Delivery & perishing of specific goods
Key topics
I. Delivery and payment: sections 27-37
II. Specific goods perishing before the contract is made: section 6
III. Specific goods perishing before risk passes to the buyer: section 7
Duties of the Seller and Buyer
S. 27 SOGA: 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.
S. 28 SOGA: Payment and delivery are concurrent conditions
- Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions ,
that is to say, the seller must be ready and willing to give possession of the goods to the buyer in
exchange for the price and the buyer must be ready and willing to pay the price in exchange for
possession of the goods.
The sellers’ delivery gives right to payment (seller can keep the goods until they are paid)
Seller’s delivery obligations
- Delivery: voluntary transfer of possession from one person to another (s. 61 (1) SOGA)
- “Delivery of the goods to the buyer may be made by any method which the parties agree shall
constitute delivery… In the absence of any such agreement, express or implied, the seller sufficiently
performs his duty to deliver by making the goods available to the buyer in a deliverable state at the
time and place designated in the contract of sale so as to enable the buyer to obtain custody of or
control over the goods”Benjamin: para 8-007
Mode of delivery
- e.g. Attornment: see section 29(4)
Where the goods at the time of sale are in the possession of a third person, there is no
delivery by seller to buyer unless and until the third person acknowledges to the buyer that
he holds the goods on his behalf (…)
- Providing the means of control (e.g. key to the car)
- Transfer of documents of title: see section 1(4) Factors Act 1889
- Delivery to carrier: see sections 32(1)/(2)
Where, in pursuance of a contract of sale, the seller is authorised or required to send the
goods to the buyer, delivery of the goods to a carrier (whether named by the buyer or not)
for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the
goods to the buyer
Place of delivery
- Sections 29(1)/(2) SOGA
(1)Whether it is for the buyer to take possession of the goods or for the seller to send them to the
buyer is a question depending in each case on the contract, express or implied, between the parties.
(2)Apart from any such contract, express or implied, the place of delivery is the seller’s place of
business if he has one, and if not, his residence; except that, if the contract is for the sale of specific
goods, which to the knowledge of the parties when the contract is made are in some other place,
then that place is the place of delivery.
- Section 28 (2) Consumer Rights Act (CRA)
(2)Unless the trader and the consumer have agreed otherwise, the contract is to be treated as
including a term that the trader must deliver the goods to the consumer
Time of delivery and payment: SOGA
- S. 10 SOGA Stipulations about time.
(1) Unless a different intention appears from the terms of the contract, stipulations as to time of
payment are not of the essence of a contract of sale.
, (2) Whether any other stipulation as to time is or is not of the essence of the contract depends on the
terms of the contract.
- S. 29 SOGA
(3) 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. (this can be said
to be vague, specific case details are required)
(5) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour; and
what is a reasonable hour is a question of fact
Time of delivery
- Case law is strict in regard to time
- Hartley v Hymans [1920] 3 KB 475 - In commercial contracts an agreed delivery time is usually “of the
essence”. If the good is not delivered on time the purchaser can repudiate the contract and claim
damages. However, the purchaser can also waive his right by accepting late delivery. Then he is still
entitled to claim damages.
- Rickards (Charles) Ltd v Oppenhaim [1950] 1 KB 616 (a buyer can waive the right to terminate the
contract for non-delivery at the agreed time, but he can also revive it by providing reasonable notice)
Consumer Rights Act: Delivery time
- Section 28 CRA
(3) Unless there is an agreed time or period, the contract is to be treated as including a term that the
trader must deliver the goods
(a) without undue delay, and
(b) in any event, not more than 30 days after the day on which the contract is entered into
Termination of the contract: s. 28 (6) CRA
(6)If the circumstances are that—
(a)the trader has refused to deliver the goods,
(b) delivery of the goods at the agreed time or within the agreed period is essential taking into account all the
relevant circumstances at the time the contract was entered into, or
(c)the consumer told the trader before the contract was zentered into that delivery in accordance with
subsection (3), or at the agreed time or within the agreed period, was essential, then the consumer may treat
the contract as at an end.
(7)In any other circumstances, the consumer may specify a period that is appropriate in the circumstances and
require the trader to deliver the goods before the end of that period.
(8)If the consumer specifies a period under subsection (7) but the goods are not delivered within that period,
then the consumer may treat the contract as at an end.
- If they agree on a specific time, then it depends on specific circumstances (6(b))
Delivery of wrong quantity: S. 30 SOGA
(1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may
reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate.
(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may
accept the goods included in the contract and reject the rest, or he may reject the whole.
(3) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell and the buyer
accepts the whole of the goods so delivered he must pay for them at the contract rate.
