The remedies for breach of warranty, (including the cases in which the buyer elects or is compelled to treat a breach of condition as a breach of warranty), are defined in he Sale of Goods Act (int. As to the effect of the passing of the property upon the buyer's remedies in case of breach of condition, see Armand v. The question when the property in goods passes from the seller to the buyer is discussed in chapter 3. The statute mentions two cases in which a buyer may be limited to his remedy as on a breach of warranty, but does not necessarily exclude the possibility that a buyer may in some other way preclude himself from taking advantage of the choice of remedies ordinarily given for breach of condition.
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18 (retention and re-sale of goods by buyer). even though the buyers have accepted the goods and are consequently obliged to treat the breach o condition as a breach of warranty. Therefore, it a contract contains a stipulation that " sellers give no Warranty expressed or implied as to growth, description or any other matters," this stipulation does not prevent the buyers from suing for damages for the breach of condition. The statute does not say that what was originally a condition is really degraded or converted into a warranty in either of the two cases mentioned, but merely that the buyer is limited to the remedies available for breach of warranty. (4) Nothing in this section shall affect the case of any condition or warranty, fulfillment of which is excused by law by reason of impossibility or otherwise. (3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be-a term of the contract express or implied, to that effect. In two cases the injured party may be obliged to treat a breach of condition as a breach of warranty. 4), the waiver must be evidenced by writing. the buyer's right to require delivery within that period may be waived even after that period has expired but it would seem that where the contract is within the Statute of Frauds (Sale of Goods Act, Ont. Under a contract for the sale of goods to be delivered within a certain period of time. 148-150) criticizes the wording of the section on the ground that it seems to allow an alternative between waiving the condition (that is treating the condition as non-existent) and treating the breach of condition as a breach of warranty, and doubtless the section would be improved if the word "and" were substituted for "or," or if the words "may waive the condition or" were omitted. The meaning seems reasonably plain, namely, that the injured party, instead of insisting on his right to be discharged on account of the other party's breach of condition, and to reject the goods, may waive this right, that is, may content himself with his right of action for damages as on a breach of warranty. In this section the word "or" must be read as a conjunction co-ordinating two phrases which are equivalent one to the other. 11) provides: 13-(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated. The injured party may, however, elect to treat a breach of condition as merely a breach of warranty.
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576 as to the buyer's right of infection, see chapter* 6, 66.
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The fact that the buyer has resold the goods does not necessarily preclude him from exercising his right to reject them for breach of condition if the inspection and rejection take place within a reasonable time. As has already appeared (52), in the case of a breach of warranty, the injured party is entitled to damages, whereas in the case of a breach of condition, he has the alternative of treating the contract as being completely broken by non-performance.