Sale Of Goods Act, 1930

[Act No. 3 of Year 1930]

 Course Content

Sale of Goods Act, 1930: Meaning of Sale

and Goods, Essentials of Contract of Sale,
Sale & Agreement to Sale, Conditions &
Warranties, Doctrine of Caveat Emptor
and emerging Concept of Caveat Vendor,
Transfer of Property, Rights of Unpaid
Seller
 Sale and agreement to sell
[Sec 4]
A contract of sale of goods is a contract whereby the seller transfers
or agrees to transfer the property in goods to the buyer for a price.
Essentials of a Contract of sale:
At least two parties
There may be a contract of sale between one part-owner and another.
Transfer or agreement to transfer ownership of goods
The subject matter of the contract must necessarily be goods.
The consideration is Price.
A contract of sale may be absolute or conditional.
All other essential elements of a valid contract must be present.

Where under a contract of sale the property in the goods is transferred from
the seller to the buyer, the contract is called a sale, but where the transfer of
the property in the goods is to take place at a future time or subject to some
condition thereafter to be fulfilled, the contract is called an agreement to
sell.
An agreement to sell becomes a sale when the time elapses or the
conditions are fulfilled subject to which the property in the goods is to be
transferred.
SALE AND AGREEMENT TO SELL
DISTINGUISHED

A contract of sale includes both sale and an agreement to

sell. These two, however, are legally different. And the fact
whether the transaction is a sale or an agreement to sell
determines the rights and obligations of the parties to a
contract of sale. The distinction between the two is therefore,
of principal significance which can be discussed under the
following heads:
1. Transfer of ownership
2. Nature of contract executed and executory
3. Nature of rights of buyer- jus in rem (right to claim the goods
against anybody) and jus in personam (right against person for
default of fulfilment of promise)
4. Consequence of breach by buyer
5. Risk of Loss
6. Insolvency of the seller
7. Insolvency of the buyer
 Sale Distinguished from other
Similar Transactions
Sale and Hire-purchase Agreement
Agreement for hire with an option to purchase
Bailment plus an agreement to sell

Sale of Goods distinguished from Work and Labour

Sale contemplates the delivery of goods, but in the latter the
substance of the contract is the exercise of skill and labour, and
the delivery of goods is only subsidiary.

Sale and Barter

Transfer of ownership of one thing is in return for transfer of
another thing.
 Goods & their classification
"goods" means every kind of moveable property other than
actionable claims and money; and includes stock and shares,
growing crops, grass, and things attached to or forming part of the
land which are agreed to be severed before sale or under the
contract of sale.

Classification of Goods
Existing goods: owned or possessed by the seller at the time of sale
Specific goods: identified and agreed upon at the time a contract of sale is
made.
Ascertained goods: means identified in accordance with the agreement
after a contract of sale is made.
Generic and Unascertained: goods not specifically identified but indicated
by description and may form part of a lot.
Future goods: goods to be manufactured or produced or acquired by the
seller after making the contract of sale.
Contingent goods: Future goods the acquisition of which by the seller
depends upon a contingency which may or may not happen.
Price
Price: Money Consideration for sale of the goods.
9. 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 manner thereby agreed or may be determined by the
course of dealing between the parties.
(2) Where the price is not determined in accordance with the foregoing
provisions, the buyer shall pay the seller a reasonable price. What is a
reasonable price is a question of fact dependent on the circumstances of
each particular case.
10. Agreement to sell at valuation
(1) Where there is an agreement to sell goods on the terms that the price is
to be fixed by the valuation of a third party and such third party cannot or
does not make such valuation, the agreement is thereby avoided;
PROVIDED that, if the goods or any part thereof have been delivered to,
and appropriated by, the buyer, he shall pay a reasonable price therefor.
(2) Where such third party is prevented from making the valuation by the
fault of the seller or buyer, the party not in fault may maintain a suit for
damages against the party in fault.
 Contract of sale
Contract of sale how made [Sec 5]

A contract of sale is made by an offer to buy or sell

goods for a price and the acceptance of such offer. The
contract may provide for the immediate delivery of the
goods or immediate payment of the price or both, or for
the delivery or payment by installments, or that the
delivery or payment or both shall be postponed.

