A was shopping in a supermarket he picked up a bottle of soft drink from a shelf with intention to buy it. While he was examining it, the bottle exploded in his hand and injured him. A sued both the management of the supermarket and the company which had bottled the drink, to recover damages for breach of condition arising from the sale of food. Will he succeed?

No Completed Sale Existed at the Time of Injury

A contract of sale, under Section 5, is made only by an offer to buy or sell goods for a price and the acceptance of such offer. In a self-service supermarket, the display of goods upon the shelves does not itself constitute an offer by the shopkeeper to sell — it is merely an invitation to the customer to make an offer. The customer, by selecting an item and taking it to the till, makes the offer to buy, and it is the shopkeeper (through the cashier accepting payment) who accepts that offer, completing the contract of sale only at that point. This is precisely the reasoning that governs self-service transactions generally, and it means that while A was still examining the bottle on the shelf — before he had even carried it to the checkout counter, let alone paid for it — no contract of sale had yet been formed between A and the supermarket at all.

Since there was, at the moment of the explosion, no completed contract of sale in existence, none of the implied conditions under Section 16 — merchantable quality or fitness for a particular purpose — had yet attached to any transaction between A and the supermarket. A cannot sue for "breach of condition arising from the sale of food" against the supermarket management, quite simply because there was no sale, executed or even agreed, between them at the relevant time. A's claim against the supermarket in contract must therefore fail for want of the very foundation on which any Section 12/16 claim depends — a subsisting contract of sale.

Why This Differs from the Underwear and Guarantee Cases

This case must be sharply distinguished from situations such as Grant v. Australian Knitting Mills Ltd. or the earlier illustrations involving hot-water bottles and defective goods sold across a shop counter, since in those cases the transaction of sale had actually been completed — the buyer had paid the price and taken delivery, and the defect manifested itself afterward during use. Here, by contrast, A had merely picked the bottle up "with the intention to buy it" — this is at most a step preparatory to making an offer, and certainly falls well short of any acceptance by the supermarket that would bring a contract of sale into existence. The absence of any completed sale is fatal to any claim founded on the statutory implied conditions.

A's Possible Remedy Against the Manufacturer

A's more promising avenue lies in tort against the bottling company. Since there is no privity of contract between A and the manufacturer in any event (A never contracted directly with the bottler, and even his prospective contract was with the supermarket, not the manufacturer), any claim against the manufacturer must be founded in the general law of negligence — the same principle discussed earlier in the context of Grant v. Australian Knitting Mills, tracing back to Donoghue v. Stevenson, under which a manufacturer owes a duty of care to the ultimate consumer of products intended to reach him without intermediate examination. A bottle that explodes while merely being held and examined — without any misuse, dropping, or mishandling — strongly suggests either a manufacturing defect (excessive internal pressure, a flaw in the glass, or overcarbonation) or negligent quality control on the part of the bottler, and A would need to establish that this defect was attributable to the manufacturer's want of reasonable care in the bottling and inspection process. If A can establish such negligence — and the very fact of the explosion occurring during ordinary, careful handling may itself support an inference of negligence on the manufacturer's part, akin to res ipsa loquitur — he would have a good claim for damages against the bottling company, though this is a tortious claim for negligence rather than a claim "for breach of condition arising from the sale" under the Sale of Goods Act.

Position If A Had Already Paid at the Till

It is worth noting, for completeness, that had the explosion occurred after A had paid for the bottle and it had been handed to him — that is, after the contract of sale had actually been completed — the analysis would shift substantially in A's favour as against the supermarket. At that point, a completed contract of sale by description would exist, attracting the implied condition of merchantable quality under Section 16(2), and A would then have a good claim against the supermarket for breach of that condition, quite apart from any separate tortious claim he might also pursue against the manufacturer. The precise moment at which the explosion occurs — before or after the sale is concluded — is therefore the decisive factor determining whether A has any contractual remedy against the retailer at all.

Advice to A

A should be advised that his suit against the supermarket management, framed as one for breach of condition under the Sale of Goods Act, is likely to fail, since no contract of sale had come into existence at the time the bottle exploded in his hands while he was still examining it on the shelf. His proper and more promising remedy lies in a tortious action for negligence against the bottling company, on the footing that the defect causing the explosion arose from want of reasonable care in the manufacturing, filling, or inspection process, for which the manufacturer owed him, as an ultimate consumer, a duty of care independent of any contract of sale.

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