SALE OF GOODS ORDINANCE, 1896

SALE OF GOODS ORDINANCE, 1896

No. 4 of 1896.
An Ordinance to codify the law relating to the sale of goods.
[1st August, 1896.]
PART 1.
FORMATION OF THE CONTRACT.
of satc.
1(1) A contract of sale of goods is a contract where-
by the seller transfers or agrees to transfer, the property
in goods to the buyer for a money consideration, called the
price, there may be a contract of sale between one part
owner and another.

(2) a contract of sale may be absolute or conditional

As amended by Law Am. Ord., 1923.
As amended by Law Rev Ord., 1923. Teh short title to this Ordinance
is in s. 63, teh sections having renumbered ny No. 8 of 1912 in order
to make them correspond with those of the Sale of goods act, 1893.





(3) Where under it contract of sale the proporty in the
goods, is transferred from the seller to the buyer, the contract
is called. a sale ; but where die transfer of the property in
the goods is to take place at a future time or subject to some
condition thereafter to be fulfilled,the contract is called an
agreement to sell.

(4) An agreement to sell becomes a sale when the time
elapses, or the conditions are fulfilled subject to which the
property, in the goods is to be transferred.

2.--(1) Capacity to buy and sell is regulated by the general
law concerning capacity to contract, and to transfer and
acquire property: Provided that where necessaries are sold
and delivered to an infant or minor, or to a person who, by
reason of mental incapacity or drunkenness, is incompetent
to contract, he must pay a reasonable price therefor.

Formalities of contract.

3. Subject to the provisions of this ordinance and of any
enactment in that behalf, a contract of sale may be made in
writing (either with or without seal), or by word of mouth,
or partly in writing and partly by word of mouth, or may be
imlpied from the conduct of the parties Provided that
nothing in this section shall affect the law relating to
corporations.

4.(1) a contract for the sale of any goods of the value
of one hundred dollars or upwards shall not be enforceable
by action unless the buyer shall accept part of the goods so
sold, and actually receiver the same, or give something in
earnest ot bind the contract, or in part payment or unless
some note or memorandum in writing of the contract is
made and signed by the party to be charged or his agent in
that behalf.

(2) the provisions of this section apply to every such
contract, notwithstanding that the goods may be intended to
be delivered at some future time, or may not at the time of
such contract be actually made, procured, or provided, of fit
or ready for delivery, or some act may be requisite for the
making or completing thereof, or rendering the same fit for
delivery.






(3) there is an acceptance of goods within the meaning
of this section when the buyer does any act in relation to the
goods which recognises a pre-extisting contract of sale,
whether there is an acceptance in performance of the contract
or not.

Subject-matter of contract

5.(1) The goods which form the subject of a contract of
sale may be either existing goods, owned or possessed by the
seller, or goods to be manufactured or acquired by the seller
after the making of the contract of sale, in this Ordinance
caller future goods.

(2) There may be a contract for the sale of goods, the
acquisition of which by the seller depends upon a contingency
which may or may not happen.

(3) Where by a contract of sale the seller purposts to effect
a present sale of future goods, the contract operates as an
agreement to sell the goods.

6. Where there is a contract for the sale of specific goods,
and the goods, without the knowledge of the seller, have
perished at the time when the contract is made, the contract is void.

7. Where there is an agreement to sell specific goods, and
subsequently the goods, without any fault on the part of the
seller or buyer, perish before the risk passes to the buyer,
the agreement is thereby avoided.

Price

8.(1) the price in a contract of sale may be fixed by the
contract, or may be left to be fixed in manner thereby agreed,
or may be determined by the course of dealing between the
parties.

(2) Where teh price is notdetermined in accordance with
the foregoing provisions, the buyer must pay a reasonable
price. What is a reasonable price is a question of fact
dependent on teh circumstances of each particular case.

9.(1) Where there is an agreement to sell goods on teh
terms that the price is to be fixed by the valuation of a third
party, and such third party cannot or does not make such





valuation, the agreement is avoided: Provided that if the
goods or any part thereof have been delivered to and
appropriated by the buyer, he must pay a reasonable price
therefor.

(2) Where such third party is prevented from making the
valuation by the fatilt of the seller or buyer, the party not in
fault may maintain an action for damages against the party in fault.

Conditions and marranties.

10.-(1) Unless a different intention appears from the
terms of the contract, stipulations as to time of payment are
not deemed to be of the essence of a contract of sale.
Whether any other stipulation as to time is of the essence of
the contract or not depends on the terms of the contract.
(2) In a contract of sale, month means prima facie
calendar month.

11.-(1) Where a contract of sale is subject to any condi-
tion to be fulfilled by the seller, the buyer may waive the
condition, or may elect to',treat the breach of such condition
as a breach of warranty, and not as a ground for treating the
contract as repudiated.

