merchantable quality but if does not fit the ambit of goods of that description the buyer would still have the right to reject the goods as seen in the case of Sumner Permain & Co v Webb & Co74 in addition, this creates the link between subsection (1) and (2)75. Though, the previous law restricted protection of the seller and in no way was he able to exclude his liability towards the buyer and would always be held accountable under the old sale of goods law. However, it may be seen that after the enactment of the term in course of business which has even been given a wider meaning has provided protection towards the seller. We can see that under the new Sale of Goods Act 1979 (UK) the seller is able to exclude his liability if he is not working in course of his business. The Pakistani law till today is based on the implied term of "in goods of that description" and can be seen to have restricted the right of the modern day seller and consumers. There lies a major ambiguity and rigidness till today as in which case a seller would be able to succeed his right to exclude his liability towards the buyer as if still works on the term 'goods of that description' the buyer would have a reliance on the skills and judgment of the seller holding him liable for any default in the goods. However, the exception of the terms in course of business does not apply to every transaction only where the contract is between one merchant to another. Though, where one person is acting as an agent on behalf of the another person and sale may still be in course of a business dealing, as illustrated in the case of Boyter v Thomson.76 The concept of in course of business led to many questions, where a person does something in his business and would not do it normally include selling of items, would it still amount to a sale of goods in course of business and the answer may be yes as seen in the case of Rogers77. However, where the seller does not sell in the course of the business and buyer knows about the product or it falls within the ambit of section 14(5)78 in such a scenario he would fall under the ambit of the principle of caveat emptor (Let the buyer beware). Moreover, there may be cases in relating to section 12 of the Unfair Contract Terms Act 1977, where the buyer would not be held as a consumer. In the case of R & B Customs Brokers Co Ltd v. United Dominion Trust Ltd79, R & B the company bought a car for one of his director; however it was held that the car though bought was for the use in business. Though, R & B had no connection with the motor company so was held that the contract was not be "in the course of business" and so the consumer had a protection under UCTA 197780 if there was any breach. This case was later followed in a more recent case of Feldaroll Foundry plc v Hermes Leasing (London) Ltd81; these contrasting cases still remain authorities. Though, it may be argued that there are contradictions towards this approach. However, still the law has provided a certain approach in protecting the consumer who acts as a buyer as well and certainty towards the law of implied terms that where can the implied term be excluded and where it cannot be excluded this kind of certainty may not be found in the Pakistani Act. As seen above it is still based on the concept of a limited liability as it is based on the ambit of the term that the seller worked with was "in goods of that description" which has been an hindrance for providing certainty in law and protection towards the seller. 2.2.1.2 Satisfactory Quality replacing Merchantable Quality From that time on the Sale of Goods Act has gone through some major amendments and has been replaced by the implied conditions that the goods need to be of satisfactory quality. Now when ever has to sell a good in the course of his business the goods must satisfy the satisfactory quality test, if the goods are not of a satisfactory quality the buyer has to right to reject the goods, these new provisions came into the Act after 1995. The Sale of Goods Act 1979 (UK) went under modification under the Sale of Goods and Services Act 199482. It amended the previous provision of the 1893 Sale of Goods Act which was based on the principle of merchantable quality. It can be seen that the term merchantable quality drove from the merchants code, however, there was no definition provided about it in the Sale of Goods Act of 1893 (UK). However, there was always a problem that whether the goods were of merchantable quality or not and to resolve this issue they had to look under the merchantable code83 which identified the provisions of whether the good had been merchantable or not. The major problem to merchantable quality arose in today's situations when the contracts for the goods are mostly with consumers. There was a clear uncertainty as to what would amount to be a merchantable quality while dealing with a consumer84. Moreover, the judges tried to come up with the meaning of merchantable as there no definition about it in the act, this could be illustrated by the