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 I.

FORISIATION OF THE CONTRACT.

Contract of sale.

1.-(1) A contract of sale of goods is a contract whereby
the seller transfers, or agrees to transfer the property in goods

The numbering of the sections of this Ordinance, except ss. 40, 59 & 63,
corresponds with that in the Sale of Goods Act, 1893. The short
title is in s. 63.





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 sate maybe absolute or conditional.

(3) Where under a contract of sale the property in the goods is
transferred from the seller to the buyer, the contract is called a sale ; but
where the 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.

(2) Necessaries in this section mean goods suitable to the condition in
life of such infant or minor or other person, and to his actual requirements at
the time of the sale and delivery

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 way be imi)lied 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 sate 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 receive the same, or give
something in earnest to 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 con-
tract, 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, or fit or ready
for delivery, or some act may be requisite for the making or com-
pleting 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 recognizes a pre-existing contract of sale, whether there
is an acceptance in performance of the contract or not. ,

Subject-matter of contract.

5.-(j) 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 called
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 purports to effect
a present sate 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.

Rrice.

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 the price is not determined 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 the circumstances of each particular
case.

.9.-(1) Where there is. an agreement to sell goods on the terms that the
price is to be fixed by the valuation of & 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 fault of the seller or buyer, the party not. in fault may maintain an action
for damages against the party in fault.

Conditions and warranties.

10.-(i) 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 Primfi facie calendar month.

11.-(i) Where a contract of sale is subject to any condition 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 condition, 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 stipulation 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 as 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-

(i) an implied condition on the part of the seller that, in
the case of a sale, he has a right to sell the goods, and that,
in the case of an agreement to sell, he will have a right to sell
the goods at the time 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 con-
dition as to the quality or fitness for any particular purpose of
goods supplied tinder a contract of sale, except as follows:-
(i) where the buyer, expressly or by implication, makes
known 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 judgment, 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 implied
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 con-
dition 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 by the usage 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 contiact of sale is a contract for sale by sample
where there is a term in the contract, express or implied, to.
that effect.

(2) In the case of a contract for sale by sample-
(a) there is an implied condition that the bulk shall corres-
pond with the sample in quality:
(b) there is an implied condition' that the buyer shall have
a reasonable opportunity of comparing the bulk with the
sample:
(c) there is an implied condition that the goods 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 -r.-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 ascerta~ning 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 delivered 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 att 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 tjme 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 tinIC
is a question of fact.

Rule 5.-(1) Where there is a contract for the sale of Un-
ascertained 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.





property 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 to the buyer or to a carrier or other bailee,(whether
named by the buyer or not) for the purpose of transm~ssion
to the buyer, and does not reserve the right of disposal, he is
deemed to have unconditionally appropriated the goods to the
coritra~t.

19.-(1) Where there is a contract for the sale of specific
goods, or where goods are subsequently appropriated to the
contract, the seller may, by the terms of the contract or appro-w
priation, reserve the right of disposal of the goods until certain
conditions are fulfilled. In such case, notwithstanding the
delivery of the goods to the buyer, or to a carrier or other
bailee for the purpose of transmission to the b . uyer, 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 p7imd facie deemed to reserve the right of
disposal.

(3) Where the seller of goods draws on the buyer for the
price, and transmits the bill of exchange and bill of lading
to the buyer together to secure acceptance or payment of the
bill of exchange, the buyer is bound to return thebill 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, but
when the property therein is transferred to the buyer the goods
are at Ahe 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 such fault: Provided, also, that nothing in this section shall
affect the duties or liabilities of either seller or buyer as a bailee
of the goods of the other party.





Transfe,r of title.

21.-(1) S'ubject to the provisions of this Ordinance, Yhere
goods are sold by a person who is not the owner 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 his conduct
precluded from denying the seller's authority to sell.

(2) Provided, also, that nothing in this Ordinance shall
affect-

(a) the provisions of the Factors Ordinance, 1896, or any
enactment enabling 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 lie buys them 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
ti tle.

