Kenya Act or statute

Parliament of Kenya

Sale of Goods Act

Jurisdiction: Kenya
Structure: 59 provisions
Citation: Cap. 31
Dates: As at 3 Nov 1964

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Dates: As at 3 Nov 1964

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Sale of Goods Act.”

This Act may be cited as the Sale of Goods Act. Section 2 provides definitions of terms used in the Act (for example: “action”, “buyer”, “contract of sale”, “delivery”, “document of title to goods”, “fault”, “future goods”, “goods”, “plaintiff”, “property”, “quality of goods”, “sale”, “seller”, “specific goods”, and “warranty”) and includes deeming rules on good faith and insolvency. The provision says the price may be fixed by contract or agreed method or determined by the parties' course of dealing; if not so determined the buyer must pay a reasonable price. If a third party valuation fails and goods already delivered and appropriated by the buyer, the buyer must pay a reasonable price; if the third party is prevented from valuing due to the seller's or buyer's fault, the party not at fault may sue for damages. Section 12(1) says that, unless the contract shows a different intention, stipulations as to time of payment are not deemed to be of the essence in a contract of sale; Section 12(2) says whether any other stipulation as to time is of the essence depends on the terms of the contract; Section 12(3) defines “month” in a contract of sale as prima facie calendar month.

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PRELIMINARY - 1. Short title

This Act may be cited as the Sale of Goods Act.

Section 1

FORMATION OF THE CONTRACT - 8.- Sale of perished goods

If specific goods contracted for sale have perished without the seller's knowledge at the time the contract is made, the contract is void.

Section 8-Saleofperishedgoods

PERFORMANCE OF THE CONTRACT - 30. Rules as to delivery

Rules for delivery: who must send or take possession of sold goods, where delivery occurs by default, seller's obligation to send within a reasonable time when required, third-person acknowledgement before delivery, reasonable hours for tender, and seller…

Section 30

RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 45. Duration of transit

Section 45

SUPPLEMENTARY - 59. Savings

Preserves pre-existing bankruptcy and common-law rules for sales and states that the Act does not affect enactments about bills of sale; sale provisions do not apply to transactions intended as security (mortgage, pledge, charge or other security).

Section 59

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Showing 59 of 59 provisions

Provision 57Short titleInterpretation

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

This Act may be cited as the Sale of Goods Act.

Section 1. Short title Section This Act may be cited as the Sale of Goods Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

Section 2 provides definitions of terms used in the Act (for example: “action”, “buyer”, “contract of sale”, “delivery”, “document of title to goods”, “fault”, “future goods”, “goods”, “plaintiff”, “property”, “quality of goods”, “sale”, “seller”, “specific goods”, and “warranty”) and includes deeming rules on good faith and insolvency.

Section 2. Interpretation Section 2(1) In this Act, except where the context otherwise requires— “action” includes counterclaim and set-off; “buyer” means a person who buys or agrees to buy goods; “contract of sale” includes an agreement to sell as well as a sale; “delivery” means voluntary transfer of possession from one person to another; “document of title to goods” includes a bill of lading, dock warrant, warehouse-keeper’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 endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented; “fault” means wrongful act or default; “future goods” means goods to be manufactured or acquired by the seller after the making of the contract of sale; “goods” includes all chattels personal other than things in action and money, and all emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; “plaintiff” includes a defendant counterclaiming; “property” means the general property in goods, and not merely a special property; “quality of goods” includes their state or condition; “sale” includes a bargain and sale as well as a sale and delivery; “seller” means a person who sells or agrees to sell goods; “specific goods” means goods identified and agreed upon at the time a contract of sale is made; “warranty” means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. Section 2(2) A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not. Section 2(3) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not. Section 2(4) Goods are in a deliverable state within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.

Section 2Verify source

Part II

FORMATION OF THE CONTRACT

§ 10FORMATION OF THE CONTRACT - 10. Ascertainment of priceProvision

The provision says the price may be fixed by contract or agreed method or determined by the parties' course of dealing; if not so determined the buyer must pay a reasonable price.

Section 10. Ascertainment of price Section 10(1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner thereby agreed, or may be determined by the course of dealing between the parties. Section 10(2) Where the price is not determined in accordance with the foregoing provisions, the buyer must pay a reasonable price; and what is a reasonable price is a question of fact dependent on the circumstances of each particular case.