case of Jackson v Rotax Motor & Cycle Co85 came up with a meaning of merchantable as something which saleable under that description or something which can be resalable. However, according to the case of Bristol Tramways etc Carriage Co Ltd v Fiat Motors LTD86 merchantable quality was according to the perception of a reasonable buyer would deemed to have accepted the goods under the description of the sale. Meaning the goods should be of such a quality that it would be accepted by the buyer, who has a proper understanding of the description, characteristic of the goods. However, if the buyer is not aware of the condition then the goods it would not amount to be merchantable as illustrated in the case of Shine v General Guarantee Corporation Ltd.87 Another way to approach towards finding whether a good is merchantable is to look at the reason for which the goods were required than looking at what the buyer purpose was as illustrated in the case of Henry Kendall & Sons v William Lillico & Sons Ltd.88 Though, it can be seen there is ambiguity towards what an merchantable quality as it can see from above that it can have several meanings which may not be suitable to understand the precious meaning as each of them can have a contradicting view of each other as in Henry's case the purpose of the buyer was something else but still amounted to be of merchantable quality. To deal with such an issue the Supply of Goods (Implied Term) Act 1973, first time introduced the definition of merchantable quality in the statue which states: "Goods of any kind are of merchantable quality...if they are as fit for the purpose or purpose for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances." Though this definition was not of a lot of use as well, as many controversy first issues was from the wording which states as above fit for all purpose, was the goods bought need to fit for every purpose or should it just fit the purpose for the purpose it was bought. Moreover, it was silent on areas related to places where the buyer was the consumer of the goods. The new amendments led to more vagueness and uncertainty in the law due to which it was recommended to change the term to acceptable quality in Law Commission Report Sale and Supply of Goods (Law Com No 160, Scot Law Com 104, Cmnd 137, 1987), however, this was not done so. So finally to get rid of this issue the term satisfactory quality was introduced in the statue from the Sale and Supply of Goods Act 199489. The standards laid down would be judged according an objective approach to reasonable persons test90. It can be seen from the new amendments have laid down conditions appropriate for cases of the quality of goods91. The amendment established a general standard that goods have to be reached under the implied term92. The general rule of the new S14 of Sale of Goods Act 1979 (UK) contains provision towards the seller implementing them to provide goods in a quality and fitness for the particular purpose as mentioned in the contract. Moreover, the new term satisfactory quality has been further is amended when a buyer acts in the ambit of a consumer this amendment has been laid down with the amendment from the Sales and Supply of Goods to Consumers Regulation 2002/304593. Though it may be noted that from the wording of the new section that some qualities of the merchantable quality have been retained in the new satisfactory quality. However there are two important features94 of the new term of satisfactory quality, the first ones comes from section 14(2A)95 which describes that standard would be of a reasonable person then what the person buying expects, are considered while taking into account satisfactory96. Moreover, other relevant circumstances also needed to be taken into account such as description of goods and the price so that a proper guidance could be given if a goods falls in to the ambit of satisfactory quality. Second comes from s14 (2B)97 provides a list of quality of the goods which may be applied in appropriate cases98. One of the main advantages of the new terms is that it is flexible and can be used while looking at range of goods being sold and is not limited to specific goods. Moreover, it may be said that s 14(2B) follows the recommendation of the Law Commission Report of 1987 regarding the Sale and Supply of Goods. While first examining the word in appropriate cases, it may be seen that a seller needs to satisfy the list of criteria listed in section s14(2B). However, if the seller is not able to do so, it does not mean that the goods are not of satisfactory quality as it may be said that the final test to come to conclusion is of a reasonable person taking into account all reasonable circumstances with it. The general rule of the new S14(2B) of Sale of Goods Act contains provision towards the seller implementing them to provide goods in a quality and fitness for all the purposes. While in the previous law the goods had to be fit for the one of the purposes as for which it was being bought.99 This amendment could be seen