Think the question of whether or not the buyer is deemed to have accepted the goods under section 35 of the Sale of Goods 1979 as amended is just a legal nicety? If so, think again. These questions are central to contracts for the sale of goods whether they are for a pair of shoes, a lorryload of bricks, or a yacht – see Clegg vs Olle Andersson T/A Nordic Marine (Court of Appeal: 11 March 2003).
Mr Clegg paid £250,000 for a Malo 42 yacht. When he took delivery of this on 12 August 2000, he was informed by Olle Andersson that the keel was overweight. Nevertheless, Clegg went sailing off on his summer holidays.
When he returned from his cruise, Clegg wrote to Andersson drawing attention to a long list of problems, including the fact that the yacht was overweight. He raised questions about the effects of this problem. There then ensued some correspondence between the parties, during which Clegg asked for copies of drawings and calculations and certificates, but did not receive them until February 2001.
Andersson offered options in relation to repairs and generally appears to have been helpful in exploring the alternatives. These were discussed in correspondence, but eventually, in a solicitor's letter dated 6 March 2001, Clegg rejected the vessel and demanded his money back, as well as damages. This was when things got acrimonious, and litigation followed.
That the buyer went on holiday on the yacht knowing of its excess weight did not mean he had accepted it
Clegg lost on all counts before the judge who found that the yacht was of "satisfactory quality" under section 14(2), notwithstanding the defect. He also found that Clegg had, by his conduct, accepted the yacht and was not entitled to return it and demand his money back. It also appears that the judge took a strong dislike to Clegg's junior counsel. Clegg duly appealed on all counts and won on all of them.
Dealing with the question of whether the yacht was "satisfactory quality", one of the Appeal Court's judge's embarked on an esoteric discussion of the expert evidence. He criticised the trial judge, who seemed to have relied on technical opinions voiced by a witness who was not called as an expert. But eventually the judge concluded that, on the evidence, the yacht could not be of "satisfactory quality".
Ann Minogue is a partner in solicitor Linklaters.