Section 10Verify source

§ 11FORMATION OF THE CONTRACT - 11. Agreement to sell at valuationProvision

If a third party valuation fails and goods already delivered and appropriated by the buyer, the buyer must pay a reasonable price; if the third party is prevented from valuing due to the seller's or buyer's fault, the party not at fault may sue for damages.

Section 11. Agreement to sell at valuation Section 11(1) 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 the third party cannot or does not make a 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. Section 11(2) Where the third party is prevented from making the valuation by the fault of the seller or buyer, the party not at fault may maintain an action for damages against the party at fault.

Section 11Verify source

§ 12FORMATION OF THE CONTRACT - 12. Stipulations as to timeProvision

Section 12(1) says that, unless the contract shows a different intention, stipulations as to time of payment are not deemed to be of the essence in a contract of sale; Section 12(2) says whether any other stipulation as to time is of the essence depends on the terms of the contract; Section 12(3) defines “month” in a contract of sale as prima facie calendar month.

Section 12. Stipulations as to time Section 12(1) 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. Section 12(2) Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract. Section 12(3) In a contract of sale, “month” means prima facie calendar month.

Section 12Verify source

§ 13FORMATION OF THE CONTRACT - 13. When condition to be treated as warrantyProvision

Where a contract of 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 as a breach of warranty and claim damages instead of repudiating the contract; whether a stipulation is a condition or a warranty depends on construction of the contract; if the contract is not severable and the buyer has accepted the goods or property has passed, breaches of seller's conditions can only be treated as breaches of warranty (unless contract term to the contrary); and this section does not affect conditions or warranties excused by law.

Section 13. When condition to be treated as warranty Section 13(1) Where a contract of 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 condition as a breach of warranty and not as a ground for treating the contract as repudiated. Section 13(2) 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; and a stipulation may be a condition, though called a warranty in the contract. Section 13(3) 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 conditions 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, express or implied, to that effect. Section 13(4) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.

Section 13Verify source

§ 14FORMATION OF THE CONTRACT - 14. Condition and warranties implied in contracts of saleProvision

The seller must have the right to sell the goods in a sale, and in an agreement to sell must have that right when ownership is to pass.

Section 14. Condition and warranties implied in contracts of sale Section 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;

Section 14Verify source

§ 15-ConditionsimpliedbydescriptionFORMATION OF THE CONTRACT - 15.- Conditions implied by descriptionProvision

When goods are sold by description there is an implied condition that the goods correspond with that description; where the sale is by sample and description, it is insufficient that the bulk matches the sample if the goods do not also match the description.

Section 15.- Conditions implied by description Section Where 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 is 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.

Section 15-ConditionsimpliedbydescriptionVerify source

§ 16FORMATION OF THE CONTRACT - 16. No implied warranty as to fitness, except in certain casesProvision

If a buyer makes known the particular purpose and the seller normally supplies goods of that description, there is an implied condition that the goods will be reasonably fit for that purpose.

Section 16. No implied warranty as to fitness, except in certain cases Section 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 that 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;

Section 16Verify source

§ 17FORMATION OF THE CONTRACT - 17. Sale by sampleProvision

A "contract of sale by sample" is one that contains a term, express or implied, stating it is a sale by sample.

Section 17. Sale by sample Section 17(1) 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. Section 17(2) In the case of a contract for sale by sample there is—

Section 17Verify source

§ 3FORMATION OF THE CONTRACT - 3. Sale and agreement to sellProvision

A contract of sale of goods is where the seller transfers or agrees to transfer property in goods to the buyer for a money consideration called the price.

Section 3. Sale and agreement to sell Section 3(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. Section 3(2) There may be a contract of sale between one part owner and another. Section 3(3) A contract of sale may be absolute or conditional. Section 3(4) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but, where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. Section 3(5) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

Section 3Verify source

§ 4FORMATION OF THE CONTRACT - 4. Capacity to buy and sellProvision

If necessaries are sold and delivered to an infant, minor, or a person incompetent to contract by reason of mental incapacity or drunkenness, that person must pay a reasonable price for them.