from the Law Commission Report of 1987100 as mentioned above, however this may also be applicable in appropriate cases. The second item is appearance and finish, though it may be said that this provision is from the previous law as the goods have to according to the appearance of the buyer use and should fit in to the ambit of his use rather than a reasonable person. The third limb is freedom from minor defects neither according to the previous it would be a troublesome provision as a minor defect would amount the goods nor to be merchantable quality as seen in the case of Winsley v Woodflied.101 Though were the goods were reparable would not amount the goods not to merchantable as they could be easy repaired as illustrated in the case of Millars of Falkrik Ltd v Turpie.102 The new amendment which here can be seen that was there is a minor defect it would not amount to non-satisfactory quality this provision has been followed from the Law Commission Report103 as well. Another limb of the list is safety if the goods are not safe to be used they would not amount to be of satisfactory quality. However, if the unsafe purpose is not mentioned into the contract the buyer may not sue the seller. Moreover the seller need provides the buyer with adequate safety protection instruction otherwise the goods would be of unsatisfactory. The last limb of the subsection is of durability, though it may be seen that prior the amendment in 1994 there had been a drastic need for an implied term in a contract for durability. Meaning when the goods have been delivered to the buyer they should be durable and they were at the time of contract, as previously there had been a lot of problem in law due to the nonexistence of this implied term. However, the Pakistani Act till today is still based on the principle of merchantable quality as has been discussed above. There is a major need for an amendment in this context as the law does not fit to today's circumstances as we can see that to fit for the requirement the UK law has gone through some major amendments. Pakistan should also follow the footsteps of UK in amending their law in regards to sales of goods. 3. Remedies (Suits for breach of the contract) Where a seller has been in breach of a contract for sale of goods, it can be demonstrated that the only remedies a buyer may have under the Pakistani Law is to reject the goods or at most, to obtain damages. Moreover, there is insufficient protection for the seller where there has been a breach of contract by a buyer. The previous chapter demonstrated that the most a seller can get is for the buyer to accept the goods and pay him the full amount. However, the United Kingdom Law as to a breach of a sale of goods contract has provided both buyers and sellers multiple remedies. As both countries are based on common law and Pakistan was once part of a British colony, it would be a major improvement in Pakistani law if they incorporate these remedies into their commercial law and thereby provide better protection towards buyers and the sellers, although Pakistani Law already has some common law remedies such as specific performance by virtue of its common law heritage. Furthermore, after the amendments in the law protecting consumers under sale of goods contracts, a consumer may be able to get additional remedies under UK law, though no such protection can be provided in the Pakistani law. This chapter will focus on the different remedies provided to the buyers and then to the sellers. There may be remedies which exist together or alternative remedies for one single breach with the buyer deciding which remedy to exercise. UK law has provided a better safeguard towards a buyer when a seller breaches the contract. However, there may be remedies which a seller may exclude from the contract under the Unfair Contract Terms Act 1977. Though, a seller may not be able to do so when the buyer falls within the ambit of the consumer under the Unfair Terms in Consumer Contract Regulations 1999. 3.1 Remedies for the Buyer for a breach of contract in Pakistan: First coming towards the Pakistani Sale of Goods Act 1930, according to the law there a few remedies provided to the seller as well as to the buyer when it comes to remedies for a breach of contract of sales of good. First, we will be looking at the remedies that may be provided to a buyer if there has been such a breach. The different types of remedies under the law are governed under Chapter VI104, though it can be seen that there are only two types of remedies which are provided to the buyer against the seller105. The first is a suit by a buyer against a seller in case of non-delivery of the goods which could be illustrated by law under section 57106. Where a seller refuses to deliver the goods to the buyer, the buyer may sue the seller for damages. However, if the seller makes it obvious to the buyer that he would not be delivering the goods; the buyer may revoke the contract and may sue for damages.107 Moreover, where time is of importance and the seller makes a