South Australian Consolidated Acts South Australian Consolidated Acts11—When conditions to be treated as warranty
(1) Where a contract
of sale is subject to any condition to be fulfilled by the seller, the buyer
may waive the condition, or may elect to treat the breach of such condition as
a breach of warranty, and not as a ground for treating the contract as
repudiated.
(2) 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. A stipulation may be a condition, though called
a warranty in the contract.
(3) Where a contract
of sale is not severable, and the buyer has accepted the goods, or part
thereof, the breach of any 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 be a term of the
contract express or implied to that effect.
(4) Nothing in this
section shall affect the case of any condition or warranty, fulfilment of
which is excused by law by reason of impossibility or otherwise.