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 any intermediate deal-
ing with them, whether by sale in accordance with the provisions
Of Section 22 or otherwise.

(2) Notwithstanding any enactment to the contr ary, where
goods have been obtained by fraud or other wrongful means
not amounting to larceny, the property in such goods shall.not
re-vest in the person who was the owner of the goods, or his





personal representative, by reason only of the conviction of the offender.

25.-(1) Where aperson having sold goods continues or
is in possession of the goods, or of the documents of title to
the goods, the deliver 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 the previous sale, shall have the
same effect as if the person making the delivery or transfer were expressly
authorized by the owner of the goods to make the same.

(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
good, 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 from the time
when the writ is delivered to the bailiff to be executed ; and, for the better
manifestation 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 hands 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 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.

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 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.

29.-(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.. 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: 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---theseller is bound
to send the goods to the buyer., but no time for sending then!
is fixed, the seller is bound to send them within a reasonable
time.

(3) Where the 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
reasonable hour is a question of fact.
(s) Unless otherwise agreed, the expenses of and incidental
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 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. If the buyer accepts the whole of t`he 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 with goods of a different description
not included in the contract the buyer may accept the goods
which are in accordance 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 agreement, or course of dealing between the
parties.

31.-(1) Unless otherwise agreed, the buyer of goods is not
bound to accept delivery 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 or 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 as repudiated.

32.-(1) Where, in 'Pursuance of a contract J sale, the
seller is authorized or required to send the goods to the buyer,
delivery of the goods to a carrier, wheilier named by the buyer
or not, for the purpose of transmission to the buyer is Primi Mcie
deemed to be a delivery of the goods ' to the buyer.

(2) Unless otherwise authorized 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 darnaged in course
ol transit, the buyer 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 goodsare sent by the
seller to the buyer by a route involving sea transit, in circum-
stances 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 deemed 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 whether 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 recliest, to afford the
buyer 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 thern, or when
the goods have been delivered to him, and he does any act in
relation to them which is inconsistent with the ownership of
the seller, or when after the, lapse of a reasonable time ` he
retains 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 a 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 indorsed, or a consignor
or agent who has himself paid, or is directly responsible for,
the price.

39. Subject to the provisions of 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 stop-
Ping 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:-

(a) where the goods have been sold without 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) The 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, lie ma
,y exercise his right of lien or retention on the
remainder,, unless such part delivery h~s been made in such
circumstances as to show an agreement to waive the lien or right
of retention.

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

(a) when he 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 lawfully obtains possession
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 lit 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 behalf obtains delivery
of the goods before their arrival at the appointed destination, the
transit is at an end!

(3) If, after the arrival of the goods at the appointed
destination, the carrier or other bailee ack nowledges to the
buyer, or his agent, that he holds the goods on his behalf and
continues in possession of them as bailee for the buyer or his
agent, the transit is at an end, and it is immaterial that a
further destination for the goods may bave 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 if the seller has refused to
receive them back.

(5) When goods are delivered to a ship chartered by the
buyer, it isa question depending on the circumstances of the
particular case whether they are in the possession of the master
as a carrier, or as agent to the buyer.

(6) Where the carrier or other bailee 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 transitu, unless such part delivery 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 possession of the goods or to his
principal. In the latter case the notice, to be effectual, must
be given at such tirne and in such circumstances that the prin-
cipal, 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 bailee in possession of the goods,
he must re-deliver the goods to, or according to the directions
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, unleA 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 document to a person who
takes the document in 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 disposition for value, the unpaid seller's right
of lien or retention or stoppage in transitu can only be exercised
subject to the rights of the transferee.

48.-(1) Subject to the provisions of this section, a con-
tract of sate 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 exe * rcised 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.

Rentedles of seller.

49.--(1) Where, tinder 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 wrong-
fully 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 r6fuses.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
current price at the time or.times when the goods ought to have
been accepted, or, if no time was fixed for acceptance, then-ht
the time of the neglect or refusal to accept.





