SOGA- Liability of seller without right to sell & Nemo Dat Exceptions Flashcards
Rowland v Divall
Terms implied by section 12(1) and at common law; The terms in section 12 are a condition to the contract; This section deals with title to the goods; No acceptance
Owner had his car stolen and the thief sells the car to D who sells it to R who sells it to X. the buyer X brought an action against R under section 12 and it was held that he was entitled to the return of the price because the court stated that he is entitled to the return of the price on the ground that he suffered a total failure of consideration. Whole point of the buyer is to obtain legal ownership and if he doesn’t get this then he suffers from total failure of consideration and is entitled to the price. R was able to reclaim the money he paid to D on a basis of total failure of consideration, even though he couldn’t give back the car
Karflex:
Terms implied by section 12(1) and at common law; The terms in section 12 are a condition to the contract; This section deals with title to the goods; No acceptance
- K sold the car to Karflex who let it on hire purchase terms to Poole. P defaults on his first instalment and Karflex sued him. it was found out that K was not the owner of the car. Karflex then paid off the true owner and they continued their proceedings, which did them no good. It was held that Karflex was in breach of what is now section 8 of SOGIT (supply of goods implied terms act, which deals with higher purchase agreement. Exact same as section 12 in SOGA). Because they didn’t own the car at the date of delivery, so P was entitled to treat the contract as repudiated and entitled to return of his deposit
Butterworth v Kingsway Motors
Terms implied by section 12(1) and at common law; The terms in section 12 are a condition to the contract
O - HP-> A - sells -> B - sells -> C - sells -> K - sells -> B
B was entitled to treat the contract as repudiated because they applied the Rowland case. When you have the car on Higher purchase you don’t have title to the car and you cannot sell it. Owner writes to B claiming the return of the car because O has the title to the car. B then terminates the contract with K. once the title passed to A, then the title was fed through all of the subsequent buyers. The title could not have been fed to B because he had already terminated the contract with K by the time K was fed the title. B really had suffered from a total failure of consideration as was entitled to the return of the whole purchase price. Since the defect in the title which has been received by the others was cured, they were not allowed to treat their respective contract as repudiated they could only claim damages
Folkes v King
Mercantile Agency; the Factors Act; Requirement 2
The owner of the car was entrusted to the agent for sale and he stipulated that the car should not be sold below a certain price without the owners express consent. The Rogue sold the car. It was held that the third party got good title to the car and the fact that the agent obtained the consent by fraud did not invalidate the consent
Pearson
Mercantile Agency; the Factors Act; Consent of the Agent
-the agent initially obtains the possession of the car but he didn’t get the car logbook with the owners consent. Then the Agent subsequently got possession of the log book by a trick and the owner didn’t consent. The agent sold the car with the log book but without the owners authority and ti was held that the purchaser would not get the title under section 2(1). The owner had not consented at all to the taking of the log book even though he consented to the possession of the car. The sale of a car without tis log book would not be the sale in the ordinary course of a mercantile business
Car and Universal Finance Co. Ltd v Caldwell
Sale under voidable title: section 23 SOGA
- Caldwell sold his car to a rogue who gave him a fake cheque. The cheque bounced and Caldwell went to the Police to report that the car was stolen. Mr Caldwell had successfully rescinded the contract. He had taken all steps possible to demonstrate that he no longer wished to be bound by the contract
The Saetta
Buyer in possession: section 9 Factors Act: section 25(1) SOGA; delivery”, for the purposes of section 25(1) required some voluntary act by the buyer (B1). Mere acquiescence was not enough
Forsythe supplied oil fuel to Petroglobe (B1), who had chartered a ship from Silver (B2). The supply contract contained an ROT clause. Petroglobe failed either to pay for the fuel or the hire payments under the charterparty. Silver repossessed the ship with the oil fuel still on board. Silver was unaware of the existence of the ROT clause. Silver then claimed ownership of the oil fuel under section 25(1), on the basis that Petroglobe were buyers in possession, and that there had been a delivery or transfer of the oil fuel to Silver when the ship was repossessed by them
Four Point Garages v Carter
Buyer in possession: section 9 Factors Act: section 25(1) SOGA; Constructive delivery will suffice
the effect of the delivery of the car by S to B2 was that S was acting as B1’s agent in delivering the car to B2, so that B1 had made constructive delivery of the car to B2
Pacific Motor Auctions
Seller in possession: section 8 Factors Act: section 24 SOGA; Must break the seller possession physically
- Sellers here were allowed to retain the physical possession of the cars in order to fix the cars. The title was with B1 because they were sold to him. then S subsequently sold the cars to B2. It was held that the fact that the seller legal title had changed from owner to bailee, the possession still remained. In order to defeat B2 under section 24 you would have to break the sellers physical possession of the goods.
