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3. SOGA II Flashcards

1
Q

Johnson v Agnew

A

RESCISSION AB INITIO: as if contract never came into existence (put parties in position before contract)

ACCEPTED REPUDIATORY BREACH: more like termination (contract existed but now put an end to)

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2
Q

Hongkong Fir - CONDITION OR WARRANTY

A

CONDITION OR WARRANTY?

Sellers LJ: look at contract in light of surrounding circumstances

Diplock LJ: it is a CONDITION if innocent party is deprived substantially of the whole benefit of the contract (i.e. what is expected under the contract)

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3
Q

SOGA labels these warranties

A

goods must be free from encumbrances

B will enjoy quiet possession (s.12(5A))

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4
Q

SOGA labels these conditions

A

S has the right to sell goods (s12(5A))

Goods will correspond with the description if sold by description 13(1A))

Goods will be of satisfactory quality (s14(6))

Fit for purpose where a particular purpose was made known to S (s14(6))

correspond with the sample where sale is by sample (s 15(3))

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5
Q

Hongkong Fir - INTERMEDIATE TERMS

A

Diplock LJ: some contractual terms are complex and cannot be categories as conditions or warranties

  • innominate terms/intermediate terms introduced
  • not possible to decide ahead of time
  • type of breach must be determined by the judges
  • wait and see
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6
Q

The Hansa Nord [1976]

A

SOG is part of law of contract
s.11 does not preclude intermediate/innominate terms

  • vast majority of stipulations are intermediate and “effect of which depended on breach” (Denning)

in this case - duty to ship in good condition = intermediate/innominate term

  • breach that actually occurred didn’t go to the root of the contract
  • so term is only a warranty (only slight problems, goods still of merchantable quality)
  • B can only get damages
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7
Q

Rowland v Divall [1923]

A

implied term that S has right to sell goods

  • B entitled to entire purchase back
  • doesn’t matter that he got some possession
  • consideration B paid was to be owner of the car (not possession)
  • B can terminate and ask for price back
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8
Q

Grant v Australian Knitting Mills [1926]

A

courts conclude that sale of specific goods may be by description even if parties met and the buyer saw the goods

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9
Q

Harlingdon v Chrisopher Hull Art [1991]

A

To be a sale by description, buyer must show description was:

ONE – ‘influential to the sale… so as to become an essential term… of the contract”

TWO – that buyer relied upon descriptive words

THREE – that the words used served to identify the goods rather than their attributes

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10
Q

Arcos v EA Ronaasen [1933]

A

goods 1/16th inch too big

  • B CAN REJECT ENTIRE GOODS
  • didn’t correspond with description
  • goods interpret this term quite strictly (even minor deviations from pacification gives B right to reject goods and terminate the contract)
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11
Q

The Diana Prosperity [1976]

A

OSHIMA 004 instead of OSHIMA 254

To constitute sale by description re: specific goods, buyer must show description was influential in the sale as to become an essential term in the contract

distinguish between:

  1. elements of description to identify goods (enable B to locate them)
  2. essential characteristics going to the heart of what the goods are

hull and yard number not special significance and not conditions (only for identifying the vessel)

IDENTITY MEANS: purpose of words was to provide one party with specific indication

Court made very clear that it is possible for SPECIFIC GOODS to be rejected for lack of correspondence with description (only if the description is re: essential characteristics of the goods)

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12
Q

Jewson v Boyhan [2003

A

satisfactory quality implied term establishes a ‘general standard which goods are required to reach’, it is ‘primarily directed towards substandard goods’

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13
Q

Business Application v Nationwide Credit Corpn

A

satisfactory quality is on the basis of 2nd hand car if the goods was a 2nd hand car

  • consider price paid
  • nature of fault
  • cost of repair

this was satisfactory quality

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14
Q

Henry Kendall v William Lillico

A

particular purpose means a given purpose (known or communicated) and is not necessarily a narrow or closely particularised purpose

Purpose can be wide and extend to foreseeable range of purpose for which goods are bought

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15
Q

Ashington Piggeries Ltd v Christopher Hill Ltd [1972]

A

ONE - B made it known to S the particular use

TWO - goods were not reasonable for that purpose

THREE - S couldn’t show B didn’t rely on S’s skill or judgement

buyer was a professional farmer and provided formula BUT farmer WAS reasonably relying on S

  • it was sphere of S’s expertise
  • relied on S to provide suitable herring-meal (skill in sourcing the ingredients)
  • B expert but not relying on S within sphere of his own expertise
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16
Q

Lord Diplock - ashington piggeries v Christopher hill

A

If defect in goods which rendered goods unfit for purpose was due to a characteristic within the sphere of expertise of:

S to detect and avoid responsibility for unfitness was with S

Buyer to detect and avoid the seller was not contractually responsible for it

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17
Q

Jewson Ltd v Boyhan

A

s.14(2) - perfectly satisfactory quality for ordinary purpose

  • in this section, particular purpose that is not one of the ordinary uses “seems to be irrelevant” (clark LJ)
  • just has to be fit for all the purposes “for which goods… are supplied”

s. 14(3) - fit for purpose
- yes, B didn’t communicate to S the specific purpose or specify the boilers were required for the specific flats

18
Q

Arcos v EA Ronaasen

A

Lord Atkin: “the conditions of the contract must be strictly performed. If a condition is not performed then the buyer has a right to reject…”

19
Q

Rowland v Divall

A

Scrutton LJ: “with the rescission the buyer can demand a return of the purchase money, unless he has, with knowledge of the facts, held on to the bargain so as to waive the condition.”