(2) whether a stipulation in a contract of sale is a condi-
tion, the breach of which may give rise to a right to treat the
contract as repudiated, or a warranty, the breach of which
may give rise to a claim for damages but not a right to

reject the goods and treat the contract as repudiated, depends
in each case on the construction of the contract. A stipula-
tion may be a condition, though called a warranty in the
contract.

(3) Where a contract of sale, is not severable, and the
buyer has accepted the goods or part thereof, or where the
contract is for specific goods, the property in which has
passed to the buyer, the breach of any condition to be fulfilled
by the seller can only be treated as, a breach of warranty,
and not ,is a ground for rejecting the goods and treating the
contract as repudiated, unless there is a term of the contract,
express or implied, to that effect.
(4) Nothing in this section shall affect the case of any
condition or warranty, fulfilment of which is excused by law
by reason of impossibility or otherwise.





12. in a contract of sale, unless the circumstances of the
contract are such as to show a different intention, there is-
(1) an implied condition on the part of the seller that, in
the case of a sale, lie has a right to sell. the goods, and that,
in the case of an agreenient to sell, he will have a right to
sell the goods at the tinie when the property is to pass:
(2) an implied warranty that the buyer shall have and
enjoy quiet possession of the goods :
(3) an implied warranty that the goods shall be free from.
any charge or incumbrance in favour of any third party, not
declared or known to the buyer before or at the time when
the contract is made.

13. Where there, is a contract for the sale of goods by
description, there is an implied condition that the goods
shall correspond with the description; and if the sale is by
sample, as well as by description, it is not sufficient that the
bulk of the goods corresponds, with the sample if the goods
do not also correspond with the description.

14. Subject to the provisions of this Ordinance and of any
enactment in that behalf, there is no implied warranty or
condition is to the quality or fitness, for any particular
purpose of goods supplied under a contract of Sale, except
follows:-

(1) where the buyer, expressly or by implication, makes
Cnown to the seller the particular purpose for which the
goods are required, so as to show that the buyer relies'on
the seller's skill or judgemnt, and the goods are of the

description which it is in the course of the seller's business
to supply (whether he is the manufacturer or not), there is
an implied condition that the goods shall be reasonably fit
for such purpose: Provided that, in the case of a contract
for the sale of a specified article under its patent or other
trade name there, is no lmplied condition as to its fitness for
any particular purpose:

(2) where goods are bought by description from a seller
who deals in goods of that description (whether he is the
manufacturer or not), there is an implied condition that the
goods shall be of merchantable quality: Provided that if the
buyer has examined the goods, there shall be no implied
condition as regards defects which such examination ought
to have revealed :






(3) an implied warranty or condition as to quality or
fitness for a particular purpose may be annexed fly the
msage of trade :
(4) an express warranty or condition does not negative a
warranty or condition implied by this Ordinance, unless
inconsistent therewith.

Sale by sample

15.(1) A contract of sale is a contract for sale by sample
where there is a term in teh contract, express or implied, to
that effect.
(2) In the, ease of a contract, for sale by sample -
(a) there is an implied condition that the bulk shall
correspond with the sample in quality :
(b) there is an implied condition that the buyer shall have
reasonable opportitnity of comparing the bulk with the

sample

(c) there is an Implied condition that, the gouds shall be
free from any defect, rendering them unmerchantable, which
would not be apparent on reasonable examination of the
Sample.
PART II
EFFECTS OF THE CONTRACT.

Transfer of property as between seller and buyer.

16. Where there is a contract for the sale of unascertained
goods no property in the goods is transferred to the buyer
unless and until the goods are ascertained.

17.(1) Where there is a contract for the sale of specific
or ascertained goods, the property in them is transferred to
the buyer at such time as the parties to the contract intend
it to be transferred.

(2) For the purpose of ascertaining the intention of the
parties, regard shall be had to the terms of the contract, the
conduct of the parties, and the circumstances of the case.

18. Unless a different intention appears, the following are
rules for ascertaining the intention of the parties as to the
time at which the property in the goods is to pass to the buyer:-





Rule 1 - Where there is an unconditional contract for the
sale of specific goods in a deliverable state, the property in
the goods passes to the buyer when the contract is made,
and it is immaterial whether the time of payment or the
time of delivery, or both, be postponed.

Rule 2 - Where there is a contract for the sale of specific
goods and the seller is bound to do something to the goods,
for the purpose of putting them into a deliverable state, the
property does not pass until such thing be done, and the
buyer has notice thereof.

Rule 3 - Where there is a contract for the sale of specific
goods in a deliverable state, but the seller is bound to weigh,
measure, test, or do some other act or thing with reference
to the goods for the purpose of ascertaining the price, the
property does not pass until such act or thing be done, and
the buyer has notice thereof.

