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
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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