Sale of Goods Act and Related Regulations: Offenses and Limitations, Lecture notes of Law

Download Sale of Goods Act and Related Regulations: Offenses and Limitations and more Lecture notes Law in PDF only on Docsity! 56 & 57 Vict. c. 71 SALE OF GOODS ACT 1893 REVISED Updated to 1 October 2012 This revised Act is an administrative consolidation of the Sale of Goods Act 1893. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law. All Acts up to and including Public Service Pensions (Single Scheme and Other Provisions) Act 2012 (37/2012), enacted 28 July 2012, and all statutory instruments up to and including Nurses and Midwives Act 2011 (Commencement) (No. 2) Order 2012 (S.I. No. 385 of 2012), made 1 October 2012, were considered in the preparation of this revision. Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to revisedacts@lawreform.ie. 56 & 57 Vict. c. 71 SALE OF GOODS ACT 1893 REVISED Updated to 1 October 2012 ARRANGEMENT OF SECTIONS PART I. FORMATION OF THE CONTRACT. Contract of Sale. Section Sale and agreement to sell.1. Capacity to buy and sell.2. Formalities of the Contract. Contract of sale, how made.3. Contract of sale for ten pounds and upwards.4. Subject matter of Contract. Existing or future goods.5. Goods which have perished.6. Goods perishing before sale but after agreement to sell.7. The Price. Ascertainment of price.8. Agreement to sell at valuation.9. Conditions and Warranties. Stipulations as to time.10. When condition to be treated as warranty.11. Implied undertaking as to title, etc.12. Sale by description.13. 1 Implied undertakings as to quality or fitness.14. Sale by Sample. Sale by sample.15. PART II. EFFECTS OF THE CONTRACT. Transfer of Property as between Seller and Buyer. Goods must be ascertained.16. Property passes when intended to pass.17. Rules for ascertaining intention.18. Reservation of right of disposal.19. Risk primâ facie passes with property.20. Transfer of Title. Sale by person not owner.21. Market overt.22. Sale under voidable title.23. Revesting of property in stolen goods on conviction of offender.24. Seller or buyer in possession after sale.25. Effect of writs of execution.26. PART III. PERFORMANCE OF THE CONTRACT. Duties of seller and buyer.27. Payment and delivery are concurrent conditions.28. Rules as to delivery.29. Delivery of wrong quantity.30. Instalment deliveries.31. Delivery to carrier.32. Risk where goods are delivered at distant place.33. Buyer's right of examining the goods.34. Acceptance.35. Buyer not bound to return rejected goods.36. Liability of buyer for neglecting or refusing delivery of goods.37. PART IV. RIGHTS OF UNPAID SELLER AGAINST THE GOODS. Unpaid seller defined.38. Unpaid seller's rights.39. [1893.]Sale of Goods Act 1893[No. 71.] 2 Attachment by seller in Scotland.40. Unpaid Seller's Lien. Seller's lien.41. Part delivery.42. Termination of lien.43. Stoppage in transitu. Right of stoppage in transitu.44. Duration of transit.45. How stoppage in transitu is effected.46. Re-sale by Buyer or Seller. Effect of sub-sale or pledge by buyer.47. Sale not generally rescinded by lien or stoppage in transitu.48. PART V. ACTIONS FOR BREACH OF THE CONTRACT. Remedies of the Seller. Action for price.49. Damages for non-acceptance.50. Remedies of the Buyer. Damages for non-delivery.51. Specific performance.52. Remedy for breach of warranty.53. Interest and special damages.54. PART VI. SUPPLEMENTARY. Exclusion of implied terms and conditions.55. Conflict of laws.55A. Reasonable time a question of fact.56. Rights, &c. enforceable by action.57. Auction sales.58. Payment into court in Scotland when breach of warranty alleged.59. Repeals.60. Savings.61. Interpretation of terms.62. Commencement.63. [1893.]Sale of Goods Act 1893[No. 71.] 3 (4) In a case where the level of protection for the consumer afforded by a particular provision of any other enactment is greater than that afforded by a particular provision of these Regulations, or to the extent that the invocation of a latter such provision by the consumer would diminish the first-mentioned level of protection for him or her — (a) the consumer may opt to invoke the particular provision of that other enactment to the exclusion of the other provision of these Regulations, and (b) that other provision of these Regulations may be invoked, and shall be construed and operate so as to be capable of being invoked, by the consumer in a manner that does not diminish the first-mentioned level of protection for him or her, but nothing in this paragraph operates to afford to any person the protection of that provision of the other enactment in any case where it would not otherwise be so afforded. C2 Application of Act restricted (1.05.1991) by International Carriage of Goods by Road Act 1990 (13/1990), s. 3(3), S.I. No. 22 of 1991 (commenced in relation to carriage other than carriage between the State and the United Kingdom of Great Britain and Northern Ireland). Application of certain enactments in relation to CMR. 3.— ... (3) The Carriers Act, 1830, section 7 of the Railway and Canal Traffic Act, 1854, the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, shall not apply in relation to contracts for the carriage of goods if the carriage is carriage in relation to which CMR applies. C3 Enforcement of Act affected (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 55, as substituted (25.01.1988) by Restrictive Practices (Amendment) Act 1987 (31/1987) s. 32, S.I. No. 2 of 1988. Functions of Director of Consumer Affairs. 