May 1, 2020
By Noel Courage
A recent, low profile British Columbia small claims tribunal decision (Davy v. Kidwai1) attracted some high profile attention from Monty Python’s John Cleese, who acknowledged a dead parrot owner’s winning complaint (R.I.P parrot)2. The case also provided a good illustration of implied warranties under sale of goods contract law. Let us note before going further in this article that there was no defence put forward by the pet seller to the effect that, “It’s not dead, it’s resting.”
The parrot was advertised for sale on Kijiji. The buyer inspected the bird and noticed some missing tail feathers. The seller acknowledged that tail feathers were missing, and attributed it to natural molting. It turned out that the bird had a fatal bird disease, PBFD. In less than a month after sale, the bird was definitively diagnosed with PBFD by a vet.
The buyer argued to the tribunal that the seller made a fraudulent representation about the bird’s health while knowing that it had PBFD. It is not easy to prove civil fraud (fraudulent misrepresentation) in making a contract, primarily because the buyer must prove on a balance of probabilities that the seller had some knowledge of the falsehood of the representation. The tribunal found there was no proof that the seller knew the bird had PBFD.
The simpler way for the buyer to get its remedy was to rely on an implied warranty of durability in the Sale of Goods Act. All Canadian common law provinces have this type of legislation. This warranty states that there is an implied warranty that a good will be durable for a reasonable period having regard to the use to which it would normally be put, and to all the surrounding circumstances. The Tribunal found there was an implied warranty of durability in the contract that the parrot would be healthy for at least 6 months. Since the bird became very noticeably ill within weeks of sale, there was a breach of this implied warranty. The buyer was able to recover i) 75% of the purchase price (reduced because the buyer received “some value”), ii) vet expenses (damages for breach of the warranty), and iii) pre-judgment interest.
The best practice when buying an expensive pet would be to have a vet examine and give it a check-up before purchasing (think of how this is often done for other items for sale, such as having a mechanic inspect a car). A reasonable seller should agree to an independent inspection, particularly if the buyer is willing to put down a deposit to secure the sale. As well, a simple written contract of sale can be used to set expectations by providing specific warranties about the object of the sale, instead of relying on implied warranties3. A written contract would be particularly prudent if the object of sale raises red flags about its durability.
It is important for buyers and sellers to be aware of sale of goods warranties of quality, such as durability, fitness for purpose and merchantable quality. Buyer may want to reinforce these in a contract with stronger, more specific wording, while sellers may want to disclaim and override them4. At the end of the day, due diligence before buying is an ounce of prevention to prevent a pound of cure.
1 2020 BCCRT 442 (Civil Resolution Tribunal).
3 Contracts do not have to be in writing to benefit from the Sale of Goods Act.
4 Note that some Sale of Goods Act provisions cover sales between retailers and consumers while others cover sales or leases between consumers themselves retailers and consumers.
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