1

In order to address the issues of this question it important to identify the issues presented before
us. That is the important of s.28 of the Sales of Goods Act of 1895 of Jamaica?
What are the factors which may affect or hinder the performances of the parties under this
section?
Explain the buyers remedies in relation to right to reject and the right to claim damages?

Section1 28 states that: 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 exchange for possession of the goods.

In other words unless there is an agreement to the contrary the delivery of goods and the
payment of the price must take place at the same time, that is the seller must be prepared and
willing to give the buyer ownership of the goods in exchange for the price and the buyer must
also be prepared and willing to pay the price in exchange for ownership of the goods.

For example if B and S enter into a contract for sale of goods; and S, in keeping with the
agreement made, delivers the goods, and B communicates his acceptance he must pay the price
agreed upon delivery. Failure to do so will result in a breach of the contract unless both parties
have agreed otherwise.

Section 30 (1) states that :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; and Section 30(2) stipulates that :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. If the buyer
accepts the whole of the goods so delivered he must pay for them at the contract rate. The
delivery of goods less than or larger than that which was contracted with the seller, may
therefore hinder or affect the buyers performance of paying upon delivery, as he can, on account
of the fact that the goods are not in conformity with the contract, choose to reject the goods.

Section 30(3) states that: 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. Consequently where mixed goods of a different description than that contracted for are
delivered the performance of the buyer may be affected as he can now choose to pay or not to
pay the price upon delivery.

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Done by Henroy Samuels pg.1
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The second issue that will be examined is what are the factors which may affect or hinder the
performances of the parties under this section?

Section 28 of SOGA states that 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" Where there is a seller
breach the Buyer may bring an action for damages for non delivery under s.51. Where there is
a buyer Breach Seller has a range of alternatives depending on the factors of:

(a) Whether property has passed (b), whether payment is a condition of the contract or not (c),
whether there are express terms on remedies (d) whether the market is rising or falling. Delivery
is a technical concept and means the 'voluntary transfer of possession from one person to another
- in most cases affected by the seller allowing the buyer to collect the goods. Delivery in this
technical sense does not necessarily mean physical delivery. The act of delivery includes: (a)
The physical transfer of possession. (b) Constructive delivery , for example by delivering a
document of title such as a bill of lading. (c) By handing over the means of control, for example
the keys to a car. (d) By attornment, where a third party acknowledges that he holds on behalf of
the buyer. Set out in the case Sterns v Vickers. Payment and delivery are concurrent conditions

One hindrance to payment and delivery Anticipatory breach before delivery

Where the buyer clearly indicates before delivery that he will not accept and pay for the goods,
the seller could accept the anticipatory breach, treat the contract as at an end and sue in damages
under s.50 - or for the price if the property in the goods has passed under s.49 (1) or wait until
the time fixed for performance and pursue a remedy against the buyer if he then refuses to accept
and pay for the goods. This is seen in the case2 Fercometal SARL v Mediterranean Shipping Co
SA [1988] 2 All ER 742 "The Simona" Both seller and buyer run the risk in anticipatory breach
situations of supervening illegality or frustration discharging the contract after refusing to accept
the anticipatory breach. This was demonstrated in the case Avery v Bowden (1855) 5 E & B 714

Time of Delivery

The general rule is that stipulations as to time of delivery are of the essence of the contract even
though not expressed to be so in the contract. It is standard, in drafting commercial contracts, to
2
Done by Ron Colman Pg. 2-3
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stipulate that time of delivery is of the essence - if this is what the parties wish. If the seller
delays delivery, the buyer is entitled to treat the failure as a breach of condition and treat the
contract as repudiated. As shown in the case Bowes v Shand and confirmed by the House of
Lords in 3Bunge Corporation v Tradax SA [1981] 2 All ER 513 Where there is wrong quantity
of goods by virtue of Section 30 Sale of Goods Act addresses: (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. (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 reject the whole.

(4) Where the seller delivers to the buyer the goods he contracted to sell assorted with goods of
a different description not incorporated in the contract, the buyer may accept the goods which are
in agreement with the contract and refuse the rest, or he may reject the whole.

