Section 3 of the English Sale of Goods Act of 1893 defines a sale of goods as ‘a contract whereby the seller transfers the property in goods to the buyer for a money consideration called the price.’ [1]Goods are all chattels personal other than things and money. The property must be tangible and can be moved. From the above definition, it should be noted that the sale of goods is considered an agreement. Even if the second section of the Sale of Goods Act has the heading as ‘formation of the contract,’[2]There is no legal thing about it to amount to the contract of sale of goods. Therefore, a contract is to be made per the rules which govern the making of contracts like the rules of the common law.

Consequently, it should be done before a sale of goods can be allowed to take occur. As a result, an offer to buy or sell must be there, and all the required conditions must be met as per the making of any contract under common law. Section 6 of the act provides that for a contract to be enforceable, it must be worth two hundred shillings or more.

Any formed contract affects a transfer of ‘the property in the goods’ delineated by it to the buyer. Property in the goods can be transferred from buyer to seller when the latter acquires proprietary rights. Possession of products can be either physical or constructive. The intentions of the parties to a contract will depend on the terms of the agreement, conduct of parties and the circumstances of the case. In cases where the transfer of the property is instant, then a sale is said to have occurred whereas where the transmission has delayed a bit, or for long, the contract is said to constitute an agreement to sell. Any consideration to transfer ownership in a deal must be a money consideration. In this scenario, therefore, there exists both sale and agreement to sell.

In the case of Aldridge v Johnson, there was an agreement between the parties to exchange 52 bullocks with 100 quarters of barley, and then the difference in value will be paid in cash by the affected party. The judge ruled that this agreement amounted to a sale of goods under the Sale of Goods Act. The remaining amount to be paid to the affected party will be considered as ‘money consideration.’ It is however very legal if the monetary consideration is inadequate. Since this is already a contract, both parties are assumed to be knowing what they are doing. The idea that there can be a transfer of property in the goods means that in a party, there must exist two parties because a person cannot sell goods to himself. In rare cases, there might exist a sale by a “part-owner’ of the goods.[3]

Types of Goods

• Specific Goods

Described in section two of the Sale of Goods Act. They are those goods that are identified and an agreement against them is made once a contract for sale is made. These are goods that are bought almost immediately. Like those, we get to the shops, market places, and supermarkets. In section 20 of the Sales of Goods Act, specific goods are presumed to be unconditional and the time and delivery are particular. If at the time of making the contract, the goods perish without the knowledge of the seller, the deal is declared void as in Section 8 of the Sale of Goods Act. This provision codifies well the common law doctrine of ‘res extincta’ and the perfect explanation can be seen in the case of Conturie v Hastie. This is also applicable in cases where a sale of indivisible quantity is there and part of the goods perish when the contract is being made. In the case of Barrow, Lane and Ballard Limited v Philip, Phillips and Company Limited, the plaintiffs had made a contract to sell 700 luggage of nuts to the defendant which were thought to be in some warehouse. Unfortunately, and unknown to them, a total of 109 bags were missing (which were presumed to have been stolen) at the moment the contract was being made, and more 450 bags got lost before they were transported to the respondents. The plaintiffs went ahead and went to court for a remedy of the price of goods. The court ruled that the agreement was legal and that the respondents had no case to answer. Unascertained Goods

Unascertained goods are those goods that are meant to be made ready through processes like manufacturing or acquired by the seller after the contract is made. It is the opposite of specific goods.

• Existing and Future Goods

Are those goods that are not in existence at the time of making a contract, that is they can be available but not yet purchased. , or the contract itself is illegal.

In Robinson v Graves, there was an agreement dispute where a drawer had made a promise to mold a representation for 250 guineas. The judge questioned whether the disputed agreement was a sale of goods to know whether the provisions of the Sales of Goods Act will apply. The English Court of Appeal held that the agreement was not the sale of goods but a contract for work and materials. This is because even if the good was finally delivered, there was necessarily no transfer of ownership but just the transfer of skills. The seller was to be paid for his work and he had to produce the product or the material of his work.[4]

In this case, what Mollie was involved in was the sale of goods and is therefore very legal under the Sale of Goods Act. This is because there was a transfer of property from Mollie to Jenny and other buyers and in this transfer, the seller had agreed to transfer the property for a money consideration called the price without being compelled. Therefore, there was a formation of a contract as in Section 3 (1) of the Sale of Goods Act.

Moreover, there was the capacity to form the contract as in Section 4 (1) of the Sales of Goods Act. The act offers that the ability to buy and sell is dependent on the intention of the buyer and seller, and it is governed by the general law concerning capacity to contract. It, however, does not apply if the latter is of unsound mind, an infant or drunk because the contract will be declared null and void; thus the involved must pay a reasonable price.

