of the parties, the terms of the contract, the conduct of the parties, Chap. III. and the circumstances of the case must be considered (d). 66 Intention of 'Specific " Specific goods" are goods identified and agreed upon at the parties. time a contract of sale is made (e). "Future goods" are goods and "future" to be manufactured or acquired by the seller after the making goods. of the contract of sale (f). Goods are in a "deliverable state "Deliverable when they are in such a state that the buyer would, under the contract, be bound to take delivery of them (g). state." Unless a different intention appears (h), the following are rules Rules for ascertaining for ascertaining the intention of the parties as to the time at intention. which the property in the goods is to pass to the buyer: (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 (i). (2) Where there is a contract for the sale of specific goods and (3) Where there is a contract for the sale of specific goods in a (i) S. 18, rule 1. Tarling v. Baxter, 6 B. & C. 360: 30 R. R. 355; Tudor, Merc. Cases, 308. (k) S. 18, rule 2. Clarke v. Spence, 4 A. & E. 466; 43 R. R. 395; Laidler v. Burlinson, 2 M. & W. 610; Logan v. Le Mesurier, 6 Moore, P. C. 116; Rugg v. Minet, 11 East, 210; 10 R. R. 475; Acraman v. Morrice, 8 C. B. 449. (7) S. 18, rule 3; Furley v. Bates, 33 L. J. Ex. 43; Hanson v. Meyer, 6 East, 614; 8 R. R. 572; Simmons v. Swift, 5 B. & C. 857; 29 R. R. 438. 4 Chap. III. Sale or return." Reservation of right of disposal. "on sale or return," or other similar terms, the property passes to the buyer:-(i) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction (m); (ii) 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 (n). (5) 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, by either party, with the assent of the other, the property in the goods thereupon passes to the buyer (o). Such assent may be express or implied, and may be given after the appropriation is made (p). Where, in pursuance of the contract, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he does unconditionally appropriate the goods to the contract (q). In cases of this nature, when the seller makes the appropriation pursuant to authority from the buyer, a difficult question often arises whether the acts done by the seller show a revocable or a final intention to appropriate (r). Where specific or subsequently ascertained goods are sold, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled (s). In such case, notwithstanding the delivery of the (m) S. 18, rule 4 (a); Kirkham v. Attenborough, [1897] 1 Q. B. 201, if the buyer pledges the goods. (n) S. 18, rule 4 (b); Moss v. Sweet, 16 Q. B. 493; Ray v. Barker, 4 Ex. D. 279; Elphick v. Barnes, 5 C. P. D. 321. (0) S. 18, rule 5 (1); Heilbutt v. Hickson, L. R. 7 C. P. 449; Jenner v. Smith, L. R. 4 C. P. 270; Aldridge v. Johnson, 7 E. & B. 885. (p) Campbell v. Mersey Docks, 14 C. B. N. S. 412. (9) S. 18, rule 5 (2); Wait v. Baker, 2 Ex. 7; Joyce v. Swann, 17 C. B. N. S. 102. (r) Blackburn on Sale, 137. (s) S. 19 (1); Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164; Brandt v. goods to the buyer, or to a carrier or other bailee for the purpose Chap. III. 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 (t). 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, primâ facie, does reserve the right of disposal (u). When the seller 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 honour the bill of exchange, and if he wrongfully retains the bill of lading, the property in the goods does not pass to him (v), though he may be able to give a good title to a bona fide purchaser (x). Under a "hire and purchase" agreement, where goods are Hire and purchase hired upon the terms that the hirer is to pay certain sums of agreements. money, and upon payment of all such sums the property in the goods is to pass to him, but until then is to remain in the lessor, the sale is conditional, and the property does not pass until all the money is paid (y). Unless the parties have otherwise agreed, the goods remain at Risk prima facie passes the seller's risk until the property therein is transferred to the with probuyer; but where the property is transferred, the goods are at the perty. buyer's risk whether delivery has been made or not (z). If, however, delivery has been delayed through the fault of either party, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault (a). The duties or liabilities of the seller or buyer as bailee (b) of the goods are not affected by the above rules (c). Where there is an agreement to sell (d) specific goods, and subsequently the goods, without any fault on the part of either party, perish before the risk passes to the buyer, the agreement is Bowlby, 2 B. & Ad. 932; 36 R. R. 796, delivery to buyer; Wait v. Baker, 2 Ex. 1, delivery on board ship. (t) See last note. (u) S. 19 (2); Ogg v. Shuter, 1 C. P. D. 47. See s. 43 (1) (a). (r) S. 19 (3). Shepherd v. Harrison, L. R. 5 H. L. 116, 133; Cahn V. Pockett's Co., [1899] 1 Q. B. 643. (x) Post, p. 65. (y) See Ex p. Crawcour, 9 Ch. D. 419; Lee v. Butler, [1893] 2 Q. B. 318; Helby (z) Sale of Goods Act, 1893, s. 20. (a) S. 20. See Martineau v. Kitching, (b) See post, pp. 56, 57. (d) Ante, p. 48. Chap. III. thereby avoided (e). This rule applies to specifically described goods, whether in existence at the time the contract is made or not (e). Formalities of the contract. Contract for sale for £10 or upwards. Statute of Frauds, s. 17. Lord Tenterden's Act, 8. 7. Sale of Goods 8. 4. Subject to the provisions of the Sale of Goods Act, 1893 (f), and of any other statute (g), a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in either way, or may be implied from the conduct of the parties (h). The law relating to corporations is not, however, affected by this rule (i). It was provided by the Statute of Frauds (k) that: 'No contract for the sale of any goods, wares, and merchandises, for the price of £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized." A question having arisen whether the statute applied to contracts for the sale of goods not at the time capable of being delivered, it was provided by Lord Tenterden's Act (7), in 1828, that:— 66 The said enactment [sect. 17 of the Statute of Frauds] shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding 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." Both these enactments are now repealed by the Sale of Goods Act, 1893 (m), and the following provisions are substituted (n): "(1) A contract for the sale of any goods of the value of £10 or upwards shall not be enforceable by action unless the (e) S. 7. See Howell v. Coupland, L. R. 9 Q. B. 462; 1 Q. B. D. 258; Chalmers on Sale, 29. (ƒ) S. 3. (g) See Merchant Shipping Act, 1894, (h) Brogden v. Metrop. R. Co., 2 App.. Cas. 666. (i) Sale of Goods Act, 1893, s. 3. (k) 29 Car. 2, c. 3, s. 17. (7) 9 Geo. 4, c. 14, s. 7. (n) S. 4. buyer shall accept part of the goods so sold, and actually Chap. III. "(2) The provisions of this section apply to every such contract, (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 recognizes a pre-existing contract of sale, whether there be an acceptance in performance of the contract or not" (q). price" In sect. 17 of the Statute of Frauds the words were of £10, but in sect. 7 of Lord Tenterden's Act, the words. were "value of £10, and it was decided that the effect of the latter enactment was to substitute "value" for "price" in sect. 17 of the Statute of Frauds (r). The word "value" is therefore used in the present Act. "Value." "Price." unenforce In the Statute of Frauds it was provided that the contract Contract not should not "be allowed to be good," and it was decided that this void, but only did not render the contract void or illegal, but only unenforceable, able. unless its existence could be proved in one of the alternative manners provided by the Act (s). The present Act gives effect to these decisions, and provides that the contract "shall not be enforceable by action" (t). Signature by "party to be charged." In the Act of 1893 the words "party to be charged or his agent" have been substituted for the words "parties to be charged or their agents" in the Statute of Frauds; for it was always held to be sufficient if the note or memorandum was signed by the party against whom the contract was sought to be enforced (u). "Goods," in the Act of 1893 (x), include all chattels personal, "Goods." (2) S. 4 (1). (p) S. 4 (2). (2) S. 4 (3). (r) Harman v. Reeve, 18 C. B. 587. (8) Maddison v. Alderson, 8 App. Cas. 488. (1) Taylor v. G. E. R., [1901] 1 K. B. 774; "action" includes arbitration, Cox v. Hoare, 95 L. T. 121; 96 Id. 719. (u) See Reuss v. Picksley, L. R. 1 Ex. 342. (x) S. 62 (1). |