De minimis non curat lex applies

In 4Shipton Anderson & Co v Weil Bros [1912] 1 KB 574 Lush J held that an extra 55lbs in
weight on a 4950 ton contract was so slight a variation that the buyer was not entitled to reject.

The de minimis exception is a very narrow one. Under Section 31 Sale of Goods Act where there
is payment by installments: (1) unless otherwise agreed, the buyer of goods is not bound to
accept delivery of them by instalments. (2) Where there is a contract for the sale of goods to be
delivered by affirmed installments, which are to be individually 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 as to 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. A breach in relation to
one installment will amount to a repudiation of the whole contract only where the breach goes to
the root of the contract.

3
Bunge Corporation v Tradax SA [1981] 2 All ER
4
Shipton Anderson & Co v Weil Bros [1912] 1 KB 574
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The test is that in 5Maple Flock Co. Ltd v Universal Furniture Products Co. Ltd [1934] 1 KB
148 - The relation quantitatively which the breach bears to the contract as a whole and the
amount of possibility of breach arising in the future. This is shown in the case Millar's Karri and
Jarrah Co v Weddle, Turner & Co (1908) 100 LT 128 The result of repudiation in this type of
contract is that the injured party of breach is free to refuse further performance, treat himself as
discharged from liability, in spite of acceptance of earlier performance. If delivery of earlier
instalments can be regarded as parts of an inseparable whole - a set of books for example - the
buyer would, arguably, be at liberty to rescind the contract ab initio.

The third issue that will be looked at is the right to reject goods. In order for a buyer to reject the
seller’s goods he must satisfy the following. Once a Seller has presented the goods to the Buyer,
an act known as “tender”1 under the law, it is up to the Buyer to act next.

If t6ender of the goods conforms in every respect to the contract, i.e. type of goods, time of
delivery, method of delivery, etc., then typically the Buyer must accept the goods.2 However, if
there is any defect in the tender of the goods the Buyer has the right to reject the whole lot,
accept the whole lot, or accept any commercial unit or units and reject the rest. This ability of the
Buyer to reject the goods in light of any defect, no matter how slight, is known as the “perfect
tender rule.”3

Of course in certain circumstances the Buyer may want to accept goods that do not conform to
the parties’ contract. The Buyer may do so and often will when the Buyer has made plans in
reliance upon the delivery of the goods by the Seller. To better illustrate the concept of rejection,
we look to the following hypothetical. A Seller and a Buyer enter into an agreement whereby the
Seller will provide the Buyer with 50 blue widgets for the price of $5.00 per widget, to be
delivered on November 1. On November 1 the Seller tenders 50 red widgets at a price of $5.00
per widget. In this situation the goods are nonconforming because the contract provided for blue
rather than red widgets. What are the consequences of this rejection? Once a Buyer has properly
exercised a rightful rejection, it is the Seller who must now act. 4 The Seller is going to have to
arrange to get the goods back. Meanwhile, the Buyer has a duty to hold the goods in safekeeping

5
Maple Flock Co. Ltd v Universal Furniture Products Co. Ltd [1934] 1 KB 148
6
Done by Tiffany Grant Pg. 4-5
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for a reasonable period of time to ensure that the goods are not damaged while awaiting pick up
by the Seller.5

In terms of rejection of goods which states that under s.11 when conditions to be treated as
warranty (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 such condition as a breach of
warranty, and not as a ground for treating the contract as repudiated. (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. A stipulation may be a condition, though called a warranty in the
contract. (3) Where a contract of sale is not severable, and the buyer has accepted the goods, or
part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a
breach of warranty, and not as a ground for rejecting the goods and treating the contract as
repudiated, unless there be a term of the contract express or implied to that

effect. (4) Nothing in this section shall affect the case of any condition or warranty, fulfillment of
which is excused by law by reason of impossibility or otherwise. 12—Implied undertaking as to
title etc In a contract of sale, unless the circumstances of the contract are such as to show a
different intention, there is— (a) 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 a time when the property is to pass; 30—Delivery of wrong quantity (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. (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. If the buyer accepts the whole of the goods so delivered he must pay for
them at the contract rate. (3) Where the seller delivers to the buyer the goods he contracted to sell
mixed with goods of a different description or quality 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. (4) The provisions of this section are subject to any usage of trade, special agreement,
or course of dealing between the parties. 31—Instalment deliveries (1) unless otherwise agreed,
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the buyer of goods is not bound to accept delivery thereof by installments, except in accordance
with the usage of the trade.

