Facts: An auctioneer offered a cow, the Glen Nola, for sale at an auction. Before the sale, the auctioneer announced that a pregnancy test had been done on the cow, and that the result of the test was 'positive'. The buyer bid $3,200 to buy the cow. However, the cow was not pregnant, and worse, she proved to be infertile.
Issue: Was it an expressly agreed term of the contract of sale that the cow was fertile and pregnant when sold?
Decision: The auctioneer's statement was an express term of the contract.
Reason: The announcement of the test result was not a mere opinion. It was a statement of fact that the cow had been tested and was pregnant. In deciding whether this statement was intended to be contractually binding as a promise, the court took account not only of the statement itself, but also of the circumstances in which it was made. In particular, the statement was made at a breeders' sale where higher prices would be paid for a cow that was pregnant. Furthermore, the statement was made just before bids were invited. These circumstances all suggested that the statement was intended to be a legally binding promise, and it therefore became an express term of the contract.
Importantly, because the term in question was an express term, the court held that another clause in the contract, which excused the seller from liability for breach of implied terms, did not apply. This is an example of interpretation 'contra proferentem'.