Subject to the provisions of any law for the time being in

force, a contract of sale may be made in writing or by
word of mouth, or partly in writing and partly by word of
mouth or may be implied from the conduct of the parties.
 CONDITIONS AND WARRANTIES
Stipulations: Terms on which parties agree
Some may be intended by parties of a fundamental nature, the breach of which
is regarded as breach of whole contract.
Some may be intended by parties to be binding, but of a subsidiary or inferior
nature, the breach of which does not put an end to the contract but will make the
party committing the breach, liable in damages.
The former are called conditions and the latter warranties

Condition and warranty [Section 12]

(1) A stipulation in a contract of sale with reference to goods which are the
subject thereof may be a condition or a warranty.
(2) A condition is a stipulation essential to the main purpose of the contract,
the breach of which gives rise to a right to treat the contract as repudiated.
(3) A warranty is a stipulation collateral to the main purpose of the contract,
the breach of which gives rise to a claim for damages but not to a right to
reject the goods and treat the contract as repudiated.
(4) Whether a stipulation in a contract of sale is a condition or a warranty
depends in each case on the construction of the contract. A stipulation may
be a condition, though called a warranty in the contract.
 CONDITIONS AND WARRANTIES
When condition to be treated as warranty [Sec:14]
(1) Where a contract of sale is subject to any condition to be fulfilled by the
seller, the buyer may waive the condition or elect to treat the breach of the
condition as a breach of warranty and not as a ground for treating the
contract as repudiated.
(2) Where a contract of sale is not severable and the buyer has accepted
the goods or part thereof, 5[***] 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 is a term of the contract, express or implied, to that effect.

Types of Conditions and Warranties

Express: when the terms of Contract expressly provide for them
Implied: when the law deems their existence even without actually having
been put in the contract.
An implied condition or warranty may be negatived by an express term
to the contrary.
Section 62 recognizes the maxims:
Expressum facit cessare tactum: What is express makes what is implied to
cease.
Modus et conventio vincunt legem: Custom and agreement overrule law.
 Implied Conditions and Warranties
Implied Conditions:
Deems to be incorporated in every contract
unless the terms of contract show a
contrary intention.
Condition as to title: must have Right to
sell at the time property has to pass

Sale by description, or by sample as

well as description: must correspond
 Implied Conditions and Warranties
Implied Conditions:
Condition as to quality or fitness: as a general rule, the buyer is
supposed to satisfy himself about the quality of goods
purchased and also he is charged with responsibility of seeing
that the goods suit the purpose for which he buys them.
Exceptions:
Where the B, expressly or by implication, makes known to the S
the particular purpose for which the goods are required so as to
show that the B relies on the sellers skill or judgment, and the
goods are of a description which it is in the course of sellers
business to supply.
Exception does not apply where the specific goods are sold under their patent or
trade name.
Where goods are bought by description from seller who deals in
goods of that description than the goods should be of a
merchantable quality (free from latent defects).
Where B has examined the goods, there shall be no implied condition as regards
defects which such examination ought to have revealed.
A condition as to fitness for a particular purpose or as to quality
also arise on account of a custom of trade.
 Implied Conditions and Warranties
Merchantable quality: must be saleable in the market under the
denomination mentioned(Gardner V. Grey). (No implied warranty
where Examination by the Buyer- latent defects- Facts canceled from
the seller)

Sale by sample
Bulk to correspond with sample in quality
Buyer to have reasonable opportunity to compare the bulk with sample
Goods to be of merchantable quality (defects not apparent on reasonable
examination of sample)
Condition as to wholesomeness
In the case of eatables in addition to be of merchantable quality the goods
need to be wholesome.

