Part 1 - Consumer
Lord Denning in Bishopgate Motor Finance Corporation Ltd v Transport Brakes ltd
"in the dev of our law - two principles have striven for mastery. 1st is protection of property. 2nd is the protection of the commercial transaction. need for law to protect commercial transactions - promote commerce - enact laws to allow function
1st Type of Retention clause
'Price only' reservation of title - ownership not pass until the price is paid in full
Munro v Balnagowan Estates
'deliverable state' - buyer enters seller's land to cut down and remove timber - ownership passed to buyer as goods were in a deliverable state - the dispute was around the idea did the buyer have to get them off land before property passed to them? held were in a deliverable state..ownership passed to buyer as goods were in a deliverable state delay of delivery and/or payment are irrelevant
Non-consumer Sales
Rights and remedies under SGA 1979 for 'commercial' and 'private' sales
Consequences of simple nemo dat sale
Rowland v Divall (1923) was a breach of s12 (1) and loss was suffered as a consequence where buyer purchase car but later on was revealed it was stolen and buyer sued to recover the price...allowed to claim entire purchase price.
Rule 4
Rule 4.—When goods are delivered to the buyer on approval or on sale or return or other similar terms the property in the goods passes to the buyer:— (a)when he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b)if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of that time, and, if no time has been fixed, on the expiration of a reasonable time.
Regulation of contracts for supply of goods to consumer by traders
- consumer
Characteristic elements of Sale of Goods contract
- contract - seller and buyer - conveyance of property - goods - price
Purpose of SOGA
- impacts property law - impact in contract law - as act - seek to reg property aspects
Time
- of the essence s10 SoGA - Stipulations about time. (1)Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not of the essence of a contract of sale. (2)Whether any other stipulation as to time is or is not of the essence of the contract depends on the terms of the contract. (3)In a contract of sale "month" prima facie means calendar month. s10 assumption time is not of essence unless parties made it such in their contract. This can be important in respect of remedies
Agreement on Price
- price necessary - may be agreed by parties or fixed by the contract s8 SoGA Ascertainment of price. (1)The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner agreed by the contract, or may be determined by the course of dealing between the parties. (2)Where the price is not determined as mentioned in sub-section (1) above the buyer must pay a reasonable price. (RE - course of dealings)....CRA is silent on this. (3)What is a reasonable price is a question of fact dependent on the circumstances of each particular case.
Exception 4 - Buyer in Possession after sale
- s25 - buyer in possession after sale s25 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 the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, has 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 - Buyer in possession of the goods after the transaction, but ownership is still with the seller - sale completed..property not yet passed, buyer in possession of goods and sells them on. - non owner buyer is in possession - seller may have a retnetion under s19 - 19 Reservation of right of disposal. (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 such a 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. - BE RECALLED. - Ownership transfers when parties intend it to pass under s17 - buyer in possession can give good tilte to a 3rd party - 3rd party must act in good faith and with no notice of the sellers rights sub - buyers are protected if the buy in good faith
Supply of goods
- sale - barter - gift - work and material supplied - vouchers - HP agreement - lease
Gowans (Cockburns Tr) v Bowe and Sons 1910
- sale of potatoes - potatoes ready the farmer would dig them up and put them in pits on farm "i sell you my entire potato crop growing this season at price of... agree to lift, pit and drive them to the station or harbour, and supply all straw necessary - look at actions, who had to do what? - held, in the circs unable to regard such carting as something to be done to put goods in del state - according to intention of parties here, the carting was, I think, only a facility for removal after delivery
s17 (1) basic rule of transfer of ownership
17 Property passes when intended to pass. (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. - ownership in goods passes when parties intend it to pass - presumptive default rules re passing property - if after looking at contract cant work it out - go back to legislation and look at s18 about how objectively interpret parties intention
Dev. of sale of goods
1893 - 1st enactment of SoGA - distinguished provisions in relation to Scotland - applies to whole of UK - Scotland voluntarily opted in - 1979 - intro of SoGa - 2015 - chnage in structure of law in relation to treatment of consumers - consumers uplifted from SOGA - given own legislation
Hendy Lennox (Industrial Engines) Ltd v Grahame Puttick Ltd
3 generators - seller identify each generator with customer name -court found 2 generators attached to contract uncond and 1 had not. difference was 2 of them had invoices - been prepared and sent (clearly identified the machine) distinction - seller done something else than simply put name on machine - as result property passed - appropriation not happen when generators set aside and names of customers added instead - appropriation happened when invoices were sent and delivery notes/invoices were sent to the customers.