Rule 4 - When goods are deliverd to the buyer on
approval or on sale or return or other similar terms, the
property therein passes to the buyer-

(a) when he signifies his approval or acceptance to the
seller or does any other act adopting the transaction:

(b) if he does not signify his approval or acceptance to the
seller but retains the goods without giving notice of rejection,
then, if a time has been fixed for the return of the goods, on
the expiration of such time, and if no time has been fixed, on
the expiration of a reasonable time. What is a reasonable
time is a question of fact.

Rule 5(1) Where there is a contract for the sale of
unascertained or future goods by description, and goods of
that description, and in a deliverable state, are unconditionally
appropriated to the contract, either by the seller with the
assent of the buyer, or by the buyer with the assent of the
seller, the pro0perty in the goods thereupon passes to the
buyer, Such assent may be express or implied, and may be
given either before or after the appropriation is made:

(2) Where, in pursuance of the contract, the seller delivers
the goods tot he buyer or to a carrier or other bailee (wherther
named by the buyer or not) for the purpose of transmission
to the buyer, and does not reserve the right of disposal, he
is deemed to have unconditionally appropriated the goods to
the contract.





19.-(1) Where there is a contract for the Sale of
goods, or where goods are subsequently appropriated to the
contract, the seller may, by the terms of the contract or
appropriation, reserve the right of disposal of the good,, until
certain conditions are fulfilled. In such ease, notwishstand-
ing the delivery of the goods to the buyer, or to a carrier or
other bailee for the purpose of transmission to the buyer, the
property in the goods does not pass to the buyer until the
conditions imposed by the seller are fulfilled.
(2) Where goods are shipped, and by the bill of lading
the goods are deliverable to the order of the seller or his
agent, the seller is prima facie deemed to reserve the right
of disposal.
Where the seller of goods draws on the buyer for the
price, and transmits the bill of exchange and bill of lading-
to the biiyer together to secure acceptance or payment of the,
bill of exchange, the buyer is bound to return the bill of
lading if he does not honour the bill of exchange, and if he
wrongfully retains the bill of lading. the property in the goods
does not pass to him.

20. Unless otherwise agreed, the goods remain at the
seller's risk until the property therein is transferred to the
buyer, butt when the property therein is to the
buyer the goods are at the buyer's risk, whether delivery has
been made or not : Provided that where delivery has been
delayed through the fault of either seller or buyer, the goods
are at the risk of the party in fault as regards any loss
which might not have occurred but for stich fault : Provided,
also, that nothing in this sectiou shall affect the duties or
liabilities of either seller or buyer as a bailee of the goods
of the other party.

Transfer of tide.
21.-(1) Subject to the provisions of this Ordinance, -where
goods are sold by a person who is not the owlier thereof, and
who does not sell them under the authority or with the
consent of the owner, the buyer acquires no better title to
the goods than the seller had, unless the owner of the goods
is by this conduct precluded from denying the seller's authority
to sell.
(2) Provided, also, that nothing in this Ordinance shall





(a) the provisions of the Factors Ordinance, 1896, or any
enactment ellabling the apparent owner of goods to dispose
of them as if he were the true owner thereof; or
(b) the validity of any contract of sale under any special
common law or statutory power of sale or under the order of
a court of competent jurisdiction.

22.-(1) Where goods are openly sold in a shop or
market, in this Colony, in the ordinary course of the business
of such shop or market, the buyer acquires a good title to
the goods, provided he buys theni in good faith and without
notice of any defect or want of title on the part of the seller.
(2) Nothing in this section shall affect the law relating to
the sale of horses.

23. When the seller of goods has a voidable title thereto,
but, his title has not been avoided at the time of the sale,
the buyer acquires a good title to the goods, provided he
buys them in good faith and without notice of the seller's,
defect of title.

24.-(1) where goods have been stolen and the offender
is prosecuted to conviction, the property in the goods so
stolen re-vests in the person who was the owner of the goods
or his personal representative, notwithstanding ant inter-
mediate dealing with. them, whether by sale in accordance
with the provisions of section 22 or otherwise.
(2) Notwithstanding any enactment to the contrary, where
ods have been obtained by fraud or other wrongful means
not aniountIng to larceny, the property in such goods shall
not re-vest in the persori who was the owner of the goods,
or his personal representative, by reason only of the con-
viction of the offender.

25. (1) Where a person having sold goods continues or
is in possession of the goods, or of the documents of title
to the goods, the delivery or transferby that person, or by a
mercantile agent acting for him, of the goods or documents
of title, under any sale, pledge, or other disposition thereof,
to any person receiving the same in good faith and without
notice of the previous sale, shall have the same effect as if
the personthe making the delivery or transfer were expressly
authorised by the owner of the goods to make the same.

As amended by Law Rev. Ord., 1923.




