COTRACT OF
1.
If one of the several joint owners, who has the sole possession of the goods by permission of the co-owners, sells the goods, a buyer will get a good title to the goods provided the buyer busy them in good faith and without notice that the seller’s title was defective at the time of contract.
Example
A, B and C are three brothers. They own a cow in common. B and C entrust the work of looking after the cow to A and leave the cow in A’s possession. A sells the cow to D. D gets a good title.
2.
When a person has obtained possession of the goods under a voidable contract and he sells those goods before the contract has been cancelled, the buyer of such goods acquire a good title to them provided the buyer acts in good faith and without notice of the seller’s defect of title.
3.
Where a person has sold goods but continues in possession of them or of the documents of title thereof, he may sell them to a third person and if such person obtains delivery thereof in good faith and without notice of the previous sale, he gets a good title to them, although the property in the goods has passed to the first buyer.
Example
A sell goods to B but leaves such goods with A. A fraudulently sells the goods to C who buys them in goods faith and without notice of sale of the goods to B. C would get good title to the goods.
4.
If the buyer obtains possession of the goods before the property in such gods has passed to him with the consent of the seller, he may sell, pledge or otherwise dispose of the goods to a third person and if such person obtains delivery of the goods in good faith and without notice of any lien or other right of the original seller in respect of the goods, he will get a good title to them.
5.
Where an unpaid seller who as a right of lien or stoppage in transit resells the goods of which ownership gas passed to the buyer, the subsequent buyer gets a good title to the goods as against original buyer.
Example
A sells a sofa set to B for Rs. 10 thousand. B pays Rs. 4 thousand as advance and promises to pay the balance on next day at the time of taking the delivery of sofa. B does not pay the balance for several days. A retains the sofa and sells it to C. C gets a good title.
8.
A finder of the lost goods can also sell the goods under some circumstances and the buyer will get a good title
9.
A pledgee can also sell the goods under some circumstances. The buyer gets a goods title.
Example
X pledgee his tractor to Y and borrows Rs. 5 Lac. X does not pay the loan Y sell the tractor to Z. Z gets a good title.
10. Exceptions under other Acts
Under certain Acts a person although he is not the owner of the goods may sell the goods and pass a better title than he himself has. The following are some of such cases.
(a) In case insolvency of individuals and companies, the official receiver can convey a better title to the buyer.
(b) In case of negotiable instruments, the holder in due course gets a better title than that of transferor. In other words, a person who takes a negotiable instruments in good faith and for value becomes the true owner even if he takes it from a thief or finder.
Example
(a) A becomes insolvent. B, the official receiver of A sells some goods of A to X. X gets a good title to goods.
(b) A steals a bill of B. A endorses the same to X under the circumstances which make X, a holder in due course. X gets a good title.
PERFORMANCE OF CONTRACT OF
Delivery of Goods
Delivery of goods means voluntary transfer of possession of goods from one person to another, it is a bilateral act. It requires two parties to the act. The essential elements of delivery are;
(a) A person has possession;
(b) He transfers that possession to another person;
(c) He does so voluntarily
Example
B steal goods from A, there is no delivery from A to B though possession is transferred .
Mode of Delivery
Delivery of goods may be made in any of the following ways:
1. Actual Delivery
Where the goods are physically handed over buy the seller or his agent to the buyer or his agent, the delivery is said to be actual. In this case the physical custody of the goods transfers from seller to the buyer.
Example
When A, the seller of a car hands over the car to B, the buyer, there is actual delivery of the goods.
2. Symbolic Delivery
In this case the goods are not physically handed over the buyer but means of obtaining possession of goods is delivered. It is made where goods are heavy and cannot be actually delivered to buyer.
3. Constructive delivery
It takes place when the person in possession of the goods of the seller acknowledges, in accordance with the seller’s order, which he holds the goods on behalf of the buyer and the buyer has assented to it.
Example
X sells to y 10 bags of cement lying in Z’s godown. X gives an order to Z to transfer the goods to Y. Z transfers the goods in his books to Y. This is a constructive delivery.
Rules Regarding Delivery of Goods
The rules regarding delivery of goods are as follow:
1. Duties of Seller and Buyer
It is the duty of the seller to deliver the goods to the buyer and it is the duty of the buyer to accept and pay for the goods according to the terms of the contract of sale.
2. Delivery and payment
Unless otherwise agreed, the seller should be ready to deliver the goods to the buyer in exchange for the price and the buyer should be ready to pay the price in exchange for possession of goods simultaneously, just like a cash sale over a counter.
Example
A agree to sell to B sugar for Rs. 20 thousand. A need not deliver the goods unless B is ready to pay the price on delivery and B need not pay for the goods unless A delivers them on payment.
