SOGA- Implied Terms and Passing of Property & Delivery

Question 1

Harlingdon v Christopher Hull Fine art

Answer 1

Sale by description S 13; sending their experts to inspect the painting this meant the sale was no longer by description. S.13 only applies to goods sold by description

• claimant purchased a painting from the defendant, The painting was described as being by artist Gabrielle Munter. Both the buyers and the sellers were London art dealers
• sellers were not experts on German paintings whilst the buyers specialised in German paintings
• purchasers sent their experts to inspect the painting before agreeing to purchase. After the sale the buyers discovered that the painting was a fake

Question 2

Varley v Whipp

Answer 2

Sale by Description S 13; no examination prior to purchase then it will be a sale by description; the description was influential and material
- Machine as Nearly new

Question 3

Brewer v Mann

Answer 3

Sale by Description S 13; buyers in these situations are responsible for checking if the car is as advertised or has been upgraded, For used cars

• B bought a Bentley 6 speed for Mann. B claimed that it was sold as an original in an advertisement where she bought it. B then rejected the car learning that the parts were not all originals.
• Mann argued that he had described the engine as being up to 6 speed specifications, never describing it as an original.

Question 4

Re Moore & Landauer

Answer 4

Sale by Description S 13; Goods must correspond with the description

-A contract for the sale of 3,100 tins of peaches described the tins as being packed in cases of 30. When they arrived the tins were packed in cases of 24 although the agreed overall number of tins was supplied

Question 5

Ashington Piggeries Ltd v Christopher Hill (s 13)

Answer 5

Sale by Description S 13; the herring meal was still meal, nothing had changed what it was by description (even though contaminated)

Claim under section 13 by Ashington against Hill
-Ashington argued that the contract required Hill to supply herring meal and that the supply of herring meal contaminated by DMNA, meant that the mink food did not correspond with its contractual description. This argument was rejected by a majority of the House of Lords, on the grounds that nothing had been added to the herring meal so as make it lose its identity as herring meal

Claim under section 13 by Hill against Norsildmel

The contract required the herring meal to be of “fair average quality of the season”. Hill argued these words were a description within section 13 and that by delivering contaminated herring meal, Norsildmel were in breach of section 13. This argument was rejected by the House of Lords who considered that words denoting quality were not part of the description of the goods.

Question 6

Kendall v Lillico

Answer 6

Relevant factors under section 14(2B); The good must be fit for all the purposes for which goods are commonly supplied

• Peanut extract was sold, if it were fed to poultry they would die, if to cows they would be fine. The extract therefore had two purposes and it was merchantable because it was good for at least one of them.

Question 7

Rogers v Parish

Answer 7

Relevant factors under section 14(2B); Appearance and finish/freedom from minor defects

-Buyer bought a brand new range rover and it was perfectly driveable but suffered from minor defects to the engine and paint work. Combination of a bunch of little defects. Held to be un-merchantable

Question 8

Ashington Piggeries S 14

Answer 8

In relation to section 14(3)

• Herring meal has two main uses, first one was animal feed and the second one was as fertilizer. The seller was aware that the use of the food would be animal feed, but were unaware that it was intended to be fed to mink.
• Norwegians also knew that the herring meal had been fed to mink before in Norway, so it was a normal practice.
• They were held liable to Hill under section 14(3). HOL held that by making them aware that the meal was for feeding to animals, hills purpose was sufficiently definite to constitute a particular purpose. Hill didn’t have to specify the precise species that the meal would be fed to.

Question 9

Frost v Aylesbury Dairy

Answer 9

S 14; Strictness of seller’s duty

• typhoid germs in milk. Seller claimed that he had done all he could do to prevent the germs, and even though he exercised reasonable skill and judgement he was held to still be liable.

Question 10

Kirkham v Attenborough

Answer 10

Section 18 rule 4; Goods on approval/sale

-K delivered goods to Winter on sale or return goods and then Winter pledged them to Attenborough. Winter didn’t pay K who claimed the goods. By pledging the goods to A, he had adopted the transaction and the property passed

Question 11

Poole v Smith’s Car

Answer 11

Section 18 rule 4; Goods on approval/sale; you can fix the date by which the item must be returned

• Both were car dealers and P gave S authority to sell the vehicle. P then asked for the return of the car and set a date that if it was not returned by then S would have bought the car. S returned the car after the date and it was destroyed. The property was held to have passed and S was liable

Question 12

Atari. (UK) Ltd v Electronic Stores

Answer 12

Section 18 rule 4; Goods on approval/sale; must give a notice of rejection

-B was a retail seller and told S that they were no longer going to stock their games. They placed all the goods in a central warehouse and they were beginning to take detailed lists. The notice did not contain any of these details. The court held that this was still a valid notice of rejection.

Question 13

Carlos Federspiel v Charles Twigg

Answer 13

Section 18 rule 5(1); unconditional act of appropriation; must act according to the contract

-The contract was free on Board so the seller had an obligation to put the bikes on a ship. He put the bikes in crates and labelled them all for the buyer but did not put them on the ship as contracted. The Property did not pass as they had not met the condition of the contract.