(2) Where a person having bought or agreed to buy goods
obtains, with the consent of the seller, possession of the
goods or the documents of title to the goods, the delivery or
transfer by that person, or by a mercantile agent acting for
him, of the goods or documents of title, under any sale,
pledge, or other disposition thereof, to any person receiving
the same in good faith and without notice of any lien or
other right of the original seller in respect of the goods,
shall have the same effect as if the person making the
delivery or transfer were a mercantile agent in possession of
the goods or documents of title with the consent of the
owner.

(3) In this section, mercantile agent has the same
meaning as in the Factors Ordinance, 1896.

26.(1) A writ of fieri facias or other writ of execution
against goods shall bind the property in the goods of the
execution debtor as form the time when the writ is delivered
to teh bailiff to be executed: and, for the better manifesta-
tion of such time, it shall be the duty of the bailiff, without
fee, upon the receipt of any such writ to indorse upon the
back thereof the hour, day, month, and year when he
received the same: Provided that no such writ shall
prejudice the title to such goods acquired by any person
in good faith and for valuable consideration, unless such
person had, at the time when he acquired his title, notice
that such writ, or any other writ by virtue of which the
goods of the execution debtor might be seized or attached,
had been delivered to and remained unexecuted in the hans
of the bailiff.

(2) In this section, bailiff includes any officer charged
with the enforcement of a writ of execution.

PART III
PERFORMANCE OF THE CONTRACT.

27. It is the duty fo teh seller to deliver the goods, and
of the buyer to accept any pay for them, in accordance with
the terms of the contract of sale.

28. 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

as amended by Law Rev. Ord., 1923.




of the goods to the buyer in exchange for the price, and the
buyer must be ready adn willing tp pay the price in
exchange for possession of the goods.

29(1) wherther it is for the buyer to take possession
of the goods or for the seller to send them to the buyer is
or implied, between the parites. Apart from any such con-
tract, express or implied, the place of delivery is the seller's
place of busines, if he has one, and if not, his residence:
Provided 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.

(2) 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.

(3) where teh goods at the time of sale are in the posses-
sion of a third person, there is no delivery by seller to buyer
unless and until such third person acknowledges to the
buyer that he holds the goods on his behalf : provided that
nothing in this section shall affect the operation of the issue
or transfer of any document of title to goods.

(4) demand or tender of delivery may be treated as ineffectual unless
made at a reasonable hour. What is a reasobable hour. What is a
reasonable hour is a question of fact.

(5) Unless otherwise agreed, the expenses of and in-
eidental to putting the goods into a deliverable state must be
borne by the seller.

30(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 teh 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, if the buyer accepts the whole of the
goods so delivered he must pay for them at the contract rate.







(3)where the seller delivers to the buyer the goods he
contracted to sell mixed witb goods of a different description
not included in the contract the buyer may accept the goods
which are in acordance with the contract and reject the
rest, or he may reject the whole.

(4) The provisions of this section are subject to any usage
of trade, special agreernent, or course of dealing between the

31.(1) Unless otherwise agreed, the buyer of goods is
not bound to accept delovery thereof by instalments.

(2) Where there is a contract for the sale of goods to be
delivered bY stated instalments, which are to be separately
paid for, and the seller makes defective deliveries in respect
of one or more instalments, or the buyer neglects or refuses
to take delivery of of pay for one or more instalments, it is a
question in each case depending on the terms of the contract
and the circumstances of the case, whether the breach of
contract is a repudiation of the whole contract or whether it

is a severable breach giving rise to a claim for compensation
but not to a right to treat the whole contract is

32.-(1) 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
byer is prima facie deemed to be a delivery of the goods
to the buyer.
(2) Unless otherwise authorised by the buyer, the seller
must make such contract with the carrier on behalf of the
buyer as may be reasonable having regard to the nature of
the goods and the other circumstances of the case. If the
seller omits to do so, and the goods are lost or damaged in
coarse of transit, the bLiver may decline to treat the delivery
to the carrier as a delivery to himself, or may hold the seller
responsible in damages.

(3) Unless otherwise agreed, where goods are sent by the
seller to the buyer by a route involving sea transit, in
circumstances . in which it is usual to insure, the seller must
give such notice to the buyer as may enable him to insure
them during their sea transit, and, if the seller fails to do so,
the goods shall. be deerned to be at his risk during such sea
transit.





33. Where the seller of goods agrees to deliver them at
his own risk at a place other than that where they are when
sold, the buyer must, nevertheless, unless otherwise agreed,
take any risk of deterioration in the goods necessarily
incident to the course of transit.

34.(1) Where goods are delivered to the buyer, which
he has not previously examined, he is not deemed to have
accepted them unless and until he has had a reasonable
opportunity of examining them for the purpose of ascertaining
thether they are in conformity with the contract.

