CT 2.7 SALE OF GOODS PERFORMANCE-DELIVERY
DELIVERY OF GOODS BY THE SELLER.
Section 62(1) of the Act defines delivery to mean voluntary transfer of possession from one person to another. Delivery may be:
- Constructive (for example handing over the keys to where they are stored).
- Symbolic (for example handing over the document of title).
- By attornement (where a third party intimates to the seller that he hold goods on his behalf).
RULES AS TO DELIVERY.
Delivery shall be governed by the terms of the contract. In the absence of such terms, Section 29- 31 provides:
*** The place of delivery is the seller’s place of business or residence where he has no place of business. If the goods are specific, the place where both parties know the specific goods to be- Section 29(1).
***Delivery must be done at a reasonable time and hour- Section 29(2).
*** Where goods are to be carried by sea and are to be shipped at a certain date, the time of shipment is of the essence. In Bows V Shand; the court held that the buyer was entitled to reject the goods (rice) where it was delivered before the due date (the rice was shipped and delivered on February rather than March and April).
*** If the goods are in possession of a third party, there is no delivery until the third party tells the buyer that he holds the goods on his behalf. (This is called attornment). Section 29(3).
*** If the seller delivers a smaller quantity of goods, the seller may reject the goods or pay for them at the contract price.
*** If the seller delivers larger quantity, the buyer may do any one of the following: *accept the quantity ordered, *accept the whole lot and pay for the extra goods, *reject the whole lot. Section 30. However, a seller may claim the diminis principle (i.e. stating that the suit is trivial) the buyer is advised to accept the quantity ordered. In Shipton Anderson and Co V Weil Brothers, the court held that the excess delivered was so trifling and the buyer was not entitled to reject the goods.
*** Where delivery is mixed, the buyer should accept the goods of the contract and reject the rest that were mixed with it or reject the whole lot-Re Moore V Laundauer, there was a contract for the sale of Australian canned fruit 30 in a case. Some of the cases delivered were 24 in one although the whole consignment was delivered. The court held that the contract goods were mixed with goods of a different description. The seller was entitled to reject the consignment.
*** The doctrine of estoppel can be used to prevent rejection where there has been a waiver of right.
*** DELIVERY BY INSTALMENTS. Unless both parties have agreed to delivery by instalment, the buyer is not bound to accept goods by instalment-Section 31.
- Where the seller breaches a condition on first instalment of an indivisible contract, the buyer can reject it and all subsequent instalments.
- Where the seller is in breach of a subsequent instalment, the buyer may only claim damages. Because some of the goods have been accepted and the combined provisions of Section 35 and 11(1c) would stop him from repudiating-Mapleflock co V Universal Furniture Products.
*** DELIVERY TO A CARRIER.
- Delivery to a carrier under a contract which authorises such, is deemed to be delivery to the buyer- Section 32(1).
- Where the delivery is by sea, the seller should give the buyer sufficient notice to enable him insure the goods- Section 32(2).
- The buyer must in the absence of an agreement to the contrary, take a risk of deterioration necessarily incident to the course of transit.
*** Where the buyer refuses to take delivery within a reasonable time after requested by the seller, he is liable for any loss occasioned by his refusal and any charge for the care and custody of the goods-Section 37.