Hong KongSale of Goods Ordinance, sections 16 and 55, seller's implied conditions as to quality and fitness and damages for breach of warranty
Sale of Goods Ordinance (Cap. 26), ss. 16, 55
In force.
A product liability rule binding public and private bodies.
- Private right of action
- Yes
As of .
What it requires
- The Ordinance governs contracts for the sale of goods, which it defines as all chattels personal other than things in action and money; the text does not say whether software supplied on its own is goods (s. 2(1)).
- If you sell goods in the course of a business, the goods you supply must be of merchantable quality, except as to defects you specifically draw to the buyer's attention before the contract is made and defects the buyer's examination before the contract ought to reveal (s. 16(2)).
- If you sell goods in the course of a business and the buyer makes known a particular purpose, the goods you supply must be reasonably fit for it, unless the buyer does not rely, or it is unreasonable to rely, on your skill or judgment (s. 16(3)).
- You may negative or vary these implied terms by express agreement, by the course of dealing or by usage, but only subject to the Control of Exemption Clauses Ordinance, which bars excluding them against a person dealing as consumer (s. 57(1)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Does software supplied on its own fall within goods, defined as all chattels personal other than things in action and money, so that the implied conditions in section 16 attach to a sale of it?
What this law does
Section 16(2) of the Sale of Goods Ordinance implies, where the seller sells goods in the course of a business, a condition that the goods supplied under the contract are of merchantable quality, except for defects specifically drawn to the buyer's attention before the contract is made, defects that the buyer's examination before the contract ought to reveal and, in a sale by sample, defects that a reasonable examination of the sample would have revealed.
Section 16(3) implies, where the seller sells goods in the course of a business, a condition that the goods are reasonably fit for any particular purpose the buyer makes known, whether or not it is a purpose for which such goods are commonly supplied, except where the buyer does not rely, or it is unreasonable for the buyer to rely, on the seller's skill or judgment. Goods includes all chattels personal other than things in action and money.
The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. Where a right, duty or liability is declared by the Ordinance, it may, unless otherwise provided, be enforced by action. An implied right, duty or liability may be negatived or varied by express agreement, by the course of dealing or by usage, subject to the Control of Exemption Clauses Ordinance.
The Ordinance came into operation on , but section 16 in its present form was substituted by Ordinance No. 58 of 1977 and amended by Ordinance No. 85 of 1994, and the consolidated text records no day on which either came into operation.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.