late delivery and the seller has been paid up by the buyer the buyer may accept the goods and may claim for damages.108 In situations where a seller supplies the goods but the supply is shorter than the original contract, a buyer still has the right to sue the seller for damages for the loss of the short supply of goods, but not for the goods as a whole.109 Though, in situations where there has been a late delivery due to the buyer or where a delivery cannot be made due to the fault of the buyer, a buyer will not be able to succeed in a claim of damages, as the breach of the seller was not because of the fault of the seller but was because of the fault of the buyer.110 The second remedy available to a buyer in Pakistan if there has been a breach of a contract for the supply of goods is that of specific performance under section 58 of Sale of Goods Act 1930 (Pakistan). This remedy is only available to a buyer in situations where the goods are already ascertainable and are specific. Specific performance is the remedy whereby the court orders the seller to perform his existing duty under the contract which has been a breach because of his own fault. Though, there has always been a question of in which situations a buyer can get this remedy, it can be seen that the onus is on the buyer to prove that the goods were ascertainable and specific as seen in the case of Messrs Petro Commodities (Pvt) Ltd v Rice Export Corporation of Pakistan111. In cases where time is of the essence and the seller has not been able to deliver the goods on time and time is an implied condition of the contract the buyer may seek for specific performance. In such a case a court will grant the remedy of specific performance to the buyer as it was a condition of the contract.112 The third remedy available is for a breach of warranty. Where there is an implied term in the contract and is backed by warranty, the buyer does not have the right to reject the goods. Moreover, where there is a breach of a condition on the part of the seller the buyer may treat this as a breach of warranty as per section 59 of Sale of Goods Act 1930 (Pakistan). According to this provision if a buyer is entitled to get a price reduction or pay nothing if the loss is equal to the price and may also get damages if the damage suffered is more than the price of the goods.113 According to sub section 59(b) a buyer may pay for the whole goods and may claim for damages of what he has suffered. Moreover, in case where the buyer suffers further loss, he will be able to recover damages for them as it was a result of the breach committed by the seller.114 3.2 Remedies for the Buyer for a breach of contract in United Kingdom: In United Kingdom, the ambit of the liabilities imposed on the seller is more stringent and even where the seller in unaware of the breach he has caused he would still be liable for it. There are various remedies a buyer can get if there has been a breach of a sale of goods contract115. The first one is 'rescission and restitution'; the main concept of this remedy is that the contract is considered to be null and void from the beginning and both the parties are discharged from their obligations under the contract. This remedy is only available where the seller has made a misrepresentation, the misrepresentation could be made fraudulently, or the seller could have been negligent in describing the facts about the goods being sold. In either case he would be held accountable and the contract would be held to have been avoided. Even if the seller is unaware that there was a fault in the goods he would still be held accountable for the breach and the contract would become null and void. Moreover, the buyer may claim for damages for the loss he suffered due to the breach of the contract. The remedy of rescission does not come alone it comes with another of restitution both of these remedies are interlinked. Restitution is the return of any profit or benefit given to the parties as a result of the contract which has been avoided thereby putting the parties into the position they would have been in had the contract never come about. This is usually in the case of a buyer where he has paid the seller in advance for the goods he has bought. Moreover, in scenarios where a property has passed to the buyer and later the contract becomes null after rescission the property would automatically be transferred back to the seller and the buyer is obliged to return the goods or benefits thereof. Secondly, there is 'rejection of the goods'. From the term it can be easily understood that it is a right of the buyer to reject the goods. However, this may only be done if the goods are not according to Section 13116 which deals with sale by description. This will apply where the goods were not of their description or where the goods are not of satisfactory quality or fit for their purpose, as seen under section 14117. Wherever, there is a breach of an implied term, the buyer would have the right to reject the goods as illustrated in the case of Cehave