Sale and Agreement to Sell
(i) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the purchaser at a cost. There may be an agreement of offer between one part-owner and another.
(ii) A contract of sale may be absolute or conditional.
(iii) Where under a contract of sale the property in the goods is transferred from the seller to the purchaser, the agreement is sale, however where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be complete, the contract is called an agreement to sell.
(iv) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Section 4.
Essential requisites of Sale
In a contract of sale the property in the goods sold is transferred from the seller to the buyer in exchange of money consideration called the price. The definition of a contract of sale includes both a sale and an agreement to sell.
The essential requisites of sale may, thus, be enumerated as follows
- There must be transfer of property or an agreement to transfer it from the seller to the buyer.
- The above transfer must take place in consideration of a money payment made by the buyer.
- This money payment is called the price
- There must be saleable property to be transferred. Money cannot be transferred in exchange for money price. Thus the change of a government currency note for money is not a contract of sale.
- Seller and buyer must be different persons. A man cannot buy him own goods.
Agreement to sell
An agreement to sell does not involve any transfer of the property in the goods. In an agreement to sell the arrangement is that the transfer of property in the goods in (1) to take place at some future date, or (2) subject to some condition to be fulfilled thereafter. An agreement to sell becomes a sale when (a) the time on which the futurity depended elapses or (b) the condition are fulfilled. As a contract of sale includes both sale and agreement to sell, to follows that a sale a well as an agreement to sell may be either absolute or conditional.
Points of distinction between a sale and agreement to sell
The accompanying are a portion of the imperative focuses of distinction between a sale and an agreement to sell;
- A sale affects a transfer of the general property in the goods to the buyer, it creates a jus in rem. An agreement to sell gives to either party a remedy against the person and general estate of the other for any default in fulfilling this party of the agreement, in other words, it creates a jus in personam.
- In case of sale, if the buyer fails to pay for the goods, the seller may sue for the price where there is merely an agreement to sell, and the buyer fails to accept and pay for the goods, the vender can sue for harms.
- In case of an agreement to sell, in the event that the merchant submits a break, the purchaser has just an individual cure against the seller a claim for damages, the goods are still the property of the merchant, and he can discard them as he loves. If there has been a sale, and the seller commits a breach, the buyer has not only a personal remedy against the vender, additionally the cures which a holder has in respect of the goods themselves, such as a suit for conversion. In many cases, too he can follow the goods in the hands of third persons. The reasons is that on sale the property in the goods passes to the buyer, and he becomes the proprietor or owner of the goods.
- In an agreement to sell, in case the goods are destroyed, the loss (unless otherwise agreed) falls on the vender, while if there has been a deal, the misfortune (unless otherwise agreed) fails upon the buyer, though the goods may never have come into his possession.
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