Section 4. Capacity to buy and sell Section 4(1) Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property: Provided that, where necessaries are sold and delivered to an infant or minor, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Section 4(2) Necessaries in this section mean goods suitable to the condition in life of the infant or minor or other person, and to his actual requirements at the time of the sale and delivery.

Section 4Verify source

§ 5FORMATION OF THE CONTRACT - 5. Formalities of the ContractProvision

A contract of sale may be made in writing (with or without seal), by word of mouth, partly in writing and partly orally, or may be implied from the conduct of the parties.

Section 5. Formalities of the Contract Section Contract of sale, how made Subject to the provisions of this Act and of any Act in that behalf, a contract of sale may be made in writing (either with or without seal) or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties: Provided that nothing in this section shall affect the law relating to corporations.

Section 5Verify source

§ 6FORMATION OF THE CONTRACT - 6. Contract of sale for ten pounds or more to be in writingProvision

A sale contract for goods worth two hundred shillings or more is not enforceable by action unless the buyer accepts or actually receives part of the goods, gives something in earnest or part payment, or there is a written note or memorandum signed by the party to be charged or that party's agent.

Section 6. Contract of sale for ten pounds or more to be in writing Section 6(1) A contract for the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action unless the buyer accepts part of the goods so sold, and actually receives them, or gives something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf. Section 6(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of the 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 them fit for delivery. Section 6(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 recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not.

Section 6Verify source

§ 7FORMATION OF THE CONTRACT - 7. Existing or future goodsProvision

Goods that are the subject of a contract of sale may be either existing goods (owned or possessed by the seller) or goods to be manufactured or acquired by the seller after the contract; a contract purporting to sell future goods operates as an agreement to sell.

Section 7. Existing or future goods Section 7(1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale. Section 7(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. Section 7(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.

Section 7Verify source

§ 8-SaleofperishedgoodsFORMATION OF THE CONTRACT - 8.- Sale of perished goodsProvision

If specific goods contracted for sale have perished without the seller's knowledge at the time the contract is made, the contract is void.

Section 8.- Sale of perished goods Section Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.

Section 8-SaleofperishedgoodsVerify source

§ 9FORMATION OF THE CONTRACT - 9. Goods perished after agreement to sellProvision

If specific goods agreed to be sold perish without fault before the risk passes to the buyer, the sale agreement is avoided.

Section 9. Goods perished after agreement to sell Section 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.

Section 9Verify source

Part III

EFFECTS OF THE CONTRACT

§ 18EFFECTS OF THE CONTRACT - 18. Transfer of Property as between Seller and BuyerProvision

Property in unascertained goods does not transfer to the buyer until the goods are ascertained.

Section 18. Transfer of Property as between Seller and Buyer Section Property in unascertained goods 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.

Section 18Verify source

§ 19EFFECTS OF THE CONTRACT - 19. Property in specific or ascertained goods passes when intended to passProvision

Property in specific or ascertained goods passes to the buyer when the parties to the contract intend it to pass.

Section 19. Property in specific or ascertained goods passes when intended to pass Section 19(1) 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. Section 19(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.

Section 19Verify source

§ 20EFFECTS OF THE CONTRACT - 20. Rules for ascertaining intention as to timeProvision

When there is an unconditional contract for the sale of specific deliverable goods, ownership of the goods passes to the buyer at the time the contract is made.

Section 20. Rules for ascertaining intention as to time Section 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;

Section 20Verify source

§ 21EFFECTS OF THE CONTRACT - 21. Reservation by seller of right of disposalProvision

The seller may reserve the right to dispose of specific goods until conditions set by the seller are fulfilled; a buyer must return the bill of lading if he does not honour a bill of exchange.

Section 21. Reservation by seller of right of disposal Section 21(1) Where there is a contract for the sale of specific 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; and in that case, notwithstanding the delivery of the goods to a 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. Section 21(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 reserve the right of disposal. Section 21(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.

Section 21Verify source

§ 22EFFECTS OF THE CONTRACT - 22. Riskprima faciepasses with propertyProvision

If delivery is delayed through the fault of either buyer or seller, the goods are at the risk of the party at fault for losses that would not have occurred but for that fault.