A form of a contract is dictated in Section 6 of the Sale of Goods Act that any good worth two hundred shillings or more is null and void, thus cannot be enforced unless there was an intention to create a contract. Such kind of contracts can be made in the form of writing, orally or implied from conduct. [5]

In Section 9 of the Sales of Goods Act, in cases where the contract involved the sale of unascertained or future goods and later the goods perish before ownership moves to the purchaser, the pact is not to be enforced. This is related to the rule of discharge of a contract by frustration.

Mollie’s Rights

Mollie has the freedom to sell. Section 14 of the Sales of Goods Act shows that provides that there exists an assumption that the seller, who is the owner of the goods, has liberty to sell his goods, and in a case where there is an agreement to sell, then he has all the rights to trade at the period that the goods are to move ownership. [6]The purpose of this implied condition is to protect an innocent buyer who bought goods which were probably stolen. In Rowland v Divall (1923), the complainant purchased a carriage from the respondents. About four months after the sale, it was realized that the first seller had allegedly embezzled the car. The plaintiff returned the vehicle to the seller and subsequently sued. The defendant argued that:

• As the complainant had used the car for over four months, he had acknowledged the transaction legally as per section 36 and would have asked for a remedy of damages for breach of warranty.
• The asked damages by the defendant must be that which can be afforded by the plaintiff as a result of the benefits he had got from the four months he had used the car. The court, however, did not accept both arguments.

As an exception, a seller who is vending things that were not embezzled may be held responsible for the infringement of the situation. In Niblet Limited v Confectioners’ Materials Company Limited (1921), the defendant sold a total of 3,000 cans of condensed milk that were labeled ‘Nissly’ were transported from the United States of America to the United Kingdom. First of all, the labeling was a breach of Nestle’s trademark, an English company. The England customs of authorities refused to release the cans to the plaintiff until they obligated to get rid of the labels and destroy them utterly. The plaintiff took a brave action and sold the tins that were not labeled at the finest value he could get and then prosecuted for compensations for infringement of the implied condition. The court ruled that the complainants had infringed the law. Even though they had ownership of the goods and thus had a right to sell them, they were not obligated to do so since Nestle had the powers to get a restraining order of injunction to bar them from selling the goods in England.

A buyer can reject goods in the following circumstances:

• If the contract expressly allows
• Following implied terms
• If the seller has breached conditions
• If the seller has made unequivocal delivery

Mollie has a right to deliver the goods as per section 28 of the Sales of Goods Act. It states, ‘the seller must deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.’[7]

Section 29 states, “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 the possession of the goods.”[8]  In a situation where the goods have reached the buyer and have a reasonable opportunity to inspect, it is presumed he has accepted the goods.

In Molling v Dean, some goods from Germany were sold to people who bought in England. The sellers sent the goods directly to America. Once the goods reached America, they were inspected and were found not to be of good quality that was expected. The court ruled that it was obvious that the assumed place of inspection was America and the buyers had a right to reject the goods. The mere detail did not misplace Their right of inspecting and rejecting the assets that the properties had been scrutinized at the anchorage prior to their consignment.

Additionally, Mollie has the right to deliver the right quantity. If the buyer gets good that is either more or less, he has the freedom to refuse the whole package. In the case of Hart v Mills, buyers asked for two-dozen bottles of wine, and the sellers sent four dozens. The court ruled that the full package of the four-dozen could be returned. Even though such could be deemed irrational, the action is very steady with the provision of the Act. Nevertheless, in such cases where the distribution is either superior or lesser and the purchaser agrees on part or whole of the delivery whatsoever, he is accountable for the price of the contract rate and cannot claim any compensations later.

In Gabriel, Wade and English Limited v Arcos Limited; there was an agreement to sell about a thousand standards. 85 % of the standards were red wood while 15% were white. When the delivery was made, the buyers accepted it even though the white wood appeared to be more than the agreed 15%. The court held that the buyers could not sue for damages because they had an opportunity to inspect and reject the goods.

In Payne and Routh v Lillico and sons, a contract was made in order to sell 4,000 tons of meal. A certain ratio of 2% or less was given. However, the sellers delivered more than the required and the buyers rejected the goods. The court held that the buyers had a right to reject the goods as it was not what they ordered and thus this act is very consistent with the sale of goods act. [9]

Mollie also has a right of re-sale under section 48 of the Sales of Goods Act. A seller can re-sell the goods within the agreed time if the buyer fails to pay for them, or tenders the price. Such scenario is allowed in cases such as;

• Where the goods are known to be of a perishable nature
• Where the seller has not yet been paid and lets the intended buyer know of his intention to re-sell, and consequently, the buyer does not reply within a reasonable time.
• In cases where the seller expressly reserves a right of re-sale.

