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    Saturday, 29 November 2014

    Right and Duties of Seller and Buyer

    Duties of Seller and Buyer

    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. Section 31.

    Payment and delivery
    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 exchange for possession of the goods. Section 32

    Readiness and willingness
    Readiness and willingness includes capacity. If the buyer is insolvent, or states that he will not accept delivery, this is strong evidence that he is not ready and willing to pay. On the other hand, the seller need not have the goods in his actual custody or possession; it is sufficient if he has such control of them that he can cause them to be delivered what's more comparably, the buyer is prepared and ready to pay if he has made proper arrangements for securing payment. It follows that actual tender of delivery, or of the money, is unnecessary to enable the seller to maintain an action for failure to deliver.

    Agreement to the contrary
    The rule only applies where there is no agreement to the contrary. Therefore, a sale on credit renders the rule inapplicable, and the buyer is qualified for conveyance without offering the price exchange. Conversely, the buyer may bind himself to pay the price or part of it on a settled day, whether conveyance has been made or not. Once more, under the usual form of a c.i.f. contract, the price is payable in exchange for the shipping document, though this exception perhaps is more evident than genuine, for the agreement may be viewed as an issue of goods of which deliver is effected by the transfer of the documents.

    Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Section 33

    Symbolic delivery
    The delivery of the key to the purchaser transfers possession because, and only because, it gives him actual control of the place where the products are, and in this manner of the merchandise themselves. This is believed to the correct view is English law, despite the dialect that has frequently been used about symbolic deliver. As lord Hardwicke said long prior, conveyance of the key of massive products has been allowed as delivery of the possession, on the grounds that it is the method for having a go at the ownership or to made use of the thing, and consequently the key is not an image, which would not do.

    Delivery of a key does not operate as delivery of the goods under the lock if it does not in fact give complete access to them. Where a seller gave the buyer the key of a receptacle in which the products were, however held the key of an external nook, it was held without difficulty that the buyer had not acquired possession.

    Constructive delivery
    A part from this question, as may be seen from the examples gives above, a change in the possession of goods, and therefore delivery within the definition, may take place without any change in their actual and unmistakable guardianship. There is said to be valuable conveyance in such case which may be classified as follows:-

    As seller in possession of the thing sold assents to hold it solely on the buyer’s account. There may be constructive delivery of the kind where the seller continues to hold as a bailee for a reward or as a gratuitous borrower. The seller’s assent must be proved; it will not be presumed. But acts of the buyer treating himself as owner and the seller as his servant or bailee are relevant to prove delivery as against the buyer.

    The most frequent and important case is where a seller and buyer agree, with the assent of a third person, in whose custody the goods are, and who has been holding them for the seller, that he shall hold them on account of the buyer. Such an “attornment,” as it is sometimes called, has the effect of transferring legal possession to the buyer. All three parties must concur, otherwise there is no deliver.
    Effect of part delivery
    A delivery of part of goods, in progress of the delivery of the whole, has the same effect, for the purpose of passing the property in such goods, as a delivery of the whole; but a delivery of part of the goods, with an intention of severing it from the whole, does not operate as a delivery of the remainder. Section 34

    The common law rule, which this section affirms, is that delivery of part may be delivery  of the whole if it is so intended and agreed, but not otherwise, and the burden of proof seems to be on the party affirming that such was the intention. “It seems to me,” said Brett, L J., “that delivery of part or even of the bulk of cargo is not Prima facie a delivery of the whole, and that those rely upon the part delivery as a constructive delivery of the whole are bound to show that the part delivery took place under such circumstances as to make it a constructive delivery of the whole.”

    Buyer to  apply for delivery
    Apart from any express contract, the seller of goods is not bound to deliver them until the buyer applies for delivery. Section 35.

    Express contract
    A mere obligation on the seller to inform the buyer when the goods are in a deliverable state is not a special contract within the meaning of this section. An express contract contemplated in this section is one which indicates an express or an implied stipulation as to delivery which relieves the buyer from the obligation to apply for conveyance. The commitment on the dealer to illuminate the buyer when the goods are in a deliverable state has the effect of only postponing the obligation of the buyer to apply for delivery, and on the lapse of a reasonable time to enable the goods to be procured by the seller, they would be entitled and bound to apply for delivery.

    Rule to Delivery
    Ø  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.
    Ø  Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.
    Ø  Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller. Section 36

    Delivery of wrong quantity
    Ø  Where the dealer conveys to the buyer an amount of goods less than he contract to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he shall pay for them at the contract rate.
    Ø  Where the seller delivers to the buyer a quantity of goods larger then he contracted to offer, the buyer may acknowledge the merchandise included in the contract and reject the rest, or he may dismiss the entirety. In the event that the buyer accepts the whole of the goods so conveyed, he might pay for them at the agreement rate.
    Ø  Where the seller delivery to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or may reject the whole.

    Short delivery
    The mere fact that the buyer has accepted the lesser quantity does not mean that he has no remedy against the seller for short delivery, the acceptance of the goods amount to only a waiver of a breach of condition. The remedy for the breach of warranty is not waived in this way. The buyer can exceptionally well claim harms for short delivery.

    Delivery by installment
    The general rule enunciated in subsection (1) is that in a contract of sale the delivery of the goods sold is to be made in its entirety. Neither the seller can claim to make nor cam the buyer demand delivery of the goods by installments. But if the parties to the contract desire to have the contract performed by installments they are at liberty to have it to done. If they so desire, the contract itself should provide that the goods will be delivered and accepted by installments. In the absence of any such assertion, the gatherings can't demand that conveyance should be made, or accepted be installments.

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    Item Reviewed: Right and Duties of Seller and Buyer Rating: 5 Reviewed By: Usman Ali
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