CT 2.8 SALE OF GOODS: PERFORMANCE-ACCEPTANCE AND PAYMENT
By Section 27, the buyer is bound to accept the goods which are delivered in accordance with the contract. The significance being that once he has accepted, he loses his right to rescind.
Section 34 provides that there is no acceptance until the buyer has examined the goods. He should be given a reasonable opportunity of examining the goods.
Section 35 provides certain instances in which acceptance is deemed to have taken place:
- Where the buyer intimates to the seller that he has accepted the goods.
- Where the buyer does any act to the goods which are inconsistent with the rights of the seller.
- Where he retains goods after the lapse of a reasonable time without communicating to the seller that he has rejected the goods.
In Hardy and Co V Hillerns and Fowler, A bought wheat from B. The wheat was delivered to him and he resold it to C on the same day without examining it. A later discovered that the wheat did not conform with the contract. He was prevented from rescinding the contract by the court because (by selling to C) he had done an act inconsistent with the right of the seller (B).
On similar facts the courts have utilised agency to wriggle out of the confusion. In Hammer and Barrow V Coca Cola, it was held that since the contract provided that the sellers were to deliver the goods to a third party, there was nothing done which was inconsistent with the right of the sellers. However, in E and S Ruben V Faire Bros, the court held that in a similar situation, the seller could be seen as an agent of the buyer in delivering the goods to a third party and such delivery amounted to an act inconsistent with the right of the seller. What this simply means that (rather than sue to enforce acceptance) the seller can sue for the purchase price from the third party alleging that the buyer sold on his behalf.
There is a conflict between the provisions of Sections 34 and 35. The Misrepresentation Act of U.K 1967 makes Section 34 superior to Section 35. This is the same position in most other commonwealth countries. Most legal scholars affirm this position. The effect being that the buyer is entitled to reject goods until he has inspected them.
PAYMENT BY THE BUYER.
Section 28 provides that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. The seller should be willing and able to deliver the goods and the buyer should be willing and able to pay. Note that by Section 10, stipulation as to time of payment is generally not of the essence.
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