The meteoric rise of buying and selling online in recent years can be a double-edged sword. Purchasers have access to a much wider range of goods, often at a cheaper price, and sellers have an easy way to reach people eager to buy.
Importantly, the principle of caveat emptor (buyer beware) - where contracting parties are expected to see to their own interests and satisfy themselves of the goods for sale - is as relevant online as it is elsewhere.
Here’s a great example.
Last month, in an appeal by Anne Morris in Richard Mawson v Anne Morris 2018 SAC (Civ) 26, a sheriff court overturned a decision that a seller was liable for damages for breach of contract by selling a pony on Facebook by describing its height at 128cms.
Around March 2016, Mr Mawson bought a show jumping pony for his daughter called Shy Strikes Again through Facebook.
The seller, Ms Morris, described the pony as a “128 JA 15 yr old Gelding.”
The figure 128 was the height of the pony in centimetres, and was also the maximum height in a show jumping classification.
At the time, Ms Morris had a height certificate that recorded Shy Strikes Again’s height at 128cms; however, that certificate had expired when the pony was sold and, at the end of 2016, Mr Mawson had to provide an up-to-date document so his daughter could compete with the pony.
An issue arose when, on the new certificate, the animal’s height was recorded at 130.7cms - which was too tall for the class his daughter was hoping to compete in.
The issue before the court was whether the sheriff was wrong in his conclusion that, on a balance of probabilities, the pony did not conform to the description that he was 128cms at the time of sale, and that Ms Morris misrepresented the height of the pony.
On appeal, the court found there was no evidence the pony’s height was not 128cms at the point of sale. It was found measurements could vary depending on the conditions, state of the pony, and the environment.
Mr May, the vet who measured the pony at 130.7cms, conceded it was not impossible the pony could be 128cms at its lowest measurement. There was also no finding that Mr Miller, the veterinary surgeon who measured the pony at the original height was incorrect.
The appeal court held that the certificate being out of date at the time of sale was an ancillary issue: the pony was an adult and would not naturally grow in height.
The appeal court also noted that, given the pony was advertised at the absolute maximum height for its classification, Mr Mawson could have made it a condition of sale that an up-to-date height certificate was required.
Accordingly, the sheriff’s decision was overturned and Ms Morris was found not to be in breach of contract or misrepresentation.
Aside from the relatively unusual item for sale in this case, it is becoming increasingly common and easier for individuals to post items for sale on social media. This can increase the risk that sellers may inaccurately describe the goods.
While most complaints will never reach court - or indeed the inside of a solicitor’s office - it is worth double checking your description before you post to make sure you’ve described the goods accurately to avoid any potential legal action.
In this case, the seller had a certificate (albeit expired) that the pony was 128cm. The onus was on the buyer to prove it was not that height at the time of sale, and in this case, he was unable to do so.
Whilst buyers have important statutory protections under the Sale of Goods legislation, what follows is basically the common law position - the general principle of buyer beware applies. In this case, with the benefit of hindsight, the buyer ought to have insisted on valid height certificate at the time of sale.
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