PASSING OF PROPERTY
Unit 1 – The Concept of Property.
Unit 2 – Passing of property in Specific Goods.
Unit 3 – Factors Negating Application of Rule 1 of Section 18 Unit 4 - Passing of Property in Unascertained or Future Goods
CONTENTS
1.0 Introduction
2.0 Objectives
- Main Content
- Concept of
- Transfer of Property to the Buyer
- Property and Possession
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference/Further Readings.
INTRODUCTION
Contract of sale of goods, as we have seen, reflects the transfer or agreement to transfer the property in goods from the seller to the buyer. The meaning and characteristic of “property” will be explained in this unit.
OBJECTIVES
The basic objective of this unit is to explain the possessory title and status of a seller.
MAIN CONTENTS
CONCEPT OF PROPERTY
In a contract of sale, the seller agrees to transfer his interest in the goods. The seller in most cases who was in possession would transfer a possessory title, and the fact of the possession would be strong evidence of ownership.
In times past there was misconception as to the terms “possession” and ownership”. They were used interchangeably.
The concept of transfer means to transfer “dominion” i.e. the highest possible rights enjoyed by the owner of goods to the buyer. Here “ownership” is used interchangeably with “dominion” and once there is transfer of ownership, that means that the seller has transferred property, in the goods to the buyer.
It should be noted, that under Section 62(1) of the Sale of Goods Act, “Property” means general property in the goods and not merely a special property. That is to say that there is a transfer of “ownership” or “dominion” and not just some possessory title. Once property can been transferred from the seller to the buyer, there is a valid contract.
TRANSFER OF PROPERTY TO THE BUYER
Part II of the Act, which covers Section 16-20 is titled ‘Transfer of Property between Seller and Buyer’, whilst the remaining provisions under Part II, are collectively titled “Transfer of Title”.
Under Section 62(1), the term “Property” is defined as the “General Property” in goods as opposed to mere “Special property”. Ordinarily and legally, the term “general property” conveys the meaning of “dominion”, “title” or “ownership”.
The reason for the differentiation in the wordings of the two headings of Part II is not clear. According to Craig, Sale of Goods, (1974) Pg. 17, that there was a deliberate effort to differentiate between circumstances where there is a transfer of property between the seller and the buyer from a transfer between a third party who may style himself a “seller” and a buyer. The type of transfer that takes place between the questionable “Seller” and the buyer is called “Transfer of Title” therefore, under the second heading “Transfer of title” deals with circumstances in which a buyer takes a good title even though the seller was not the owner and was not entitled to sell the goods in question. That is to say, the “Seller” may take a transfer of title as against the true seller who can transfer property in the goods.
SELF ASSESSMENT EXERCISE (SAE)
Distinguish between “General Property” and “Special Property”.
PROPERTY AND POSSESSIONS
“Property” in goods means the ownership of or the title to the goods. Possession, on the other hand, is as a general rule, the physical control or custody of goods. Transfer of property in goods is not dependent on the transfer of possession of the goods. It is possible to vest the possession of certain goods in one person, and ownership of such goods be vested in another person.
For example, the possession of a car which has been sent for repairs is in the auto mechanic whilst ownership will remains with the person who sent it for repairs.
SELF ASSESSMENT EXERCISE (SAE)
Distinguish between “Possessory Rights to Goods” and Proprietary Rights to Goods”
CONCLUSION
From the foregoing, it can be said that once it is recognized that there is a sale or sale of goods, there is transfer of ownership. A contract of sale is one whereby the seller “transfers or agrees to transfer the property in the goods to the buyer”. This involves transfer of ownership or dominion and not just possessory title but proprietary title.
SUMMARY
This unit has revealed the underlying facts of the concept of property in sale of goods and the interest of the seller after transfer of goods.
It also discusses the fact that the “Property” in goods means the ownership of or the title to the goods while “Possession”, means physical control in goods. It is possible, as illustrated earlier, for the possession of certain goods to vest in one person whilst the ownership vests in another.
TUTOR MARKED ASSIGNMENT
- The sale of a chattel is the strongest act of dominion that is incidental to ownership”.
- It is possible for possession to certain goods to vest in one person, whilst the property or ownership vest in another. Discuss.
REFERENCES/FURTHER READING
- Sale of Goods Act,
- Rawlings (2007) Commercial Law, University of London Press
- Okany, Nigeria Commercial Law, Africana-Fep Publisher, Limited,
- A. M. Agbonika and J. A. A. Agbonika, Sale of Goods (Commercial Law), 2009, Ababa Press Ltd.