Section 22. Riskprima faciepasses with property Section where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party at fault as regards any loss which might not have occurred but for that fault;

Section 22Verify source

§ 23EFFECTS OF THE CONTRACT - 23. Sale by person not the ownerProvision

A buyer does not obtain a better title to goods than the seller had, unless the owner is by conduct precluded from denying the seller’s authority to sell.

Section 23. Sale by person not the owner Section 23(1) Subject to the provisions of this Act, 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. Section 23(2) Nothing in this Act shall affect—

Section 23Verify source

§ 24EFFECTS OF THE CONTRACT - 24. Sale under voidable titleProvision

If a buyer purchases goods in good faith and without notice while the seller's voidable title has not yet been avoided, the buyer acquires a good title to those goods.

Section 24. Sale under voidable title Section When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the 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.

Section 24Verify source

§ 25EFFECTS OF THE CONTRACT - 25. Revesting of property in stolen goods on conviction of offenderProvision

When goods have been stolen and the offender is convicted, ownership of the stolen goods revests in the person who was the owner of the goods or that person's personal representative.

Section 25. Revesting of property in stolen goods on conviction of offender Section 25(1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale or otherwise. Section 25(2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to theft, the property in the goods shall not revest in the person who was the owner of the goods or his personal representative, by reason only of the conviction of the offender.

Section 25Verify source

§ 26EFFECTS OF THE CONTRACT - 26. Resale of goods in certain casesProvision

Resale of goods in certain cases

Section 26. Resale of goods in certain cases Section 26(1) Where a person having sold goods continues or is in possession 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 them in good faith and without notice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make it Section 26(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 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 them 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. Section 26(3) In this section, “mercantile agent” means a mercantile agent having, in the customary course of his business as agent, authority either to sell goods, or to consign goods for the purposes of sale, or to buy goods, or to raise money on the security of goods.

Section 26Verify source

§ 27EFFECTS OF THE CONTRACT - 27. Effect of writs of executionProvision

When a writ of execution is delivered to the sheriff, the sheriff must (without fee) endorse on the back of the writ the hour, day, month and year of receipt.

Section 27. Effect of writs of execution Section 27(1) A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed; and, for the better record of that time, the sheriff shall, without fee, upon the receipt of the writ endorse upon the back thereof the hour, day, month and year when he received it: Provided that no such writ shall prejudice the title to goods acquired by any person in good faith and for valuable consideration, unless that person had at the time when he acquired his title notice that the writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff. Section 27(2) In this section, “sheriff” includes any officer charged with the enforcement of a writ of execution.

Section 27Verify source

Part IV

PERFORMANCE OF THE CONTRACT

§ 28PERFORMANCE OF THE CONTRACT - 28. Duties of seller and buyerProvision

The seller must deliver the goods; the buyer must accept and pay for them in accordance with the contract of sale.

Section 28. Duties of seller and buyer Section It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

Section 28Verify source

§ 29-PaymentanddeliveryconcurrentconditionsPERFORMANCE OF THE CONTRACT - 29.- Payment and delivery concurrent conditionsProvision

Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions: the seller must be ready and willing to give possession of the goods 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.

Section 29.- Payment and delivery concurrent conditions Section Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods 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.

Section 29-PaymentanddeliveryconcurrentconditionsVerify source

§ 30PERFORMANCE OF THE CONTRACT - 30. Rules as to deliveryProvision

Section 30. Rules as to delivery Section 30(1) Whether it is for the buyer to take possession of the 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; and apart from any such contract, express or implied, the place of delivery is the seller’s place of business, if he has one, and if not, his residence: Provided that if the contract is 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. Section 30(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. Section 30(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until the 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. Section 30(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour; and what is a reasonable hour is a question of fact. Section 30(5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

Section 30Verify source

§ 31PERFORMANCE OF THE CONTRACT - 31. Delivery of wrong quantity or descriptionProvision

If the buyer accepts delivered goods that are of wrong quantity or mixed with different goods, the buyer must pay for accepted goods at the contract rate; the buyer may reject or accept in specified ways.

Section 31. Delivery of wrong quantity or description Section 31(1) 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 the contract rate. Section 31(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; and if the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. Section 31(3) Where the seller delivers to the buyer the 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. Section 31(4) The provisions of this section are subject to any usage of trade, special agreement or course of dealing between the parties.