Implied Warranties
Warranty of quit possession- right of enjoyment or possession is not
disturbed
Warranty of freedom from encumbrances- free from any charge in
favor of a third person.
Warranty as to particular quality and fitness by usage of a trade.
Warranty to disclose dangerous nature of goods.
 Doctrine of caveat emptor
Caveat Emptor means Let the buyer beware. In other words,
it is no part of the sellers duty to point out defects of his own
goods. The buyer must inspect the goods to find out if they
will suit his purpose.
Exceptions
Seller makes a falls representation and buyer relies on that
representation.
Seller actively conceals the defect in the goods, so that on
reasonable examination the same could not be discovered.
Buyer informs seller about the purpose for which he is buying, and
seller happens to be a person whose business is to sell goods of
that description.
In case of sale by description, there is an implied condition as to
their being of merchantable quality. (examination- hidden or latent
defects)

CAVEAT VENDOR = "Let The Seller Beware"

 Transfer of property
Property in goods mean ownership of goods
Possession of goods refers to the custody of
the goods
Knowing about, when does the property in the
goods pass from the seller to the buyer?, is
important because:
Risk (loss or damage)follows the ownership.
Owner has a right to take action if goods are damaged
by third parties.
Claim of the goods in case of insolvency
Suit for the price
When does the property pass from seller to buyer?
The property is transferred at such time as the parties intend to be
transferred. The intention is ascertained from the terms of the contract, the
conduct of the parties and the circumstances of the case. Unless the
contrary intention appears following rules are applied for ascertaining the
intention:

Specific goods in deliverable state: at the time when contract (unconditional)

is made (Sec 20)
goods are said to be in a "deliverable state" when they are in such state that the
buyer would under the contract be bound to take delivery of them 2(3)

Specific goods not in a deliverable state: to which something has to be done

by the seller to put them in a deliverable state, property passes only when
such thing is done and the buyer has a notice thereof. (Sec 21)

Where there is a contract for the sale of specific goods in a deliverable

state, but the seller is bound to weigh, measure, test or do some other act
or thing with reference to the goods for the purpose of ascertaining the
price, the property does not pass until such act or thing is done and the
buyer has notice thereof. (Sec 23)
When does the property pass from seller to buyer?

Unascertained or future goods:

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. [Sec 18]

(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 thereupon passes to the buyer. Such
assent may be expressed or implied, and may be given either before or
after the appropriation is made.
(2) Delivery to carrier-Where, in pursuance of the contract, the seller
delivers the goods to the buyer or to a carrier or other bailee (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 deemed to have
unconditionally appropriated the goods to the contract. (Sec 23)
When does the property pass from seller to buyer?

Goods sent on approval or "on sale or return"

When goods are delivered to the buyer on approval or
"on sale or return" or other similar terms, the property
therein 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 such time, and, if no time has been fixed, on the expiration of
a reasonable time. [Sec 24]

Sale or return must be distinguished from Sale for

cash only or return.
 Unpaid Seller and His Rights
"Unpaid seller" defined
(1) The seller of goods is deemed to be an "unpaid
seller" within the meaning of this Act.-
(a) When the whole of the price has not been paid or tendered;
(b) When a bill of exchange or other negotiable instrument has
been received as conditional payment, and the condition on
which it was received has not been fulfilled by reason of the
dishonour of the instrument or otherwise.

The term "seller" includes any person who is in the

position of a seller, as, for instance, an agent of the
seller.
 Rights of a Unpaid Seller

May broadly classified under two heads:

Right against goods
Lien on goods
Right of stoppage in transmit
Right of resale
Right against the buyer personally
Right to sue for price
Right to sue the buyer for damages for non
acceptance
 Rights of a Unpaid Seller
Right against goods
Lien on goods: The word lien means to retain possession of. An unpaid
seller who is in possession of goods is entitled to retain possession of them
until payment or tender of the price in the following cases, namely:-
where the goods have been sold without any stipulation as to credit;
where the goods have been sold on credit, but the term of credit has expired;
where the buyer becomes insolvent.
Lien can be exercised only for non-payment of the price and is a personal
right.

