Sale Of Goods Flashcards
definition has 4 elements
1 case
s. 3 SOGA
1. contract; all elements of contracts including capacity (s.4)
2. 2 parties ; buyer and seller
- transfer of property in goods (meaning of goods s.2 chattel personal that are movable)
specific v future goods.
certained and unascertained goods
ownership to mean title of the goods. THUS, property in the goods passes to the buyer independent of physical delivery. - money consideration: s.3(1)
case: Aldridge v johnson on money consideration need only be sufficient not adequate!
agreement to sell v sale
part payment (1 CASE)
agreement to sell: s.3(4)
transfer of the property in goods to happen at a later date.
risk is with the seller
part payment= a sale
CASE OF harnam singh v ahmed provision stores ltd.
price
1 case
- s.10(1) SOGA
1. price may be fixed
2. fixed later
3. determined in the course of the dealing - where no price; reasonable price to be paid. s.10(2)
- CASE: may & butcher v the king: if the price is to be determined later, its not a contract but an agreement to agree.
the distinction between the sale of goods and other agreements (6)
- contract of barter or exchange : no money consideration
- gift: no consideration- there is no intention to transfer of property in exchange for monetary consideration/price. There is also no buyer and seller. It does not fit under the definition for the sale of goods under S.3 of the Act.
- bailment: the transfer is the possession not property in goods.
when the goods are exchanged there is no transfer in the property of goods/ ownership. There is no intention that property is to be passed from the bailee to the bailer. The goods are in the possession of the bailor for a limited period of time. - hire purchase: hiring of goods with the option of buying the goods; which is not absolute.
is not a contract of sale as it is a bailment relationship as well as an option to purchase. There is no intention for the exchange of title from one party to another. It only becomes a contract of sale once the option to purchase has been made available and is exercised. - Collateral as goods in a loan agreement. The lender holds these goods as security that they will be paid back. It is not a contract of sale because there is no intention to transfer property in action/ownership unless the loan has been defaulted. The lender has limited possession over the goods
- contracts of service: They are not tangible and do not qualify as a good that can participate in a sale of goods contracts.
govern passing of property from the seller to buyer. when they pass from buyer to seller.
RISK FOLLOWS PROPERTY; it ascertains where risk lies
(6 IMPORTANT POINTS WITH CASES)
s. 20 SOGA
- Unconditional contract for the sale + specific good= must be in deliverable state (s.2.4 as state which the buyer is bound to accept the goods)
CASE: Phillip Head and Sons v Showfronts stated that
if the goods are not in a deliverable state, the buyer is not obliged to collect them after delivery. - Where there is a contract of sale for specific goods and the seller is bound to do something to put the goods in a deliverable state- MUST
CASE: Underwood Ltd v Burgh Castle stated that The buyer refused to receive the delivery made by the seller as it was damaged. The courts held that the buyer was not obliged to accept the engine because they were not in a deliverable state. - deliverable state but the seller had to weigh, measure, test or do some other act for the purpose of ascertaining the price, the property does not pass until that thing is done.
ACCRAMAN V MORRICE: the custom of trade of trunks of trees is that they had to be measured. seller didn’t. not deliverable state. - When goods are to be delivered to the buyer on approval or ‘on sale or return’ or other similar terms. can only pass if:
- confirms
- adopts transaction eg pledge
CASE: KIRKHAM V ATTENBOROUGH- jewellery delivered to 3rd party. 3rd party pledges it to defendant without informing the plaintiff. - expiry of agreed time or reasonable time.
- Where there is a contract for the sale of future/unascertained goods by description in a deliverable state are unconditionally appropriated to the contract, the property in goods passes to the buyer.
CASE 1:HAYMAN V M’LINTOCK: nothing done to appropriate any particular sacks to the sale. therefore no transfer of property in the goods to defendant.
