Sale by sample: understanding your rights

August 6, 2020

When buying in bulk, many consumers depend on samples to help make the decision of whether or not to purchase a product. Most times, consumers make decisions on the assumption that the product they receive will be exactly like the sample. But what happens when what is purchased is different from the sample that was provided?

What is a sale by sample?

A sale by sample is a contract of sale of goods made on the basis that the bulk of goods to be delivered to the buyer will match a sample submitted by the seller. If the bulk does not match the sample, the seller is in breach of an implied condition of the contract and the buyer may reject the goods.

The seller must give the buyer a reasonable time frame to compare the bulk with the sample.  This is to ensure that the goods must be free from any defect that may make the product unmerchantable or that were not apparent on the initial examination of the sample.

The Law

The conditions for sale by sample are specified in Section 17 of the Sales of Goods Act 1985.

17.-(1) A contract of sale is a contract for sale by sample where there is a term in the contract express or implied to that effect.

(2) In the case of a contract for sale by sample, there is-

(a) an implied condition that the bulk shall correspond with the sample in quality; 

(b) an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;

(c) an implied condition that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample.

When does a sale by sample occur?

Sale by sample usually occurs when purchases are made in bulk. For instance, when individuals have a function and intend to purchase napkins or containers in large quantities, the most appropriate way to go about it would be to take a sample to examine before making a decision. Once the consumer is satisfied that the product meets his or her specifications than along with the trader, they enter into a contract specifying conditions as stipulated under the law.

Importance of contracts in a sale by sample

When making purchases through sale by sample, it is imperative to get everything in writing. This ensures that there is a legally binding agreement between consumer and trader.

The contract will specify:

a)      The offer – consumer intending to purchase goods and what quantity, along with contact details and address to which the goods must be delivered.

b)      Acceptance – the trader’s agreement to supplying the ordered goods.

c)      Conditions – this sets out the terms with which both parties must abide by i.e – what the trader and consumer must do.

It is also important that consumers thoroughly read through agreements before signing. Through reading and understanding the terms of the contract consumers can identify:

Exclusions or limitations – these are “get out clauses” that try to restrict or limit the liability of the trader/seller. These clauses may try to let the seller get out of refunding or replacing goods that are faulty or not as described, or give unreasonable time limits on returning goods.

Additional fees – It is important to know whether or not you will be required to pay any additional fees. Check whether your contract clearly states the amount payable and if there are any additional associated costs such as delivery and VAT to name a few.

If an individual is unable to understand aspects of the contract it is always important to seek clarification before signing.

Consumers with facing issues with sale by sample can call us on our National Consumer Helpline toll free number 155 or email us on complaints@consumerfiji.org


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