REMEDIES OF THE BUYER CONTENTS

1.0. Introduction.

2.0. Objective.

• Main
• Recovery of the Price
• Rejection of the goods
• Acceptance
• Damages

4.0. Conclusion

5.0. Summary

6.0. Tutor Marked Assignments (TMA)

7.0. References/Further Readings.

INTRODUCTION

In this unit, the remedies available to a buyer in the sale of goods contract shall be discussed. As had been said, the remedies of the seller and those of the buyer are concurrent to each other as they  both have duties to perform in a contract of sale of goods. Both  parties therefore, have remedies that also go with them when contract is breached.

The remedies available to the buyer are also numerous and  they range from recovery of price to rejection of the goods as well as the damages to mention just a few of the remedies that will be discussed in this unit.

OBJECTIVE

The aim of this unit is to discuss the remedies available to a buyer in  a sale of goods contract. The learner is expected to be able to understand and explain the remedies available to buyer of goods in a sale of goods contract.

MAIN OBJECT

Recovery of the Price

If the buyer has paid the price, he may sue the seller to recover the amount paid if the goods are not delivered or the consideration for the payment has failed. (S54 of the Act).

Rejection of the Goods

The buyer can repudiate the contract if the seller is in breach and the breach goes to the root of the agreement. That is, the breach is a breach of condition and not warranty. Breach of contract may arise in the following ways:

• late tender of the goods
• breach of an implied condition
• right of rejection by virtue of an express or implied term  or usage of trade

The motive for rejection is irrelevant as in the case of Arcos Ltd v. E.A. Ronaasen & Sons (1933) AC 470.

The right of rejection will be lost or will not be available where:

• the buyer has accepted the goods (S11(4))
• the buyer is unable to return the goods; where the goods has passed into the possession of a sub-buyer and cannot be recovered.
• that there is a breach of a warranty
• there is short or over delivery and the shortfall or excess is not material (S30 (D)). Here there is no requirement for unreasonableness.

Where the buyer has right to reject for breach of condition, he or she can:

• reject the goods and claim damages for any loss
• treat the breach as a breach of warranty and claim
• waive the breach

If the buyer wrongly rejects goods, the seller can treat this as a repudiation of the contract and, if property has passed to the  buyer, it will revert in the seller.

Acceptance

The buyer loses the right to reject the goods if all or part of the goods are accepted, unless the contract permits rejection after acceptance. (S35).

Where a breach justifies rejection, unless there is agreement to the contrary, the buyer may reject all of the goods or may take those that are not defective, or may take some of the defective goods and reject the rest (S35A (2)).

In J & H Ritchie Ltd v. Lloyd Ltd (2005) SLT 64, it was held here the buyers agrees to the repair of the goods and the repair was properly effected so that the goods conformed with the contract, the buyer lost the right to reject.

Damages

In any claim the buyer may have for damages a distinction must be made between a claim for failure to deliver and a claim relating to goods that have been delivered.

Failure to deliver may cause loss and the buyer could bring an action for damages (S51 (1)).

1. If there is an available market for the goods under S51(3) the presumption is that the measure of damages is the difference between the contract price and the market at the time the goods ought to have been delivered at the time of the refusal to
2. Where the goods are delivered and the buyer elects not to reject them (S11 (2)), where the breach does not give rise to the right of rejection, it is treated as a breach of warranty and the buyer may deduct damages from the price.

Note that the buyer will not be able to claim damages where the loss was not caused by the breach. In Lambert v. Lewis (1982) AC 225, the seller of a defective towing equipment was liable for the breach of S14(3), but not for the damages the buyer had to pay to a third party who was injured when the buyer continued to use the equipment in spite of knowing that was defective.

CONCLUSION

The buyer can reject goods for defective delivery, breach of an implied or express condition, or serious breach of an innominate term, unless they have accepted the goods or where there is a minor breach.

Rejection does not necessarily constitute rescission of the contract  and it may be possible for the seller to cure a defective delivery.

SUMMARY

The buyer in a sale of goods contract may be able to withhold  payment of the price where the seller fails to deliver, or may be able to bring an action in damages for non delivery. Wrongful rejection of the goods may be treated by the seller as a repudiation of the contract.

TUTOR MARKED ASSIGNMENT (TMA)

1. Mufu agrees to buy 500 planks from Taju for boat building, each plank measuring 15cm in width. When delivered, 125 of the planks were 14cm wide, 125 were 16cm and the rest were as ordered. All the planks were suitable for Mufu’s use, but Mufu has now found an alternative , cheaper supply of wood and wants to escape from his obligations under the contract with Taju. Advise
2. Adamu contracts to buy 12 bottles of brandy and the seller delivers 8bottles of brandy and four bottles of whisky. What can Adamu do under the Sale of Goods

REFERENCES/FURTHER READING

• Sales of Goods
• Rawlings, Commercial Law University Of London Press (2007).
• Okany, Nigerian Commercial Law, Africana .FEP Publishers Limited (1992).
• Hire Purchase
• Sofowora, General Principles of Business and Coop Law, Soft Associates (1999).