Usually, receiving more than you thought you had bargained for is a cause for celebration rather than consternation. An exception to this is when the pony you have bought to compete in a particular show jumping class is 2.7 cm too tall and therefore ineligible to take part. This was the scenario faced by the pursuer in the recent case of Mawson v Morris 2018 SAC (Civ) 26.

Mawson v Morris

The case involved the sale of a Connemara pony called “Shy Strikes Again”. The court’s decision narrates that the defender had advertised the pony as a “128 JA 15 yr old Gelding”. The decision further narrates that, at the time of sale, the pursuer was in possession of a certificate which recorded the pony’s height at 128 cm (“the 2015 certificate”).

Following the sale, the pony took part in a number of events restricted to ponies of less than 128 cm in height. Three months later, however, a fresh certificate was required. The pursuer therefore arranged to have the pony re-measured for a “Gold Certificate” in the presence of an official from the Joint Measuring Board of the British Show Jumping Association (“the 2016 certificate”). The 2016 certificate recorded the pony’s height at 130.7 cm.

The pursuer raised an action for damages against the defender on two separate bases:

  • Firstly, that the defender was in breach of contract. This was because section 13(1) of the Sale of Goods Act 1979 provides that there is an implied term in all sales of goods contracts that goods sold will correspond to description. In other words, the defender had breached this implied term, since the pony was 130.7 cm rather than 128cm per the defender’s advert.
  • Secondly, that the pursuer had been induced to enter the contract as a result of a misrepresentation by the defender. In other words, the pursuer would not have entered into the contract without the defender’s (apparently false) representation that the pony was 128 cm tall. That the pursuer required the pony to be of an appropriate height to compete in the chosen category appears to have been a material condition of the contract.

Although the pursuer succeeded before the Sheriff at first instance, the decision was overturned by the Sheriff Appeal Court. Why?

How tall was the pony at the date of sale?

The reason for the successful appeal lay in the Sheriff’s finding that, although ponies stop growing at 7 years old, they do not have an “absolute height”. Rather, a pony’s height may change depending on a number of factors. These include how tense or relaxed the pony was at the time of measurement. Significantly, although a difference in height of 2.7cm was unlikely on two different dates, it was not impossible. Each measurement was simply a “snapshot” of the pony’s height on that particular day.

According to the Sheriff Appeal Court, the Sheriff had therefore misdirected himself in asking whether, on the balance of probabilities, the pony corresponded to its description as 128 cm at the date of sale. Rather, since the Sheriff was faced by two “conflicting but perfectly valid” measurements from two experienced vets, “neither of whom would criticise the other’s methodology”, the Sheriff was not entitled to make such a finding in fact. The Sheriff ought instead to have acknowledged that there was no evidence as to the pony’s height at the date of sale. In turn, the Sheriff ought not to have concluded that the defender was in breach of contract or that the defender had misrepresented the pony’s height by advertising him at 128 cm.

The appeal was therefore allowed and expenses were awarded in favour of the defender.

Lessons to be learned

Given that the case involved a live pony which naturally fluctuated in size, the Sheriff Appeal Court’s decision in Mawson v Morris is, to some extent, restricted to its facts. Nevertheless, it does offer some helpful practical guidance for any buyers who wish to ensure that the goods they are buying are suitable for a particular purpose.

Above all, the case is an important reminder that, where goods are not being sold by the seller in the course of a business, there is no implied term under section 14(3) of the Sale of Goods Act 1979 – or, for that matter, section 10 of the Consumer Rights Act 2015 – that those goods will be reasonably fit for any purpose that the buyer has made known to the seller, whether expressly or by implication.

Accordingly, in this particular case, the Sheriff Appeal Court noted that it might have been prudent for the pursuer to have re-measured the pony for the purposes of the contract – especially since the pony was “advertised for sale at a height which was the absolute maximum for the class in which the pony was to compete”. Indeed, as the court went on to point out, it might even have been sensible for the pursuer to have made the sale conditional upon the provision of an up to date height certificate.

More generally, Mawson v Morris serves as a reminder that, if you are buying from a private individual and have a particular use in mind for the goods you are buying, you should be careful to satisfy yourself that they are fit for that particular purpose. If you are not in a position to satisfy yourself of this, you should consider making the goods’ fitness for that particular purpose an express term of the contract.

In any event, with the pursuer apparently having advised the press that he is considering a further appeal to the Court of Session, this may not be the last we have heard of “Shy Strikes Again”.