PERFORMANCE OF CONTRACT OF SALE OF GOODS
(A) Duties and rights to parties
i) Duties of seller: To deliver the goods to the buyer or to allow delivery of the goods to take place where the seller agree to deliver the goods at his own risk at a place than the place of sale the buyer (unless agreed) take any risk of deterioration in goods in transit.
ii) Right of seller: To be paid the contract price for goods delivered. Where the ownership has not passed to the buyer, the seller is free to act on goods. Where the buyer has not paid and ownership has passed to the buyer the seller may exercise lien on the goods if they are still in his possession/stoppage in transit and the right of repossession and limited right of resale where the goods are perishable or the right is reserved in the contract.
iii) Duties of buyer: To accept the goods and pay for them in accordance with terms of the contract of sale. The buyer is deemed to have accepted the goods when the he has accepted them or when the goods have been delivered to him or after lapse of a reasonable time or he retains the goods without information the seller that he has rejected them. When the seller is ready and willing to deliver the goods and the buyer does not with a reasonable time take delivery of the goods, the buyer will be liable to seller for any loss and charge for neglect to take delivery.
iv) Rights of buyer: To receive goods under the terms of contract. When goods not previous examined, are delivered by the seller, the buyer is not deemed to have accepted them unless and until he examine them. A seller should give a buyer reasonable time of examining the goods. Where the wrong quantity is delivered, the buyer has the right either rejected the delivery or accepted and pay the contract price for what he has received.
To reject delivery by instalments, unless he has agreed to this procedures.
B) Delivery of the goods:
Definition; Delivery is a voluntary transfer of possession from one person to another. Delivery may take any of the following forms:
i.By physical transfer of the goods and where the goods are handled to the buyer with the intention of transferring possession.
ii.By delivery of the means of control e.g. handle of the key.
iii.By attornment (where the goods are in possession of the third party) e.g. a warehouse man who acknowledges to the buyer that he holds the goods on his behalf.
iv.By delivery of documents of title e.g. bills of loading representing the goods is delivered.
v.By constructive delivery as where the buyers already has possession of the goods as a bailee e.g. in a hire purchase.
Place of delivery: In absence of express agreement place of delivery is the place of business of the seller or if he has no place of business his residence. Therefore the sellers duty to deliver does not mean he must necessarity take or send the goods to the buyer. Therefore the buyer is under a duty to collect the goods from the seller’s premises or storage center.
NOTE : For sales of specific goods which are found in some other place then the place of delivery is where they are found.
Time of delivery: Under the contract of sale, if the seller is bound to send the goods to the buyer if no time for sending is fixed the seller is bound to send them within a reasonable time and at reasonable hour.
*What is reasonable time/hour it is matter of fact.
C: Quantity of goods delivered
The provisions as to quantity delivered are
i.Where the sellers delivers to the buyer a quantity less than the contact quantity the buyer may reject them but if he accepts them he must pay at the contractual rate.
ii.Where the seller delivers to the buyer a quantity larger than he contracted the buyer may accept the goods included in the contract and reject the rest or reject the whole.
iii.Where the goods delivered are mixed with goods of different descriptions not included in the contract the buyer may accept the goods in accordance with contract and reject the rest or he may reject the whole.
NOTE : Usage of trade, special agreements or course of dealing between parties can lead to exceptionals.
D) Delivery by instalments: Unless a greed, the buyer is not bound to accept delivery thereof by instalments.
*If the agreement is the delivery by instalments and that the seller fails to make one or more instalments delivery or the buyer neglects or refuses to take delivery or pay for one or more instalments (depending on the terms of contract) the contract is repudiated or give rise to claim for compensation.
E) Delivery to a carrier:
Where the seller is required to send goods to the buyer through carrier (whether named by the buyer or not) for the purpose of transmission to the buyer it is deemed to be a delivery of goods to the buyer.
Types of carries
a) Common carrier :Is the carrier who publicly hold himself out to carry goods of any customers from place to place in accordance with specified routes and often scheduled timing. A common carrier accepts all customers offered to him except where:
i) No room is left in his transport.
ii)The goods are not of kind which he advertises to carry.
iii)The goods are improperly packed.
iv)The goods are of dangerous character.
v) Goods are not fit to be carried by the public carrier.
Duties of common carrier
1. To transport goods for any person on his schedules routes provided payment for the hire at reasonable rates is tendered.
2. To carry goods without unnecessary delay or deviation and deliver in similar manner.
3. To deliver in good condition and responsible for loss or damage except for Act of God, war, unsuitability of travel due to risk of injury (animals), negligence of the sender
b)Private carrier: Is a carrier who carry goods on selected routes for selective customers. He deals with each customers according to his specific needs and contract accordingly. Unless otherwise authorized by the buyer, the seller shall make contract with the carrier on behalf of the buyer as having regarded to the nature and other circumstances. If the seller to otherwise and the goods are lost/damaged in transit the buyer may hold the seller responsible.
BREACH OF CONTRACT OF SALE
The contract of sale may be either be breached by the seller or the buyer. The injured party is entitled to certain remedies.
Remedies of the seller: This happens when there is a breach by the buyer. Remedies of the seller is divided in two:
i) Real remedies against the goods: Even if the property in the goods has passed to the buyer the unpaid seller of the goods has by implication of law the following remedies:
a)A lien on the goods or the right to retain them while he is in possession of them.
b)In the case of the insolvency of the buyer, a right of stopping the goods in transit.
c)A right to re-sale where the property has not passed to the buyer.
Definition of unpaid seller: A seller when the whole of the price has not been paid or tendered or a seller when a bill of exchange or other negotiable instruments has been received as conditional payment and the condition has not been fulfilled e.g. Dishonour
ii)Personal remedies against the buyer: In addition to the real remedies the seller has personal actions against the buyer in the following ways:
a)Action for the price: This is maintainable where the property in the goods has passed to the buyer and the buyer neglects or refuses to pay for the goods according to the terms of contract.
b)Action for damage: This is maintainable WHERE the buyer neglects or refuses to accept and pay for the goods.
Remedies of the buyer: This happens when there is a breach by the seller. Remedies of the buyer is divided in to three:
i) Rejection of the goods: Where the seller breaches a condition the buyer may repudiate the contract and reject the goods. The buyer is not bound to return the goods rejected but he must inform the seller of his rejection.
ii) .Action for demages:This can be maintained when,
a)Non-delivery of goods: When the seller neglects or refuses to deliver the goods, the buyer may maintain an action against seller for damages.
b)Breach of Warranty: In case of breach of warranty the buyer do not reject the goods but he may maintain actions against the seller for damages.
iii) Right to specific performance: The court upon application by plaintiff may direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods on payment of damages.