Application of Implied Terms in the Sales of Goods act to Consumer Transactions in Nigeria: Between Consumers Protection and Safeguarding the Sanctity of Contracts

This paper examines the meaning and application of Implied Terms in the Sale of Goods Act 1893 (SOGA) to consumer transaction. In doing this, the paper undertakes a comparative analysis of what is obtainable in other jurisdictions to discover where the Nigerian system lacks. The paper queries what it calls ‘continued imposition of responsibilities and liabilities’ on contracting parties under the guise of implied terms even where such terms were not contemplated by the contracting parties and as such, not expressly contained in the contract. The questions asked are: In examining the contractual principle of consensus ad idem, what rationale and legal justification could be placed on such term outside the express stipulations of the contracting parties? What is the justification for holding a party liable for breach of a term not expressly agreed upon but for customs of the trade or other extraneous considerations? The paper finds that the so-called implied terms in contract of sale are bubby traps which commercial men explore to deny liability arising from contracts freely entered by them or to hold innocent and uninformed party liable for breach of terms outside his contemplation. The paper advises that in developing economy like Nigeria where the level of literacy is low, it is undesirable to impute, inferred or implied duties and liabilities into contract outside those expressly agreed by contracting parties.