Section 31Verify source

§ 32PERFORMANCE OF THE CONTRACT - 32. Delivery by instalmentsProvision

Unless otherwise agreed, the buyer of goods is not bound to accept delivery by instalments.

Section 32. Delivery by instalments Section 32(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. Section 32(2) Where there is a contract for the sale of goods to be delivered by stated instalments and 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.

Section 32Verify source

§ 33PERFORMANCE OF THE CONTRACT - 33. Delivery to carrier as buyer’s agentProvision

If the seller is authorised or required to send goods to the buyer, delivery to the carrier is prima facie treated as delivery to the buyer; the seller must (unless authorised otherwise) contract with the carrier on the buyer’s behalf reasonably, and the buyer may refuse to treat delivery as his or hold the seller liable if the seller omits to do so and loss or damage occurs; for sea transit the seller must notify the buyer so the buyer can insure, otherwise goods are at the seller's risk during sea transit.

Section 33. Delivery to carrier as buyer’s agent Section 33(1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to the 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. Section 33(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; and if the seller omits 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. Section 33(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances 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 sea transit.

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§ 34-RiskwheregoodsdeliveredelsewherethanatplaceofsalePERFORMANCE OF THE CONTRACT - 34.- Risk where goods delivered elsewhere than at place of saleProvision

If the seller agrees to deliver goods at his own risk to a place other than where they are sold, the buyer must (unless otherwise agreed) bear the risk of deterioration during transit.

Section 34.- Risk where goods delivered elsewhere than at place of sale Section Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.

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§ 35PERFORMANCE OF THE CONTRACT - 35. Buyer’s right of examining the goodsProvision

If goods are delivered which the buyer has not previously examined, the buyer is not treated as having accepted them until he has had a reasonable opportunity to examine them; and unless otherwise agreed the seller must, on request, give the buyer a reasonable opportunity to examine the goods.

Section 35. Buyer’s right of examining the goods Section 35(1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them 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. Section 35(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.

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§ 36PERFORMANCE OF THE CONTRACT - 36. AcceptanceProvision

The buyer is treated as having accepted the goods when he notifies the seller of acceptance, or when the goods are delivered and he acts inconsistently with the seller's ownership, or when he keeps the goods after a reasonable time without notifying rejection.

Section 36. Acceptance Section The buyer is deemed to have accepted the goods when 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.

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§ 37-BuyerisnotboundtoreturnrejectedgoodsPERFORMANCE OF THE CONTRACT - 37.- Buyer is not bound to return rejected goodsProvision

If a buyer lawfully refuses to accept delivered goods, the buyer does not have to return the rejected goods; instead, notifying the seller of the refusal is sufficient.

Section 37.- Buyer is not bound to return rejected goods Section Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.

Section 37-BuyerisnotboundtoreturnrejectedgoodsVerify source

§ 38PERFORMANCE OF THE CONTRACT - 38. Liability of buyer for neglecting or refusing delivery of goodsProvision

If the seller is ready and asks the buyer to take delivery but the buyer does not within a reasonable time, the buyer is liable to the seller for any loss from that neglect or refusal and for a reasonable charge for care and custody of the goods.

Section 38. Liability of buyer for neglecting or refusing delivery of goods Section When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after the request take delivery of the goods, he is liable to the seller for any loss occasioned by 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.

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Part V

RIGHTS OF UNPAID SELLER AGAINST THE GOODS

§ 39RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 39. Unpaid seller definedProvision

Defines when a seller is an "unpaid seller" and states who counts as a "seller" in this Part.

Section 39. Unpaid seller defined Section 39(1)(a) when the whole of the price has not been paid or tendered; Section 39(1)(b) when a bill of exchange or other negotiable instrument 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. Section 39(2) In this Part, “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 been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.

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§ 40RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 40. Rights of unpaid sellerProvision

Sets out rights of the unpaid seller: a lien or right to retain the goods while in possession; stopping the goods in transitu on buyer insolvency; a right of resale subject to the Act; and a right to withhold delivery where property has not passed.

