DUTIES OF THE SELLER

CONTENTS

1.0. Introduction.

2.0. Objective.

• Main Body
• Duty to Deliver Goods at the Right Time
• Duty to Pass a Good Title
• Duty to Supply Goods of the Right Quantity

4.0. Conclusion

5.0. Summary

6.0. Tutor Marked Assignments (TMA)

7.0. References/Further Readings.

INTRODUCTION

It might have been thought that in a sale of specific goods there   would be an implied condition on the part of the seller that the goods were in existence at the time when the contract was made. It is the duty of the seller to deliver the goods, while the buyer has a duty to accept and pay for the goods. It is important to note that performance of the contract under sale of goods entails three main things:

• Delivery by the seller
• Acceptance by the buyer
• Payment by the buyer

The duty of one party is the right of the other. Section 27 of the Sale  of Goods Act provides for the rights and duties of both the seller and the buyer. It states that it is the duty of the seller to deliver the goods and that of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

OBJECTIVE

The purpose of this unit is to discuss and explain the duties of the seller in a sale of goods transaction. The learner is expected at the end of this unit to be able to explain the duties of the  seller of goods in a sale of goods transaction as provided in the Sale of Goods Act.

MAIN OBJECT

Duty to Deliver Goods at the Right Time

Section 62(1) delivery is the voluntary transfer of possession from one person to another. There are different methods of delivery. It does not necessarily mean transportation. Transfer of possession may be  actual or constructive or conceptualized as legal possession. Constructive delivery occurs where the buyer was already in possession of the goods e.g, a bailee before the sale. It could also be attornment or acknowledgement, this occurs where the goods are in possession of a third party, and delivery takes place when the third party acknowledges to the buyer that he holds on his behalf. It could be by delivery of title documents. In Mustapha $ Co V S.C.E.I 21 NLR 69, the Supreme Court sees delivery as that act or thing which the seller or his agent does which may put the goods in the custody of the buyer.

Section 28 of the Act provide that delivery of goods and payment of price are concurrent conditions.

Stipulation as to time is of essence in the contract of sale of goods. It does depends on terms of the contract but in the case of Hartley v. Hymans (1920) All E.R 328, the court held that in ordinary commercial contracts for the sale of goods, the rule is that time is prima facie of the essence in the contracts.

If the time for delivery is fixed by the contract, then failure to deliver  at that time will be a breach of condition which justifies the buyer in refusing to take the goods or where the seller fails to collect the goods on the appointed day, the seller will be entitled to repudiate the contract.

Where no date is fixed in the contract, delivery by the seller must be within a reasonable time which will be determined by matters such as the nature of the goods.

Although time is of essence in delivery, the buyer can waive this condition, where he does, then it will be binding on him  whether made with or without consideration. In Charles Richards Ltd v. Oppenheim (1950) 1 KB 616, the plaintiffs agreed to supply a Rolls Royce chassis to the defendants, to be ready at the least on 20th March, 1948. It was not ready on that date and the defendant continued, to press for delivery, thereby impliedly waiving the condition as to the delivery date. By 29th June, the defendant had lost patience and wrote to the plaintiffs informing them that he would not accept delivery after 25th July. In fact the Chassis was not ready until 18th October, and the defendant refused to accept it. The court held that the defendant was entitled to reject to accept the chassis as he had given the plaintiffs reasonable notice that delivery must be made by a certain date.

Duty to Pass Good Title

This is a condition of the contract for which the buyer can terminate the contract and seek damages for any loss, or affirm the contract   and recover damages for loss. The right of the buyer is to receive the best title to the goods, that is, title that cannot be defeated by another person.

Under common law, the general principle of contract was that of caveat emptor meaning buyer beware. It may appear that the seller is not deemed to be given any undertaking as to title but section 12 of the Sale of Goods Act protects the title of a buyer by imposing a duty on the seller with regard to good title of the goods sold.

In Rowland v. Divall (1923)2 KB 500, A sold a car to B for 334pounds. B used the car for two months during which time he also repainted it. B then sold it for 400pounds to C who used it for a further two months. The car turned out to have been stolen before it came into   A’s possession and was, therefore, taken away from C by the police. The effect of the nemo dat quod no habeat rule is that the buyer can acquire no better title than the seller, so neither A nor B had title to the car. C recovered the purchased price from B and B recovered the purchased price from A without any allowance for the use. See Akoshile v. Ogidan (1950) 19 N.L.R 87.

Note that the definition of a contract for sale in section 2(1) does support the idea that the passing of property is the key issue.

Finally, where the seller does not have title to the goods, the buyer may, nevertheless, acquire good title under one of the exceptions to the nemo dat quod non habeat rule See Barber v. NWS  BankPlc (1996) 1 WLR 641.

Duty to Supply Goods of The Right and Satisfactory Quality

There is usually an implied term that the goods supplied under the contract are of satisfactory quality and correspond with the description. Goods are regarded as sold by description, where the buyer contracts to buy the goods in reliance on the description given by or on behalf of the seller.

In Varley v. Whipp (1900) 1QB 513, here, the plaintiff agreed to sell to the defendant a reaping  machine described by him as only used to  cut 50-60 acres. On taking delivery, the defendant found that it was a very old machine and returned it to the plaintiff. The plaintiff sued for the price of the machine but the defendant relied on section 13. The court held that the defendant is entitled to reject it, for he had bought the machine, relying on this description which the machine did not possess.

With reference to satisfactory quality, section 14(2B) will be helpful. It states that;

“the quality of goods includes their state and condition and the following:

1. Fitness for all the purposes for which goods of the kind in question are commonly supplied
2. Appearance and finish
3. Freedom from minor defects
4. Safety and
5. Durability

See the case of Clegg v. Olle Anderson T/A Nordic Marine (2003) EWCA Civ 320

CONCLUSION

The seller has a right to sell goods, and this is regarded as fundamental to the contract of sale. It is one of the duties of the seller to the buyer where he passes a good title to the buyer. However,  where there is contract for the sale of goods by description, the goods must correspond with that description and goods supplied under contract of sale of goods must be of satisfactory quality.

SUMMARY

The comparison between the goods as described and the goods as delivered is made according to the assessment of a business person   or a reasonable consumer and not that of a scientist. More so, where there is an implied condition that the seller must have a right to sell the goods, where the seller is in breach of the term, then the buyer is entitled to the return of the entire purchase price, irrespective of the fact that the buyer may have used it.

TUTOR MARKED ASSIGNMENT

1. X takes possession of a car under a hire purchase. Under such a contract title remains with the hire purchase company until all the payments have been made and the hirer(X) has exercised an option under the contract. Before completing the payments and exercising the option under this contract, X sells the car to KM, a car dealer, who sells to B. Neither KM nor B is aware of the  hire purchase contract. B uses the car for almost a year before discovering all of these facts Advise
2. Under a sale of goods contract time is of essence. Critically explain.

 REFERENCES/FURTHER READING

• Sales of Goods
• Rawlings, Commercial Law University Of London Press
• Okany Nigerian   Commercial   Law,   Africana   .FEP   Publishers Limited,
• A.   M.   Agbonika   and   J.   A.   A.   Agbonika,   Sale   of   Goods (Commercial Law), 2009, Ababa Press Ltd
• j. Okoro   (2013),   Business   Law    for   Professional    Exams, MaltHouse Press Ltd
• Sofowora General Principles of Business and Coop Law, Soft Associates,