SECTIONS 29/32/61 - Delivery

Question 1

Where is the definition of delivery?

Answer 1

s61(1)

Question 2

What is the definition of delivery under s61(1)?

Answer 2

The voluntary transfer of possession from one person to another

Question 3

What are the main modes of delivery?

Answer 3

Actual/physical delivery
Symbolic delivery
Constructive delivery
Buyer’s continuance of possession but in his own right

Question 4

Define actual/physical delivery

Answer 4

Physically giving the goods to B, or a carrier etc that B has agreed to

Question 5

Define symbolic delivery

Answer 5

Handing over something which symbolises the goods/is a document of title (a bill of lading relating to shipment of goods or statutory dock or warehouse warrant - made out to B)
A key to locked premises where the goods are, so giving physical control

Question 6

Define constructive delivery

Answer 6

By way of attornment: this involves S, B and the third party who has possession of goods.
S instructs the third party to hold the goods to the order of B and the third party must then acknowledge that to B.
Usually by a delivery order or a warrant if in a warehouse. The right of possession formerly vested in S will then have been transferred or attorned to B -confirmed by s 29 (4)

Question 7

Which section confirms constructive delivery?

Answer 7

s29(4)

Question 8

Define buyer’s continuing possession by their own right

Answer 8

Where B was bailee of the goods before the contract and when B becomes entitled to possession in his own right there is a notional delivery

Question 9

What is the normal rule regarding delivery time?

Answer 9

‘It is of the essence’

Hartley v Hymans

Question 10

Hartley v Hymans states what?

Answer 10

Ordinary commercial contracts for the sale of goods = time is ‘of the essence with respect to delivery.

The party waiving strict performance will be required to honour that waiver at least unless and until the other party receives adequate notice of any change of heart.

Question 11

Which section dictates a ‘reasonable’ delivery time?

Answer 11

s29(3)

Question 12

What does s29(3) state?

Answer 12

The prima facie rule that time is of essence can be displaced by the parties. Lack of any time for delivery in the contract indicates time is not of the essence and thus delivery must be within a reasonable time

Question 13

What does s29(5) state for delivery?

Answer 13

Where the contract states that S is required to send the goods to B, S must deliver goods at the right time. This means that B can reject the goods and treat the contract as terminated where delivery is delayed, and even if no loss is suffered

Question 14

What occurs if the delivery is early?

Answer 14

B can still reject goods and treat contract as terminated

BOWES v SHAND

Question 15

Case for early delivery = contract terminated?

Answer 15

BOWES v SHAND

Question 16

What does s29(5) say for collection by B?

Answer 16

If B is to collect the goods and no time is stipulated, S must be ready to hand them over for payment on demand by B at any time after the contract is made.

Question 17

When can B demand the goods be ready to collect?

Answer 17

At a reasonable time, which is a question of fact and will be determined by the circumstances: e.g. are the goods perishable, or if the weather delayed delivery

Question 18

What happens if delivery is late?

Answer 18

B can sue for non-delivery and treat the contract as rescinded

Question 19

What if B chose to accept late delivery?

Answer 19

B may accept late delivery of the goods but if he does he is no longer entitled to reject them for a breach of condition and cannot treat the contract as repudiated. However, he will still have the right to sue for damages (s.11(4) SGA).

Question 20

What happens if S still does not meet the new delivery time?

Answer 20

B chooses not to repudiate the contract but allows an additional specified time for delivery and that time is reasonable, yet the goods are still not ready by the additional time, he may then treat the contract as repudiated

Question 21

Case for accepting late delivery?

Answer 21

Charles Rickards Ltd v Oppenheim

Question 22

CASE FACTS

Charles Rickards Ltd v Oppenheim

Answer 22

Wanted Rolls Royce built, date passed. Sent notice saying if it wasn’t delivered at the new date, four weeks later, he would not accept it. Months later it was delivered and refused.
Held, he was justified. After waiving the initial stipulation as to time, he was entitled to give reasonable notice making time of the essence again, and on the facts the notice was reasonable.

Question 23

Which section applies when it is clear B will not pay?

Answer 23

s28

Question 24

Under s28, what happens when S is ready and willing to deliver and B is not paying?

Answer 24

The seller need not have tendered delivery before suing for the price where it is clear that the buyer is not going to pay and the seller is ready and willing to deliver.

Question 25

Under s28, what happens when B is ready and willing to pay, but S is not delivering?

Answer 25

B, ready and willing to pay, need not tender payment before suing for non-delivery
Innocent party can decide to accept or refuse the other party’s anticipatory repudiation - acceptance of the repudiation means the contract is terminated, refusal means all the obligations (including those of the innocent party) remain.

Question 26

How is possession of the goods transferred?

Answer 26

Physical deliver is not enough, both parties must consent

s34

Question 27

What is s34 in relation to time for examining goods?

Answer 27

General obligation that when tendering delivery the seller will afford the buyer a reasonable opportunity to examine the goods to check they conform to contract

Question 28

Which section of SGA concerns acceptance of a delivery?

Answer 28

s35

Question 29

When is there acceptance?

Answer 29

If the buyer tells the seller so, or does an act in relation to the delivered goods that is inconsistent with the seller’s ownership of the goods or after a reasonable time after delivery he retains the goods without telling the seller he has rejected them for acceptance