Section 40. Rights of unpaid seller Section 40(1)(a) a lien on the goods or right to retain them for the price while he is in possession of them; Section 40(1)(b) in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; Section 40(1)(c) a right of resale as limited by this Act. Section 40(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.

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§ 41RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 41. Seller’s lienProvision

The seller has a lien on the goods in three specified cases; the seller may exercise that lien even if in possession of the goods as agent, bailee or custodier.

Section 41. Seller’s lien Section 41(1)(a) where the goods have been sold without any stipulation as to credit; Section 41(1)(b) where the goods have been sold on credit, but the term of credit has expired; Section 41(1)(c) where the buyer becomes insolvent. Section 41(2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer.

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§ 42RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 42. Lien after part deliveryProvision

An unpaid seller may exercise a lien or right of retention over the remaining goods after part delivery, unless the part delivery shows an agreement to waive that lien.

Section 42. Lien after part delivery Section Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder unless the part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.

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§ 43RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 43. Termination of lienProvision

A lien ends when the seller delivers the goods to a carrier for transmission to the buyer without reserving disposal rights; when the buyer or his agent lawfully obtains possession; or by waiver.

Section 43. Termination of lien Section 43(1)(a) when he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods; Section 43(1)(b) when the buyer or his agent lawfully obtains possession of the goods; Section 43(1)(c) by waiver thereof.

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§ 44RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 44. Stoppage in transituProvision

If the buyer becomes insolvent, an unpaid seller who has parted with possession may stop the goods in transit and resume or retain possession until payment or tender of the price.

Section 44. Stoppage in transitu Section Right of stoppage in transitu Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller who has 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.

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§ 45RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 45. Duration of transitProvision

Goods are treated as 'in transit' from delivery to a carrier, bailee or custodier for transmission to the buyer until the buyer or the buyer’s agent takes delivery; several clauses define when transit ends or continues (including early receipt, acknowledgement by carrier, rejection by buyer, delivery to a ship chartered by buyer, and part deliveries).

Section 45. Duration of transit Section 45(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land, air or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from the carrier or other bailee or custodier. Section 45(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. Section 45(3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee or custodier 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. Section 45(4) If the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. Section 45(5) When the 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. Section 45(6) 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, unless the part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods.

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§ 46RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 46. Mode of stoppage in transituProvision

The unpaid seller may stop goods in transit either by taking possession or giving notice; if the seller gives notice to the carrier or bailee they must redeliver the goods to the seller and the seller must bear the redelivery expenses.

Section 46. Mode of stoppage in transitu Section 46(1) 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 or custodier in whose possession the goods are; and the notice may be given either to the person in actual possession of the goods or to his principal; and 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. Section 46(2) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller; and the expenses of redelivery must be borne by the seller.

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§ 47RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 47. Resale by Buyer or SellerProvision

The unpaid seller's right of lien, retention or stoppage in transitu is not affected by any resale or other disposition by the buyer, unless the seller has assented; special rules defeat or limit that right when documents of title have been transferred in good faith for value.

Section 47. Resale by Buyer or Seller Section Effect of subsale or pledge by buyer Subject to the provisions of this Act, 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 made, unless the seller has assented thereto: Provided that where a document of title to 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 the 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 the 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.

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§ 48RIGHTS OF UNPAID SELLER AGAINST THE GOODS - 48. Effect on sale of exercise of lien or stoppage in transituProvision

Section 48 preserves the contract of sale when an unpaid seller exercises lien, retention or stoppage in transitu; if such an unpaid seller resells the goods the resale buyer obtains good title; the unpaid seller may resell perishable goods or where notice has been given and the buyer fails to pay within a reasonable time and recover damages; where the seller reserved a right of resale and resells after buyer's default the original contract is rescinded but the seller may still claim damages.

Section 48. Effect on sale of exercise of lien or stoppage in transitu Section 48(1) 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. Section 48(2) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu resells the goods, the buyer acquires a good title thereto as against the original buyer. Section 48(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. Section 48(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, but without prejudice to any claim the seller may have for damages.

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Part VI

ACTIONS FOR BREACH OF THE CONTRACT

§ 49ACTIONS FOR BREACH OF THE CONTRACT - 49. Action for priceProvision

If the buyer wrongfully neglects or refuses to pay, the seller may sue for the price when ownership has passed; alternatively, if the price is due on a fixed day the seller may sue even if property has not passed.

