Lapas attēli
PDF
ePub

made under such circumstances as to show an agreement to give up possession of the whole of the goods. No. 10 of 1896,

S. 42.

How stoppage in transitu effected

44. The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice to be effectual must be given at such time and under such circumstances that the principal by the exercise of reasonable diligence may communicate it to his servant or agent in time to prevent a delivery to the buyer.

(2) When notice of stoppage in transitu is given by the seller to the carrier or other bailee in possession of the goods he must redeliver the goods to or according to the direction of the seller. The expenses of such redelivery must be borne by the seller. No. 10 of 1896, s. 43.

Resale by Buyer or Seller.

Effect of subsale or pledge by buyer

45. Subject to the provisions of this Ordinance the unpaid seller's right of lien or retention or stoppage in transitu is not affected by any sale or other disposition of the goods which the buyer may have madle unless the seller has assented thereto:

Provided that where a document of title of goods has been lawfully transferred to any person as buyer or owner of the goods and that person transfers the document to a person who takes the document in good faith and for valuable consideration then if such last mentioned transfer was by way of sale, the unpaid seller's right of lien or retention or stoppage in transitu is defeated and if such last mentioned transfer was by way of pledge or other disposition for value the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. No. 10 of 1896, s. 44.

Sale not generally rescinded by lien or stoppage in trinsitu

46. Subject to the provisions of this section a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu.

(2) Where an unpaid seller who has exercised bis right of lien or retention or stoppage in transitu resells the goods the buyer acquires a good title thereto as against the original buver;

(3) Where the goods are of a perishable nature or where the unpaid seller gives notice to the buyer of his intention to resell and the buyer does not within a reasonable time pay or tender the price the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. (4) Where the seller expressly reserves a right of resale in

case the buyer should make default and on the buyer making default resells the goods the original contract of sale is thereby rescinded hut without prejudice to any claim the seller may have for damages. No. 10 of 1896, s. 45.

PART V.

ACTIONS FOR BREACH OF THE CONTRACT.

Remedies of the Seller.

price

47. Where under a contract of sale the property in the goods Action for has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract the seller may maintain an action against him for the price of the goods.

(2) Where under a contract of sale the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price the seller may maintain au action for the price although the property in the goods has not passed and the goods have not been appropriated to the contract.

(3) Nothing in this section shall prejudice the right of the seller to recover interest on the price from the date of tender of the goods or from the date on which the price was payable, as the case may be. No. 10 of 1896, s. 46.

for non

48. Where the buyer wrongfully neglects or refuses to ac- Damages cept and pay for the goods the seller may maintain an action acceptance against him for damages for nonacceptance.

(2) The measure of dainages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract.

(3) Where there is an available market for the goods in question the measure of damages is prima fucie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted or if no time was fixed for acceptance then at the time of the refusal to accept. No. 10 of 1896,

S. 47.

Remedies of the Buyer.

49. Where the seller wrongfully neglects or refuses to de- Damages for liver the goods to the buyer the buyer may maintain an action non-delivery against the seller for damages for nondelivery.

(2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller's breach of contract.

(3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained

by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or if no time was fixed then at the time of the refusal to deliver. No. 10 of 1896, s. 48.

Specific performance

50. In any action for breach of contract to deliver specific or ascertained goods the Court may if it thinks fit on the application of the plaintiff by its judgment or decree direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional or upon such terms and conditions as to damages, payment of the price ind otherwise as to the Court may seem just and the application by the plaintiff may be made at any time before judgment or decree. No. 10 of 1896, s. 49.

Remedy for breach of warranty

51. Where there is a breach of warranty by the seller or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty the buyer is not by reason only of such breach of warranty entitled to reject the goods ; but he may (a) Set up against the seller the breach of warranty in

diminution or extinction of the price ; or (6) Maintain an action against the seller for damages for

the breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting in the ordinary course of events from the breach of warranty.

(3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they bad answered to the warranty.