3. Mode of Delivery
Delivery of goods sold may be made by any of the ways on which the parties agree. The delivery of goods may be either actual or symbolic or constructive. Therefore, a delivery to any one other than the buyer or his agent is not sufficient.
4. Effect of Part Delivery
When a delivery of part of the goods has been made with the intention of delivering the rest of goods also, the ownership in the whole od the goods is deemed to pass to the buyer as soon as some portion is delivered. But a delivery of part of the goods, with the intention of severing it from the whole does not operate as delivery of the remainder.
Example
S sold 5 bales of certain goods. B received 1 bale, paid for it and refused to accept 4. Held, it was a part delivery (Mitchell Reid Co. vs Balder Dass)
5. Buyer to Apply for Delivery
A part of any express contract, the seller is nor bound to deliver the goods to the buyer unless the buyer applies fir delivery. If the seller fails to deliver, he is guilty of breach of contract.
6. Place of Delivery
The goods must be delivered at a specified place, which is stated in a contract during business hours on a working day. But where no place is mentioned in the contract, the following rules will apply:
(a) In case of sale, the goods are to be delivered at the place at which they are at the time of the sale.
(b) In an agreement to sell, the goods are to be delivered at the place at which they are at the time of the agreement to sell.
(c) In the case of future goods, the are to be delivered at the place at which they are manufactured or produced.
Example
A contracts B to supply him bricks at
7. Time of Delivery
The seller is bound to send the goods to buyer within a fixed time, if any. If there is no fixed time, the seller should send within a reasonable time. Moreover demand of delivery by the buyer or the delivery of the goods by the seller should be made at a reasonable time.
8. Goods in Possession of a Third Party
Where the goods at the tome of sale are in the possession of a third person, there is no delivery by the seller to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.
Example
A has his goods in B’s store. A sells goods to X and gives him a receipt to take from B. B agrees to give him. There is a delivery of goods to buyer.
9. Expenses of Delivery
Unless otherwise agreed, the expenses of putting the goods into deliverable state must be borne by the seller.
10. Wrong Delivery
A seller is responsible to deliver the goods to the buyer in accordance with the terms of the contract. In case of wrong delivery, the buyer can reject the goods Wrong delivery may be either short delivery, excess delivery or mixed delivery.
Example
A buys 40 bottles of Pepsi Cola from B. B sends 30 bottles A may reject the whole or accept 30 and ask for the rest.
11. Installment Deliveries
Unless otherwise agreed, the buyer is not bound to accept the delivery of goods in installments. If the parties so agree then only the delivery of the goods may be made by installments.
12. Delivery to Carrier
Where the seller is required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission the buyer, is deemed t be a delivery of the goods to the buyer.
Example
A sell TV to B. A hands over the TV to the carrier to be delivered to B. it means the delivery has been made to B.
13. Goods Delivered at a Distinct Place
Where the seller of goods agrees to deliver the goods at his own risk other than that where they are sold, the buyer shall take risk of any deterioration in good incident to the transit.
14. Examining the Goods by buyer
When the seller delivers the goods to the buyer he is bound to give a reasonable opportunity to the buyer to examine the goods for the purpose of ascertaining whether they are in accordance with the contract.
Example
A supplies bricks to B. A is bound to give son=me time to B to check whether the bricks are according to the contract.
15. Acceptance of Delivery by buyer
According to section 42, the buyer is deemed to have accepted the goods in either of the following circumstances:
(a) When he intimates to the seller that he has accepted the goods.
(b) When he does any act in relation to the goods, which is inconsistent with the ownership of the seller.
(c) When, after the lapse of a reasonable time, he retains the good without intimating the seller that he has rejected them.
Example
(a) A sell and delivers wheat to B. B informs A that he has accepted the goods.
(b) H bought wheat and then resold part of it, Afterwards H. decided top reject it on the ground that it was not according to the contract. It was held that he has lost his right of rejection.
(c) A buys a rice from B. On taking delivery A does not inform B. It is considered that A has accepted the goods after a reasonable time.
16. Buyer not Bound to Return Rejected Goods
Where goods are delivered to the buyer and he refuses to accept them, having the right to do so, he is not bound to return them to the seller. He should only inform to the seller about his rejection.
17. Liability in Case of Refusing to Take Delivery of Goods
When the seller is ready to deliver the goods and requests the buyer to take delivery. And the buyer does not take delivery of goods within reasonable time, the buyer is liable to the seller for any loss arising on account of refusing to take delivery.
Example
C sells and delivers a car to S. S refuses to take delivery. If C sells car to X and suffers a loss He is entitled to claim damages from S.