Beruflich Dokumente
Kultur Dokumente
Introduction
Main features :
There must be at least two parties Transfer or agreement to transfer the 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 essentials of a valid contract must be present
SALE It creates right in REM It is Executed contract If the goods are destroyed the loss falls on the buyer even if the goods are in the possession of seller Seller can sue for the price of the goods
AGREE.TO SELL Right in Personam Executory contract Seller/buyer In case of breach by the buyer the seller is entitled only to damages
It can
Buyer can claim only ratable dividend for the money paid The seller may refuse to sell the goods to the buyer w/o payments if the buyer becomes insolvent Ownership remains with the seller
Future Goods
Contingent Goods
Un ascertained Goods
CONDITION : Sec.12(2)
A condition is a stipulation essential to the main purpose of the contract breach of which gives rise to a right to treat the contract as repudiated1
Warranty : Sec.12(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 right to reject the goods and treat the contract as repudiated2
Express Conditions : Expressely provided in the contract Implied conditions & warranty : which the law implies in a contract of sale Implied condition & warranty may be negatived or varied by an express agreement or by the course of dealings b/w parties or by the usage & customs of trade.Sec.62
Implied conditions :
Conditions as to title [Sec.14(a)] Sale by description: A) Goods must correspond to description (Sec.15) B) Conditions as to Merchandibility [Sec.16(2)] C) Conditions as to wholesomeness D) Conditions as to fitness for a particular purpose (Sec.16) Sale by Sample (Sec.17) Sale by sample as well as by description (Sec.15)
Implied Warranties :
Warranty of Quiet possession-Sec.14(6) Warranty against encumbrancesSec.14(c) Warranty to disclose dangerous natures of goods.
CAVEAT EMPTOR
Let the Buyer Beware The maxim Caveat Emptor does not apply & the contract will be subject to the implied conditions under the following circumstances : 1. Sale under fitness for buyers purpose 2. Sale under merchandable quality 3. Sale under usage of trade 4. Consent by Fraud
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 to do some other thing with reference to them, for ascertaining the price , the property does not pass till such act or thing is done and the buyer has notice of it. Unascertained or future goods (Sec.18) Sale On Approval or Sale or Return basis
When he signifies his approval or acceptance to the seller or does any other act, adopting the transaction If he does not signify his approval or acceptance to the seller but retains the goods w/o 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.
2) At an auction, the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner; until such completion any bidder may withdraw his bid. It is also the practice to say 3 times. 3) A right to bid may be reserved expressly by or on behalf of the seller & where such right is expressly so reserved, but not otherwise, the seller or any person on his behalf may bid at Auction
4) The sale may be notified to be subject to a reserved or upset price 5) If the seller makes use of pretended bidding to raise the price, sale is voidable at the option of the buyer
DELIVERY (Sec.2[2])
Voluntary transfer of possession of goods from one person to another 1) Physical or Actual Delivery: Physical possession of the good is handed over by the seller to the buyer 2) Constructive Delivery: When a third person who is in possession of the goods acknowledges that he holds the goods on behalf of the buyer
Symbolic Delivery: Delivery is made by indicating or giving a symbol e.g: Handing over the key of a godown to the buyer
Mode of delivery Delivery & payment Effect of part delivery Buyer to apply for delivery Place of delivery Goods in possession of a third party Time of delivery Expense of delivery Instalment delivery Delivery to a carrier or wharfinger
A seller is deemed to be an U/S when: 1) The whole of the price has not been paid or tendered 2) A bill of exchange or other negotiable instrument has been received as a conditional payment & the condition on which it was received has not been fulfilled by reason of dishonor of the instrument
Rights of an U/S :
1) Right against goods: a) Lien on goods b) A right of stoppage-in-transit c) A right of Re-sale
The transit is end in following cases: If the buyer obtains the possession of the goods before its arrival at the destination If, after the arrival at their destination, the carrier acknowledges to the buyer that he holds on his behalf If the carrier wrongfully refuses to deliver the goods to the buyer