(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage. No. 10 of 1896, s. 50.

Interest and special damages

52. Nothing in this Ordinance shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable or to recover money paid where the consideration for the payment of it has failed. No. 10 of 1896, s. 51.

PART VI.

SUPPLEMENTARY.

Exclusion of implied terms

53. Where any right, duty or liability would arise under a and conditions contract of sale by implication of law it may be negatived or

varied by express agreement or by the course of dealing between the parties or by usage if the usage be such as to bind both parties to the contract. No. 10 of 1896, s. 52,

time a

54. Where by this Ordinance any reference is made to a Reasonable reasonable time the question what is a reasonable time is a question question of fact. No. 10 of 1896, s. 53.

of fact

55. Where any right, duty or liability is declared by this Rights, etc.. Ordinance it may unless otherwise by this Ordinance provided by action be enforced by action. No. 10 of 1896, s. 54.

enforceable

Auction sales

56. In the case of a sale by auction :

(1) Where goods are put up for sale by auction in lots each lot is prima facie deemed to be the subject of a separate contract of sale.

(2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made any bidder

may

retract his bid. (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer.

(4) A sale by auction may be notified to be subject to a reserve or upset price and the right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not otherwise, the seller or any one person on his behalf may bid at the auction. No. 10 of 1896, s. 55.

court when

alleged

57. Where a buyer has elected to accept goods which he Payment into might have rejected and to treat a breach of contract as only breach of giving rise to a claim for damages he may in an action by the warranty seller for the price be required, in the discretion of the Court before which the action depends, to consign or pay into court the price of the goods or part thereof or to give other reasonable security for the due payment thereof. No. 10 of 1896, s. 56.

58. The rules of the common law including the law merchant Existing laws save in so far as they are inconsistent with the express pro- subject hereto visions of this Ordinance and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress, or coercion, mistake or other invalidating cause shall continue to apply to contracts for the sale of goods.

(2) Nothing in this Ordinance shall affect the enactinents relating to bills of sale or any enactment relating to the sale of goods which is not expressly repealed by this Ordinance.

(3) The provisions of this Ordinance relating to contracts of Mortgages or sale do not apply to any transaction in the form of a contract pledges of sale which is intended to operate by way of mortgage, pledge, charge or other security. No. 10 of 1896, s. 57.

CHAPTER 40.

An Ordinance respecting Factors and Agents.
THE
HE Lieutenant Governor by and with the advice and con-

sent of the Legislative Assembly of the Territories enacts as follows:

SHORT TITLE.

Short title

1. This Ordinance may be cited as The Factors' Ordinance." No. 9 of 1896, s. 15.

INTERPRETATION.

[ocr errors]

Interpretation 2. For the purposes of this Ordinance“Mercantile 1. The expression mercantile agent” shall mean a mercanagent

tile agent having, in the customary course of his business as such agent, authority either to sell goods or to consign goods for the purpose of sale or to buy goods or to raise money on the security of goods;

2. A person shall be deemed to be in possession of goods or of the documents of title to goods where the goods or documents are in his actual custody or are held by any other person sub

ject to his control or for him or in his behalf; Goods" 3. The expression “goods" shall include wares and merchan

dise;

Document of title"

[ocr errors]

4. The expression “ document of title” shall include any bill

“ of lading, dock warrant, warehousekeeper's certificate or warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise either by indorsement or delivery the possessor of the decument to transfer or receive goods thereby represented ;

5. The expression “ pledge” shall include any contract pledging or giving a lien or security on goods whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability;

6. The expression “person” shall include any body of persons corporate or unincorporate. No. 9 of 1896, s. 1.

"Pledge"

Person"

DISPOSITIONS BY MERCANTILE AGENTS.

Powers of mercantile agents respecting disposition of goods

3. Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods any sale, pledge or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent shall subject to the provisions of this Ordinance be as valid as if he were expressly authorised by the owner of the goods to make the same :

« iepriekšējāTurpināt »