Question 14

Rohde v Thwaites

Answer 14

Section 18 rule 5(1); unconditional act of appropriation; an act which adopts the goods to the contract; separates them from the bulk

B agreed to buy 20 barrels of sugar. They were supposed to be filled with sugar out of a larger quantity stored in a warehouse. (unascertained) Seller delivered 4 of the barrels and then filled the remaining 16 and told B they were ready for collection and the B said he would collect them as soon as possible. He later refused to accept them and the seller sued for the price. It was held that by filling up the barrels the seller had appropriated the goods to the contract

Question 15

Aldridge v Johnson

Answer 15

Section 18 rule 5(1); unconditional act of appropriation; an act which adopts the goods to the contract; separates them from the bulk

B agreed to buy 28 quarters of barely out of a larger amount and he sent the seller 200 sacks and asked the seller to fill them up and be sent by rail. Seller filled up 155 sacks and then he subsequently emptied them back into the bulk because he became insolvent. And the Buyer sued the seller and claimed ownership. The mere fact of putting the barley in the sacks was sufficient to appropriate the goods to the contract, even though the seller still had to send them to the railway station

Question 16

Wardar’s v Norwood

Answer 16

Section 18 rule 5(1); unconditional act of appropriation; Appropriation through tender of delivery order by the buyer

A delivery order which entitles the buyer to come and collect the goods. Where the seller and buyer have a contract and a 3rd party stored the good and the seller hands a delivery order to the buyer and the buyer can show it to the 3rd party then they can release the goods. Agreed to buy 600 cartons of frozen kidneys out of 1500. All stored in a warehouse. Seller gave a delivery order. The carrier acting on behalf of the buyer arrived at 8 am to pick up the goods and had a refrigerated Lawry but had forgotten to turn it on. This is the moment when the buyer showed the delivery order to the warehouse person. The frozen kidneys deteriorated and became unsellable. When did the property pass? The Court of Appeal stated that the loss fell on the buyers because the property and risk had passed at 8 am and the deterioration occurred later. Clear unconditional appropriation when the delivery order was handed to the 3rd party.

Question 17

The Elafi

Answer 17

Ascertainment by exhaustion of the bulk; Section 18 rule 5(3):

Ship with a cargo and the cargo was 1000kg. The seller decided to sell half to the Buyer A. And 300 to another Buyer B and 200 to another buyer C. he would go and drop off the cargo for A then for B and then for C. first went to Sweden and dropped off to A, then he went to the second port and dropped of B‘s share. Then the ship sank and the 200 kg was lost. Who bears the risk? The seller or C? The Court held that the buyer would bear the loss because the bulk was reduced only to his size, the whole was reduced to the contracted amount. The property passed the moment when the seller dropped off the goods with B and only had C’s share on the ship.

-Applying Rule 5(3) as soon as the bulk has been reduced to the contract amount then the goods become ascertained and the risk passes to the buyer

Question 18

Hartley v Hymans

Answer 18

Time of delivery: see sections 10(1): 29(3)/(5; If the seller is late in delivery but the buyer continues to press the seller for delivery. Then the Buyer may have waived his right to terminate the contract

The court stated that first of all the buyer waived his right to terminate the contract by pressing the seller to complete delivery and secondly the buyer was estopped from asserting that the delivery period had expired and could no longer use this argument. Finally the court implied a new agreement that the delivery date had been extended within a further reasonable period

Question 19

Rickards v Oppenhaim

Answer 19

Time of delivery: see sections 10(1): 29(3)/(5; The buyer can reaffix a definite time for delivery

The sale of a coach to built was late. The buyer continued to press the seller for delivery and so waived his right to terminate. He then told the seller that he would not longer accept delivery after a fixed date. The court found in favor of the buyer, he could reaffix a time for delivery and make time of the essence again

Question 20

Asfar v Blundell

Answer 20

Specific goods perishing before the contract is made: section 6

Physical destruction of the goods. If the goods are damaged or destroyed to such an extent that they are no longer the goods that they have perished.

• Ship was carrying a cargo of dates and the cargo was insured. The cargo owners could claim if it was a total loss. The ship sank and the dates were recovered and covered in sewage.
• The insurer claimed that they could use it to distill alcohol.
• On the facts it was held that it was a total loss, the were no longer the dates as they were intended to be used in the first place

Question 21

Sainsbury v Street

Answer 21

Specific goods perishing before risk passes to the buyer: section 7

; implied term to offer what was available/produced

• Seller had agreed to sell 275 tones of barley to be grown on his farm
• There was a partial crop failure and 140 were harvested.
• The seller claimed that it released him from any obligation to sell at all to the buyer and he resold to a third party at a higher price.
• The buyer claimed damages for the amount that had been harvested.
• An implied condition that the seller should not be liable to pay damages in respect of non delivery of 135 that were not harvested
• BUT the court implied a further condition here based on a presumed intention of the parties as reasonable business men that the seller was supposed to give the buyer the option of accepting delivery of the 140 tones.
• The Seller should not have gone on to sell the goods at a higher price to Buyer 2. Therefore he was liable to pay damages on the 140 tones.
• S is bound to offer whatever is produced. The Buyer has the option to accept this new offering.

Question 22

Howell v Coupland

Answer 22

Crop failure on specific field was held to be a frustrating event

Pairs with Sainsbury v Street above