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Sale and Agreement to Sell

A agrees to buy a haystack from B on Bs land with liberty to come on Bs land to take it away. This is a sale and B cannot revoke the licence given to A to woo on his land. (Wood Vs Manley 1839) Agreement by A to buy 20 tonnes of oil from the sellers cisterns. The seller has many cisterns, with more than 20 tonnes in them. This is merely an agreement to sale. (White Vs Wilks, 1813) Agreement for sale of a quantity of nitrate of soda to arrive at a certain ship. This is an agreement to sell at a future date subject to the double condition of the arrival of the ship with the specified cargo on board. (Johnson Vs Macdonald 1842) In the case of (state of Madras Vs Gannon Dunkerley and Company Limited, 1958) the Supreme Court has held that according to the law, both of England and India, in order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course presupposed capacity to contract, that it must be supported by money consideration, that as a result of transaction, the property must actually pass in the goods. Unless all these elements are present there would be no sale. Transfer of property The parties did not intend to transfer the property in one portion of the stock more than in another, and the law which only gives effect to their intention does not transfer the property in any individual portion(White Vs. Wilks 1813). And the mere fact that an order for the delivery is given by the seller to the buyer, and is lodged by the buyer with a warehouseman, who holds the specified larger stock out of which the goods sold are to be taken, is not sufficient to transfer the property to the buyer.(Laurie & Morewood Vs. Dudin & sons 1926) Thus, where the ascertainment of the goods depends upon their being separated from the bulk by the seller or a third party or the buyer, by their being severed, weighed or measured or some other process, no property can pass until this is done (National Coal Board Vs. Gamble 1959) Identification of the goods In State of karnataka Vs. The West Coast Paper Mills Ltd. AIR 1986 it was held that where under a contract a company was permitted to remove bamboos from the forest area at Rs.10 /- per ton, and the government by a subsequent order enhanced the price to Rs.20/- per ton, it was held that the enhanced rate was no applicable to the bamboos cut although not removed prior to the date of the government order, because on the bamboos being cut and extricated, the goods being ascertained and in a deliverable state, the property had passed to the company.

Specific goods in a deliverable state Sale on the 4th January of a haystack on the sellers land at the price of 145 to the paid on the 4th February, the hay to be allowed to remain on the sellers land until the 1st May: no hay to be cut until the price was paid. The property in the haystack passed on the making of the contract and on the stack being destroyed by fire, the buyer must bear the loss Tarling Vs. Baxter (1827) Sale of a specified number of bushels of oats, the contents of a bin in a warehouse. The seller gives a delivery order to the buyer, addressed to the warehouseman, authorising delivery of the oats tio the buyer, and asking the warehouseman to weigh them,. The warehouseman accepts the order and enters it in his books. The property has passed to the buyer, as the weighing was not necessary to identify the oats or to ascertain the price, but was merely for the satisfaction of the buyer. Swanwik Vs. Sothern (1839)

This section may be illustrated by the following example: Sale of the whole contents of a cistern of oil, the oil to be put into casks by the seller and then taken away by the buyer. Some of the casks are filled in the presence of the buyer, buy before any are removed, or the remainder are filled, filled, fire destroys the whole of the oil. The buyer must bear the loss of the oil which had been put into the casks, the seller that of the remainder .Rugg Vs. Minett (1089) Sale of unascertained goods and appropriation 1. Sale of 20 hogsheads of sugar out sugar out of a larger quantity. The seller fills four hogsheads which the buyer takes away. Subsequently the seller fills sixteen more hogsheads, and informs the buyer of this asking him to come and take them away. The buyer promises to do so. The property has passed to the buyer. 2. Mr A contracts to sell to Mr B a certain quantity of liquor out of a big cask containing a much larger quantity. The required quantity is not separated or bottled. The property in the liquor does not pass to the purchaser. Risk prima facie passes with property

