Beruflich Dokumente
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Any person paying for goods and services has the right to demand quality services and products.
Before the industrial era the producer/settler and the buyer/customer/consumer has close contact and understanding.
Industrialization and mass productive systems involving machines has undermined close contact between seller and consumer
was almost lost.
Definitions
Goods means goods as defined in the Sale of goods Act, 1930. Under the Act, goods means every kind of movable property other than
actionable claims and money and includes stocks 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.
Service is defined to mean service of any description which is made available to potential users and includes the provision of facilities in
connection with banking, financing,insurance, transport, processing, supply of electrical or other energy, board or lodging or
both,housing construction, entertainment, amusement or the purverying of news or other information but does not include the
rendering of any service free of charge or under a contract of personal service.
Consumer Acts
• In India, we have the Indian Contract Act, the
sale of Goods Act, the Dangerous Drug Act,
the Agricultural Produce (Grading &
Marketing) Act, The Indian Standards of
weight and Measure Act, The Trade and
Merchandise Mark Act, etc. These Acts to
some extent protect consumer interest.
Examples:
1) Sale of some stacks of oak on the sellers ground, upon the terms that
they might remain there for four months and the buyer should pay within
12 weeks of the contract. The seller on the expiration of 12 weeks
demanded the price which the buyer failed to pay. Later the buyer asked
for further time which the seller refused to give, and said that as the
buyer had not paid he should not have the stacks. The buyer later
tendered the price, but the seller refused to accept it and subsequently
resold the stacks. The Buyer was held entitled to recover.
2) Sale of goods to be shipped and bill of lading to be dated December –
January. Goods were shipped on 30th January but the bill of lading was
dated 2nd February the buyer was held entitled to reject.
2. Stipulations as to time of payment
Synopsis
1. Principles for determining whether the property is transferred
2. Intention of the parties
3. Ascertained goods
1. Principles for determining whether
the property is transferred
The general rule enunciated in this section follows from the nature of the
contract of sale, by which the property in the goods is transferred, or agreed
to be transferred, from the seller to the buyer in return for the price.
There would be breach of the ‘duty to accept’ when the buyer unjustifiably
rejects the goods. Taking of delivery of the goods is an important aspect of
the ‘duty to accept’ and refusal to do so will constitute rejection of the goods
and therefore , would amount to a non-acceptance of the goods. There is
however a distinction between acceptance of goods and taking delivery of
them. The buyer signifying his approval of the goods accepts them though
he may not have taken delivery of the goods. It will be noticed that the Act
does not expressly impose any duty to take delivery although it prescribes
sanctions when there is delay in taking delivery.
Section 32 Payment and delivery are
concurrent conditions :
Unless otherwise agreed, delivery of the goods and payment of the
price are concurrent conditions, that is to say, the seller shall be
ready and willing to give possession of the goods to the buyer in
exchange for the price, and the buyer shall be ready and willing to
pay the price in exchange for the possession of the goods.
This section reproduces s93 of the contract Act except that for the words ‘in the absence of
any specific promise’, the words ‘apart from any express contract’ have been substituted.
The words ’in the absence of any special promise’ have been construed to mean an express
stipulation as to delivery6 which relieves the buyer from the obligation to apply for delivery
or the necessary implication of such a stipulation from the nature of the contract as
expressed. It might also arise out of usage or custom.
Even if there is an obligation on the part of the seller to inform the buyer when the goods are
in a deliverable state, it is not a ‘special promise’, though it may postpone the obligation of
the buyer to apply for delivery, and after the lapse of a reasonable time, to enable the goods
to be procured by the seller, the buyer would be entitled and bound to apply for delivery.
When the applies for delivery and the seller then fails to deliver, the seller is guilty of a
breach of contract. So where the contract provided for delivery in all November on seven
day’s notice from the buyer, and the buyer gave the notice early in November, it was held
that by the terms of the contract the buyer had the right to fix the date in November on
which the delivery should be made, and the seller having failed to deliver as required by the
notice, was guilty of a breach of contract. Juggernath Khan Vs. Machlachar (1881)
Section 36. Rules as to delivery
1. Whether it is for the buyer to take possession of the goods or for the seller to sen
the goods to the buyer is a question depending in each case on the contract, expres
or implied, between the parties. Apart from any such contract, goods sold are to b
delivered at the place at which they are at the time of the sale, and goods agreed to b
sold are to be delivered at the place at which they are at the time of the agreement t
sell., if not then in existence, at the place at which they are manufactured or produced.
2. Where under the contract of sale the seller is bound to send the goods to he buyer
but no time for sending is fixed, the seller is bound to send them within a reasonabl
time.