NV v Bremer Handelsgesellschaft mbH, The Hansa Nord118 In addition, where time is of the essence and a seller is not able to deliver the goods on time the buyer may still be able to reject the goods. This could be illustrated by the case of Kwei Tek Chao v British Traders & Shipper Ltd.119 Moreover, in cases where the property has been transferred to the buyer he may still be able to reject the goods if he has not deemed to have accepted them under the provision of section 35120, as illustrated by the case of McDougall v Aeromarine of Emsworth Ltd121. Where a buyer accepts defective goods, he may still be able to reject the goods after they have been fixed by the seller as seen in the case of JH Ritchie Ltd v Lloyd Ltd122 and the property in the goods will pass back to the seller. Though it can be argued that after the amendment in 1994123, the buyer may not be able to exercise such of his powers to reject the goods if they fall under the ambit of the new subsections of (2A) and (2B)124 as a qualification would be needed for a right to reject as seen in the case of Shipton, Anderson & Co v Weil Bros & Co125. However, if the buyer falls within the ambit of a consumer he may still be able to reject the goods even if the goods fall under the above sections. Thirdly, it can be seen that in situations where a seller may not be able to complete some of his obligations towards the buyer, the buyer has the right to suspend his payment until and unless the seller fulfils his obligations. Practically speaking, this can only be done in cases where the buyer has still to pay the seller. However, in such scenarios it does not matter whether the breach was of an implied condition, or whether the breach was a minor one or a major one. Until the seller does not fulfil his obligation, the buyer has the right to suspend his payment. This could even be seen under Section 28.126 This is similar to Section 32127; however, that does not have as wide a meaning as does Section 28. There are some remedies in the UK which are similar to the ones in Pakistan; namely rescission and restitution and specific performance. The remedy of rescission and restitution is almost similar to the remedy provided under section 57 of Sale of Goods Act 1930 (Pakistan). A buyer has the right to terminate the contract if the seller is in a breach of any of the obligations mentioned in the contract. A buyer may do this even before the contract date ends, which would entitle the buyer to get the money back from the seller if he has paid any amount in advance. Moreover, in such a situation the possession of the goods will be transferred back to the seller. In addition, the buyer may claim damages for losses that he has suffered due to the seller's breach of the contract. It may be usually in cases where the seller has not been able to deliver the goods on time and the buyer has been told about this or has been obvious that the seller would not be able to deliver the goods on time, so rescission of the contract would terminate the contract before it ends as illustrated in section 51 of Sale of Goods Act 1979 (United Kingdom). Moreover, it could be seen to be implemented in the case of Melachrino v Nickoll & Knight.128 Furthermore, in the case of Tai Hing Cotton Mill Ltd v Kamsing Knitting Factory129, where the seller was not able to deliver the full goods as mentioned in the contract the contract was terminated in respect to the remaining goods and the buyer was awarded damages for the loss he suffered due to the remaining goods which he was entitled but were not delivered. Specific Performance is a remedy under common law which can be applied in both countries; it is being followed under section 52 Sale of Goods Act 1979 in the United Kingdom and under section 58 Sale of Goods Act 1930(Pakistan). From the wording it can be seen that specific performance is remedy provided if the goods were specific and ascertained and were not delivered to the buyer. However, if the goods are not ascertained the court would not provide the remedy of specific performance130. Moreover, where the remedy of specific performance has been acquired the buyer may not be able to claim for damages. In addition, in the English legal system it can be seen that it is under the court's discretion to award this remedy if the court thinks that it is suitable to award to the buyer, the buyer does not have an automatic right to specific performance. This is not the case be found in Pakistan and can be found in the wordings of section 52 of Sale of Goods Act 1979 (UK). A major difference which could be encountered between the Pakistani Law and UK Law when it comes to specific performance is when a sale of the goods is with a consumer. It can be illustrated from the new Part 5A131 which applies to contracts where the buyer acts as a consumer. It can be seen that a consumer has been given additional right even in case of specific performance as he can order for specific performance and the courts have little or no discretion to award the remedy of specific