s18 Rules
= 5 rules in determining intention
unconditional appropriation
= no strings attached
Macleod v Kerr
A sold car to B B paid for car with a stolen cheque - fraud B sold car to C was an action for multiple poiding (who gets what) Decided the car to go to C as the voidable contract was not attacked in time the money stolen gave A right to cancel the contract entered in to B = voidable A not act quickly enough to do this B was allowed to proceed sale with C - seen as appropriate for C to obtain proper title.
Who bears risk?
Buyer or seller?
Exception 1 - Doctrine of personal bar s21 (1)
Buyers title is unchallengeable where, the owner of the goods is by his conduct precluded from denying the seller's authority to sell
Rule 2
Seller under duty to put goods in a deliverable state
Classification of goods
CRA s 5 (2) Existing vs future goods (1)A contract is a sales contract if under it— (a)the trader transfers or agrees to transfer ownership of goods to the consumer, and (b)the consumer pays or agrees to pay the price. (2)A contract is a sales contract (whether or not it would be one under subsection (1)) if under the contract— (a)goods are to be manufactured or produced and the trader agrees to supply them to the consumer, (b)on being supplied, the goods will be owned by the consumer, and (c)the consumer pays or agrees to pay the price. Existing goods - goods owned or possesses by seller at time of sale Future goods - goods to be manufactured (or acquired by the seller AFTER contract is made
a) unconditional appropriation
Carlos Federspeil and Co v Charles Twigg and Co ltd, at 255 Pearson J stated " a mere setting apart or selection of the seller of the goods which he expects to use in performance of the contract is NOT enough. If that is all, he can change his mind.." is the intention to ATTACH the contract IRREVOCABLY to the goods..no others...cant take them back. usually the last act the seller is bound to perform - Carey Miller with Irvine held in Carlos Federspeil that... "to constitute an APPROPRIATION of goods...parties have had to reasonably supposed to have had an INTENTION to attach the contract IRREVOCABLY to the goods.
Brown Bro's v Carron Co
Carron contracted to buy a crane from Brown , but it was agreed to - be modified by the seller. Carron then decided not to buy crane..alterations not yet been made. - ownership not passed to the buyer seller not made changes to crane and so the crane was not in a deliverable state - from point of view of seller - seller be compelled to re-sell to someone else. - difference had over crane and get cash for breach of contract
s21 (1)
Subject to this Act, where goods are sold by a person who is not their owner, 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. = NEMO DAT QUAD NON HABET
Could money be a corporeal moveable?
Eng case re digital content - held in english digital content not a good for purpose of SoGA CRA = broader definition - purpose of CRA to protect society/consumer rather than regular type of transaction - currency exchange transaction is not a good however if buying coin from Royal Mint - not be excluded - if collectible fall within 'good'
Auction s2 (5) CRA
For the purposes of Chapter 2, except to the extent mentioned in subsection (6), a person is not a consumer in relation to a sales contract if— s2 (5) (a)the goods are second hand goods sold at public auction, and (b)individuals have the opportunity of attending the sale in person. - market overt = buyer beware not the same overall protection as a consumer s2 (6) A person is a consumer in relation to such a contract for the purposes of— (a)sections 11(4) and (5), 12, 28 and 29, and (b)the other provisions of Chapter 2 as they apply in relation to those sections.