Goods in a house held on lease and belonging to the tenant were sold by auction under conditions expressly providing that all lots should be taken to be delivered at the fall of the hammer, after which time they should remain at the exclusive risk of the purchaser. The rent of the house was in arrear, and after the sale the landlord threatened to distress on these goods; to prevent distress, the auctioneer paid the rent and handed the net proceeds of the sale to the original owner of the goods, the tenant. It was held that the auctioneer had no right to make this deduction, as the property in the goods had passe0d to the

respective buyers and the seller, therefore, had no further interest in them; the auctioneer, in consequence, had no implied authority from him to pay the rent in order to save the goods from distress. Sweeting Vs. Turner (1871) 2. The defendant purchased 975 bales of rice, being the whole contents of a gola, paid earnest money, and took part delivery of the rice. The rest was afterwards destroyed by fire. The property in the whole had passed to him and he was held liable to pay the balance of the price. The Union of India Vs. The West Punjab Factories Ltd. AIR 1966 SC 3. The defendant contracted to purchase 30 tons of apple juice. The plaintiff crushed the apples, put the juice in casks and kept it pending d3elivery. The defendant delayed taking delivery and the juice went putrid and had to be thrown away. The defendant was liable to pay the price; the seller had been in a position to sell the goods elsewhere and acquire other goods for the postponed time of delivery and he had not done so and there was some loss in the meanwhile, the responsibility for the loss would have fallen on him, but in the present case the seller had to keep the goods ready for delivery as and when the buyer proposed to take them. Demby Hammilton & Co. Ltd. Vs. Barden (Endeavour Wines Ltd) 1949 Effect of part delivery

1`. Sale of a quantity of goods lying at a wharf. The seller left an order with the wharfinger to deliver the goods to the buyer, who had paid for them by a bill. The buyer subsequently weighed the goods and took away part of them. This was held to amount to a delivery of the whole of the goods. 2. A ship arrived in port with a cargo of wheat. The master reported her at the Customs House and made an oath that the cargo was for A., the indorsee of the bill of lading. Next day, A made entry of the wheat in his name at the Customs House. Part of the cargo was then delivered to A. This constituted a deliver of the whole. 3. Sale of a stack of hay. The buyer asked the permission of the seller to cut and remove part of the stack, which was granted. The clear intention of the parties being to separate the part delivered of the whole. Rules as to delivery

The section may be illustrated by the following examples :

1. Sale of 12 puncheons of rum, made from molasses, of which 4 were delivered. The buyer pressed for delivery of the remainder, but the seller delayed and in the meanwhile an Act of Parliament was passed prohibiting the distillation of spirits from molasses, and annulling all contracts for the sale of such spirits. The sellers were held liable in damages as having failed to deliver within a reasonable time. Phillips Vs. Blair and Martin (1801) 2. Sale of goods to be sold to be delivered in the last fortnight of March. Delivery is tendered at 9 p.m. on 31 March. It is a question of fact whether this is a reasonable hour. If it is not, there is no delivery, and the buyer may repudiate. Startup Vs. macdonald (1843) 3. Sale of goods for ready money. The seller packs them up in the buyers boxes in the buyers presence, but they remain in the sellers premises. This is not a delivery. Boulter Vs. Arnott (1833) Termination of lien

1. Goods were sold and sent by the sellers at the request of the buyer to shipping agents of the buyer, and were put on board a ship by those agents. Subsequently, they were re-landed and sent back to the sellers for the purpose of re-packing. While they were still in the possession of the sellers for that purpose, the buyer became insolvent. Thereupon the sellers refused to deliver them to the buyers trustee in bankruptcy except upon payment of the price. Held, that the sellers had lost their lien by delivering the goods to the shipping agents, and their refusal to deliver the goods to the trustee was wrongful. Valpy Vs. Gibson 1847 2. Sale of a stack of hay for 86, to be paid for as it is taken away, the whole to be removed by a certain date. Part, but only part, was paid for and removed by a certain date, and two months after that date the seller cut up and used the remainder. By doing so, the seller waived his lien, and the buyer successfully maintained an action against him. Gurr Vs. Cuthbert 1843