Section 49. Action for price Section 49(1) Where, under a contract of sale, the property in the goods 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. Section 49(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 the price, the seller may maintain an action for the price, although the property in the goods has not passed and the goods have not been appropriated to the contract.

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§ 50ACTIONS FOR BREACH OF THE CONTRACT - 50. Action for non-acceptanceProvision

If the buyer wrongfully refuses to accept and pay for goods, the seller may sue for damages for non-acceptance.

Section 50. Action for non-acceptance Section 50(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. Section 50(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract. Section 50(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 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.

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§ 51ACTIONS FOR BREACH OF THE CONTRACT - 51. Action for non-deliveryProvision

A buyer may sue the seller for damages if the seller wrongfully neglects or refuses to deliver the goods.

Section 51. Action for non-delivery Section 51(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery. Section 51(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. Section 51(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.

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§ 52ACTIONS FOR BREACH OF THE CONTRACT - 52. Right to specific performanceProvision

The court may, on the plaintiff's application, order specific performance of a contract for specific or ascertained goods and may make the decree unconditional or subject to terms; the plaintiff may apply at any time before judgment.

Section 52. Right to specific performance Section 52(1) 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. Section 52(2) The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree.

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§ 53ACTIONS FOR BREACH OF THE CONTRACT - 53. Remedy for breach of warrantyProvision

A buyer is not entitled, solely because of a breach of warranty, to reject the goods; damages are measured by the estimated direct and natural loss from the breach; for quality breaches the prima facie loss is the difference in value; setting off price does not prevent the buyer suing if further damage was suffered.

Section 53. Remedy for breach of warranty Section 53(1) 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 the breach of warranty entitled to reject the goods; but he may— Section 53(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. Section 53(3) In the case of breach of warranty of quality, the 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 had answered to the warranty. Section 53(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.

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§ 54ACTIONS FOR BREACH OF THE CONTRACT - 54. Interest and special damagesProvision

The buyer or the seller may recover interest or special damages when recoverable by law, and may recover money paid if the consideration for the payment has failed.

Section 54. Interest and special damages Section Nothing in this Act 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.

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Part VII

SUPPLEMENTARY

§ 55SUPPLEMENTARY - 55. Variation,etc., of implied rightsProvision

Where a right, duty or liability would arise under a contract of sale by implication of law, that implied right, duty or liability may be negatived or varied by express agreement, by the course of dealing between the parties, or by usage that binds both parties to the contract.

Section 55. Variation,etc., of implied rights Section Where any right, duty or liability would arise under a 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.

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§ 56SUPPLEMENTARY - 56. Reasonable timeProvision

A reference to 'reasonable time' is to be decided as a question of fact.

Section 56. Reasonable time Section Where, by this Act, any reference is made to a reasonable time, the question what is reasonable time is a question of fact.

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§ 57SUPPLEMENTARY - 57. Rights,etc., enforceable by actionProvision

Declared rights, duties or liabilities under this Act may be enforced by action unless the Act provides otherwise.

Section 57. Rights,etc., enforceable by action Section Where any right, duty or liability is declared by this Act, it may, unless otherwise provided by this Act, be enforced by action.

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§ 58SUPPLEMENTARY - 58. Auction salesProvision

Section 58 sets rules for auction sales: lots are treated as separate contracts; an auction sale is complete when the auctioneer announces it; sellers generally must not bid unless a right to bid is notified; reserved prices and rights to bid may be used; if a right to bid is expressly reserved the seller or an authorised person may bid.

Section 58. Auction sales Section 58(1)(a) 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; Section 58(1)(b) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid; Section 58(1)(c) 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 the sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer; Section 58(1)(d) a sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller. Section 58(2) 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.

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§ 59SUPPLEMENTARY - 59. SavingsProvision

Section 59. Savings Section 59(1) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything contained in this Act. Section 59(2) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, 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. Section 59(3) Nothing in this Act shall affect the enactments relating to bills of sale or any other enactment relating to the sale of goods. Section 59(4) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security.

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Goods Act
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3 Nov 1964 · currentEnglish

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