Rule 4
Goods delivered on approval etc about giving a trial period 'where goods are delivered to the buyer on APPROVAL or ON SALE OR RETURN..property passes to the buyer
SoGA s16 Property Provision
Goods must be ascertained. [Subject to section 20A below] 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. - covers all sales (consumer and non consumer) no property until goods ascertained Rules in s20A about goods in bulk - ownership not pass til goods are ascertained. - become owner when identified
Seller's Title
Implied term - features even if not expressly mentioned in the contract s12 SoGA The seller represents that she has the right to sell the goods - just cos sell something not mean own it - infer that seller has the right to sell the goods - seller may not be owner, then they need to have right for other reason (may be agent, personal bar etc) - misrepresentation by the buyer - breach of contract
Rule 3 is only applicable if the duty is on the seller
Kennedy's Tr v hamilton & Manson
s31 (1) (k)
Liability that cannot be excluded or restricted (1)A term of a contract to supply goods is not binding on the consumer to the extent that it would exclude or restrict the trader's liability arising under any of these provisions— (k) section 29 (passing of risk). Fundamental idea is protection of consumers SoGA - equal parties should be able to enter in to agreements that suit them - SoGA provide default provisions compared to CRA = safety net provisions.
Quiet Possession
Microbeads case compare with Niblett
NEMO DAT QUAD NON HABET
No one can give better title than the one has himself
Relevance of auction to a consumer to risk?
None Risk is treated in same way, whether a private bargain or an auction sale to a consumer. Key Principle - risk lies with the trader until the consumer has physical possession of the goods Directive 2011/83/EU on consumer rights - Article 20
CRA
October 2015 whether consumer or non consumer (Non consumer - B2B or Private Sale) (Business to consumer) (Consumer to Consumer) SoGa continues to regulate private sales
Rule 5 (4) similar
Paragraph (3) above applies also (with the necessary modifications) where a bulk is reduced to (or to less than) the aggregate of the quantities due to a single buyer under separate contracts relating to that bulk and he is the only buyer to whom goods are then due out of that bulk.]
CRA 2015 s29 - passing of risk
Passing of risk (1)A sales contract is to be treated as including the following provisions as terms. (2)The goods remain at the trader's risk until they come into the physical possession of— (a)the consumer, or (b)a person identified by the consumer to take possession of the goods. (3)Subsection (2) does not apply if the goods are delivered to a carrier who— (a)is commissioned by the consumer to deliver the goods, and (b)is not a carrier the trader named as an option for the consumer. (4)In that case the goods are at the consumer's risk on and after delivery to the carrier. (5)Subsection (4) does not affect any liability of the carrier to the consumer in respect of the goods. (6)See section 2(5) and (6) for the application of this section where goods are sold at public auction.
Interaction with s25 - buyer in possession after sale
protects 3rd parties buying goods and not aware of retention of title clauses - sub-buyer has to act in good faith - buyer activity might also operate to defeat the seller's title e.g. accession - good faith purchaser - nemo dat exception applies - so they will get title - resistance of title clause counts for nothing - not prevent sub-buyer gaining proper title to goods
Retention of title - all sums due
reservation of title ownership not pass until the price and other debts from the buyer to the seller are paid in full - property not pass in goods until all outstanding debts are paid up - extends beyond purchase price.
Retention of title clauses
s17 - gen position property passes when intended to s19 - reservation of the right of disposal - seller can retain ownership of the goods until some condition is satisfied = 2 types of clauses
Exception 2 - Mercantile Agents
s2 (1) Factors Act 1889 as applied to Scotland by Factors (S) Act 1890 - mercantile agent (def in s1)) can pass a good tile to the buyer. - where mercantile agent is, WITH CONSENT of owner, in possession of the goods..any sale...made by him when acting in ord course of business of a mercantile agent..be VALID as if it were expressly authorised by the owner of the goods. so a mercantile agent can pass good title to a buyer a mercantile agent in possession of goods, is in possession to sell them - is a reasonable assumption.
Contract for sale
s2 (1) SOGA 1979 - contract of sale of goods is contract - seller transfers/agree to transfer of property in goods to buyer for a money consideration.
