While scrolling through Instagram, Bob saw a new smartphone advertised online. The pictures looked good, the specifications were convincing and Zak, the seller, had assured him that the phone was brand new. He paid for it and waited eagerly for delivery, looking forward to finally getting his new phone.
When the package arrived, however, what he found inside was not what he thought he had bought. It was a different model altogether; it had been used before, refurbished and sold as new; and also had a blurry camera that Zak had never disclosed. Bob wanted his money back, but Zak insisted that the phone had already been delivered and the transaction completed. “Goods sold are not returnable” he quickly recited. Could Bob reject the phone? Or was he simply left with what he got?
The Sale of Goods Act, 1962 (Act 137) does not leave a buyer entirely without remedies. Under the Act, a buyer may reject goods and refuse to pay the price, or recover the price already paid, in certain circumstances.
When may a Buyer Reject the Goods?
The first is where the seller is guilty of a breach of a fundamental obligation. The Act itself identifies what that fundamental obligation is. In a sale of specific goods, the fundamental obligation of the seller is to deliver those specific goods to the buyer. In the case of unascertained goods, the seller’s fundamental obligation is to deliver goods which substantially correspond with the description or sample by which the goods were sold. A buyer may therefore reject the goods where the seller fails to perform that fundamental obligation.
The second is where the seller has breached a condition of the contract and the breach is not trivial. Act 137 implies certain conditions into contracts for the sale of goods. Depending on the circumstances, these include conditions that goods sold by description or sample correspond with that description or sample, goods are free from undeclared defects and are reasonably fit for the purpose for which they were acquired, and that goods will be delivered at the time agreed upon by parties or within a reasonable time.
The third circumstance is where the buyer entered into the contract as a result of a fraudulent or innocent misrepresentation by the seller. The misrepresentation is fraudulent where the seller knew the statement was false or made it recklessly, without regard to whether it was true or false, for the purpose of inducing the buyer to enter into the contract. As the familiar maxim goes, fraud vitiates everything.
Where, however, the seller made the representation in the honest belief that it was true, but it later turned out to be false, the misrepresentation is innocent. The buyer should nevertheless not simply sit on the right to reject indefinitely, particularly in cases of innocent misrepresentation, where the lapse of time may affect the availability of the remedy.
The Act also makes provision for goods delivered by instalments. Where each instalment is separately paid for, the right of rejection may arise in relation to an individual instalment. Persistent and grave breaches in respect of two or more instalments may, in appropriate circumstances, entitle the buyer to treat the whole contract as repudiated.
But what if the buyer has accepted the goods?
It would be unfair, and indeed repugnant to justice, to allow a buyer to reject goods after accepting them, especially where the buyer accepted them with knowledge of the very circumstances that could otherwise have justified their rejection. The buyer cannot approbate and reprobate in respect of the same goods.
Section 51 of the Sale of Goods Act therefore generally disentitles a buyer from rejecting goods which the buyer has accepted. Put differently, there can generally be no rejection after acceptance. The difficult question, however, is often whether there was an acceptance in the first place.
That question arose before the Supreme Court in the recent case of Foe & Anor v Z-Auto Trade Ghana Ltd & Anor, Suit No. J4/78/2024. The case concerned a Toyota Land Cruiser represented as a brand-new vehicle. The evidence established, however, that the vehicle did not meet the specification and purpose for which it had been acquired. Its engine was found to be refurbished, leading the Supreme Court to conclude that the buyers had been sold a defective product, a used or refurbished vehicle camouflaged as a brand-new one.
The buyers had retained the vehicle for a considerable period. The Court of Appeal therefore held that they had accepted it and could no longer reject it. The Supreme Court, however, looked beyond the mere length of time. The evidence showed that within the first week, the buyers had noticed thick smoke from the engine and brought the problem to the attention of the sellers. Attempts were subsequently made to repair the vehicle, but the problem remained unresolved.
In those circumstances, the Supreme Court held that the period during which the buyers retained the vehicle did not amount to acceptance. They had not accepted the defective state of the vehicle.
The lesson is that the question of acceptance cannot always be answered merely by counting the number of days or months the buyer kept the goods. The conduct of the buyer and the circumstances surrounding the continued possession of the goods may also matter.
Effect of Rejection
As a general rule of commercial law, a buyer who lawfully rejects goods is not necessarily required to physically redeliver them to the seller merely to make the rejection effective.
Under section 50 of Act 137, it is sufficient for the buyer to intimate to the seller that the goods are rejected. The buyer is not required to personally redeliver the goods to the seller but must make them available for the seller to take back.
Where the buyer has already paid the whole or part of the price, the buyer may retain possession of the goods until the seller repays or tenders the amount received. In effect, the buyer may exercise a right, called in legal circles as ‘lien’ over the goods while awaiting repayment. The continued possession of the goods in those circumstances does not, by itself, undo the rejection already communicated.
Confronting the “What I bought vs. What I got” Plight
Online shopping has made the phrase “what I bought versus what I got” increasingly familiar. But a buyer is not necessarily required to accept whatever arrives simply because payment has been made and delivery completed. Where the seller delivers something fundamentally different from what was agreed, commits a serious breach of an important condition or induces the buyer to purchase through a fraudulent or innocent misrepresentation, the buyer may be entitled to reject the goods.
The important thing is to act consistently with that rejection. A buyer who discovers a serious problem should communicate it clearly and avoid conduct that may amount to acceptance. For Bob, therefore, the question is not simply whether he no longer likes the phone he received. The real question is whether what arrived was what the seller was legally obliged to provide.
