2. SOGA

Question 1

Mirabita v Imperial Ottoman Bank (1878)

Answer 1

Cotton LJ: “under a contract for sale of chattels not specific the property does not pass to the purchaser”

Question 2

Lord Blackburn (1845), extra-judicially:

Answer 2

“parties must be agreed as to the specific goods… [this rule] is founded on the very nature of things

Question 3

Re Wait

Answer 3

No earmark = not ascertained = no transfer of property

WHEAT ON SHIP
NOW S.20A

Question 4

Re Goldcorp Exchange

Answer 4

No identification from stock = not ascertained = no transfer of property

Question 5

Re Stapylton Fletcher Ltd

Answer 5

SELLING CONTRACT + STORAGE CONTRACT

• movement suffices for ascertainment
• then when it was all put together, buyers became co-owners of the bulk (storage contract)

“segregation of stock … causes the goods to be ascertained for the purpose of s.16” - Baker QC

Question 6

s.20a

Answer 6

IDENTIFIABLE BULK

B HAS PRE-PAID

Question 7

Dennant v Skinner

Answer 7

if unconditional contract for sale of specific goods in a deliverable state –> property passes when contract is made

so can’t try to retain title later (because you can’t retain property after property has passed)

Question 8

Underwood v Burgh

Answer 8

not in deliverable state until S detaches the machine from the land

• then prop passes as soon as that happens (rule 2)

Question 9

Nanka-Bruce v Commonwealth Trust

Answer 9

rule 3 doesn’t prevent property passing if duty is not on seller to do the thing but the sub-buyer

Question 10

Kirkham v Attenborough

Answer 10

prospective buyer becomes buyer in 3 different ways:

1. he may pay the price
2. he may retain the goods beyond reasonable time for their return
3. he may do an act inconsistent with his being other than the purchaser

Question 11

Weiner v Gill

Answer 11

similar facts to kirkham

BUT contract showed intention for property not to pass so property did not pass
s.18 are only the default rules

Question 12

Carlos Federspiel v Charles Twigg

Answer 12

not enough for rule 5 s.18

• putting bikes in boxes and marking it to be for B is not enough for appropriation
• because S can take bikes out at any point - he retains power to do that
• Pearson J: setting aside is not enough

steps in preparation for shipment NOT appropriation
PLUS - must be assent by both parties

USUALLY: “last act to be performed by the seller”

Question 13

Wardar’s v Norwood

Answer 13

rule 5(2)

• delivered so property had passed (S discharged his duty)

Question 14

Eastport Navigation (The Elafi)

Answer 14

rule 5(4)

quantities can be aggregated - goods ascertained through exhaustion so property can pass to B (Mustil J)

Question 15

Cundy v Lindsay (1878) (QUOTE)

Answer 15

purchaser of a chattel takes the chattel as a general rule “subject to what may turn out to be certain infirmities in the title”

Question 16

Farquharson Bros v King [1902]

Answer 16

NO TITLE PASSES

• S did not have property right to pass to B
• nemo dat

Question 17

Battersby & Preston

Answer 17

“the majority of the exceptions to the nemo dat rule are designed to operate not by conferring a perfect title on the ultimate purchaser, but only by overriding a prior transaction or interest.”

Question 18

Eastern Distributors v Goldring (Devlin J)

Answer 18

case overruled but not in this point

Devlin J: the buyer in this situation doesn’t just acquire title by estoppel, he is not vulnerable to anyone who is not bound by that representation

Question 19

Folkes v King

Answer 19

Factors Act s.2

• good defence (useful)
• B acquired title which had defence against A

Question 20

Pacific Motor Auctions v Motor Credits

Answer 20

SOGA S.24

• capacity in which S retains possession is not crucial
• possession of S changed from possession as S to that of bailee

Question 21

National Employers v Jones

Answer 21

s. 25(1)
- owner meant person who has possession of the goods and passes it to the party who wants to raise the defence
- jones has defence against A but not against true owner
- B not protected if the factor/agent has been entrusted with goods from a thief

Question 22

Lewis v Avery

Answer 22

s. 23 SOGA
- fraudulent misrepresentation
- mistake made contract voidable not void (identity of person must be fundamental and here it wasn’t because A was prepared to deal with the person in front of him)

Question 23

Shogun Finance v Hudson

Answer 23

MAJORITY:

• void
• protecting A
• identity was fundamental to the contract

MINORITY:

• voidable
• protecting purchaser (bona fide)
• shouldn’t have different rules for face-to-face (voidable) and normal mistake (void)

Question 24

Head v Tattersall

Answer 24

RISK PASSES WITH PROPERTY

- parties agreed ultimately property is to be with seller so risk is with seller

Question 25

Healy v Howlett:

Answer 25

It may be that goods are at the buyer’s risk even if property has not passed (e.g. The Aliakmon)

It may be that the goods are at the seller’s risk even if property has passed to the buyer (in Head v Tattersall)

Question 26

Couturier v Hastie (1856)

Answer 26

goods had perished

• s.6 and s.7 merely codified common law
• so simply void

Question 27

McRae v Commonwealth Disposals Commission (1951)

Answer 27

australia

• seller warranted the goods existence
• so they are liable
• s.6/s.7 does not apply