RULES ON DELIVERY OF

GOODS
BY DR.TOO
INTRODUCTION
 Sale of Goods Act, Cap 31 of the Laws of Kenya

 According to section 2(1) of the Sale of Goods

Act, delivery means “voluntary transfer of
possession from one person to another.” Cap
31 Laws of Kenya.

 Delivery is one of the important expectations in

a sale of goods contract as it affects the rights
and duties of both parties in the contract.
Introduction Contd.
 This is laid down under Section 28 of the Act
which provides,
“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
of sale.”
MODES OF DELIVERY

1. Physical or actual delivery

2. Constructive delivery
 Transfer of a Document or Title
 Delivery of Object Giving Control or Symbolic

delivery.
 Attornment
 Buyer in continuous possession as the bailee
 Buyer’s Continuance of possession in his Own

Right
LEGAL RULES REGARDING DELIVERY OF GOODS

 Place of Delivery
 Section 30(1) of the Sale of Goods Act that

the place of delivery is the seller’s place of

business or if not specified, it is the seller’s
residence.
 Fermer vs. Buffalo Railroad Company
Time of Delivery

Section 30(2) of the Sale of Goods Act states,

“Where under the contract of sale the seller is
bound to send the goods to the buyer, but no
time for sending them is fixed, the seller is
bound to send them within a reasonable
time.”
Charles Rickards Ltd vs. Oppenheim
Goods in possession of a Third Person

 In Section 30 (3) of the Sale of Goods Act,

“Where the goods are in the possession of a
third person, there is no delivery by seller to
buyer unless and until the third person
acknowledges to the buyer that he holds the
goods on his behalf.
Demand of delivery

 In Section 30(4) of the Sale of Goods Act,

There has to be a demand from the buyer to
the seller to deliver the goods where the time
for delivery is not specified.
 McDougall vs. Aeromarine of Emsworth Ltd,

1958] 3 ALL E.R. 431[

 it is the buyer’s duty to take delivery at the

right time and failure of which, the seller has

a right to sell the goods.
Expenses of Delivery
 Section 30(5) of the Sale of Goods Act
provides, “Unless otherwise agreed, the
expenses of and incidental to putting the
goods into a deliverable state must be borne
by the seller.”
Installment Deliveries

 Section32 (1) of the Sale of Goods Act

provides, “Unless otherwise agreed the buyer
of goods is not bound to accept delivery
thereof by installments.”
 Berhend & Co. Ltd. Vs. Produce Brokers & Co.

Ltd
 Cobec Brazillian Trading & Warehousing Corp.

vs. Alfred C Toepfern

Installments Contd.
 Repudiation of Contract in Installment
Deliveries
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
 Section 32(2) of the Sale of Goods Act, if the

installments are to be separately paid for the

contract is more likely to be construed as
severable.
Installments Contd.
 The seller is not to demand a part of the price against
partial deliver
 The buyer’s improper rejection of an installment is
repudiation of the entire contract.
 Accidental destruction of part of the goods before the risk
has passed may frustrate the whole contract.
 Seller’s right to withhold delivery for non-payment
extends to the whole of undelivered goods and secure the
whole of the price.
 Where installments is too late of the buyer lawfully rejects
defective installment, and it is too late for the seller to
make an effective retender, then the whole contract is
made late.
Rules on incorrect Delivery
Wrong quantity.
 Section 31(1) of the Sale of Goods Act states that

Options.
1. Accept wrong quantity (whether less or more)
If you accept,(whether less or more) you pay at contract price

2. Reject the whole

Note,
 if you accept the excess quantity, you can take your required

sum and reject the rest.

 If you accept the less quantity, you are estopped from asking

for the balance.

Wrong description

 Section 31(3) of the Sale of Goods Act,

 You can REJECT the whole or ACCEPT those

that are in accordance to the contract.

Delivery to Carrier

 Section 33(1) of the Sale of Goods Act states,

“Where, the seller is authorized or required to
send the goods to the buyer through a
carrier, delivery of the goods to the carrier, is
prima facie deemed to be a delivery of the
goods to the buyer.”
Delivery in regards to the buyer

Buyers right of examining the goods

Section 35(1) of the Sale of Goods Act,

 The buyer has the right to examine the goods

before he agrees to own and possess them.
Acceptance

The buyer has a duty to accept the goods but

has no obligation.
Section 37 of the Sale of Goods Act
 intimates to the seller that he has accepted

them Kirkham v Attenborough &Gill (1895)

 does any act which is inconsistent with the

ownership of the seller

 lapse of a reasonable time

Berstein vs. Pamsons Motors (Golders Green)

Ltd., [1987] 2 ALL ER 220
The buyer can reject goods in the following
circumstances;

 a) He can reject if expressly allowed to do so

by contract.
 b) He can reject goods in accordance to

implied terms.
 c) If a conditions included in the contract of

sales has been breached by seller.

 d) If the seller has made an equivocal

intention to repudiate the contract or

breached the contract according to Section 37
Taking of Delivery
 According to Section 38,
 Buyer must take delivery of goods within

reasonable time or will be liable for any loss.

 Under statute, both acceptance and rejection

should be within reasonable time.

 Section 56 defines what reasonable time is.
 Time is of the essence.
Right to partial rejection.
 Section 35 of the Act, stipulates that if the
seller supplies some goods which are
unaffected by the breach, the buyer has a
right to accept those unaffected by the
breach without losing the right to reject the
rest.
Consequences for improper delivery
 Section 50(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”
REFERENCES

 1. Sales of Goods Act, Cap 31, Laws of Kenya.

 2. Alfred W. Bays “American Commercial Law

Series” (Callaghan and company, 1920).

 3. William Kixmiller, William H. Spencer. “Business

Law- Case Method”(Commerce Clearing House,

1915).
 4. S. S. Gulshan, “Mercantile law”(Excel Books,

2004).
 6. www.kenyalawresourcecenter.org

 7. Atiyah P.S., J Adams and H. Mcqueen, “Sales of

Goods” (London: Longmans, 2005).