Sudden death falcon conform to contract

A young falcon that died suddenly less than four weeks after purchase was conform to contract under the Sale of Goods Act 1979, an Edinburgh sheriff ruled on 17 October 2008.

The story of O’Farrell v Moroney was that the purchaser, whose hobby was falconry, bought the 8½-week-old, ¾ Gyr-¼ Peregrine falcon for £900 from the defender, who bred falcons for commercial sale.  The purchaser trained the bird successfully for 25 days, on the last of which it undertook a flight to 800 feet up to take food from a kite flown by its owner.  Its previous highest flight had been to 200 feet.  The bird died during the following night.  A post mortem revealed that the cause of death was E coli bacteraemia or colisepticaemia.  The purchaser argued that this must have been present at the time of sale and constituted a latent defect making the bird disconform to contract; accordingly he was entitled to repayment of the purchase price.  But the seller’s reply, that the bird’s sickness was due to a change in its exercise regime and that it had been healthy until its final, fatal flight, was preferred by Sheriff F R Crowe, who concluded as follows:

[33] … I have concluded that the pursuer having nurtured the bird carefully over-extended the bird on its final flight. This was to some extent understandable as the bird had pleased him greatly and was well up to his training schedule. However the final flight represented a step change upwards from the previous flight and in the event this proved too much for the bird which became stressed, developed E coli from its gut, was sick in the night and died before the pursuer found him the following morning.

[34] I can appreciate the pursuer's shock at this loss but it is clear from the autopsy findings and other evidence that the bird was in excellent condition at sale, thrived through the normal period where underlying illnesses and diseases would manifest themselves and did not die of an inherent defect that would have been present at the time of purchase.

[35] Accordingly I am satisfied that the pursuer has not proved his case that the bird did not conform at the time of delivery and I am satisfied that the defender has established that the bird died as a result of stress through being asked to perform an over-optimistic last training flight. It cannot be said that the pursuer was in anyway cruel or negligent. His evidence showed him to be a careful person with a great love and knowledge of his life-long hobby. It is unfortunate that his delight with a precocious bird which by all accounts was a magnificent specimen of its type came to this sad end. A significant factor may have been the pursuer's lack of experience with a 3/4 Gyr hybrid where breeding seeks to produce the optimum falcon but may also lead to a greater susceptibility to stress induced illness.

The case is of some interest because the pursuer’s claim was apparently based entirely on the relatively new section 48A of the Sale of Goods Act, under which, speaking broadly, goods must conform to contract at the time of delivery.  Despite s 48F’s statement that goods are disconform only if there is breach of an express term or the more familiar implied terms on satisfactory quality and fitness for purpose found in section 14 of the Act, the sheriff makes no reference to the latter.  The contract was a consumer one, since the seller was in the course of a business and the buyer was not.  One of the terms provided that the purchaser could recover the price within seven days of the sale if not delighted with the bird; but the sheriff felt no need to refer to unfair contract terms legislation to hold potentially applicable nevertheless the section 48A regime.  The pursuer relied on section 48A(3) because it helpfully provides that “goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed on that date”.  But does this by itself overcome an express term like that in the contract here?  None of this is to suggest that the decision is wrong; but the legal analysis could have been fuller.  One wonders too what the decision might have been had the pursuer sought one of the other (relatively unfamiliar) remedies available under the section 48A-F regime, such as replacement of the goods or reduction of the purchase price.