Where there is a contract for the sale of goods to be delivered by stated installments, which are to
be separately paid for, and the seller makes defective deliveries in respect of one or more
installments, or the buyer neglects or refuses to take delivery of or pay for one or more
installments, 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. 36—Buyer not bound to return rejected goods 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.

In the case of Page v. Morgan, 1885, 15 Q.B.D. 228; Abbott v. Wol-sey, [1895] 2 Q.B. 977; the
Sale of Goods Act (Ont. s. 13; U.K. s. 11) provides that where a contract of sale is not severable,
and the buyer has accepted the goods, or part thereof, the breach of any condition to be fulfilled
by the seller can only be treated as a breach of warranty and not as a ground for rejecting the
goods and treating the contract as repudiated, unless there be a term of the contract, express or
implied, to that effect. This provision and other provisions quoted in chapter 5, 54, make it clear
that acceptance of the goods does not necessarily prevent the buyer from claiming damages on
the ground that the goods are not in conformity with the contract, and the rule appears to have
been the same at common law.

The effect of the right to reject rejection involves the buyer refusing to perform his duty to accept
the goods. Effective rejection requires an unequivocal indication by the buyer that he intendeds
to reject the goods. It is not necessary that he physically return the goods to the seller, but he
must make the goods available for the seller to repossess them. Rejection by the buyer includes
the following consequences: If the property in the goods has passed to the buyer it revests in the
seller. The risk of the loss of damage to the goods revest in the seller. If the buyer remains in the
possession of the goods after rejection he is in position of involuntary bailee.

7
Page v. Morgan, 1885, 15 Q.B.D. 228;
Abbott v. Wol-sey, [1895] 2 Q.B. 97 Done by Renee Thomas pg 7
 7

In the case of 8Borrowman Phillips & Co. v Free and Hollis (1878) 4QBD 500) – where a right
to re-tender exist in domestic sales where documents do not represent the goods remain
uncertain. If the seller wishes to have the right to ‘cure’ any defective delivery he should thereof
reserve that right expressed in the contract. Alternatively, the buyer may wish to include on
express right of demand cure- for instance by requiring the seller to repair or replace defective
goods.

The fourth issue that will be looked at is the right to claim damages. According to s.50—of the
Sales of Goods Act of 1895 states that Damages for non-delivery (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.

(2) The 9measure of damages is the estimated loss directly and naturally resulting, in the ordinary
course of events, from the seller's breach of contract. (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. 12.12.2008—Sale of Goods Act 1895 states that actions for breach of the contract—Part
5 Remedies of buyer— [12.12.2008] This version is not published under the Legislation
Revision and Publication Act 2002 19 51—Specific performance 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. 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.

52—Remedy for breach of warranty

(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 such breach of warranty entitled to reject the goods; but he may— (a) set up
against the seller the breach of warranty in diminution or extinction of the price; or (b) maintain
an action against the seller for damages for the breach of warranty. (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. (3) In the case of breach of warranty of quality,
such 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. (4) The fact

8
Borrowman Phillips & Co. v Free and Hollis (1878) 4QBD 500)
9
Done by Norlett South- Bourne Pg. 8
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10
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.

53—Interest and special damages 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.

It can be said that any breach of contract by the seller entitles the buyer to damages for losses
caused by the breach. In addition, where the seller commits a breach of a condition or a serious
breach of an innominate term, the buyer may reject the goods and terminate the contract.
Moreover, where the buyer is a consumer and the goods do not conform to the contract at the
time of the delivery the buyer may have addition rights to require the seller to repair or replace
the goods, or to require the seller to reduce the price or to rescind the contract.

S.49 of the Sales of Goods Act states that damages for non-acceptance (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. (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.

Therefore it can be concluded that (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.

10
Done by Shonte Reynolds Pg. 9