Remedies of Seller (Under Statutory Implied Terms + Remedies) Flashcards
What are the remedies available to the seller?
- Unpaid seller’s lien s41(1)
- Unpaid Seller’s right to stop the goods in transit s44 SGA + s46 incl.
- Right of resale for unpaid seller s.48
Personal remedies:
- Action for price s49
- Damages for non-acceptance, s 50
- Damages for refusal to take delivery S. 37 SGA
What is the remedy of unpaid sellers lien?
Under s41(1) It entitles an unpaid seller to keep possession of the goods until the price has been paid or tendered.
Unpaid seller has this right in the following cases, s.41(1):
– Where goods have been sold without any stipulation as to credit
– Where goods have been sold on credit but term of credit has expired
– Where buyer becomes insolvent
What is the sellers right to stop goods in transit?
Under s44 SGA:
‘When buyer becomes insolvent, unpaid seller who has parted with the possession of goods has the right of stopping them in transit, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment/tender of price’
– Goods are in the course of transit from the time they are delivered to a carrier (independent of the seller) for purpose of transmission to the buyer, until the time the buyer or his agent takes delivery of them from the carrier.
– Seller can exercise his right of stoppage in transit, by
taking actual possession of the goods or by giving notice to the carrier, s. 46
What is the right of resale for an unpaid seller?
Under s48:
– (1): contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien/ retention/stoppage in transit
Note – If the buyer pays the price the seller has to deliver (can’t just exercise resell remedy.)
– (2): ‘where unpaid seller who has exercised his right of lien or retention or stoppage in transit resells goods, buyer acquires a good title to them as against original owner.
+ No requirement for the buyer to act in good faith (to act without desire to fraud etc.)
– (3): ‘where goods are of a perishable nature, or where unpaid seller gives notice to buyer of his intention to resell, and buyer does not w/in reasonable time pay or
tender price, unpaid seller may resell the goods and recover from original buyer damages for any loss occasioned by this breach of contract.
– (4): where seller expressly reserves right of resale in case the buyer should make default, and on the buyer making default resells the goods, the original contract of sale is rescinded but without prejudice to any claim the seller may have for damages
– If property passed to the buyer it reverts to the seller
What is the personal remedy of Action for the price?
Under s49 SGA:
– S. 49(1): ‘where, under contract of sale, property in goods passed to buyer and he wrongfully neglects/ refuses to pay for goods according to terms of contract, seller may maintain action against him for price of the goods’
– S.49(2): ‘where, under contract of sale, price is payable on a certain day irrespective of delivery and buyer wrongfully neglects/refuses to pay such price, seller may maintain action for the price, although the property in the goods has not passed and goods have not been appropriated to the contract’
What is the personal remedy of Damages for non-acceptance?
Available under s50.
– S.50(1): where buyer wrongfully neglects/refuses to accept and pay for goods, seller may maintain an action against him for damages for non-acceptance
– S.50(2): measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract
– S. 50(3): Where there is an available market, measure of damages is the difference b/w contract price and the
market price at the time the goods were suppose to have been accepted
What section is damages for refusal to take delivery?
S. 37 SGA
