Perhaps this is the section on which I should make the point that this Bill which does not give any civil right should give such right. Had I an opportunity of reading carefully the Minister's remarks I could have decided whether an amendment should be put down to this section. However, I had not this opportunity earlier and I made special arrangements last evening to collect the report.
When I made this particular point last week the Minister referred to the provision of the Sale of Goods Act as giving the necessary right which could be civilly enforced to any person who would suffer damage as a result of a breach of this Act. I would refer the Minister to the particular section— section 13—of the 1893 Sale of Goods Act which is relative to this matter. This Act provides that 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. The decisions on that take in the matter of the quantity of goods so that if certain other sections of the Act were not availed of by the vendor, there would be civil protection for a person damaged as a result of a container not containing what it ought to contain in accordance with the Minister's Order but there is a provision, supplementary to the Act, in Part VI, which provides that where any right, duty or liability arises under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, such as to bind both parties to the contract. There is in fact a like provision in the Merchandise Marks Act, 1887, which is the Principal Act to which this is an amending Bill. The like provision of the Merchandise Marks Act, 1887 contains a saving in section 17 which provides:
On the sale or in the contract for the sale of any goods to which a trade mark, or mark, or trade description has been applied, the vendor shall be deemed to warrant that the mark is a genuine trade mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing, signed by or on behalf of the vendor and delivered at the time of the sale of contract to and accepted by the vendee.
The commentary on this which I have from the standard textbook on this subject Kerly on Trade Marks, Eighth Edition, is that the saving at the end of the section is carefully expressed; that the statement required to prevent the implication of a warranty must be in writing, signed, delivered at the time of sale and accepted by the vendee. It is not clear what “accepted by the vendee” means. It can probably be construed to import at least that the vendee understood he was to get no warranty and that he completed the purchase on that footing.
I cannot see any objection to an amendment to this section which I would propose to introduce on Report Stage, if the Minister were not prepared to introduce such an amendment. As I said the last day I would prefer if he drafted such an amendment. This would be a provision giving civil rights to persons damaged by a breach of this worthwhile Act so far as it goes and should also contain a provision excluding the saving of the kind which is contained in the Principal Act and which is contained in the Sale of Goods Act and which being not excluded in the Sale of Goods Act is not a protection for the damaged person such as the Minister suggested might be available to him under the Sale of Goods Act, when he addressed the House on the Second Reading.