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ed at the time when the contract is made, the contract is void. No. 10 of 1896, s. 6.

Goods perishing before sale but after agreement to sell

9. Where there is an agreement to sell specific goods and subsequently the goods without any fault on the part of the seller or buyer perish before the risk passes to the buyer the agreement is thereby avoided. No. 10 of 1896, s. 7.

The Price.

Ascertain nient of price

10. The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties.

(2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circunstances of each particular case. No. 10 of 1896, s. 8.

Agreement to sell at valuation

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11. Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party and such third party cannot or does not make such valuation the agreement is avoided :

Provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.

(2) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault. No. 10 of 1896, s. 9.

Conditions and Warranties.

Stipulations ar to time

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12. Unless a different intention appears from the terms of the contract stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(2) In a contract for sale “ month means prima facie calendar month. No. 10 of 1896, s. 10.

When condition to be treated as warranty

con

13. Where a contract or sale is subject to any condition to be fulfilled by the seller the buyer may waive the condition or inay elect to treat the breach of such condition as a breach of warranty and not as a ground for treating the contract as repudiated. (a) Whether a stipulation in a contract of sale is a

dition the breach of which may give rise to a right to treat the contract as repudiated or a warranty the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated depends in each case on the construction of the contract. A stipulation may be a condition though called a warranty in the contract.

(b) Where a contract of sale is not severable and the

buyer has accepted the goods or part thereof or where
the contract is for specific goods the property in
which has passed to the buyer, the breach of any
condition to be fulfilled by the seller can only be
treated as a breach of warranty and not as a ground
for rejecting the goods and treating the contract as
repudiated unless there be a term of the contract

expressed or implied to that effect.
(2) Nothing in this section shall affect the case of any con-
dition or warranty fulfillment of which is excused by law by
reason of impossibility or otherwise. No. 10 of 1896, s. 11.

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14. In a contract of sale unless the circumstances of the Implied, contract are such is to show a different intention there is :

undertaking

as to title, etc. 1. An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods and that in the case of an agreeirent to sell he will have a right to sell the goods at the time when the property is to pass ;

2. An implied warranty that the buyer shall have and enjoy quiet possession of the goods ;

3. An implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party not declared or known to the buyer before or at the time when the contract is made. No, 10 of 1896, s. 12.

15. When there is a contract for the sale of goods by de- Sale by scription there is an implied condition that the goods shall description 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. No. 10 of 1896, s. 13.

16. Subject to the provisions of this Ordinance and of any Implied Ordinance in that behalf there is no implied warranty or con- as to quality dition as to the quality or fitness for any particular purpose of or fitness goods supplied under a contract of sale except as follows:

1. Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not) there is an implied condition that the goods shall be reasonably fit for such purpose :

Provided that in the case of a contract for the sale of a speci. fied article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose ;

2. Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there

shall be no implied condition as regards defects which such examination ought to have revealed;

3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;

4. An express warranty or condition does not negative a warranty or condition implied by this Ordinance unless inconsistent therewith. No. 10 of 1896, s. 14.

Sale by Sample.

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Sale by sample

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17. 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 cor

respond 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. No. 10 of 1896, s. 15.

PART II.

EFFECTS OF THE CONTRACT.

Transfer of Property as between Seller and Buyer.

Goods must

18. Where there is a contract for the sale of unascertained be ascertained goods no property in the goods is transferred to the buyer unless

and until the goods are ascertained. No. 10 of 1896, s. 16.

Property passes when intended

to pass

19. Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(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. No. 10 of 1896, s. 17.

Rules for

20. Unless a different intention appears the following are ascertaining rules for ascertaining the intention of the parties as to the time

at which 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 II.- 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 thein into a deliver-
able state the property does not pass until such thing

be done and the buyer has notice thereof.
Rule 111.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 ascer-
taining the price, the property does not pass until
such act or thing be done and the buyer has notice

thereof.
Rule IV.- When goods are delivered to the buyer on ap-

proval 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 transac

tion;
(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 expira-
tion of a reasonable time. What is a reasonable

time is a question of fact.
Rule V.- Where there is a contract for the sale of unas-

certained or future goods by description and goods of
that description and in a deliverable state are uncon-
ditionally 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
expressed or implied and may be given either before

or after the appropriation is made;
(2) Where in pursuance of the contract the seller deliv-

ers 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. No. 10 of 1896. s. 18.

of right of

21. Where there is a contract for the sale of specific goods Reservation or where goods are subsequently appropriated to the contract

disposal the seller may by the terms of the contract or appropriation reserve the right of 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 have the right of disposal.

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 honour the bill of exchange and if he wrongfully retains the bill of lading the property in the goods does not pass to him. No. 10 of 1896, s. 19.

Risk prima

22. Unless otherwise agreed the goods remain at the seller's Jacie passes with property

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. No. 10 of 1896, s. 20.

Transfer of Title.

Sale by person not owner

23. Subject to the provisions of this Ordinance, 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. Provided also that nothing in this Ordinance shall affect : (a) The provisions of The Factors' Ordinance or any enact

ment enabling the apparent owner of goods to dispose

of them as if he were the true owner thereof; (6) The validity of any contract or sale under any special

common law or statutory power of sale cr under the order of a court of competent jurisdiction. No. 10 of 1896, s. 21.

Sale under

24. When the seller of goods has a voidable title thereto but roidable title his title has not been voided at the time of 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. No. 10 of 1896, s. 23.

Seller or buyer 25. Where a person having sold goods continues or is in posin possession after sale

session 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 was expressly authorised by the owner of the goods to make the same.

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