Ashington Piggeries v Christopher Hill: Description and Fitness

Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 is the House of Lords decision that draws the line between two implied terms students routinely merge: correspondence with description under section 13, and fitness for a particular purpose under section 14(3).

It is also a case about a chain of supply, and the way liability passed along that chain is the second reason it is taught.

The facts

Ashington Piggeries kept mink and asked Christopher Hill, a compounder of animal feedstuffs, to make up a food to a formula the mink farmer supplied. The mix was named King Size and contained herring meal.

Hill bought the herring meal from Norwegian suppliers, Norsildmel, under a contract describing it as "Norwegian herring meal, fair average quality of the season".

The meal had been preserved with sodium nitrite, which had reacted with the fish protein to produce dimethylnitrosamine, a substance toxic to mink. Many thousands of mink died. The meal would have been perfectly suitable for cattle, pigs and poultry.

Two questions followed. Was the meal still "herring meal" within the description, despite being contaminated? And was Hill liable for supplying food unfit for mink when the formula had come from the buyer?

The description point

The House of Lords held that the goods did correspond with the description. They were herring meal: contaminated herring meal, but herring meal nonetheless.

Lord Diplock's formulation is the part that survives and is cited far beyond this case. The test is whether the departure means that what was delivered is a different kind of thing from what was described, instead of a defective example of the right thing. The description identifies the subject matter of the contract; a defect in quality does not change what the subject matter is.

The reasoning matters because it stops section 13 from swallowing section 14. If any quality defect breached the description, every quality claim would also be a description claim, and the statutory distinction between them would collapse. After Ashington Piggeries, section 13 is confined to identity.

The fitness point

On fitness for a particular purpose the buyer succeeded, and the reasoning is more surprising than the description holding.

Section 14(3) requires the buyer to make the particular purpose known and to rely on the seller's skill and judgement. Hill argued that no such reliance existed: Ashington had supplied the formula, so the buyer was relying on its own expertise about mink, not on Hill's.

The House of Lords accepted that the buyer relied on itself as to the suitability of the formula for mink — but held that it relied on Hill as to the soundness of the ingredients used. Reliance can be partial, and it attaches to the part of the transaction each party was better placed to control. Hill knew about sourcing feedstuffs; Ashington did not.

The consequence is a workable principle for any supply of a made-to-specification product. A supplier following a customer's design is not answerable for the design and remains answerable for the materials and workmanship it chose.

The chain, and why it matters

Hill, having been found liable to Ashington, claimed over against Norsildmel.

That claim also succeeded in part. The meal was not of merchantable quality within the meaning then in force, because it was unsuitable for a substantial part of the range of uses for which herring meal is commonly bought. The contamination did not have to render it useless for every purpose; it was enough that a significant normal use was excluded.

Two propositions emerge from the chain, and problem questions turn on them.

The first is that liability travels. A buyer's claim against its immediate seller does not depend on establishing fault, and the seller's remedy is a claim against its own supplier on the same terms. The party that actually caused the loss may be several steps away and is reached through the chain and not directly, which is why a break in the chain — an insolvent intermediary, or one protected by an effective exclusion clause — leaves the loss stranded where it fell.

The second is that the tests applied at each link can differ. Ashington's claim against Hill turned on fitness for a particular purpose, because mink feeding was a special purpose made known. Hill's claim against Norsildmel turned on merchantable quality, because Hill bought herring meal for the ordinary range of uses. The same physical defect founds different claims depending on what each buyer bargained for.

The dissent, and why it is worth knowing

The House was not unanimous on the description point, and the division is instructive, not incidental.

The minority view treated the contaminated meal as outside the description on the ground that the contract was for a feedstuff, and a feedstuff that poisons the animals it is fed to is not the article the parties had in mind. On that reading, identity is not purely physical: what the goods are includes what they are for.

The majority rejected this because it reintroduces quality into the identity question through the back door, and because it would make the scope of the description depend on the buyer's use rather than on the words of the contract — which is precisely what section 14(3) is for.

Knowing the argument matters for two reasons. It explains why the identity test is stated as narrowly as it is: the narrowness is deliberate, chosen to keep the two sections apart. And it supplies the strongest available counter-argument in a problem question where the defect is severe enough that calling the goods the contracted article feels strained.

Merchantable quality and what replaced it

The claim against the Norwegian supplier was decided under merchantable quality, a standard the Sale of Goods Act no longer uses, and an answer has to handle the change carefully.

The 1994 amendment replaced merchantable quality with satisfactory quality, adding the list of aspects — fitness for common purposes, appearance and finish, freedom from minor defects, safety, durability — and moving the test to what a reasonable person would regard as satisfactory.

On these facts the outcome would be the same. The relevant aspect is fitness for all the purposes for which goods of that kind are commonly supplied, and mink feeding was one such purpose. If anything the modern wording states the point more directly than the case had to reason it out: the older test asked whether the goods were saleable under the description, and the court had to work from there to the conclusion that exclusion of a substantial normal use sufficed.

The practical guidance is to reason under the current statute and cite the case for the proposition rather than for its statutory vocabulary. Quoting merchantable quality as though it were the present test is a dating error that costs marks.

How the case is used now

As authority on description. Lord Diplock's identity test is the working rule, and it is the reason a modern claim about contaminated, defective or under-performing goods is pleaded under the quality terms and not under section 13.

As authority on partial reliance. The proposition that reliance can be divided between the parties is applied well outside feedstuffs, and is the natural starting point for any dispute where the buyer specified and the supplier built.

As a chain case. It is the standard illustration of how a defect at the top of a supply chain reaches the party that suffered the loss, and of why the contractual route matters when no tort claim would lie for purely economic damage of this kind.

Where the boundaries still bite

Two cautions are worth carrying into an answer.

The identity test is easier to state than to apply at the margin. Goods so far outside specification that no reasonable buyer would call them the contracted article do breach the description — the difficulty is that "so far outside" has no bright line, and the cases either side of it turn on their facts.

And partial reliance is a finding, not a presumption. The court examined what each party actually knew and did. A supplier who was told nothing about the intended use, or who expressly disclaimed responsibility for suitability in circumstances where the disclaimer was reasonable, occupies a different position, and an answer that asserts partial reliance without pointing to the facts supporting it has skipped the step the House of Lords took.

Applying it in a problem question

The reliable sequence is to identify the claim the facts are actually raising, since that is what Ashington Piggeries is for.

Ask first whether the goods are a different kind of thing or a defective example of the right kind, and say which, because the rest of the analysis follows from that single characterisation. If the second, the description claim fails and the analysis moves to quality and fitness.

Then, for fitness, ask what each party was better placed to know. Where the buyer supplied a specification, split the reliance explicitly: the buyer relies on itself for the specification and on the seller for everything the seller chose.

Finally, follow the chain. Where the facts give a supplier behind the seller, the claim over is part of the answer, and the test applied at that link is the one that fits what that buyer bought, which is frequently not the test applied at the first link.