The Sale of Goods Act.-1895. buyer has examined the goods, there shall be no implied III. An implied warranty or condition as to quality or fitness IV. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. Sale by Sample. PART I. 15. (1) A contract of sale is a contract for sale by sample where Sale by sample. 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. 56 & 57 Vic., ch. 71, sec. 15. PART II. EFFECTS OF THE CONTRACT. Transfer of Property as between Seller and Buyer. PART II. ascertained. 16. Where there is a contract for the sale of unascertained Goods must be goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Ib., sec. 16. 17. (1) Where there is a contract for the sale of specific or Property passes when ascertained goods the property in them is transferred to the buyer intended to pass. at such time as the parties to the contract intend it to be trans- Ib., sec. 17. ferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. 18. Unless a different intention appears, the following are rules Rules for ascertaining for ascertaining the intention of the parties as to the time at which intention. the property in the goods is to pass to the buyer:— Rule 1. Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. Rule Ib., sec. 18. PART II. Reservation of right of disposal. sec. 19. The Sale of Goods Act.-1895. Rule 2. Where there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof. Rule 3. Where there is a contract for the sale of specific goods. in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done, and the buyer has notice thereof. Rule 4. When goods are delivered to the buyer on approval, or on "sale or return," or other similar terms, the property therein. passes to the buyer (a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction: (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 5. (1) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 19. (1) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the 56 & 57 Vic., ch. 71, seller may, by the terms of the contract or appropriation, reserve the right of the disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. (3) Where The Sale of Goods Act.-1895. (3) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. 20. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party. Transfer of Title. 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 Mercantile Law Amendment Act, 1861," 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. 22. Where goods are sold in market overt, according to the Market overt. 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 Ib., sec. 22. defect or want of title on the part of the seller. title. Su sect. 22-23.24 23. When the seller of goods has a voidable title thereto, but Sale under voidable 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 Ib., sec. 23. faith and without notice of the seller's defect of title. on conviction of 24. (1) Where goods have been stolen and the offender is Re-vesting of proprosecuted to conviction, the property in the goods so stolen re-vests perty in stolen goods in the person who was the owner of the goods, or his personal offender. representative, nothwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. (2) Notwithstanding PART II. 56 & 57 Vic., ch. 71, sec. 24. 38 of 1876, sec. 222. Seller or buyer in possession after sale. sec. 25. The Sale of Goods Act.-1895. not (2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means amounting to larceny, the property in such goods shall not re-vest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender. 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, 56 & 57 Vict., ch. 71, 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. Effect of writs of execution. Ib., sec. 26 altered. (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" shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. 26. (1) A writ or warrant of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ or warrant 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 indorse upon the back thereof the hour, day, month, and year when he received the same: Provided that no such writ or warrant 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 warrant, 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 enforcement of a writ or warrant of execution. PART The Sale of Goods Act.-1895. PART III. PERFORMANCE OF THE CONTRACT. PART. III. 27. It is the duty of the seller to deliver the goods, and of the Duties of seller and buyer to accept and pay for them, in accordance with the terms of buyer. the contract of sale. 56 & 57 Vic., ch. 71, sec. 27. ditions. 28. Unless otherwise agreed, delivery of the goods and payment Payment and delivery of the price are concurrent conditions, that is to say, the seller are concurrent conmust 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 Ib., sec. 28. willing to pay the price in exchange for possession of the goods. 29. (1) Whether it is for the buyer to take possession of the Rules as to delivery. goods or for the seller to send them to the buyer is a question Ib., sec. 29. 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. quantity. 30. (1) Where the seller delivers to the buyer a quantity of Delivery of wrong 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. (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 or quality not B-630 included Ib., sec. 30. |