DULY & COMPANY LTD v SHONGE 1985 (2) ZLR 351 (S)

Flynote

Hire — purchase — seller — whether bound by representations made by supplier of goods — supplier — whether vulnerable to action by D purchaser of goods.

Sale — Aedilitian remedies — warranty — what amounts to — whether remedy may be based on warranty given by supplier of goods sold by finance company in hire-purchase contract.

Headnote

The respondent concluded a hire-purchase agreement with a finance company in terms of which the finance company sold respondent a vehicle supplied by the appellant. Before the agreement was concluded, appellant's salesman had told the respondent that the vehicle was "in good working condition" and that he knew this because of "the report that came from the workshop". The vehicle subsequently broke down and respondent had it repaired by the appellant but refused to pay appellant's charges on the ground that the salesman's assertions amounted to a warranty.

Held that the salesman's assertions went beyond mere praise and commendation; they were statements of fact material to the purpose for which respondent wanted the vehicle and induced respondent to enter into the hire-purchase agreement. They therefore constituted a warranty entitling the respondent to the Aedilitian remedies.

Held, further, that it did not matter that the warranty was given by the appellant, the supplier of the vehicle, and induced the respondent to enter into a hire-purchase agreement with a third party; respondent could sue appellant for breach of the warranty even though the terms of the hire-

purchase agreement precluded any such action against the finance company.

Held, further, that before would-be purchasers conclude hire-purchase agreements, they should enter into collateral agreements with the suppliers of the goods warranting the quality or suitability of the goods supplied.