Mollie also has a right to make her sellers take delivery. Section 2 of the Sales of Goods Act provides that the buyer is obligated to take delivery of the goods sent by the seller, failure which the seller may bring up action against him in pursuant of damages caused for not accepting the goods as in Section 50(1) of the Sales of Goods Act.[10]

The seller has either real or personal remedies. Real remedies are those against his/her goods and can be enforced without involving the judiciary or any legal system whereas personal remedies are a those taken by the seller against the buyer and can be enforced in the courts of law.

In Section 49 of the Sales of Goods Act, the unpaid seller can ask for a price as a remedy. This means he can demand his money from the buyer. He can only do this in the circumstances like when the ownership of the goods has already passed to the buyer, and the buyer has declined to pay or when the buyer had made a promise to pay for the products at a specific date and later outrightly declines to pay.[11]

Section 50 allows the seller to action for damages. It provides that in a situation where the buyer wrongfully declines to pay for the goods he has been delivered for, that is when the owner has not been transferred, the seller has a right to ask for remedies in terms of damages basing the facts on non-acceptance.[12]

According to sections 41 through to 4, the unpaid seller has a right of lien, that is the right to keep the goods until payment towards it is made. This is allowed in cases like; a situation where goods were sold on credit and the credit period has expired, where the goods have been sold without making it clear its terms on conditions like whether they were sold on credit, and in situations where the buyer becomes insolvent. It should be noted that the right to lien will be lost if the seller delivers the goods and does not keep the right to dispose of them if the buyer legally gets ownership of the products, or where the unpaid seller decides to waive his rights. In cases where the seller has been paid partly, he still has a right to lien unless the above exceptions exist.[13]

Moreover, a seller can stop goods that are still in transit if the buyer proves to be insolvent. This right only applies when the products are still in transit when the goods reach the end, the power also comes to an immediate end. Therefore where deliveries have partly been done, the right of stopping the goods from being delivered is still very effective, unless the part delivery was done in such a way that suggests that the seller had totally given up on the possession of the whole package of the goods.

In Dixon v Baldwen, the court explained that for a transit to be said to have reached the end, it must have delivered the goods and waiting for other orders so as to transport. A good illustration was made in Kendall v Marshall, Stevens and Company. In this case, the railway company whose work was to transport the goods warned that after a certain period, the goods will no longer be held as carriers but as warehousemen. The owner of the goods did not clear the carrier until the time given by the railway company expired, and the court held that the vendor had lost the right to lien because the period he was given had expired. Notably, the unpaid seller can exercise his remedy of stoppage in transit either by repossessing the goods or by giving notice to the buyer to show their stand whether he wants to use the right.

In Verschueren’s Creameries v Hull and Netherlands S.S Company, the court ruled that in any case, the affected seller comes up with a notice about his right to the carrier, and the advice is not taken action for, the unpaid seller is allowed under the law to sue the airline for damages or the buyer for price. Moreover, the seller has every right to re-sell the goods as in section 48 of the Sale of Goods Act.

Bibliography

Bridge, Michael G. The international sale of goods. Oxford University Press, 2017.

Kumar, Alok. “32_Textbook on Sale of Goods and Hire Purchase (2010).” (2016).

Lookofsky, Joseph. “The 1980 United Nations Convention on Contracts for the International Sale of Goods.” In International Encyclopaedia of Laws, pp. 1-250. Kluwer Law International, 2016.

Lookofsky, Joseph. Understanding the CISG: a compact guide to the 1980 United Nations convention on contracts for the international sale of goods. Kluwer Law International, 2017.

Sale of Goods Act, 1893.

[1] Sale of Goods Act, 1893

[2] Sale of Goods Act, 1893

[3] Bridge, Michael G. The international sale of assets. Oxford University Press, 2017.

[4] Lookofsky, Joseph. Understanding the CISG: a compact guide to the 1980 United Nations convention on contracts for the international sale of goods. Kluwer Law International, 2017.

[5] Lookofsky, Joseph. “The 1980 United Nations Convention on Contracts for the International Sale of Goods.” In International Encyclopaedia of Laws, pp. 1-250. Kluwer Law International, 2016.

[6] Kumar, Alok. “32_Textbook on Sale of Goods and Hire Purchase (2010).” (2016).

[7] Sale of Goods Act, 1893

[8] Sale of Goods Act, 1893

[9] Fernandez, Carlos Mario Montano. “Deploying and folding modules system for the display and sale of goods.” U.S. Patent Application 14/392,091, filed February 25, 2016.

[10] Sale of Goods Act, 1893

[11] Sale of Goods Act, 1893

[12] Sale of Goods Act, 1893

[13] Sale of Goods Act, 1893