(2) unless otherwise agreed, when the seller tenders
delivery of goods to the buyer, he is bound, on request, to
afford the boyer a reasonable opportunity of examining the
goods for the purpose of ascertaining whether they are in
conformity with the contract.

35. The buyer is deemed to have accepted the goods
when he intimates to the seller that he has accepted them, or
when the goods have been delivered to him, and he does any
act in relation to them which is insonsistent with the owner-
ship of the seller, or when after the lapse of a reasonable
time, he reatins the goods without intimating to the seller
that he has rejected them.

36. Unless otherwise agreed, where goods are delivered
to the buyer, and he refuses to accept them, having the right
to do so, he is not bound to return them to the seller, but it
is sufficient if he intimates to the seller that he refuses to
accept them.

37. when the seller is ready and willing to deliver the
goods and requests the buyer to take delivery, and the buyer
does not within reasonable time after such request take
delivery of the goods, he is liable to the seller for any loss
occasioned by his neglect or refusal to take delivery, and also
for a reasonable charge for the care and custody of the goods:
Provided that nothing in this section shall affect the rights
of the seller where the neglect or refusal of the buyer to take
delivery amounts to a repudiation of the contract.




PART IV
RIGHTS OF UNPAID SELLER AGAINST THE GOODS

38.(1) the seller of goods is deemed to be an unpaid
seller, within the meaning of this ordinance,

(a) when the whole of the price has not been paid or
tendered;

(b) when a bill of exchange or other negotiable instrument
has been received as conditional payment, and the condition
on which it was received has not been fulfilled by reason of
the dishonour of the instrument or otherwise.

(2) in this part, seller includes any person who is in
the position of a seller, as, for instance, an agent of the seller
to whom the bill of lading has been indorse, or a consignor
or agent who has himself paid, or is directly responsible for,
the price.

39. Subject to the provisions for this ordinance and of
any enactment in that behalf, notwithstanding that the
property in the goods may have passed to the buyer, the
unpaid seller of goods, as such, has by implication of law-

(a) a lien on the goods or right to retain them for the price
while he is in possession of them;

(b) in case of the insolvency of the buyer, a right of
stopping the goods in transitu after he has parted with the
possession of them;

(c) a right of re-sale as limited by this ordinance.

40. where the property in goods has not passed to the
buyer, the unpaid seller has, in addition to his other remedies,
a right of withholding delivery similar to and co-extensive
with his rights of lien and stoppage in transitu where the
property has passed to the buyer.

Unpaid seller's lien

41.(1) subject to the provisions of this ordinance, the
unpaid seller of goods who is in possession of them is entitled
to retain possession of them until payment or tender of the
price in the following cases, namely,

as amended by law rev., ord 1923.





(a) where the goods have been sold withourt any stipulation
as to credit.

(b) where the goods have been sold on credit, but the term
of credit has expired;

(c) where the buyer becomes insolvent.

(2) Tbe seller may exercise his right, of lien notwithstanding
that he is in possession of the goods as agent or bailee for
the buyer.

42. Where an unpaid seller has made part delivery of the
goods, he may exercise his right of lien or retention on the
remainder, unless such part delivery has been made in
such circumstances as to show an agreement to waive the
lien or right of retention.

43.--(1) The unpaid seller of goods loses his lien or right
of retention thereon-

(a) when the delivers the goods to a carrier or other bailee
for the purpose of transmission to the buyer, without reserving
the right of disposal of the, goods;
(b) when the buyer or his agent lawfullay obtains posses-
sion of the goods;

(C) by waiver thereof.

(2) the unpaid seller of goods, having a lien or right of
retention thereon, does not lose his lien or right of retention
by reason only that he has obtained judgment for the price
of the goods.

Stoppage in transitu

44. subject to the provisions of this ordinance, when the
buyer of goods becomes insolvent, the unpaid seller who has
parted with the possession of the goods has the right of
stopping them in transitu, that is to say, he may resume
possession of the goods as long as they are in course of transit,
and may retain them until payment or tender of the price.

45.(1) goods are deemed to be in course of transit from
the time when they are delivered to a carrier by land or
water, or other bailee for the purpose of transmission to the
buyer, until the buyer, or his agent in that behalf, takes
delivery of them from such carrier or other bailee.






(2) If the buyer or his agent in that belialf obtains delivery
of the goods before their arrived at the appointed destination,
the transit is at an end.

(3) If, after the arrival the goods at the appointed
destination, the carrier or other ballee acknowledges to the
buyer, or his agent, that he holds the goods on his behalf
and continties in possession of them as ballee for the buyer or
his agent, the transit is at an end, and it is immiaterial that
a further destination for the goods may have been indicated
by the buyer.
(4) If the goods are, rejected by the buyer, and the carrier
or other bailee continues in possession of them, the transit is
not deemed to be at, an end, even the seller has refused to
receive them back.
(5) Wben goods are delivered to a ship chartered by the
buyer, it is a question depending on the circumstances of the
particular case Whethey they are in the possession of the
master as a carrier, or as agent to the buyer.
(6) Where the carrier or other ballee wrongfully refuses to
deliver the goods to the buyer or his agent in that behalf, the
transit is deemed to be at an end.