The unpaid seller of goods loses his lien thereon in following cases-
when he delivers the goods to a carrier or other bailee for the purpose of
transmission to the buyer without reserving the right of disposal of the goods;
when the buyer or his agent lawfully obtains possession of the goods;
by waiver thereof.
Where he assents to a sub-sale by the buyer
Where he takes a security from the buyer for the payment of the price, in place of
his lien.
The unpaid seller of goods, having a lien thereon, does not lose his lien by
reason only that he has obtained a decree for the price of the goods.
 Rights of a Unpaid Seller
Right against goods
Right of Stoppage-in-transit: This right consists in preventing the
goods from being delivered to the buyer, and resuming or regaining
their possession while in transit, retaining them till the price is paid.
This right is earned only when the right of lien is lost and is available
only where the buyer has become insolvent.

51. Duration of transit

Goods are deemed to be in course of transit from the time when they are
delivered to a carrier or other bailee for the purpose of transmission to the
buyer, until the buyer or his agent in that behalf takes delivery of them from
such carrier or other bailee.
If the buyer or his agent obtains delivery of the goods before their arrival at the
appointed destination, the transit is at an end.
If, after the arrival of the goods at the appointed destination, the carrier or
other bailee acknowledges to the buyer or his agent that he holds the goods
on his behalf and continues in possession of them as bailee for the buyer or
his agent, the transit is at an end and it is immaterial that a further destination
for the goods may have been indicated by the buyer.
 Rights of a Unpaid Seller
Right against goods
Right of Stoppage-in-transit:
If the goods are rejected by the buyer and the carrier or other bailee continues in
possession of them, the transit is not deemed to be at an end, even if the seller has
refused to receive them back.
When goods are delivered to a ship chartered by the buyer, it is a question depending on
the circumstances of the particular case, whether they are in the possession of the
master as a carrier or as agent of the buyer.
Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or
his agent in that behalf, the transit is deemed to be at an end.
Where part delivery of the goods has been made to the buyer or his agent in that behalf,
the remainder of the goods may be stopped in transit, unless such part delivery has been
given in such circumstances as to show an agreement to give up possession of the
whole of the goods.

52. How stoppage in transit is effected

(1) The unpaid seller may exercise his right of stoppage in transit either by taking actual
possession of the goods, or by giving notice of his claim to the carrier or other bailee in
whose possession the goods are. Such notice may be given either to the person in actual
possession of the goods or to his principal. In the latter case the notice, to be effectual,
shall be given at such time and in such circumstances, that the principal, by the exercise
of reasonable diligence, may communicate it to his servant or agent in time to prevent a
delivery to the buyer.
(2) When notice of stoppage in transit is given by the seller to the carrier or other bailee
in possession of the goods, he shall re-deliver the goods to, or according to the directions
of, the seller. The expenses of such re-delivery shall be borne by the seller.
 Rights of a Unpaid Seller
Right against goods
Right of Re-sale: The unpaid seller, who has
retained possession of the goods in exercise of
his right of lien or who has resumed possession
from the carrier upon insolvency of the buyer, can
resell the goods:
If the goods are of a perishable nature, without any notice
to the buyer; and
In other cases, after notice to buyer calling upon him to
pay or tender the price within reasonable time, and upon
failure of the buyer to do so.
Here the word perishable also includes commercially
perishable
The seller is entitled to recover damages (difference in
contract price and price realised) caused to him by the
resale.
 Rights of a Unpaid Seller
Right against the Buyer Personally
Suit for the price:
Where under a contract of sale the property in the goods has
passed to the buyer and the buyer wrongfully neglects or refuses
to pay for the goods according to the terms of the contract, the
seller may sue him for the price of the goods.
Where under a contract of sale the price is payable on a day
certain irrespective of delivery and the buyer wrongfully neglects or
refuses to pay such price, the seller may sue him for the price
although the property in the goods has not passed and the goods
have not been appropriated to the contract.
Suit for Damages:
Where the buyer wrongfully neglects or refuses to accept and pay
for the goods, the seller may sue him for damages for non-
acceptance.
Where the property in the goods has not passed, and the price
was not payable without passing of property, the seller can only
sue for damages and not for the price.