Lloyd's Maritime and Commercial Law Quarterly
TIME FOR REJECTION OF DEFECTIVE GOODS
Michael Hwang *
Bernstein v. Pamson Motors (Golders Green) Ltd.1 is a controversial English case on the rule of acceptance by retention under s. 35(1) of the Sale of Goods Act 1979. It has been the subject of considerable comment, mostly adverse.2 The purpose of this paper is (1) to highlight some other decisions on the rule which have escaped general notice, both preceding and following Bernstein, so as to set the case in its proper context; and (2) to offer some brief comments on the implications of Bernstein in the light of the cases and current legal thinking.
A. The rule of acceptance by retention
The rule of acceptance by retention is set out in the third limb of s. 35(1) of the Sale of Goods Act 1979 (“the Act”) which provides:
The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or (except where section 34 above otherwise provides) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.3
By s. 59 “a reasonable time” is defined as a question of fact.4
B. Bernstein v. Pamson Motors (Golders Green) Ltd.
In this case, generally thought to be a rare5 case on acceptance by retention, Rougier, J., decided that Mr Bernstein, who had taken delivery of a new Nissan Laurel motor car from Pamson Motors on 7 December 1984 under a contract of
* Judicial Commissioner, Supreme Court of Singapore. I am indebted to Dr F. M. B. Reynolds for his assistance with this paper, but the responsibility for its contents rests with the writer.
1. [1987] 2 All E.R. 220.
2. Schmitthoff [1986] J.B.L. 443; Reynolds (1988) 104 L.Q.R. 16; Brown [1988] J.B.L. 56, 63–64; Ong (1989) 31 Mal. L. R. 175; Ong [1989] S.L.T. 409; Cranston and Dehn [1990] J.B.L. 346, 349–350. Circus [1990] B.L.R. 236; Mullan [1990] J.B.L. 231; A. G. Guest et al. (eds.) Chitty on Contracts, 26th edn. (London, 1989), Vol. II, para. 4872; P. S. Atiyah, Sale of Goods, 8th edn. (London. 1990), 509–510; Jacobs [1987] Lit. 95; Lawson [1987] B.L.R. 88; Lloyd [1987] S.L.T. 221; Dobson [1987] J.B.L. 44; Howells (1987) 131 S.J. 682.
3. Emphasis added. (The words in parenthesis were originally added by the Misrepresentation Act 1967, s. 4(2).) The rule has been characterized by Salmond, J., in Taylor v. Combined Buyers Ltd. [1924] N.Z.L.R. 627, 642 as “unreasonable delay”.
4. “… as if it could be anything else”: Bernstein, supra, fn. 1, at p. 230d, per Rougier, J.
5. There is one unreported oral English judgment where on similar facts a different result was reached: M. & T. Hurst Consultants Ltd. v. Grange Motors (Brentwood) Ltd. (Manchester. October 1981: Russell, J.), noted by Reynolds in (1988) 104 L.Q.R. 16, 17–18.
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