Topic 3 - Performance Flashcards
Wrightson v McArthur and Hutchinson
A pledge, not a gift, but the requirement for delivery was the same- locked gifts in rooms and handed keys to claimants- sent a letter explaining what was going on- this gave sufficient intention.
D went insolvent so the question arose so as to beat the trustee in bankruptcy as to whether the contents of the locked gifts were indeed gifted- was there a valid transfer?
Court said yes- given the claimants had a right of access this was sufficient to constructively pass possession
Shipton Anderson v Weil Brothers, (1912) 1 KB 574
Under a contract for 4,500 tons wheat plus or minus 10%, 4,950 tons and 55 lbs were delivered; an excess of 1 lb in every 100 tons, (or 20p in £40,000, which the buyers did not claim). Held: applying the de minimis maxim the buyers could not reject for delivery of too much.
Maple Flock Co. Ltd. v Universal Furniture Products, (Wembley) Ltd., (1933) All ER 15
The plaintiffs contracted to sell 100 tons of rag flock to the defendants, delivery to be at the rate of three weekly installments of one and a half tons each, as required, and the flock to conform to the Government standards. The first fifteen loads were satisfactory but a sample from the sixteenth load showed that it did not conform to Government standards. In the mean time, the defendants had taken delivery of four more loads, all of which were satisfactory. The defendants repudiated the contract on the ground that the 16th of the first 20 installments of the 100 tons parcels of rag flock was not up to Government standards.
Held:
The defendants were not entitled to repudiated the contract, as the breach only affected one and a half tons out of the flock already delivered, and it was most improbable that it would recur. According to Hewart, C.J.:
The main tests to be considered ¦ are, first, the ratio quantitatively which the break bears to the contract as a whole, and secondly, the degrees of probability or improbability that such a breach will be repeated.
Hardy & Co v Hillerns & Fowler, (1923) 2 KB 490
A seller agreed to sell wheat to a buyer under a c.i.f contract. After the arrival of the wheat, he (the buyer) resold part of the cargo and delivered same to the sub-buyer. But it was not until two days later that he examined the wheat and found that it did not conform with the contract. Held:
It was held that it was too late to reject the goods for a breach of condition since he had “accepted” the goods under section 35, having done an act, which was inconsistent with the seller’s ownership of the wheat.
E & S Ruben v Faire Bros Co. Ltd, (1949) 1 KB 254
X sold goods to Y. Y resold to Z and asked X to send the goods directly to Z which he did. Z rejected the goods and Y also rejected them for non-conformity with the contract.
Held:
The place of delivery and examination was the premises of X; X had acted as Y’s agent in sending the goods to Z; Y had thus accepted the goods and could no longer reject them. In other words, in delivering the goods to the carrier for transmission of the third party, the sellers were acting as agents for the buyer and that the goods must be treated as notionally delivered to the buyer before they were delivered to the carriers. The delivery to the carrier was, therefore, evidence of an act subsequent to delivery to the buyer which could be treated as inconsistent with the seller’s ownership.
Hammer & Barrow v Coca-Cola, (1962) NZLR 723
Under a contract for the sale of 200,000 yo-yos, the seller was bound to deliver them directly to the sub-buyers. The sub-sale had been made before this contract and the sellers were fully aware of it. Upon delivery to the sub-buyers it was found that the goods were defective. The buyers tried to reject the goods but the sellers argued that the buyers, having resold the goods, had lost their right to reject. Held: the buyers had not acted inconsistently with the sellers’ ownership because there had been no sub-sale after the contract had been made and the contract contemplated that the place of examination was the place of delivery, that is, the sub-buyers premises. Thus the buyers had not accepted the goods and had not lost their right to reject
Demby Hamilton v Barden, (1949) 1 All ER 435
Demby Hamilton sold 30 tons of apple juice to be collected by February 1946. By November 1946 much of the apple juice remained uncollected by the buyer, and this had become putrid. Held:
As the delay in the delivery of the goods was through the fault of the buyer, the apple juice was at his risk.