S. 25 Consumer Rights Act corresponds to s. 30 (1 & 2) SOGA
- The buyer has the freedom to decide what to do
Restrictions on the buyer’s right to reject for incorrect delivery
- Sections 30(2A) and 30(2B) SOGA
(2A)A buyer who does not deal as consumer may not—
Key topics
I. Delivery and payment: sections 27-37
II. Specific goods perishing before the contract is made: section 6
III. Specific goods perishing before risk passes to the buyer: section 7
Duties of the Seller and Buyer
S. 27 SOGA: 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.
S. 28 SOGA: Payment and delivery are concurrent conditions
- Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions ,
that is to say, the seller must be ready and willing to give possession of the goods to the buyer in
exchange for the price and the buyer must be ready and willing to pay the price in exchange for
possession of the goods.
The sellers’ delivery gives right to payment (seller can keep the goods until they are paid)
Seller’s delivery obligations
- Delivery: voluntary transfer of possession from one person to another (s. 61 (1) SOGA)
- “Delivery of the goods to the buyer may be made by any method which the parties agree shall
constitute delivery… In the absence of any such agreement, express or implied, the seller sufficiently
performs his duty to deliver by making the goods available to the buyer in a deliverable state at the
time and place designated in the contract of sale so as to enable the buyer to obtain custody of or
control over the goods”Benjamin: para 8-007
Mode of delivery
- e.g. Attornment: see section 29(4)
Where the goods at the time of sale are in the possession of a third person, there is no
delivery by seller to buyer unless and until the third person acknowledges to the buyer that
he holds the goods on his behalf (…)
- Providing the means of control (e.g. key to the car)
- Transfer of documents of title: see section 1(4) Factors Act 1889
- Delivery to carrier: see sections 32(1)/(2)
Where, in pursuance of a contract of sale, the seller is authorised or required to send the
goods to the buyer, delivery of the goods to a carrier (whether named by the buyer or not)
for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the
goods to the buyer
Place of delivery
- Sections 29(1)/(2) SOGA
(1)Whether it is for the buyer to take possession of the goods or for the seller to send them to the
buyer is a question depending in each case on the contract, express or implied, between the parties.
(2)Apart from any such contract, express or implied, the place of delivery is the seller’s place of
business if he has one, and if not, his residence; except that, if the contract is for the sale of specific
goods, which to the knowledge of the parties when the contract is made are in some other place,
then that place is the place of delivery.
- Section 28 (2) Consumer Rights Act (CRA)
(2)Unless the trader and the consumer have agreed otherwise, the contract is to be treated as
including a term that the trader must deliver the goods to the consumer
Time of delivery and payment: SOGA
- S. 10 SOGA Stipulations about time.
(1) Unless a different intention appears from the terms of the contract, stipulations as to time of
payment are not of the essence of a contract of sale.
, (2) Whether any other stipulation as to time is or is not of the essence of the contract depends on the
terms of the contract.
- S. 29 SOGA
(3) 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. (this can be said
to be vague, specific case details are required)
(5) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour; and
what is a reasonable hour is a question of fact
Time of delivery
- Case law is strict in regard to time
- Hartley v Hymans [1920] 3 KB 475 - In commercial contracts an agreed delivery time is usually “of the
essence”. If the good is not delivered on time the purchaser can repudiate the contract and claim
damages. However, the purchaser can also waive his right by accepting late delivery. Then he is still
entitled to claim damages.
- Rickards (Charles) Ltd v Oppenhaim [1950] 1 KB 616 (a buyer can waive the right to terminate the
contract for non-delivery at the agreed time, but he can also revive it by providing reasonable notice)
Consumer Rights Act: Delivery time
- Section 28 CRA
(3) Unless there is an agreed time or period, the contract is to be treated as including a term that the
trader must deliver the goods
(a) without undue delay, and
(b) in any event, not more than 30 days after the day on which the contract is entered into
Termination of the contract: s. 28 (6) CRA
(6)If the circumstances are that—
(a)the trader has refused to deliver the goods,
(b) delivery of the goods at the agreed time or within the agreed period is essential taking into account all the
relevant circumstances at the time the contract was entered into, or
(c)the consumer told the trader before the contract was zentered into that delivery in accordance with
subsection (3), or at the agreed time or within the agreed period, was essential, then the consumer may treat
the contract as at an end.
(7)In any other circumstances, the consumer may specify a period that is appropriate in the circumstances and
require the trader to deliver the goods before the end of that period.
(8)If the consumer specifies a period under subsection (7) but the goods are not delivered within that period,
then the consumer may treat the contract as at an end.
- If they agree on a specific time, then it depends on specific circumstances (6(b))
Delivery of wrong quantity: S. 30 SOGA
(1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may
reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate.
(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may
accept the goods included in the contract and reject the rest, or he may reject the whole.
(3) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell and the buyer
accepts the whole of the goods so delivered he must pay for them at the contract rate.
S. 25 Consumer Rights Act corresponds to s. 30 (1 & 2) SOGA
- The buyer has the freedom to decide what to do
Restrictions on the buyer’s right to reject for incorrect delivery
- Sections 30(2A) and 30(2B) SOGA
(2A)A buyer who does not deal as consumer may not—