performance when it comes to consumer contracts as illustrated in the case of DR Harris.132 A similar remedy for a buyer in both countries is for the action for damages for breach of warranty, this is governed by section 53133, or where a buyer elects to treat a breach of a condition as a breach of a warranty. The only remedy available in such a situation is damages as the buyer may not be able to reject the goods. It may be seen while comparing this remedy between both the countries that it is the same in all aspects as taking the first aspect to be the reduction of price is the same as section 53(1)134 and 59135 as discussed above. However, the courts have taken a stricter approach as in the UK after the case of Hadely v Baxendale136 in which the buyer could only recover the actual loss suffered in the ordinary course of events. Moreover, in case of breach of a term regarding quality the buyer if he accepts the goods would only get the difference between the price he would get and he actually got. Moreover, if the seller fixes the goods the buyer would not be able to reject the goods and would not be able to recover damages. This amendment was made in this section in 1994 by Sale and Supply of Goods (Implied Terms) Act 1994. 3.3 Remedies for the Consumer for a breach of contract in United Kingdom: As seen above in the remedy of Specific Performance major amendments were made for consumer remedies as Part 5A137 was introduced by the Sales and Supply of Consumers Regulations 2002138. It defines a consumer as "a natural person who is acting for purpose outside his trade, business or profession". It can be seen that sections 48A to 48F139 have been included under this Act which have provided the additional remedies to the consumer140. These remedies are available for a breach of contract relating supply of goods. It means the goods do not conform according to sections 13, 14 and 15141. There has been a breach of an implied and express term of the contract, as these sections are conditions and the goods must conform accordingly as seen under section 48F. If the goods do not conform with the description illustrated a consumer can ask the seller to repair the goods or may even get them replaced, the seller is obliged to do so within reasonable time period so that the buyer does not have go through any troublesome period due to the seller's negligence and that the buyer does not have to bear any additional cost. This could be illustrated by subsection 48B of Sale of Goods Act 1979 (UK). Moreover, where the goods do not confirm a buyer may go for a price reduction as illustrated under section 48C. However, there are some conditions a buyer has to satisfy to before going for this remedy which can be seen under subsection (2) of section 48C. Moreover, the court has been given power to award these remedies in favor of the buyer even if the buyer may not seek towards them. In addition, it may be said that the consumer has the right to reject the goods any time after the acceptance of the contract as seen in the case of Clegg v Anderson.142 However, it may be said that it is no more a good law as in the case of Clegg there were special circumstances due to which he was allowed to reject the goods after 8 months.143 Though it can be argued that the remedies provided in both countries are almost the same, this is not accurate. The United Kingdom has provided better and wider protection towards the buyer, moreover, there have been some additional remedies towards the buyer as seen above which if implanted in the Pakistani law would be able to provide for a fairer and more proportionate balance while helping buyers when a seller has been in breach of a sale of goods contract. In addition the remedies provided by the Sale of Goods Act towards a consumer have been a major step towards the amendment of the sales law. However, there is no such law governing or protecting a right of a consumer under sales law in Pakistan. An amendment towards consumer is essential which should be taken in order to get the consumer out of the rigid situation as a consumer is treated in a manner similar as the buyer in any scenario when it comes towards the goods under a sale of goods contract and this does not into consideration the weak bargaining position of consumers. 3.4 Remedies for the Seller for a breach of contract in Pakistan: While coming towards the second part of the chapter which is concerned with the remedies provided to a seller. Seller has the right to bring a claim against the buyer for his breach of a sale of goods contract though it may be seen that the buyer has been provided the same remedy. A seller may file suit against the buyer in situations where the buyer does not pay for the goods bought, moreover, where the buyer refuses to take delivery, and in places where the buyer refuses to accept the goods144. The remedies provided to the seller fall in the same ambit as that of the buyer in which he may be able to rescind or terminate the contract or he may still continue with the contract and claim for