(7) Where part delivery of the goods has been made to the
buyer or his agent in that behalf, the remainder of the goods
may be stopped in transita, unless such part deliver has
been made in such circumstances as to show an agreement
to give up possession of the whole of the goods.


46.(1) The unpaid seller may exercise his right of stop
page in transitu either by taking actual possession of the
goods or by giving notice of his claim to the carrier or other
bailee in whose possession the goods are. Such notice may
be given either to the person, in actual possessilon of the
goods or to his principal. In the latter case the notice, to
be effectual, must be given at suck time and in such
circumstances that the principal, by the exercise of reasonable
diligence, may communicate it to his servant or agent in
time to prevent a delivery to the buyer.

(2) When notice of stoppage in transitu, Is given by the
seller to the carrier or other ballee in possession of the goods,
he must re-deliver the goods to, or according to the direc-
tions of, the seller. The expenses of such re-delivery must
be borne by the seller.





Re-sale by buyer or seller.

47. subject to the provisions of this ordinance, the unpaid
seller's right of lien or retention or stoppage in transitu is
not affected by any sale or other disposition of the goods
which the buyer may have made, unless the seller has
assented thereto: Provided that where a document of title to
goods has been lawfully transferred to any person as buyer
or owner of the goods, and that person transfers the docu-
ment to a person who takes the document it good faith and
for valuable consideration, then, if such last-mentioned
transfer was by way of sale, the unpaid seller's right of lien
or retention or stoppage in transitu is defeated, and if such
last mentioned transfer was by way of pledge or other disposi-
tion for value, the unpaid seller's right of lien or retention
or stoppage in transitu can only be exercised subject to the
rights fo the transferee.

48.(1) subject to the provisions of this section, a
contract of sale is not rescinded by the mere exercise by an
unpaid seller of his right of lien or retention or stoppage in
transitu.

(2) where an unpaid seller who has exercised his right of
lien or retention or stoppage in transitu re-sells the goods
the buyer acquires a good title thereto as against the original
buyer.

(3) where the goods are of a perishable nature, or where
the unpaid seller gives notice to the buyer of his intention to
re-sell and the buyer does not within a reasonable time pay
or tender the price, the unpaid seller may re-sell the goods
and recover from the original buyer damages for any loss
occasioned by his breach of contract.

(4) where the seller expressly reserves a right of re-sale
in case the buyer should make default, and on the buyer
making default, re-sells the goods, the original contract of
sale is thereby rescinded, but without prejudice to any claim
the seller may have for damages.

PART V
ACTIONS FOR BREACH OF THE CONTRACT

Remedies of seller

49.(1) where, under a contract of sale, the property in
the goods has passed to the buyer, and the buyer wrongfully






neglects or refuses to pay for the goods according to the
terms of the contract, the seller may maintain an action
against him for the price of the goods.

(2) where, under a contract of sale, the price is payable
on a day certain irrespective of delivery, and the buyer
wrongfully neglects or refuses to pay such price, the seller
may maintain an action for the price, although the property
in the goods has not passed, and the goods have not been
appropriated to the contract.

50.(1) where the buyer wrongfully neglects or refuses
to accept and pay for the goods, the seller may maintain an
action against him for damages for non-acceptance.

(2) the measure of damages is the estimated loss directly
and naturally resulting, in the ordinary course of events,
from the buyer's breach of contract.

(3) where there is an available market for the goods in
question, the measure of damages is prima facie to be
ascertained by the difference between the contract price and
the market or corrent price at the time or times was fixed
goods ought to have been accepted, or, if no time was fixed
for acceptance, then at the time of the neglect or refusal to accept.

Rdmedies of buyer

51.(1) where the seller wrongfully neglects or refuses
to deliver the goods to the buyer, the buyer may maintain an
action against the seller for damages for non-delivery.

(2) the measure of damages is the estimated loss directly
and naturally resulting, in the ordinary course of events,
from the seller's breach of contract.

(3) where there is an available market for the goods in
question, the measure of damages is prima facie to be ascer-
tained by the difference between the contract price and the
market or current price of the goods at the time or times
when they ought to have been delivered, or, if no time was
fixed for delivery, then at the time of the neglect or refusal to
deliver.

52. In any action for breach of contract to deliver specific
or ascertained goods, the court may, if it thinks fit, on the
application of the paintiff, by its judgment direct that the




contract shall be performed specifically, without giving the
defendant the option of retaining the goods on payment of
damages, the judgment may be unconditional, or on such
terms and conditions as to damages, payment of the price,
and otherwise, as to the court may seem just. the applica-
tion by the plaintiff may be made at any time before judgment.