Exceptions: where risk NOT transferred with ownership
s20 (2) if there has been a DELAY in the delivery of goods and the delay is the fault of one of the parties
Exception 3 - Where seller continues to be in possession after sale s24
s24 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 the same in good faith and without notice of the previous sale, has the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. - seller in possession can pass a good title to 2nd buyer - A (seller) sells goods to buyer no.1 but keeps possession of the goods - A sells same goods to buyer no.2 - Buyer no.2 becomes owner provided he bought in good faith and there is no notice of a prior sale *Seller MUST be in POSSESSION @ time of sale to buyer no.2
When are goods in deliverable state?
s61 (5) SOGA - 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. - so buyer has obligation to take delivery - seller done everything need to do then there is contractual obli to take them
Object of a sale
sale must provide the buyer with a good (unchallengeable) title to the goods sold in exchange for the price - seller under an implied duty to supply goods which she has the right to sell. >s 12 (1) SoGA In a contract of sale, other than one to which subsection (3) below applies, there is an implied term on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass. >s17 (1) (b) CRA Every contract to supply goods, except one within subsection (4), is to be treated as including a term— (b)in any other case, that the trader must have the right to sell or transfer the goods at the time when ownership of the goods is to be transferred. HOWEVER...not mean the seller must be owner, rather the seller must have a right to sell. s12 (2) SoGA and s17 (2) CRA the seller promises that the goods are free and will remain free until ownership passes from any, CHARGE or INCUMBERANCE not disclosed or known to the buyer BEFORE contract was made. > s12 (2) SoGA In a contract of sale, other than one to which subsection (3) below applies, there is also an implied term that— (a)the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made, and (b)the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known. > s17 (2) CRA Every contract to supply goods, except a contract for the hire of goods or a contract within subsection (4), is to be treated as including a term that— (a)the goods are free from any charge or encumbrance not disclosed or known to the consumer before entering into the contract, (b)the goods will remain free from any such charge or encumbrance until ownership of them is to be transferred, and (c)the consumer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known.
Rule 1
sale of Specefic item ready for delivery - where there is an unconditional contract for sale of specefic goods in a deliverable state - the property in the goods passes to the buyer when the contract is made. - uncond'l contract means not subject to something - specefic goods - object of purchase fits - deliverable state - courts interpret the meaning
Archivent Sales & Dev ltd v Strathclyde Regional Council
seller delivered goods on credit to a contractor who was building a school contractor sold goods to school ownership passed to school as acquired goods in good faith
Rule 5 (2) Considerations
seller not w/o other remedies after ownership has passed > consider a lien (property interest) s41 (1)Subject to this Act, 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:— (a)where the goods have been sold without any stipulation as to credit; (b)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 lien or right of retention notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer. > consider stoppage in transit - s44 Right of stoppage in transit. Subject to 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 transit, 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. The way it interacts with retention of title is crucial
Price only reservation
seller physically hands over goods. - hanging on to ownership until buyer actually pays - recognised at common law - Care Miller and Stair - situation in the Archivent case clause provided until payment of the price in full is recieved by the company - the property in the goods supplied by the company shall not pass to the customer.
SoGA s2 (1) contract of sale of goods is contract
seller transfers/agree to transfer property in good to buyer for a money consideration
Nanka Bruce v Commonwealth Trust
selling sacks to 1st buyer - Arrangement 1st buyer then on-sell goods to 2nd buyer - 2nd buyer would weigh the goods and decide how much payment be made then 1st buyer transfer the money back to original seller chain of sales - 1st buyer purchase price applied to debt he owed to the seller - seller sued 2nd buyer claiming still owned goods on basis still needed to be weighed and therefore property had not passed court found rule 3 applies only to action specifically on seller. as property had passed from 1st buyer to 2nd buyer therefore, allowed to keep goods as owned them. sub buyer had to weigh the goods, court held rule 3 did not apply- weighing not a condition precedent and it was sub-buyer weighed the goods and not the seller.