55.—(1) The Director of Consumer Affairs and Fair Trade shall have the following additional functions— (a) to keep under general review practices or proposed practices in relation to any of the obligations imposed on persons by any provision of this Act or the Act of 1893, (b) to carry out examinations of. any such practices or proposed practices where the Director considers that, in the public interest, such examinations are proper or the Minister so requests, (c) to request persons engaging in or proposing to engage in such practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893 to discontinue or refrain from such practices, (d) to institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in any practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893, to discontinue or refrain from such practices. (2) The Minister may by order confer on the Director of Consumer Affairs and Fair Trade such further functions as he considers appropriate for the purposes of this Act. C4 Act included in collective citation and construction (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 9, commenced as per s. 1(2). Citation and construction of Part II. 9.—(1) The Act of 1893 and this Part may be cited together as the Sale of Goods Acts, 1893 and 1980. (2) The Act of 1893 and this Part shall be construed as one. Acts included or previously included in the collective citation and construction: • Sale of Goods and Supply of Services Act 1980 (16/1980), Part II, (31.12.1980) by s. 9, commenced on enactment. [1893.]Sale of Goods Act 1893[No. 71.] 6 • Sale of Goods Act 1893 (56 & 57 Vict. c. 71) (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 9, commenced on enactment. C5 Term “dealing as consumer” defined (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 3, commenced as per s. 1(2). Dealing as consumer. 3.—(1) In the Act of 1893 and this Act, a party to a contract is said to deal as consumer in relation to another party if— (a) he neither makes the contract in the course of a business nor holds himself out as doing so, and (b) the other party does make the contract in the course of a business, and (c) the goods or services supplied under or in pursuance of the contract are of a type ordinar- ily supplied for private use or consumption. (2) On— (a) a sale by competitive tender, or (b) a sale by auction— (i) of goods of a type, or (ii) by or on behalf of a person of a class defined by the Minister by order, the buyer is not in any circumstances to be regarded as dealing as consumer. (3) Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not. C6 Application of Act extended (9.07.1980) by Trading Stamps Act 1980 (23/1980), s. 8, commenced on enactment. Application of Sale of Goods Act, 1893, and Sale of Goods and Supply of Services Act, 1980. 8.—(1) For the purposes of the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, the publication by a company which is the promoter of a trading stamp scheme of a catalogue shall be regarded as an offer, and the tender within the prescribed period of valid- ity of the appropriate number of stamps shall be regarded as an acceptance, in the same way as if the offer and the acceptance were for a monetary consideration. (2) The provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in every case where the promoter of a trading stamp scheme offers goods or services in exchange for trading stamps. (3) Where a person other than a promoter of a trading stamp scheme offers goods or services in exchange for trading stamps, the provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in the same way as if that exchange were for a monetary consideration. PART I. FORMATION OF THE CONTRACT. Contract of Sale. Sale and agree- ment to sell. 1.—(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. [1893.]Sale of Goods Act 1893[No. 71.]S. 1 7 (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Capacity to buy and sell. 2.—Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Provided that where necessaries are sold and delivered to an infant, or minor, or to a person, who by reason of mental incapacity or drunkenness is imcompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or minor or other person, and to his actual requirements at the time of the sale and delivery. Formalities of the Contract. Contract of sale, how made. 3.—Subject to the provisions of this Act and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. Provided that nothing in this section shall affect the law relating to corporations. Contract of sale for ten pounds and upwards. 4.—(1) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of the sale whether there be an acceptance in performance of the contract or not. (4) The provisions of this section do not apply to Scotland. Subject matter of Contract. Existing or future goods. 5.—(1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this Act called “future goods.” (2) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. [1893.]Sale of Goods Act 1893[No. 71.]S. 1 8 ( a ) to display on any part of any premises a notice that includes any such statement, or ( b ) to publish or cause to be published an advertisement which contains any such statement, or ( c ) to supply goods bearing, or goods in a container bearing, any such statement, or ( d ) otherwise to furnish or to cause to be furnished a document including any such statement. (3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1). (4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement. F3[Sale by description. 