chapter 170 sale of goods - agc.gov.bn images/lob/pdf/chp.170.pdf · laws of brunei 2 cap. 170 sale...

LAWS OF BRUNEI

Sale of Goods CAP. 170 I

LAWS OF BRUNEI

CHAPTER 170

SALE OF GOODS

ARRANGEMENT OF SECTIONS

Section

PART I

PRELIMINARY

I. Citation

2. Application of Act

3. Interpretation

PART II

FORMATION OF THE CONTRACT

Contract of sale

4. Contract of sale

5. Capacity to buy and sell

Formalities of contract

6. How contract of sale is made

Subject matter of contract

7. Existingor future goods

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8. Goods which have perished

9. Goods.perishingbefore salebut after agreement to sell

The price

10. Ascertainmentof price

11. Agreement to sellat valuation

Conditions and warranties

12. Stipulations about time

13. When condition to be treated as warranty

14. Implied terms about title etc.

15. Sale by description

16. Implied terms about quality or fitness

Sale by sample

17. Saleby sample

PART III

EFFECTS OF THE CONTRACT

Transfer of property as between seller and buyer

18. Goods must be ascertained

19. Property passeswhen intended to p~ss

20. Rules for ascertaining intention

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21. Reservation of right of disposal

22. Risk prima facie passes with property

Transfer of title

23. Sale by person not the owner

24. Market overt

25. Sale under voidable title

26. Seller in possession after sale

27. Buyer in possession after sale

28. Supplementaryto sections26 and 27

PART IV

PERFORMANCE OF THE CONTRACT

29. Duties of seller and buyer

30. Payment and delivery are concurrent conditions

31. Rules about delivery

32. Delivery of wrong quantity

33. Instalment deliveries

34. Delivery to carrier

35. Risk where goods are delivered at distant place

36. Buyer's right of examining the goods

37. Acceptance

38. Buyer not bound to return rejected goods

39. Buyer's liability for not taking delivery of goods

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PART V

RIGHTS OF UNPAID SELLER AGAINST THE GOODS

Preliminary

40. Unpaid seller defined

41. Unpaid seller's rights

Unpaid seller's lien

42. Seller's lien

43. Part delivery

44. Termination of lien

Stoppage in transit

45. Rights of stoppage in transit

46. Duration of transit

47. How stoppage in transit is effected

Re-sale etc. by buyer

48. Effect of sub-sale etc. by buyer

Rescission: and re-sale by seller

49. Rescission: and re-sale by seller

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PART VI

ACTIONS FOR BREACH OF THE CONTRACT

Seller's remedies

50. Action for price

51. Damages for non-acceptance

Buyer's remedies

52. Damages for non-delivery

53. Specificperformance

54. Remedy for breach of warranty

Interest etc.

55. Interest etc.

PART VII

SUPPLEMENTARY

56. Exclusionof implied terms57. Auction sales

58. Reasonable time a question of fact

59. Rights etc. enforceableby action

60. Savings: rules of law etc.

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CAP. 170 Sale of Goods

S.13/94

Citation

Applicationof Act

Interpreta-tion

SALE OF GOODS ACT

An Act to make further and better provision for the law relatingto the sale of goods and for matters connected therewith

Commencement.. 3rd May 1994

PART I

PRELIMINARY

1. This Act may be cited as the Saleof Goods Act.

2. This Act applies to any contract or purported contractfor the sale of goods which is made on or after the date ofcommencementof this Act.

3. (1) In this Act, unless the context otherwise requires-

"action" includes counterclaim and set-off;

"business" includes a profession and the activitiesof any government department or public authority;

"buyer" means a person who buys or agrees to buygoods;

"contract of sale" includes an agreement to sell aswell as a sale; .