Co-ownership of bulk goods
ss20A and 20B - ownership angle of this scenario where there is: - an identified bulk - a specified quantity and - some or all of the price has been paid - auto co-ownership
Agreement on subject matter
subject matter must be goods SoGA s 61 (1) "goods" includes all personal chattels other than things in action and money, and in Scotland all corporeal moveables except money; and in particular "goods" includes 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; [F76and includes an undivided share in goods;] CRA s 2 (8) "Goods" means any tangible moveable items, but that includes water, gas and electricity if and only if they are put up for supply in a limited volume or set quantity. > both = wide definitions
If actual intention of buyer and seller cannot be determined by the court from the contract,
the intention of the parties will be inferred by applying the various 'intention rules' set out in s18
Morison v A & D F Lockhart
timber not in a deliverable state pre-severance
General rule of NEMO Dat subject to a number of exceptions
to protect innocent buyers title from being challenged by the original owner. Reasons: could be the owner has contributed to the situ, or circs are such the law does protect a certain transaction
Main aim of sale of goods contract is to
transfer ownership of the goods from seller to buyer
Clear distinction in SoGA between transferring possession and
transferring ownership sale = transferance of property
By transferring property it means
transferring ownership in SOGA
Rule 2
what kind of duty - the seller envisage
section 6
where there is a contract for the sale of specific goods and the goods without the seller knowing have perished at the time the contract is made then the contract is VOID. - where items perish, entered in to contract s6 determined the contract is void - has no effect
Perish before sale but after 'agreement to sell' - s7
where there is an agreement to sell specific goods and the goods without the fault of the seller or the buyer perish before the risk passes to the buyer then the contract is avoided. Also s2 CRA 2015
Where there is a contract for the sale of specefic goods and the seller is bound to do something to the goods for the purposes of putting them in a deliverable state,
The property DOES NOT PASS UNTIL THE THING IS DONE AND THE BUYER HAS NOTICE THAT IT HAS BEEN DONE.
Different rules for consumer contracts in CRA 2015 >> s20 (4) SogA steers to
This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 29 of that Act).
s17 (2)
Transfer of ownership - for purposes of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circs of the case.
Rule 5
Unascertained goods
s20 (1) risk follows ownership unless the parties agree to something different
Unless otherwise agreed, the goods remain at the seller's risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyer's risk whether delivery has been made or not.
Rule 5 (1)
Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer; and the assent may be express or implied, and may be given either before or after the appropriation is made. the definition of future/unascertained goods is found in s61 (1) future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale; Unascertained goods - goods not been identified and agreed on at time of contract
Rule 5 (2)
Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is to be taken to have unconditionally appropriated the goods to the contract. = RETENTION of TITLE clauses
Kirham v Attenborough
a manufacturer of jewellery sold goods on sale or return to Y. - they were then pawned to Attenb, - ownership passed to Y when he pawned the jewellery - inconsistent act: pledge (pledging security to someone else acting as though Y not owner) - 1st check the contract then s18 and interpret the rules
There are 2 prerequisites for transfer of ownership under 5 (1)
a) unconditional appropriation b) Assent of non-appropriating party assent can be express or implied and pre or post appropriation - no fixed nature to what the assent needs to look like
Armour v Thyssen
all goods delivered by us remain our property until all debts owed to us are settled debts owed to companies, being members of our combined group are deemed to be such debts - broad clause- all debts over whole company group eventually HoL held this was a valid 'all sums' clause
Brown v Marr
any act adopting the transaction...eg. she sells teh goods, lend/hires the goods - after an on-sale, buyer-on-approval is no longer able to ex right to return goods
Demby Hamilton
apple juice destroyed and there was a delay in the buyer taking delivery of the juice. the seller could claim for the price of the apple juice which went off. property hadn't passed. assumption property with seller. apple juice unsellable and so buyer tried to say we don't have to pay. seller said they did as risk had passed to buyer because was buyers fault that they had not collected them. took the risk so still obliged to pay purchase price. buyer loses, still has to pay even though not receive goods.
Rule 5 (3) goods forming part of bulk
appropriation by exhaustion Where there is a contract for the sale of a specified quantity of unascertained goods in a deliverable state forming part of a bulk which is identified either in the contract or by subsequent agreement between the parties and the bulk is reduced to (or to less than) that quantity, then, if the buyer under that contract is the only buyer to whom goods are then due out of the bulk— (a)the remaining goods are to be taken as appropriated to that contract at the time when the bulk is so reduced; and (b)the property in those goods then passes to that buyer.
b) assent of non appropriating party
asset can be express or implied and pre or post appropriation
Microbeads
buyer bought road marking machines in early 70's meanwhile a patent process was ongoing which neither buyer or seller knew about - patent published then granted after contract made - 3rd party sued buyer for breach of patent buyer sued seller for breach of s12 (1) s12 (2) equivalents in 1893 Act.re right to sell and quiet possession held there was no of 12 (1) he did have right to sell but there was a breach of 12 (2) that he did not pass quiet possession. the buyer was left in a position where if he used the machine he would be infringing the patent.