53.(1) where there is a breach of warranty by the seller,
or where the buyer elects, or is compelled, to treat any
breach of a condition on the part of the seller as a breach of
warranty, the buyer is not, by reason only of such breach
of warranty, entitled to reject the goods; but he may-
(a) set up against the seller the breach of warranty in
dimination or extinction of the price; or
(b) maintain an action against the seller for damages for the
breach of warranty.
(2) The measures of damages for breach of warranty is
the estimated loss directly and naturally resulting, in the
ordinary course of events, from the breach of warranty.

(3) in the case of breach of warranty of quality, such loss
is prima facie the difference between the value of the goods
at the time of delivery to the buyer and the value they would
have had if they had answered to the warranty.

(4) the fact that the buyer has set up the breach of
warranty in deminution or extinction of the price does not
prevent him from maintaining an action for the same breach
of warrantly if he has suffered further damage.

54. Nothing in this ordinance shall affect the right of
the buyer or the seller to recover interest or special damages
in any case where by law interest or special damages may
be recoverable, or to recover money paid where the con-
sideration for the payment of it has failed.

PART VI
SUPPLEMENTARY

55. where any right, duty, or liability would arise
under a contract of sale by implication of law, it may be
negatived or varied by express agreement or by the course
of dealing between the parties, or by usage, if the usage be
such as to bind both parties to the contract.





56. where, by this ordinance, any reference is made to
a reasonable time, the question what is a reasonable time is
a question fo fact.

57. where any right, duty, or liability is declared by
this ordinance, it may, unless otherwise provided by this
ordinance, be enforced by action.

58. in the case of a sale by auction.
(1) where goods are put up for sale by auction in lots,
each lot is prima facie deemed to be the subject of a
separate contract of sale:

(2) a sale by auction is complete when the auctioneer
announces its completion by the fall of the hammer, or in
other customary manner. Until such announcement is made
any bidder may retract his bid:

(3) where a sale by auction is not notified to be subject
to a right to bid on behalf of the seller, it shall not be lawful
for the seller to bid himself or to employ any person to bid
at such sale, or for the auctioneer knowingly to take any bid
from the seller or any such person. Any sale contravening
this rule may be treated as fraudulent by the buyer:

(4) a sale by auction may be notified to be subject to a
reserved or upset price, and a right to bid may also be
reserved expressly by or on behalf of the seller.

59. where a right to bid is expressly reserved, but not
otherwise, the seller, or any one person on his behalf, may
bid at the auction.

60. the enactments mentioned in the schedule are hereby
repealed (so far as they are applicable to the Colony) to the
extent stated in the schedule.

61.(1) the rules in bankruptcy relating to contracts of
sale shall continue to apply thereto, notwishtanding any-
thing in this ordinance.

(2) the rules of the common law, including the law
merchant, save in so far as they are inconsistent with the
express provisions of this ordinance, and in particular
the rules relating to the law of principal and agent, and
the effect of fraud, misrepresentation, duress or coercion,





mistake, or other invalidating cause, shall continue to apply
to contracts for the sale of goods.

(3) Nothing in this ordinance or in any repeal effected
thereby shall affect the enactments relating to bills of sale,
or any enactment relating to the sale of goods which is not
expressly repealed by this ordinance.

(4) the provisions of this ordinance relating to contracts
of sale do not apply to any transaction in the form of a
contract of sale which is intended to operate by way of
mortgage, pledge, charge, or other security.

62. In this ordinance,
(1)(a) action includes suit, counterclaim, and set-off
(b) buyer means a person who buyers or agrees to buy goods.
(c) contract of sale includes an agreement to sell as
well as a sale.
(d) delivery means voluntary transfer of possession
from one person to another.
(e) document of title to goods includes any bill of
lading, dock warrant, warehouse keeper's certificate, and
warrant or order for the delivery of goods, and nay other
document used in the ordinary course of business as proof
of the possession or control of goods, or authorising or pur-
proting to authorise, eithter by indorsement or by delivery,
the possessor of the document to transfer or receive goods
thereby represented.

(f) fault means wrongful act or default.
(g) future goods means goods to be manufactured or
acquired by the seller after the making of the contract of
sale.

(h) goods include all chattels personal other than
things in action and money. the term includes emblements,
industrial growing crops, and things attached to or forming
part of the land which are agreed to be severed before sale
or under the contract of sale.

(i) plaintiff includes a defendant counterclaiming.
(j) property means the general property in goods, and
not merely a special property.