13.—(1) Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. (2) A sale of goods shall not be prevented from being a sale by description by reason only that, being exposed for sale, they are selected by the buyer. (3) A reference to goods on a label or other descriptive matter accompanying goods exposed for sale may constitute or form part of a description.] Annotations Amendments: F3 Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2). Modifications (not altering text): C8 Enforcement of section provided for (30.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2). Statements purporting to restrict rights of buyer. 11.— (1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act. (2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers: ( a ) to display on any part of any premises a notice that includes any such statement, or ( b ) to publish or cause to be published an advertisement which contains any such statement, or ( c ) to supply goods bearing, or goods in a container bearing, any such statement, or ( d ) otherwise to furnish or to cause to be furnished a document including any such statement. (3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, [1893.]Sale of Goods Act 1893[No. 71.]S. 12 11 shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1). (4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement. F4[Implied undertakings as to quality or fitness. 14.—(1) Subject to the provisions of this Act and of any statute in that behalf, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a contract of sale. (2) Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition— (a) as regards defects specifically drawn to the buyer’s attention before the contract is made, or (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed. (3) Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly. (4) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgement. (5) An implied condition or warranty as to quality or fitness for a particular purpose may be annexed to a contract of sale by usage. (6) The foregoing provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made.] Annotations Amendments: F4 Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2). Modifications (not altering text): C9 Enforcement of section provided for (30.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2). [1893.]Sale of Goods Act 1893[No. 71.]S. 13 12 Statements purporting to restrict rights of buyer. 11.—(1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act. (2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers: (a) to display on any part of any premises a notice that includes any such statement, or (b) to publish or cause to be published an advertisement which contains any such statement, or (c) to supply goods bearing, or goods in a container bearing, any such statement, or (d) otherwise to furnish or to cause to be furnished a document including any such statement. (3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1). (4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement. Sale by Sample. F5[Sale by sample. 15.—(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample— (a) There is an implied condition that the bulk shall correspond with the sample in quality: (b) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample: (c) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.] Annotations Amendments: F5 Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 10, commenced as per s. 1(2). Modifications (not altering text): C10 Enforcement of section provided for (30.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 11, commenced as per s. 1(2). Statements purporting to restrict rights of buyer. [1893.]Sale of Goods Act 1893[No. 71.]S. 14 13 Sale by person not owner. 21.—(1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. (2) Provided also that nothing in this Act shall affect— (a) The provisions of the Factors Acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof; (b) The validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. Market overt. 22.—(1) Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. (2) Nothing in this section shall affect the law relating to the sale of horses. (3) The provisions of this section do not apply to Scotland. Sale under void- able title. 23.—When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect of title. Revesting of property in stolen goods on convic- tion of offender. 24.—F6[...] Annotations Amendments: F6 Repealed (1.08.2002) by Criminal Justice (Theft and Fraud Offences) Act 2001 (50/2001), s. 3(1) and sch. 1, S.I. No. 252 of 2002. Seller or buyer in possession after sale. 25.—(1) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. (2) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3) In this section the term “mercantile agent” has the same meaning as in the Factors Acts. [1893.]Sale of Goods Act 1893[No. 71.]S. 21 16 Effect of writs of execution. 26.—(1) A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same. Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff. (2) In this section the term “sheriff” includes any officer charged with the enforce- ment of a writ of execution. (3) The provisions of this section do not apply to Scotland. PART III. PERFORMANCE OF THE CONTRACT. Duties of seller and buyer. 27.—It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. Payment and delivery are concurrent condi- tions. 28.—Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. Rules as to deliv- ery. 29.—(1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller’s place of business, if he have one, and if not, his residence: Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery. (2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods. (4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. Delivery of wrong quantity. 30.—(1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate. [1893.]Sale of Goods Act 1893[No. 71.]S. 26 17 (2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. (3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. (4) The provisions of this section are subject to any usage of trade, special agree- ment, or course of dealing between the parties. Instalment deliv- eries. 31.—(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. (2) Where there is a contract for the sale of goods to be delivered by stated instal- ments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated. Delivery to carri- er. 32.—(1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is primâ facie deemed to be a delivery of the goods to the buyer. (2) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. (3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to ensure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit. Risk where goods are delivered at distant place. 33.—Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. Buyer’s right of examining the goods. F7[34.—(1) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.] [1893.]Sale of Goods Act 1893[No. 71.]S. 30 18 Duration of tran- sit. 45.—(1) Goods are deemed to be in course of transit from; the time when they are delivered to a carrier by land or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier. (2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee or custodier for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer. (4) If the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer. (6) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. (7) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods. How stoppage in transitu is effect- ed. 46.—(1) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer. (2) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller. Re-sale by Buyer or Seller. Effect of sub-sale or pledge by buyer. 47.—Subject to the provisions of this Act, the unpaid seller’s right of lien or retention or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller’s right of lien or retention or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller’s right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. [1893.]Sale of Goods Act 1893[No. 71.]S. 45 21 Sale not generally rescinded by lien or stoppage in transitu. 48.—(1) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu. (2) Where an unpaid seller who has exercised his right of lien or retention or stop- page in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer. (3) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. (4) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages. PART V. ACTIONS FOR BREACH OF THE CONTRACT. Remedies of the Seller. Action for price. 49.—(1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. (3) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. Damages for non- acceptance. 50.—(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract (3) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. Remedies of the Buyer. Damages for non- delivery. 51.—(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non- delivery. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract. [1893.]Sale of Goods Act 1893[No. 71.]S. 48 22 (3) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. Specific perfor- mance. 52.—In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree. The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland. F9[Remedy for breach of warran- ty. 53.—(1) Subject to subsection (2), where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may— (a) set up against the seller the breach of warranty in diminution or extinction of the price, or (b) maintain an action against the seller for damages for the breach of warranty. (2) Where— (a) the buyer deals as consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty, and (b) the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition, then, if the seller refuses to comply with the request or fails to do so within a reasonable time, the buyer is entitled: (i) to reject the goods and repudiate the contract, or (ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him. (3) The onus of proving that the buyer acted with promptness under subsection (2) shall lie on him. (4) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. (5) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (6) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied a breach does not of itself prevent the buyer from maintaining an action for the same breach of warranty if he has suffered further damage.] [1893.]Sale of Goods Act 1893[No. 71.]S. 51 23 Annotations Amendments: F11 Inserted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 23, commenced as per s. 1(2). Reasonable time a question of fact. 56.