Jones & Anor v Gallagher & Anor (t/a Gallery Kitchens And Bathrooms)

Under section 35(4) of the Sale of Goods Act 1979, whether a buyer has accepted goods by retaining them without intimating rejection after a reasonable time is a question of fact in all the circumstances. The court must consider the buyer’s opportunity to examine the goods and the circumstances and timing of requested repairs or modifications. A request for repair does not itself amount to acceptance, but it does not create an absolute bar to later rejection. No fixed timetable from other cases governs. Apparent defects, delay in complaining or rejecting, use of the goods, and the course of remedial work may together justify finding that the right to reject has been lost.

The appellants contracted for the design, supply and installation of a fitted kitchen. They complained about a colour mismatch and various other defects, later removed the kitchen and sought recovery of the contract price and consequential losses.

The county court found breaches of the contractual description and implied terms, but held that the appellants had accepted the goods and lost the right to reject them. Damages of £2,500 were awarded. The appeal argued that the judge had been precluded as a matter of law from finding that the right to reject had been lost. The central issue was whether a reasonable time had elapsed under section 35(4) of the Sale of Goods Act 1979.

1. Disposition. The appeal was dismissed. Thomas LJ gave the first judgment and Buxton LJ agreed, adding a short discussion of the statutory effect of repair requests.
2. Under section 35(4) of the Sale of Goods Act 1979, acceptance by retention after a reasonable time is a factual question. Section 59 confirms that what constitutes a reasonable time is a question of fact. The issue was therefore whether the district judge had directed himself correctly and whether the evidence entitled him to find that a reasonable time had elapsed.
3. The assessment had to be made in the circumstances of the particular case. The court rejected reliance on fixed periods drawn from other decisions. The buyer’s opportunity to examine the goods under section 35(5) was relevant. Under section 35(6), asking for or agreeing to repairs did not by itself amount to acceptance, but the circumstances and timing of modifications and repairs remained relevant to the overall factual assessment. Clegg v Andersson [2003] EWCA Civ 320 was applied on that point.
4. Buxton LJ explained that the information-seeking formulation in Clegg v Andersson, at paragraph 75, was closely related to that case’s difficult facts. It did not establish an absolute rule that a buyer could not lose the right to reject while seeking information or discussing cure. The present case involved patent and readily ascertainable defects, including the colour mismatch, and did not require expert information to identify them.
5. There was ample evidence supporting the finding. The colour mismatch was apparent on delivery. Complaints were made, but rejection was not intimated until several weeks after the later complaint. Other defects were patent; some repairs were undertaken; and some items were accepted with recompense. The attempted appeal sought to reopen detailed factual matters not identified in the Notice of Appeal. That was impermissible. The court noted obiter that use of the goods alone, without any lapse of time, might not have sufficed, but that issue did not need to be decided.
6. The appeal was dismissed with costs assessed at £4,200. An application was to be filed within seven days for directions concerning the costs below.

• Court of Appeal (Civil Division). The appeal from the county court was dismissed, with costs assessed at £4,200.
• Wrexham County Court. District Judge Hoffman found breaches concerning the colour description and implied terms, but held that the appellants had accepted the kitchen and lost the right to reject it. He awarded £2,500 damages.