damages. First we would look at these remedies according to the Pakistani Law and then according to the UK law. The first type of remedy is where the buyer does not pay the seller and the seller files a suit against the buyer. The seller may bring this suit against the buyer under section 55 of Sale of Goods Act 1930 (Pakistan), the suit can only be brought in two situations. First, where the property in the goods has passed to the buyer, this may happen where the goods are in the actual possession of the buyer and second in situations where the property is still in possession of the seller but the legal title has been transferred to the buyer. In the first scenario the seller may only file a suit against the price, while in the second scenario the seller may stop the delivery until the buyer pays the full price. Second, type of remedy is in situations where the buyer wrongfully neglects or refuses to accept and pay for the goods. The seller may bring a claim against him under section 56 of Sale of Goods Act 1930 (Pakistan), moreover, the seller may bring a suit for price as well according to the second limb of section 55. In a case where the buyer fails to accept the goods then the seller can claim any money which has been left from the buyer moreover, he may claim for damages incurred in getting the rest of the amount. However, before bringing a claim a seller has to fulfill all his duties under the contract.145 Situations, where there is a condition on time to take delivery and the buyer failed to take the delivery within the specified time period, the buyer would be held liable in such situation and would have to pay damages towards the seller for the late acceptance of the goods.146 3.5 Remedies for the Seller for a breach of contract in United Kingdom: When looking at the seller's remedies in the United Kingdom, it may be noticed that the seller remedies are similar as to the one in Pakistan and no major difference which can be seen in this area. While seeing the first remedy available to the seller against the buyer is an action against the buyer for the price. A seller may avail this remedy under section 49 of the Sale of Goods Act 1979(UK). Moreover the first aspect of the remedy is similar as well as where the property has been passed to the buyer a seller may sue to the whole price of the goods which have been delivered to the goods. Where the goods have been transferred to the buyer but still in possession to the seller he may still sue for the payment. Though there is a difference when we see sub section of section 49(2) where the price is payable on a day certain irrespective of delivery, even if the property has not passed to the buyer the seller may sue the buyer for the payment which could be seen in the case of Workman Clark & Co Ltd v Lloyds Brazileno.147 The second remedy, which is similar to the Pakistani commercial law, is action for damages for non-acceptance of goods by the buyer, where the buyer has wrongfully neglected to accept and pay for the goods under section 50(1) Sale of Goods Act 1979 (UK). The damages are measured which occur naturally due to the breach and are calculated according to Hadley v Baxendale.148 Though a difference which can be exerted between the different countries' law is the addition of the available market for the goods, the measure of damages would be calculated the difference between the market price and the price the goods have been sold as seen in the case of Charter Sullivan.149 After seeing the above we can come to a conclusion that there have been various remedies which have been amended in the Sale of Goods Act 1979 (UK) in respect to a buyer and some major amendments have been seen in respect of consumer and buyer but there has been not any significant change when from the sellers' prospective. Conclusion: It has been seen above that in comparison to the UK Sale of Goods Act of 1979, the Pakistani law governing the sale of goods as encapsulated in Pakistan Sale of Goods Act of 1930 is quite inadequate in terms of the protections it provides to the parties. Commercial law and the approach of courts to transactions between end-users and merchants have come a long way since 1930; the maxim 'Caveat Emptor' no longer holds as much sway as it did when buyers were themselves mostly merchants and thus expected by the courts to be reasonably well-placed to protect their own interests when entering into contracts for the sale and purchase of goods. It is suggested therefore that the Pakistan Sale of Goods Act of 1930 be amended to incorporate some of the developments that have taken place in the last eighty-four years. The incorporation of Section 13(1) of the UK Sale of Goods Act of 1979, which deals with the description of goods sold is an essential first step; this amendment would mean that implied terms as to fitness of the goods would only be capable of being breached if the buyer relies upon the description provided by the seller provided and where the buyer relies on his own expertise, he would be unable to establish