CASE 2: PIGNATORIA V GILROY: Seller gives notice of appropriation and no objection from buyer within a reasonable time, the property in goods passes. - unconditional appropriation
- if seller retains the right to dispose of the goods where they are appropriated until certain conditions are met, property in the goods does not pass to the buyer. - s.21
transfer of title
general rule
exemptions: 7
s.23 SOGA
general rule: Nemo dat principle
BISHOPSGATE CASE. need for modification of GR
- estoppel
pickard v sears: estoppel raised against owner of conduct misled 3rd party into believing he owned or with authority. - mercantile agent
with authority of owner. - voidable title
lewis v avery: title has not ben voided yet. - resale of goods where the seller is still in possession
retention by seller but sells to innocent party - sale by buyer in possession
kirkham v attenborough - jewellery - statutory powers through court order: e.g default of paying loan
- common law: sale by an agent of necessity
sachs v miklos: numerous latter to owner to collect.
terms of a contract
implied conditions (8) + effects of breach
conditions:
- right to sell (s.14)
rowland v divall; car stolen therefore no consideration - correspond to description (s.15)
varley v whipp: 2nd hand machine not new. - sample and description (s.15.2)
nichols v godts: oil refined - merchantable (s.16.b)
godley v perry: catapult and child - fitness for purpose (s.16a) (3 elements)
frost v aylesbury: manufacture or not
priest v last: implied purpose
baldry v marshall: expressed purpose. Said they wanted car suitable for tour. - opportunity to compare samples and bulk: s.17.2b)
- goods free from defects rendering them unmerchantable: s. 17.2c
CASE: GODLEY V PERRY - bulk goods correspond to the sample: s.17a
case: Godley v perry
EFFECTS OF BREACH OF IMPLIED CONDITIONS: s.13 on repudiate, sue for damages or affirm
where not severable; treat as breach of warranty ( remedies under section 53 SOGA)
terms of a contract
implied warranties (3) + effects of breach
- quiet possession; s.14.b
microbeards v vinhurt: road marking machines - free from charges or encumbrances; s.14.c
- implied by custom or trade to quality
effects of breach of implied warrants: s.53 SOGA.
- extinction of price
- damages to be actual.
- breach to quality: damages are difference between value of good during time of delivery and value answered to the warranty
- may maintain breach for other damages.
Obligations of the parties
- duties of the buyer (2)
- duties of the seller (5)
duties of buyer (2)
- Take delivery.
- Pay the price
duties of seller (5)
1. Duty to deliver the goods
2 Duty to pass a good title
3.Duty to put the goods into a deliverable state
Where goods have been delivered to the buyer, and he has had a reasonable opportunity of inspecting them, he is deemed to have accepted them.
s.28 and 29
Molling v Dean: The Court held that the goods could properly be rejected since America was the assumed place for inspection. The buyers right to reject the goods was not lost by reason of the fact that the goods had not been examined at the port of shipment.
4.Duty to Deliver Right quantity
Hart v Mills -
5. duty by instalments
delivery- definition
forms of delivery 1/1/1/1/1..3)
s.2: This is the voluntary transfer of possession from one person to another. = WILLINGLY!!
(a) Physical transfer of the goods
(b) Delivery to common carrier
(c) Delivery of documents of title
(d) Transfer of the means of obtaining the delivery
(e) Delivery by attornment/constructive delivery (3):
- Where the seller after sold the goods, agrees to hold them as bailee for the buyer.
- Where the buyer who is already in possession of the goods as bailee of the seller, holds them as his own after the sale.
- Where a 3rd party, for example a carrier/transporter, who hold the goods as bailee, for the seller, agrees and acknowledges that they are holding them for the buyer.
remedies of buyer: 5 of them
this is a breach of a contract
(a) Damages for non-delivery
(b) Specific Performance
(c) Damages for Breach of Warranty S.53
(d) Recovery of price plus interest (s.54 sale of goods act)
(e) Rejection of the goods of they do not meet the term of the contract (real remedy)
remedies of unpaid seller: breach of a contract
- definition (2 ELEMENTS)
- 2 BROAD CATEGORIES (4 V 2)
Unpaid seller defined as: s.39
(a) when the whole of the price has not been paid or tendered.
(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.
REAL REMEDIES:
- right to lien
- right to resell
- stopping at transit
- right to hold deliver the goods
PERSONAL REMEDIES; 2
- Action for price; s.49
(i) Where the property in the goods has passed to the buyer and he refuses to pay for them according to the contract.
(ii) If the buyer has agreed to pay for the goods on a certain day, and he wrongfully refuses to pay for them - action for damages; s.50
remedies for the buyer
- damages for non-delivery
- specific performance
- damages for breach of warranty
- price but the interest
- rejection of the goods if they are not the right quantity or how they contracted
