Before you rush to court, explore mediation...

I sold a dairy cow to my neighbour. It was an excellent breed- producing nearly 30 litres of milk per day. Unfortunately, the cow died shortly after she bought it. The doctor said it had a genetic illness that led to its death. My neighbour is upset that I sold her a sick cow and is now threatening to sue me. I didn't know the cow was sick. Am I in trouble?

Dear Reader,

Your sense of distress may on one hand demonstrate how you strongly value honesty, and the relationship with the neighbour.

On the other are the likely consequences emanating from an allegation of dishonesty.

Whichever, the case, it all boils down to being right with one’s conscious.

The Sale of Goods Act was fashioned to help people, especially those who seek to transact, particularly exchanging goods for money to carry out relevant due diligence about the specific good or service as a gesture of business integrity, before inking their signature to a sale of goods contract.

Understanding your neighbour’s anger and disappointment is important but more significant is knowing whether, the transaction you engaged in and eventually fulfilled amounted to a legally binding contract, similarly determine if there were any terms of or conditions within it that were breached to the extent of causing dichotomous distress.

It will also be necessary to ascertain if there are any remedies available for an aggrieved party, in this situation, your neighbour.

Pursuant to the existing legal framework and practices, a contract refers to an agreement that gives rise to obligations between parties and which must be enforceable by law.

Therefore, a contract does not necessarily need to be written but must nonetheless meet the following non-negotiables.

Parties entering into a contract must reach into a mutual agreement or mutual assent or common understanding, and the said understanding must be the kind that the law will recognise and enforce.

Parties should also contribute something of value to the bargain, besides ensuring that for all intent and purposes their conduct is geared towards creating a legal relationship. Important is to ensure that, the contract is entered into freely.

Satisfactory quality

Sale of Goods Act was developed to guide different forms of sale, mode of delivery, instances when a contract can be repudiated, and what amounts to a term, condition, warranty and misrepresentation; besides providing remedies to breach of contract.

Under this Act, a contract is a legal document by which a seller transfers or agrees to transfer a given property to the buyer for a money consideration.

It is an implied term that goods sold must be of satisfactory quality. Quality in this case means fitness for all the purposes for which goods of the kind in question are commonly supplied; appearance and finish; freedom from minor defects; besides safety and durability.

Regarding livestock, satisfactory quality means; that the animal in question must meet standards that any reasonable person would expect taking into consideration price and all other relevant information including health.

Again, livestock is generally sold for a particular purpose for example breeding, fatstock, sport etc, and as such, the same must be in a condition that allows them to fulfil that specific purpose.

In addition, the livestock must be fit for any specific purpose the buyer makes known to the seller at the time of the agreement.

Failure to meet these requirements may amount to breach of contract and the buyer may be entitled to redress.

Misrepresentation is another factor to consider when confronted with a situation like yours.

Should it be proved by a court of law or arbitrator that a material fact about the goods in question was deliberately omitted and not discussed at the negotiation stage and that such omission was instrumental in motivating the buyer to enter into the contract?

In such circumstances, the buyer can bring action against you seeking a remedy. Criminal proceedings can equally be instituted.

Indeed, the transaction over the cow with your neighbour amounted to a contract since there was a mutual agreement over the sale and a consideration inform of the purchase price.

From the buyer’s perspective, it was an implied term that, the cow would perform as advertised which failed the test of intended performance.

Whether as a seller you knew or didn’t know the cow was suffering from a genetic disease is a discussion for another time, that the court may want to listen to as material evidence in reducing your degree of liability.

However, the buyer has the right to bring an action in form of civil proceedings against you seeking damages for the loss of the cow and the expected outputs.

While the court seems to be the right forum to address the matter, there is an option of mediation, leading to an out-of-court settlement that is likely shorter, more personalised and keen on maintaining the relationship with your neighbour.

Eric Mukoya has over 17 years of experience working in the social justice sector. He’s the executive director of the Undugu Society of Kenya. Legal query? Email [email protected]