this reliance. Section 14 of the UK Sale of Goods Act of 1979 also needs to be incorporated into the Pakistan Sale of Goods Act 1930. Where sellers of goods act in the course of business, they must be held responsible for the quality and fitness of their goods especially when their buyers are consumers because equity demands that any loss or liability that arises from a commercial activity or venture should be placed at the feet of the entity responsible for that commercial venture. Of course any amendment that deals with this aspect will have to carefully define what the limits are for the phrase 'in the course of business' so as to prevent uncertainty in the law. If the amendment takes its cue from English law as it currently stands, 'in the course of business' is a phrase that is to be interpreted extremely widely. An even more essential amendment has to do with changing the test that applies to the quality of goods. The term 'merchantable quality' has to be replaced with the term 'satisfactory quality'. This is more than a gloss because this change is essential in order to bring Pakistani law out of era of merchant to merchant transactions and into the modern consumer-centric legal age. Section 14(2B) of the UK Sale of Goods Act of 1979 was also discussed above; it provides a list of aspects which are to be considered when one seeks to determine the quality of goods being sold. Such a list is helpful in determining questions that arise in situations where the quality of goods being sold is disputed and ought along with the other salient features of Section 14 of the UK Sale of Goods Act of 1979. The amendment in this case would involve substituting the provisions of Section 14 of the UK Sale of Goods Act of 1979 in place of Section 16 of the Pakistan Sale of Goods Act of 1930. While exploring the differences between remedies available to buyers in both jurisdictions, special focus was placed on the rights of consumer buyers under UK Sale of Goods Act of 1979. This is because not only is this particular aspect of the UK Sale of Goods Act of 1979 as it stands now, a novel concept in English commercial law, it also has great ramifications for commercial law as a whole. Prior to this change, English law did not differentiate between buyers on the basis of what their purpose in purchasing the goods was. The Sales and Supply of Consumers Regulations 2002 which aimed to harmonize laws across the European Union that dealt with commercial transactions that involved consumers as the buyers introduced this differentiation for the first time. Given the absence in Pakistan of any statute similar to the English Sales and Supply of Consumers Regulations 2002, the protection afforded to consumers is relatively limited. That being said, on a provincial level, legislation such as the Islamabad Consumer Protection Act of 1995, the N.W.F.P Consumer Protection Act of 1997, the Baluchistan Consumer Protection Act of 2003, Punjab Consumer Protection Act of 2005 and the Sindh Consumer Protection Ordinance of 2007 have established tribunals known as Consumer Courts with their own procedures and remedies. While legislation for the benefit of consumers is both a necessary and welcome addition to the statutory roll, it is suggested that the disparity between the procedures and provisions of these provincial enactments has stultified the law and caused certain lacunae. The Pakistan Sale of Goods Act of 1930 is a federal law that applies throughout Pakistan whereas the statutes listed above only apply within the respective jurisdictions. An amendment to the Pakistan Sale of Goods Act of 1930 by insertion of the protections included in Part 5A of the UK Sale of Goods Act of 1979 would help to secure a basic minimum threshold throughout the country for the rights of consumer buyers in sale of goods agreements. This would also have the added advantage of diverting these cases from Consumer Courts to actual Civil Courts which are better placed to deal with such commercial disputes. Consumer Courts would also benefit as they would be able to focus their manpower and resources to more appropriate disputes such as those between manufacturers of defective products which have caused losses or damage to consumers. In essence therefore it is recommended that Part 5A of the UK Sale of Goods Act of 1979 be incorporated into the Pakistan Sale of Goods Act of 1930 and thereby provide consumer buyers with the right to have damaged goods replaced or replaced in accordance with the provisions of 48A to 48F. The results of these amendments would, it is to be hoped, empower buyers without emasculating sellers so as to impose a new standard based on commercial fairness as much as it is based on commercial certainty. In the long run, if the Pakistan Sale of Goods Act of 1930 is so amended, it can be expected that sale of goods that are unsatisfactory in quality will decline because business practices will change to reflect the higher standards that the courts shall impose. 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