Remedies 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 plaintiff, 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 application 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
diminution or extinction of the price ; or

(b) maintain an action against the seller for damages for
the breach of warranty.
(2) The measure 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 diminution or extinction of the price does not prevent him
from maintaining an action for the same breach of warranty if
he has suffered further damage.

54. Noth~ng 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 recover-
able, or to recover money paid where the consideration for the
payment of it has failed.

PART VI.

SUPPLEMENTARY.

55. Where any right, duty, or liability viould 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 of fact.

57. Where any right, duty, or liability is declared by this
Ordinance, it may, unless otherwise provided by this Ofdin-
ance, be enforcei by action.

58. In the case of a sate by auction-

(i) where goods are put up for sale by auction in lots,
each lot is pri7nd 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:

where a sale by auction is not noti fled 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, notwithstanding anything
in this Ordinance.

(2) The rules of the common law, including the law mer-
chant, 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,

(i)-(a) 'Action' includes suit, counterclaim, and set-off.

(b) Buyer ' means a person who buys 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 any other
document used in the ordinary course of business as proof of
the possession or control of goods, or authorizing or purport-
ing to authorize, either by indorsement or by delivery, the
possessor of the document to transfer or receive goods thereby
represented.

Fault ' means wrongful act or default.

(g) Future goods ' means goods to be manufactured or
acquit-ed 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.

Property means the general property in goods, and
not merely a special property.

(k) Quality of goods ' includes their state or condition.

(1) 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 dee - med to be insolvent who either has
ceased to pay his debts in the ordinary course of business or
cannot pay his debts as they become due, whether he has com-
mitted an act of bankruptcy or not and whether he has been
adjudged bankrupt 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.

SCHEDULE. [s.60.]

TABLE OF ENACTMENTS REPEALED.

Session and chapter. Title of Act and extent of repeal.

1 James 1, c. 21. An Act against Brokers.
The whole Act.

29 Car. 2, c. 3. An Act for Prevention of Frauds and Perjuries.
In part; that is to say, sections 15 and 16.
9 Geo. 4, c. 14. An Act for rendering a written Memorandum necessary
to the Validity of certain Promises and Engage-
ments.
In part; that is to say, section 7.
[Originally No. 7 of 1896.] 56 & 57 Vict. C. 71. Sale and agreement to sell. Capacity to buy and sell. Mode of making contract of sale. Contract of sale for $100 and upwards. Existing or future goods. Goods which have perished. Goods perishing before sale but after agreement to sell. Ascertainment of price. Agreement to sell at valuation. Stipulation 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. Sales by sample. Goods must be ascertained. Property passes when intended to pass. Rules for ascertaining intention. Reservation of right of disposal. Risk prima facie passes with property. Sale by person not owner. Ordinance No. 3 of 1896. Market overt. Sale under voidable title. Re-vesting of property in stolen goods on conviction of offender. [cf. No. 16 of 1930, s. 28(3) & No. 32 of 1935, s. 66.] 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 of instalments. Delivery to carrier. Risk where goods are delivered as 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. Savings. Interpretation. Short title.

[Originally No. 7 of 1896.] 56 & 57 Vict. C. 71. Sale and agreement to sell. Capacity to buy and sell. Mode of making contract of sale. Contract of sale for $100 and upwards. Existing or future goods. Goods which have perished. Goods perishing before sale but after agreement to sell. Ascertainment of price. Agreement to sell at valuation. Stipulation 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. Sales by sample. Goods must be ascertained. Property passes when intended to pass. Rules for ascertaining intention. Reservation of right of disposal. Risk prima facie passes with property. Sale by person not owner. Ordinance No. 3 of 1896. Market overt. Sale under voidable title. Re-vesting of property in stolen goods on conviction of offender. [cf. No. 16 of 1930, s. 28(3) & No. 32 of 1935, s. 66.] 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 of instalments. Delivery to carrier. Risk where goods are delivered as 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. Savings. Interpretation. Short title.

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