seller or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this Ordinance called "future goods." (2.) There may be a contract for the sale of goods the acquisition of which by the seller depends upon a contingency which may or may not happen (3.) Where by a contract of sale the seller purports to effect a present sale of future goods the contract operates as an agreement to sell the goods. N.W.T., c. 39, s. 7. 8. Where there is a contract for the sale of specific goods Goods which and the goods without the knowledge of the seller have have perished. perished at the time when the contract is made, the contract is void. N.W.T., c. 39, s. 8. before sale 9. Where there is an agreement to sell specific goods and Goods subsequently the goods without any fault on the part of perishing the seller or buyer perish before the risk passes to the buyer but after the agreement is thereby avoided. N.W.T., c. 39, s. 9. The Price. agreement to sell. 10. The price in a contract of sale may be fixed by the Ascertaincontract or may be left to be fixed in manner thereby agreed ment of price. 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 circumstances of each particular case. N.W T., c. 39, s. 10. 11. Where there is an agreement to sell goods on the Agreement terms that the price is to be fixed by the valuation of a third to sell at 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. N.W.T., c. 39, s. 11. Conditions and Warranties. valuation. 12. Unless a different intention appears from the terms Stipulations of the contract stipulations as to time of payment are not as to time. 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. When condition to be treated as warranty. Implied undertaking as to title, etc. Sale by description. (2.) In a contract for sale "month" means prima facie calendar month. N.W.T,, c. 39, s. 12. 13. Where a contract or sale is subject to any condition to be fulfilled by the seller the buyer may waive the condition or may 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 condition 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 stipu lation 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 is a term of the contract expressed or implied to that effect. (2.) Nothing in this section shall effect the case of any condition or warranty fulfillment of which is excused by law by reason of impossibility or otherwise. N.W.T., c. 39, s. 13. 14. In a contract of sale unless the circumstances of the contract are such as to show a different intention there is: 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 agreement 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 encumberance in favour of any third party not declared or known to the buyer before or at the time when the contract is made. N. W.T., c. 39, s. 14. 15. When there is a contract for the sale of goods by description there is an implied condition that the goods shall 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. N.W.T., c. 39, conditions 16. Subject to the provisions of this Ordinance and of Implied any Ordinance in that behalf there is no implied warranty as to quality or condition as to the quality or fitness for any particular or fitness. purpose of 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 sellers 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 specified 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 is 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. N,W.T., c. 39, s. 16. Sale by Sample. 17. A contract of sale is a contract for sale by sample Sale by where there is a term in the contract express or implied to sample. that effect. (2.) In a case of a contract for sale by sample: (a.) There is an implied condition that the bulk shall (b.) There is an implied condition that the buyer shall (c.) There is an implied condition that the goods shall PART II. EFFECTS OF THE CONTRACT. Goods must be ascertained. Property passes when intended to pass. Rules for ascertaining intention. Transfer of Property as between Seller and Buyer. 18. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. N.W.T., c. 39, s. 18. 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 intended 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. N.W.T., c. 39, s. 19. 20. Unless a different intention appears the following are 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 I.-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 them into a deliverable state the property does not pass until such thing be done and the buyer has notice thereof. Rule III-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 ascertaining the price, the property does not pass until such act or thing is done and the buyer has notice thereof. Rule IV.-When goods are delivered to the buyer on approval 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 (b.) If he does not signify his approval or acceptance Rule V.-Where there is contract for the sale of unas- (2.) Where in pursuance of the contract the seller of right of disposal. 21. Where there is a contract for the sale of specific Reservation goods or where goods are subsequently appropriated to the contract 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. N.W.T., c. 39, s. 21. 22-Y. O. |