Can separate ownership and risk
can require the buyer to insure the goods as soon as the contract is made and before ownership has passed.
Consumers
consumer scenario in s29 CRA '15 29Passing of risk (1)A sales contract is to be treated as including the following provisions as terms. (2)The goods remain at the trader's risk until they come into the physical possession of— (a)the consumer, or (b)a person identified by the consumer to take possession of the goods. (3)Subsection (2) does not apply if the goods are delivered to a carrier who— (a)is commissioned by the consumer to deliver the goods, and (b)is not a carrier the trader named as an option for the consumer. (4)In that case the goods are at the consumer's risk on and after delivery to the carrier. (5)Subsection (4) does not affect any liability of the carrier to the consumer in respect of the goods. (6)See section 2(5) and (6) for the application of this section where goods are sold at public auction.
Consumer/Trader situations
contract ends at point goods perish s6 goods didn't exist when enter contract so treat contract as not having existed s7 goods did not exist but before risk has passed they have now ceased to exist...so contract is avoided
Underwood v Burgh Castle Brick & Cement Syndicate
feb - 30 ton condensing machine sold contract stated that the seller had to disengage the engine from its concrete bed and put it on the train August - engine was damaged when it was loaded on to the train ownership not pass to the buyer Lord atkin, "the vendors were bound to do something to the engine for the purpose of putting it in to a deliverable state - i.e. to detach it; take to pieces in order to put it on rail - not properly effected - ownership not passed.
Capacity
general rules about this apply <16 and 16-18 s3 (1) SoGA says capacity is determined by the general law of contract
Seller's Title
if seller not have right to sell? s21(1) buyer acquires no better title than the seller unless.....meets an exception to the rule
SoGA
intends to regulate the sale of goods, gets trickier where consumers have their own legislation SOGA is subset of contract law
Rules 3 and 4 (Goods forming part of bulk)
introduced in 1995 prior to that, anonymous part of a bulk was not appropriated and therefore no property could pass. - while goods being shipped, purchases sell their shares and then they sell their shares commodities (string transactions - buy and sell rules introducing to settle disharmony in law
Rule 5
is a big section Sale of Goods Act problem and solution - transfer of property requires physcial delivery - pass one to other (used to be) - never could deliver unascertaned goods at common law SoGA - conceptual idea can deliver property in unascertained goods.
Exception 5 - Accretion
is a technical property law doctrine - B sells to C, even though A is owner - A later sells to B - The earlier sale is retrospectively validated
Niblett case:
labelling of tins infringed a well known trademark. - It did not come with quiet possession - the owners not have the right to sell. - all 3 judges said was a breach of right to sell - Lord Atkin also said was a breach of quiet possession... agreed that seller not passing title of property free from other claims
Rule 3
necessary weighing etc by the seller
Parties
need to agree on the subject matter and price or at least a method of fixing the price
As s16 states
no ownership is transferred unless and until goods are ascertained. rule 5 is an exception to this rule
Voidable title
not actually a nemo dat situation as holder of voidable title IS OWNER person entitled to challenge that voidable title might be barred from challenging a buyers title if they not taken sufficient steps to reduce the original contract. buyer acting in good faith and w/o notice of the sellers defective title will get a good - unchallangeable title - s23 23 Sale under voidable title. When the seller of goods has a voidable title to them, 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.
Deutz Engines v Terex
not initially accepted by Scot courts - arg of Supreme courts all sums clause was tantamount to setting up security interest over the goods - 1980's cases - clause was tantamount to setting up security interest over the goods - 1980's cases clause struck down where try to est security interests in a different way
Eastern Distributors v Goldring
original owner acted as though seller had right to sell. - because of personal bar/estoppel... s21 (1) unable to deny thay they had auth to sell - contrib to situation - if buy good argument re exceptions of nemo dat