3. Where the goods at the time of sale are in the possession of a third person, there i
no delivery by seller to buyer unless and until such third person acknowledges to th
buyer that he holds the goods on his behalf :
Provided that nothing in this section shall affect the operation of the issue or transfer o
any document of title to goods.
4. Demand or tender of delivery may be treated as ineffectual unless made at
reasonable hour. What is reasonable hour is a question of fact.
5. Unless otherwise agreed, the expenses of and incidental to putting the goods into
deliverable state shall be borne by the seller
Section 36. Rules as to delivery
Examples
The section may be illustrated by the following examples :
3. Sale of goods for ready money. The seller packs them up in the buyer’s boxe
in the buyer’s presence, but they remain in the seller’s premises. This is not a
delivery. Boulter Vs. Arnott (1833)
Section 38. Instalment Deliveries
1. Unless otherwise agreed, the buyer of goods is not bound to
accept delivery thereof by instalments.
2. Where there a contract for the sale of goods to be delivered by
stated instalments which are to be separately paid for, and the seller
makes no delivery or defective delivery in respect of one or more
instalments, or the buyer neglects or refuses to take delivery of or
pay for one or more instalments, it is a question in each case
depending on the terms of the contract and the circumstances of the
case, whether the breach of the contract is a repudiation of the whole
contract, or whether it is severable breach giving rise to a claim for
compensation, but not to a right to treat the whole contract as
repudiated.
Section 38. Instalment Deliveries
Examples
The section may be illustrated by the following examples :
The seller draws bills for the price of the goods on the buyer, who accepts them,
and the seller negotiates them. Before the bills arrive at maturity the buyer fails.
The seller is in position of an unpaid seller.
Section 46. Unpaid Seller’s rights
1. Subject to the provisions of this Act and of and of any law for the
time being in force, notwithstanding that the property in the goods
may have passed to the buyer, the unpaid seller of goods, as such,
has by implication of law—
(a) a lien on the goods for the price while he is in possession of
them;
(b) in case of the insolvency of the buyer a right of stopping the
goods in transit after he has parted with the possession of them ;
(c) a right of resale as limited by this Act.
2. Where the property in goods has not passed to the buyer, the
unpaid seller has, in addition to his other remedies, a right of
withholding delivery similar to and co-extensive with his rights of lien
and stoppage in transit where the property has passed to the buyer.
Section 46. Unpaid Seller’s rights
Example
The section may be illustrated by the following example :
Sale of goods to be delivered by instalments, each
instalment to be paid for in cash fourteen days after
delivery. During the currency of the contract, the buyer
becomes insolvent and the price of one instalment is
unpaid. The seller need not make further deliveries unless
the price of that instalment is paid and cash is paid against
delivery of subsequent instalments.
Section 47. Seller’s lien
1. Subject to the provisions of this Act, the unpaid seller of goods who is in
possession of them is entitled to retain possession of them until payment or tender
of the price in the following cases, namely :
(a) Where the goods have been sold without any stipulation as to credit ;
(b) where the goods have been sold on credit, but the term of credit has expired ;
(c) where the buyer becomes insolvent.
2. The seller may exercise his right of lien notwithstanding that he is in
possession of the goods as agent or bailee for the buyer.
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
buyer’s 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
Section 50 Right of stoppage in transit
Subject to the provisions of this Act, when the buyer of goods
become insolvent, the unpaid seller, who has parted with the
possession of the goods has the right of stopping them in transit, that
is to say, he may resume possession of the goods as long as they
are in the course of transit, and may retain them until payment or
tender of the price.
In order that the right may be exercised, the following conditions must
all be satisfied—the seller must be unpaid, the seller must have
parted with the possession of the goods and the buyer must not have
acquired it. This last condition, as appears from the next section is
that which is shortly expressed by saying that the goods are in transit.
Further, the right can only be exercised by a seller or a person in a
position analogous to that of a seller, the right to stop in transit is
unknown outside the law of sale of goods. Lastly, it is a right against
the goods themselves only.
Section 52. How stoppage to 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 deliver to the buyer.
2. the sale is complete when the auctioneer announces its completion by the fall of
the hammer or in other customary manner; and, until such announcement is made,
any bidder may retract his bid;
3. a right to bid may be reserved expressly by or on behalf of the seller and, where
such right is expressly so reserved, but not otherwise, the seller or any one person
on his behalf may, subject to the provisions hereinafter contained, bid at the auction;
4. where the sale is not notified to be subject to a right to bid on behalf of the seller,
it shall not be lawful for the seller to bid himself or to employ any person to bid at
such sale, or for the auctioneer knowingly to take any bid from the seller or any such
person ; and any sale contravening this rule may be treated as fraudulent by the
buyer ;
5. the sale may by notified to be subject to a reserved or upset price ;
6. if the seller makes use of pretended bidding to raise the price, the sale is voidable
at the option of the buyer.