Agricultural Supply Association v Olivier

• Judge: De Wet J, and Steyn J
• Judgment Date: 26 March 1952
• Citation: 1952 (2) SA 661 (T)
• Hearing Date: 26 March 1952
• Court: Transvaal Provincial Division

Agricultural Supply Association v Olivier
1952 (2) SA 661 (T)

1952 (2) SA p661

Citation	1952 (2) SA 661 (T)
Court	Transvaal Provincial Division
Judge	De Wet J, and Steyn J
Heard	March 26, 1952
Judgment	March 26, 1952

Flynote : Sleutelwoorde C

Contract — Interpretation — Operative part unambiguous — Such prevails over any suggested contrary intention in recitals — Sale — Damages — Seed supplied not that ordered — Seller indicating in operative part of catalogue and invoice that no warranty D express or implied given as to nature of seed — 'Not responsible in any way for results.' — Not liable in damages.

Headnote : Kopnota

In the construction of an instrument the recitals are subordinate to the operative part and consequently, where the operative part is clear, this is treated as expressing the intention of the parties and it prevails over any suggestion of a contrary intention afforded by the recitals.

E In an action for damages arising out of the supply of certain tomato seed other than that ordered it appeared that the seller had in its invoice repeated a non-warranty clause appearing in its catalogue that, while it takes the utmost care to supply seeds . . . true to name and character . . . owing to the fact that certain seeds are F indistinguishable from other seeds of different name and/or character and owing to changeable climatic conditions . . . and various causes over which it has no control 'we give no warranty, express or implied, as to the description, name and/or character of any seeds . . . and we will not be in any way responsible for results'. A magistrate's court having given judgment in favour of the purchaser,

G Held, that the clause contained a recital and an operative part and, as the operative part was unambiguous, that the plaintiff was not entitled to recover.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

M. H. S. Festenstein, for the appellant: (1) As to the non-warranty clause, it is submitted that the words are wide enough to protect the seller. The operative part is as wide and unambiguous as it could be and means that the seller is not to be regarded as committing a breach of contract if the seeds supplied are not of the contract description, i.e. the risk is on the purchaser if he takes the seeds and does not return them. In construing such clauses, the Court must look at the liability which would exist but for the clause in order to determine what it was that the parties intended H

1952 (2) SA p662

the seller to be exempt from, see Essa v Divaris, 1947 (1) SA 766, approving Rosenthal v Marks, 1944 T.P.D. 172, and Alderslade v Hendon Laundry Ltd., 1945 (1) A.E.R. 244 and Beaumont-Thomas v Blue Star Line, A Ltd., 1939 (3) A.E.R. 127. In case of sale, the obligation of the seller is to deliver the article sold. If he does not do so or delivers a defective article he is in breach. The only breach is the failure to give proper delivery. It is submitted therefore that it is from the consequences of the breach of this obligation that the parties intended the exemption clause to free the seller, and questions of negligence do B not arise. The magistrate's finding that the clause exempts from liability only where the liability arises from circumstances over which the seller had no control and that as they had control in this case, the clause did not apply, is incorrect. The opening words do not limit the C operative part of the clause. They are in the nature of a recital, see Halsbury Laws of England (Vol. 10 para. 352, p. 283 Hailsham ed.). See further Andrews v Singer, 1934 (1) K.B. 17; L'Estrange v F. Graucob, Ltd., 1934 (2) K.B. 394; Wallis, Son and Wells v Pratt and Haynes, 1911 A.C. 394; Howcroft v Perkins, 1900 16 T.L.R. 217. (2) D Damages have been awarded on the basis of restitutio in integrum. No restitutio was claimed, merely damages for breach. The right to rescind has been lost because the article has been used and restitutio cannot be made, see Mackeurtan Law of Sale (3rd Ed. 314, Rule 4); S.A. Oil and E Fat Industries Ltd v Park Rynie Whaling Co., Ltd., 1916 AD 400 at p. 412; Marks v Laughton, 1920 AD 21. According to the evidence, some of the seed was left over and if he wished to claim restitutio, the balance at least should have been returned. Cf. Wessels Contracts (2nd Ed. Vol. 2, para. 4746); African Organic Fertilizers Ltd v Sieling, F 1949 (2) SA 131, at p. 135. This all shows that the intention was to claim compensatory damages.

G. Viljoen, for the respondent: A contracting-out clause must be strictly construed, see Halsbury, supra, Vol. 29, p. 62; Wallis' case, supra; Howcroft v Laycock, 14 T.L.R. 460. The operative part of the clause under consideration contains merely general words and must be G restricted by...