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(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 to 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” has the same meaning as in The Factors' Ordinance. No. 10 of 1896, s. 24.
Performance of the Contract.
26. It is the duty of the seller to deliver the goods and of Duties of the buyer to accept and pay for them in accordance with the buyer terms of the contract of sale. No. 10 of 1896, s. 25.
delivery are concurrent
29. Unless otherwise agreed delivery of the goods and pay- Payment and ment of the price are concurrent conditions ; that is to say,
the seller must be ready and willing to give possession of the goods conditions to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. No. 10 of 1896, s. 26.
28. 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 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 the sale are in 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. No. 6 of 1896, s. 27.
Delivery of wrong quantity
29. Where the seller delivers to the buyer a quantity of 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 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 goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest or he may reject the whole.
(4) The provisions of this section are subject to any usage of trade, special agreement or course of dealing between the parties. No: 10 of 1896, s. 28.
30. Unless otherwise agreed the buyer of goods is not bound to accept delivery thereof by instalments.
(2) Where there is a contract for the sale of goods to be delivered by stated instalments which are to be separately paid for and the seller makes defective deliveries in respect of one or more instalments or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated. No. 10 of 1896, s. 29.
Delivery to carrier
31. Where in pursuance of a contract of sale the seller is
a authorised or required to send the goods to the buyer delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer.
(2) Unless otherwise authorised by the buyer the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do and the goods are lost or damaged in course of transit the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages.
(3) Unless otherwise agreed where goods are sent by the seller to the buyer by a route involving sea transit under circuinstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit and if the seller fails to do so the goods shall be deemed to be at his risk during such sea transit. No. 10 of 1896, s. 30.
32. Where the seller of goods agrees to deliver them at his Risk where own risk at a place other than that where they are when sold goods
delivered at the buyer must nevertheless unless otherwise agreed take any
distant place risk of deterioration in the goods necessarily incident to the course of transit. No. 10 of 1896, s. 31.
33. Where goods are delivered to the buyer which he has Buyer's right
of examining not previously examined he is not deemed to have accepted goods thein unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed when the seller tenders delivery of goods to the buyer he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. No. 10 of 1896, s. 32.
34. The buyer is deemed to have accepted the goods when Acceptance he intimates to the seller that he has accepted them or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them. No. 10 of 1896, s. 33.
35. Unless otherwise agreed where goods are delivered to Buyer not
bound the buyer and he refuses to accept them having the right so to return do, he is not bound to return them to the seller but it is suffi- rejected goods cient if he intimates to the seller that he refuses to accept them. No. 10 of 1896, s. 34.
36. When the seller is ready and willing to deliver the goods Liability of
buyer for and requests the buyer to take delivery and the buyer does not neglecting or within a reasonable time after such request take delivery of delivery of the goods, he is liable to the seller for any loss occasioned by goods 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. No. 10 of 1896, s. 35.
Rights of Unpaiil Seller ugainst the Goods. 37. The seller of the goods is deemed to be an “unpaid sel- Unpaid seller ler” within the meaning of this Ordinance
(a) When the whole of the contract price has not been paid
or tendered ; (b) When a bill of exchange or other negotiable instru
ment 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
otherwise. (2) In this part of this Ordinance 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 be n indorsed or a consigner or agent who has himself paid or is directly responsible for the price. No. 10 of 1896, 3. 36.
Unpaid seller's 38. Subject to the provisions of this Ordinance and of any rights
Ordinance in that behalf, notwithstanding that the property in
price while he is in possession of them ;
stopping the goods in transitu after he has parted
with the possession of them ; (c) A right of resale as limited by this Ordinance. (2) Where the property in goods has not passed to the buyer the unpaid seller has in addition to his other remedies a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. No. 10 of 1896, s. 37.
Unpaid Seller's Lien.
39. Subject to the provisions of this Ordinance the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price, in the following cases namely: (a) Where the goods have been sold without any stipula
tion as to credit; (1) Where the goods have been sold on credit but the term
of credit has expired ; (c) Where the buyer becomes insolvent. (2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. No. 10 of 1896, s. 38.
40. Where an unpaid seller, has made part delivery of the goods he may exercise his right of lien or retention on the remainder unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention. No. 10 of 1896, s. 39.
41. The unpaid seller of goods loses his lien or right of reten-Termination tion thereon(a) When he delivers the goods to a carrier or other bailee
for the purpose of transmission to the buyer without
reserving the right of disposal of the goods ;
sion of the goods ;
Stoppage in Transitu.
42. Subject to the provisions of this Ordinance when the Right of buyer of goods becomes insolvent the unpaid seller who has itoppage in parted with the possession of the goods has the right of stopping them in transitu that is to say he may resume possession of the goods as long as they are in course of transit and may retain them until payment or tender of the price. No. 10 of 1896, s. 41.
43. Goods are deemed to be in course of transit from the Duration of time when they are delivered to a carrier, by land or water, or other bailee for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee.
(2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination the transit is at an end.
(3) If after the arrival of the goods at the appointed destination the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent the transit is at an end and it is immaterial that a further destination for the goods may have been indicated by the buyer.
(4) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them the transit is not deemed to be at an end even if the seller has refused to receive thein back.
(5) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier or as agent to the buyer.
(6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf the transit is deemed to be at an end.
(7) Where part delivery of the goods has been made to the buyer or his agent in that behalf the remainder of the goods may be stopped in transitu unle-s such part delivery has been