11 When condition to be treated as warranty.E+W+N.I.
[F1(1)This section does not apply to Scotland.]
(2)Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.
(3)Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract; and a stipulation may be a condition, though called a warranty in the contract.
(4)[F2Subject to section 35A below] Where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is an express or implied term of the contract to that effect.
[F3(4A)Subsection (4) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in sections 19 to 22 of that Act).]
F4(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)Nothing in this section affects a condition or warranty whose fulfilment is excused by law by reason of impossibility or otherwise.
(7)Paragraph 2 of Schedule 1 below applies in relation to a contract made before 22 April 1967 or (in the application of this Act to Northern Ireland) 28 July 1967.
Textual Amendments
F1S. 11(1) substituted (3.1.1995) by 1994 c. 35, ss. 7(1), 8(2), Sch. 2 para. 5(2)(a) (with s. 8(3)).
F2Words in s. 11(4) inserted (3.1.1995) by 1994 c. 35, ss. 3(2), 8(2) (with s. 8(3)).
F3S. 11(4A) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 1 para. 10; S.I. 2015/1630, art. 3(g) (with art. 6(1))
F4S. 11(5) repealed (3.1.1995) by 1994 c. 35, ss. 7, 8(2), Sch. 2 para. 5(2)(b), Sch.3 (with s. 8(3)).