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Sect. 36.

Sect. 37.

LIABILITY OF
BUYER FOR
NEGLECTING
OR REFUSING

DELIVERY OF
GOODS.

If the buyer rightly rejects goods, but continues to take the care and custody of them on behalf of the seller, he will, no doubt, be entitled to make a reasonable charge similar to that allowed to the seller upon the buyer's default in terms of the immediately succeeding section.1

37. When the seller) is ready and willing to deliver the goods, and requests the buyer) to take delivery,() and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

NOTES.

(a) “Seller," "buyer," "goods," "delivery." Defined Sect. 62 (1).

(b) "A reasonable time' is a question of fact." Sect. 56. The seller is also allowed a reasonable time for giving delivery.2 (c) Loss through buyer's neglect or refusal. This will include the accidental loss of the goods themselves. The delivery has been delayed through the "fault"s of the buyer, and therefore the goods are at his risk. Sect. 20. (d) "Take delivery." the goods" (Sect. 27). to "accept" the goods taking delivery.

"It is the duty of the seller to deliver The corresponding duty of the buyer is (Sect. 27), which necessarily includes

(e) "Care and custody." As bailee or custodier of the goods of the other party. (See Sect. 20). There is no express provision for the corresponding case of goods properly rejected by the

1 Sect. 37.

2 See Forbes v. Campbell (1885), 12 Ret. 1265.

3" Fault" defined Sect. 62 (1).

buyer, and kept by him for the seller, but a right to make a Seet. 37. reasonable charge is no doubt implied. See COM., Sect. 36 ante,

p. 176. The right of the seller here expressed is personal, and the remedy seems to fall under Sect. 57 rather than under Sect. 50 (1).

(f) "Repudiation of the contract." Sect. 11 (2) gives the buyer a right to repudiate in the event of a breach of contract by the seller. This proviso reserves the seller's rights in the event of the repudiation being unwarranted.

COMMENTARY.

Under this section, the buyer in default is liable to the seller (1) for actual loss sustained, (2) for a reasonable charge for care and custody.

Reimbursement of the loss sustained follows naturally Reimbursefrom a breach of the buyer's duty as set forth in Sect. 27.1 ment of loss. The law of Scotland before the Act did not differ in this respect from that of England.

custody.Former law

of Scotland.

The seller's rights and duties as custodier of the goods Charge for depended, prior to the Act, upon a different principle in care and Scotland from that recognised in England. In Scotland, where the seller sued for the price, it was a condition of his right that he was able to give delivery of the goods in such a state as to be fulfilment of the contract. Careful custody was therefore necessary to preserve his claim if he chose to put it in that form. On the other hand, the goods were his own so long as he held possession, and, if he adopted the alternative of re-selling and claiming damages, the buyer could interpose no right of property, or in any way restrain his action as proprietor. But in England the seller's duty English law. as to custody differed according as the property had, or had

not, passed to the buyer. In the latter case, the seller could only sue for the price in certain exceptional circumstances,2 and his duty, therefore, was not custody for the purpose of being enabled to fulfil the counterpart of the obligation, but judicious re-sale if that was possible, and if not, then such other disposal of the goods as would minimise his claim of

1 Such loss may be recovered as damages under Sect. 50 (1).
2 See Sect. 49 (2) of the Act.

N

Sect. 37.

Divergent principles,

but practice similar.

Remuneration for care and custody.

damages. If, again, the property had passed, the seller held possession as involuntary bailee or custodier of the goods of another (viz. the buyer), and his duty did not extend beyond ordinary diligence for safe keeping. These divergent principles did not, however, lead to any essential difference in practice. It may be said that in Scotland before the Act, neutral custody of the goods was insisted upon, and that a judicial warrant for re-sale was by some text-writers deemed essential or at least highly expedient. It may, however, be doubted if these requirements really formed part of the law of Scotland. They seem alien to the Scottish principle of continued ownership in the seller, and though they were much more closely allied to the English principle of passed property they had no counterpart in English practice.1 There is no clear authority even under the former law of Scotland for the course suggested by Bell 2 of applying for judicial authority to sell, or for imposing a penalty on a party selling without judicial sanction. The subject of neutral custody has already been discussed. COM., Sect. 36 ante, p. 173.

3

The general rule of the section as to remuneration for care and custody was adopted in the common law of Scotland chiefly on English authority. "If," says M. P. Brown, "the vendee fails to take away the thing sold in due time, he will be liable to the vendor for warehouse rent or other expenses attending the keeping of it." The authority

1 "If the defendant intended to repudiate the contract he ought to have given the plaintiff distinct notice at once that he repudiated the goods, and that, on such a day, he would sell them by such a person, for the benefit of the plaintiffs. The plaintiffs could then have called on the auctioneer for the proceeds of the sale."-Per Lord Abinger in Chapman v. Morton (1843), 11 M. & W. 534 at p. 539.

2 Bell on Sale, p. 109.

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3 In Gardiner v. M'Leavy (1880), 7 Ret. 612, the interlocutor of Court expressly bore that the buyer was entitled, after notice, to sell." There was no suggestion of a judicial warrant being required, though in point of fact one had been obtained in the Sheriff Court from which the case came on appeal.

M. P. Brown on Sale, p. 354; see also p. 347. Pothier makes a similar statement: "C'est une des obligations qui naissent de la nature du contrat, que celle que contracte l'acheteur d'enlever les marchandises qui lui ont été vendues. Lorsque, par une sommation judiciaire, il a été mis en demeure de satisfaire à cette obligation, il est tenu des dommages et intérêts que le vendeur a soufferts depuis la sommation, par la privation de l'usage de

cited is the English case Greaves v. Ashlin1 (1813), where Sect. 37. Lord Ellenborough said: "If the buyer does not carry away the goods bought within a reasonable time, the seller may charge him warehouse room; or he may bring an action for not removing them should he be prejudiced by the delay."" The law of Scotland is now, by the Act, assimilated to that of England.

In the circumstances of this section the property will in most cases be held to have passed to the buyer, and therefore, the seller's duty as custodier will be much the same as that of the buyer under Sect. 36.

ses magasins, greniers, caves et celliers qu'occupaient les marchandises
vendues."-Vente, 290. The rule was followed in the Sheriff Court case—
Wilson, Ronald, and Co. v. Curle, Robertson, and Co. (1884), Guthrie's Sel
Cas. 2nd ser. 506.
13 Camp. 426.

2 Bell makes a similar statement as to the law of Scotland, and also founds on Greaves v. Ashlin (Sale, p. 109).

3 At least the risk has passed under Sect. 20.

Sect. 38.
UNPAID
SELLER

DEFINED.

PART IV.

RIGHTS OF UNPAID SELLER AGAINST

THE GOODS.

38.-(1.) The seller) of goods is deemed to be an unpaid seller" within the meaning of this Act(a.) When the whole of the price has not been paid or tendered);

(b.) When a bill of exchange or other negotiable instrument has been received as conditional

payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or other

wise,(9)

(2.) In this part of this Act the term "seller" («) includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.

NOTES.

(a) "Seller." Defined Sect. 62 (1). By the present section the usual definition is extended as regards Part IV. of the Act, so as to include persons in the position of a seller.

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