20
Q

Stocznia Gdanska v Latvian Shipping Co

A

price unconditionally earned by S so B cannot reclaim that (even though property has not yet passed to B)

21
Q

Dies v British and International Mining [1939]

A

Stable J at 743: “the general rule is that the law confers on the purchaser the right to recover his money, and that to enable the seller to keep it he must be able to point to some language in the contract from which the inference to be drawn is that the parties intended and agreed that he should.”

GENERAL: MUST RETURN PRE-PAID SUM

22
Q

to reject: : Graanhandel T Vink BV v European Grain

A

Unequivocal notice of rejection

23
Q

Chapman v Morton (1843)

Tradax v European Grain

A

B’s notice of rejection is ineffective if inconsistent with his contemporaneous conduct

E.g.: if B says they want to reject the goods but at the same time, they sub-sell the goods to someone else

24
Q

3 ways stopping B rejecting goods

A
  1. s.11 - acts inconsistently
  2. s.35 - too long waited
  3. s.35 - b accepts
25
Q

Clegg v Andersson

A

B cannot accept or reject until S has supplied B information for B to make an informed choice (Lady Hale)

  • here, B didn’t intimate to S he accepted
  • he didn’t act inconsistently
  • not reasonable time past
26
Q

JH Ritchie Ltd v Lloyd

A

IT IS NOT ACCEPTANCE WHENEVER B ASKS FOR REPAIR

If B knows what defect was, and accepts, b cannot latter change his mind

if B doesn’t know what defect was, B cannot make his mind up as to whether to accept or not

27
Q

Re Wait

A

A court is very unlikely to order specific performance of a contract to provide unascertained goods

NO equitable interest in relation to buyer re: those goods so there can’t be specific performance of those goods

Courts pretty much will never give SP to unascertained goods

SP can apply whether property has passed or not

28
Q

SPECIFIC PERFORMANCE - AND S.3 TORTS (INTERFERENCE WITH GOODS) ACT

A

NB: where property passed, B may also use s.3 of Torts (Interference With Goods) Act 1977 to ask for order of delivery up (also at court’s discretion but courts will probably more readily protect an owner than B asking for s.52 SOGA remedy to whom property did not pass)

29
Q

Cohen v Roche [1927]

A

SP
McCardie J:
Wide discretion of court

Court very likely to refuse specific performance where

ONE – The goods are “ordinary articles of commerce and of no special value or interest”

TWO – “No grounds exist for any special order for delivery”

30
Q

Behnke v Bede Shipping Co Ltd

A

sp

  • allowed
  • goods were “of peculiar and practical unique value to B”
  • damages inadequate so must give SP

for remedy of SP to be considered, goods must have unique value so damages are inadequate

31
Q

Goss v Chilcott

A

RECOVERY FOR PRICE

Traditional requirement is that this right is only available where there has been total failure of consideration

but judges are reluctant to apply this rule (this case shows judicial reluctance)

32
Q

Millar’s Machinery v David Way

A

B may normally hold S liable for non-delivery

33
Q

CONSEQUENCES OF REJECTION

A

B may be discharged from duty to pay price (unless unconditionally earned by S)

B may hold S liable for non-delivery
- unless S can tender a new lot of goods within a period permitted

IF PROPERTY PASSED TO B, B’S REJECTION REVESTS PROPERTY IN S and restores to S immediate right to possession (B does not have right to retain goods if S refuses to return the price)

34
Q

J L Lyons v May

A

If property had passed to B, B’s rejection revests the property in S and restores to him the immediate right to possession => B does not have a right to retain the goods if S refuses to return the price

35
Q

Borrowman Philips v Free

EE Brian Smith Ltd v Wheatsheaf Mills Ltd

A

B may normally hold S liable for non-delivery

Unless S can tender a new lot of goods within the period permitted under the contract

36
Q

Valpy v Gibson

A

S has no seller’s lien

  • goods sold on credit
  • complete property and possession had vested in B

S gave up possession so didn’t retain possession throughout so they don’t get lien
(doesn’t matter that S got possession again when B asked for goods to be repacked)

37
Q

DF Mount v Jay & Jay

A

assent - S knows B cannot pay unless B resells

no asset - s has no reason to doubt B’s ability to pay and was told about sub-sale after the fact (mordaunt)

attorning sub sale = assent

(s.47 - lost of lien right)

38
Q

Mordaunt Brothers v British Oil [1910]

A

Knowledge of sub-sale is not the same as assent

39
Q

Auld LJ in Habton Farms v Nimmo [2004]

A

fact that S unable to deliver is not an obstacle to the action for price: B liable to pay the price even if S were no longer able to deliver

40
Q

Habton Farms v Nimmo [2004] damages vs. s.49

A

s. 49
- no need for S to show loss
- no issue of remoteness and mitigation
- just needs to show price is contractually due

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