—Where, by this Act, any reference is made to a reasonable time the question what is a reasonable time is a question of fact. Rights, &c. enforceable by action. 57.—Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action. Auction sales. 58.—In the case of a sale by auction— (1) Where goods are put up for sale by auction in lots, each lot is primâ facie deemed to be the subject of a separate contract of sale: (2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid: (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person: Any sale contravening this rule may be treated as fraudulent by the buyer: (4) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction. Payment into court in Scotland when breach of warranty alleged. 59.—In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the seller for the price, be required, in the discretion of the court before which the action depends, to consign or pay into court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof. Repeals. [S. 60 rep. 8 Edw. 7. c. 49 (S.L.R.).] Annotations Editorial Notes: E1 As noted in the edition of Statutes from which this Act was reproduced, this section was repealed (21.12.1908) by Statute Law Revision Act 1908 (8 Edw. 7 c. 49), commenced on enactment. Savings. 61.—(1) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this Act contained. [1893.]Sale of Goods Act 1893[No. 71.]S. 55A 26 (2) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. (3) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act. (4) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security. (5) Nothing in this Act shall prejudice or affect the landlord’s right of hypothec or sequestration for rent in Scotland. F12[(6) (a) Nothing in section 55 or 55A of this Act shall prevent the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 of this Act. (b) In this subsection ‘contract for the international sale of goods’ means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States and in the case of which one of the following conditions is satisfied: (i) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; or (ii) the acts constituting the offer and acceptance have been effected in the territories of different States; or (iii) delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the accep- tance have been effected.] Annotations Amendments: F12 Inserted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 24, commenced as per s. 1(2). Modifications (not altering text): C15 Application of subs. (6) restricted (22.01.2003) by European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (S.I. No. 11 of 2003), reg. 4. Choice of law provisions. 4.— (1) A consumer shall not be deprived of the protection afforded by these Regulations as a result of his or her choosing as the law applicable to the contract the law of a non-Member State if the contract has a close connection with the territory of the Member States. (2) Paragraph (1) shall have effect notwithstanding section 61(6) of the Sale of Goods Act 1893. [1893.]Sale of Goods Act 1893[No. 71.]S. 61 27 Interpretation of terms. 52 & 53 Vict. c. 45. 53 & 54 Vict. c. 40. 62.—(1) In this Act, unless the context or subject matter otherwise requires,— “Action” includes counterclaim and set off, and in Scotland condescendence and claim and compensation: “Bailee” in Scotland includes custodier: “Buyer” means a person who buys or agrees to buy goods: “Contract of sale” includes an agreement to sell as well as a sale: “Defendant” includes in Scotland defender, respondent, and claimant in a multiple- poinding: “Delivery” means voluntary transfer of possession from one person to another: “Document of title to goods” has the same meaning as it has in the Factors Acts: “Factors Acts” means the Factors Act, 1889, the Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same: “Fault” means wrongful act or default: “Future goods” means goods to be manufactured or acquired by the seller after the making of the contract of sale: “Goods” include all chattels personal other than things in action and money, and in Scotland all corporeal moveables except money. The term includes emble- ments, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale: “Lien” in Scotland includes right of retention: “Plaintiff” includes pursuer, complainer, claimant in a multiplepoinding and defen- dant or defender counter-claiming: “Property” means the general property in goods, and not merely a special property: “Quality of goods” includes their state or condition: “Sale” includes a bargain and sale as well as a sale and delivery. “Seller” means a person who sells or agrees to sell goods: “Specific goods” means goods identified and agreed upon at the time a contract of sale is made: “Warranty” as regards England and Ireland means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. As regards Scotland, a breach of warranty shall be deemed to be a failure to perform a material part of the contract. (2) A thing is deemed to be done “in good faith” within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not. (3) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he has become a notour bankrupt or not. (4) Goods are in a “deliverable state” within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them. [1893.]Sale of Goods Act 1893[No. 71.]S. 62 28