(k) Quality of goods includes their state or condition
(l) sale includes a bargain and sale as well as a sale
and delivery.
(m) seller means a person who sells or agrees to sell goods.
(n) specific goods means goods identified and agreed
upon at the time a contract of sale is made.
(o) warranty means an agreement with reference to
goods which are the subject of a contract of sale, but
collateral to the main purpose of such contract, the breach
of which gives rise to a claim for damages, but not to a right
to reject the goods and treat the contract as repudiated.

(2) a thing is deemed to be done in good faith when
\ it is in fact done honestly, whether it is done negligently or
not.

(3) a person is deemed to be insolvent who either has
ceased to pay his debts inthe ordinary course of business or
cannot pay his debts as they become due, whether he has
committed an act of bankruptcy or not and whether he has
been adjudged bankruptcy or not.

(4) goods are in a deliverable state when they are in
such a state that the buyer would, under the contract, be
bound to take delivery of them.

63. this ordinance may be cited as the sale of goods
ordinance, 1896.

[Originally No. 7 of 1896. Law Rev. Ord., 1924.] 56 & 57 Vict, c. 71. Sale and agreement to sell. Capacity to bug and sell. Mode of making contract of sale. Contract of sale $100 and upwards. Existing or furture goods. Goods which have perished. Goods perishing before sale but after agreement to sell. Ascertainment of price. Agreement to sell at valuation. Stipulations as to time. When condition to be treated as warranty. Implied undertaking as to title, etc. Sale by description. Implied conditions as to quality or fitness. sale by sample. Goods must be ascertained. Property passes when intended to pass. Rules for ascertaining intention. [s. 18 contd.] Reservation of right of disposal. Risk prima facie passes with property. Sale by person not owner. Ordinance No. 3 of 1896. Marker overt. Sale under voidable title. Re-vesting of property in stolen goods on conviction of offender. Seller or buyer in possession after sale. Ordinance No. 3 of 1896. Effect of writ of execution. Duties of seller and buyer. Payment and delivery are concurrent conditions. Rules as to delivery. Delivery of wrong quantity. Delivery by instalments. Delivery to carrier. Risk where goods are delivered at distant place. Buyer's right of examining goods. Acceptance of goods. Buyer not bound to return rejected goods. Liability of buyer for neglecting or refusing to take delivery of goods. Definition of unpaid seller. Unpaid seller's rights. Withholding delivery. Unpaid seller's lien. Part delivery. Termination of lien. Right of stoppage in transitu. Duration of transit. How stoppage in transitu is effected. Effect of sub-sale or pledge by buyer. Sale not generally rescinded by lien or stoppage in transitu. Action for price. Damages for non-acceptance. Damages for non-delivery. Specific performance. Remedies for breach of warranty. Interest and special damages. Exclusion of implied terms and conditions. Reasonable time a question of fact. Right, etc., enforceable by action. Auction sale. Reservation of right to bid. Repeal of enactments. Schedule. Saving. interpretation. Short title.

[Originally No. 7 of 1896. Law Rev. Ord., 1924.] 56 & 57 Vict, c. 71. Sale and agreement to sell. Capacity to bug and sell. Mode of making contract of sale. Contract of sale $100 and upwards. Existing or furture goods. Goods which have perished. Goods perishing before sale but after agreement to sell. Ascertainment of price. Agreement to sell at valuation. Stipulations as to time. When condition to be treated as warranty. Implied undertaking as to title, etc. Sale by description. Implied conditions as to quality or fitness. sale by sample. Goods must be ascertained. Property passes when intended to pass. Rules for ascertaining intention. [s. 18 contd.] Reservation of right of disposal. Risk prima facie passes with property. Sale by person not owner. Ordinance No. 3 of 1896. Marker overt. Sale under voidable title. Re-vesting of property in stolen goods on conviction of offender. Seller or buyer in possession after sale. Ordinance No. 3 of 1896. Effect of writ of execution. Duties of seller and buyer. Payment and delivery are concurrent conditions. Rules as to delivery. Delivery of wrong quantity. Delivery by instalments. Delivery to carrier. Risk where goods are delivered at distant place. Buyer's right of examining goods. Acceptance of goods. Buyer not bound to return rejected goods. Liability of buyer for neglecting or refusing to take delivery of goods. Definition of unpaid seller. Unpaid seller's rights. Withholding delivery. Unpaid seller's lien. Part delivery. Termination of lien. Right of stoppage in transitu. Duration of transit. How stoppage in transitu is effected. Effect of sub-sale or pledge by buyer. Sale not generally rescinded by lien or stoppage in transitu. Action for price. Damages for non-acceptance. Damages for non-delivery. Specific performance. Remedies for breach of warranty. Interest and special damages. Exclusion of implied terms and conditions. Reasonable time a question of fact. Right, etc., enforceable by action. Auction sale. Reservation of right to bid. Repeal of enactments. Schedule. Saving. interpretation. Short title.

https://oelawhk.lib.hku.hk/items/show/1165

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