Section 55Part 7 — Supplementary
Exclusion of implied terms and conditions
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55. (1) Subject to subsections (2) to (10), where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage if the usage is such as to bind both the parties to the contract.
An express condition or warranty does not negative a condition or warranty implied by this Law unless inconsistent therewith.
In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of section 13 shall be void.
In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of sections 14, 15 or 16 shall be void in the case of a consumer sale and shall, in any other case, not be enforceable to the extent that it is shown that it would not be fair or reasonable to allow reliance on the term.
In determining, for the purpose of subsection (4), whether or not reliance on any such term would be fair or reasonable regard shall be had to all the circumstances of the case and in particular to —
the strength of the bargaining positions of the seller and buyer relative to each other, taking into account, among other things, the availability of suitable alternative products and sources of supply; Section 56 Sale of Goods Law Page 26 Revised as at 4th day of February, 1997 c
whether the buyer received an inducement to agree to the term or in accepting it had an opportunity of buying the goods or suitable alternatives without it from any source of supply;
whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
where the term exempts from all or any of the provisions of sections 14, 15 or 16 if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practical; and
whether the goods were manufactured, processed or adapted to the special order of the buyer.
Subsection (5) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of sections 14, 15 or 16 is not a term of the contract.
The onus of proving that a sale falls to be treated for the purpose of this section as not being a consumer sale shall lie on the party so contending.
Any reference in this section to a term exempting from all or any of this Law is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of its provisions or the exercise of a right conferred by any provision, or any liability of the seller for breach of a condition or warranty implied by any provision.
Any reference in this section to a term of a contract includes a reference to a term which, although not contained in a contract, is incorporated in the contract by another term of the contract.
This section is subject to section 59.