"credit-broker" means a person acting in the courseof a business of credit brokerage carried on byhim, that is a business of effecting introductions ofindividualsdesiringto obtain credit -

(a) to persons carrying on any business so far asit relates. to the provision of credit; or

(b) to other personsbrokerage;

engaged creditIII

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"delivery" means voluntary transfer of possessionfrom one person to another;

"document of title" includes any bill oflading, dockwarrant, warehouse-keeper's certificate, andwarrant or order for the delivery of goods, andany other document used in the ordinary course ofbusiness as proof of the possession or control ofgoods, or authorising or purporting to authorise,either by endorsement or by delivery, the possessorof the document to transfer or receive goodsthereby represented;

"fault" means wrongful act or'default;

"future goods" means goods to be manufacturedor acquired by the seller after the making of thecontract of sale;

"goods" includes all personal chattels other thanthings in action and money; and in particular"goods" includes emblements, industrial growingcrops, and things attached to or forming part of theland which are agreed to be severed before sale orunder the contract of sale;

"plaintiff' includes claimant and defendantcounter-claiming;

"property" means the general property in goods,and not merely a special property;

"quality", in relation to goods, includes their stateor condition;

"sale" includes a bargain and sale as well as a saleand delivery ;

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CAP. 170 Sale a/Goods

Contract ofsale

"seller" means a person who sells or agrees to sellgoods;

"specific goods" means goods identified and agreedon at the time a contract of sale is made;

"warranty" means an agreement with reference togoods which are the subject of a contract of sale, butcollateral to the main purpose of such contract, thebreach of which gives rise to a claim for damages,but not to a right to reject the goods and treat thecontract as repudiated.

(2) A thing is deemed to be done in good faith withinthe meaning of this Act when it is in fact done honestly,whether it is done negligently or not.

(3) A person is deemed to be insolvent within themeaning of this Act if has either ceased to pay his debts in theordinary course of business or he cannot pay his debts as theybecome due, whether he has committed an act of bankruptcyor not.

(4) Goods are in a deliverable state within the meaningof this Act when they are in such a state that the buyer wouldunder the contract be bound to take delivery of them.

PART II

FORMATION OF THE CONTRACT

Contract of sale

4. (1) A contract of sale of goods is a contract by whichthe sellertransfers or agrees to transfer the,property in goodsto the buyer for a money consideration, called the price.

(2) There may be a contract of sale between one partowner and another.

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(3) A contract of sale may be absolute or conditional.

(4) Where under a contract of sale the property in thegoods is transferred from the seller to the buyer thecontract is called a sale.

(5) Where under a contract of sale the transfer of theproperty in the goods is to take place at a future time or subjectto some condition later to be fulfilled the contract is called anagreement to sell.

(6) An agreement to sell becomes a sale when the timeelapses or the conditions are fulfilled subject to which theproperty in the goods is to be transferred.

5. (1) Capacity to buy and sell is regulated by the general Capacitytolaw concerning capacity to contract and to transfer and buyandsellacquire property.

(2) Where necessaries are sold and delivered to aminor or to a person who by reason of mental incapacity ordrunkenness is incompetent to contract, he must pay areasonable price for them.

(3) In subsection (2), "necessaries" means goodssuitable to the condition in life of the minor or other personconcerned and to his actual requirements at the time of the saleand delivery.

Formalities of contract

6. (1) Subject to this Act and any other law, a contract of Howcontractsale may be made in writing (either with or without seal), or ofsaleismadeby word of mouth, or partly in writing and partly by word ofmouth, or may be implied from the conduct of the parties.

(2) Nothing in this section affects the law relating tocompanIes.

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Existingorfuture goods

Goods whichhave perished

Goodsperishingbefore salebut afteragreement tosell

Ascertain-ment of price

Subject matter of contract

7. (1) The goods which form the subject of a contract ofsale may be either existing goods, owned or possessed by theseller, or goods to be manufactured or acquired by him afterthe making of the contract of sale, in this Act called futuregoods.

(2) There may be a contract for the sale of goods theacquisition of which by the seller depends on a contingencywhich mayor may not happen.

(3) Where by a contract of sale the seller purports toeffect a present sale of future goods, the contract operates asan agreement to sell the goods.

8. Where there is a contract for the sale of specific goods,and the goods without the knowledge of the seller haveperished at the time when the contract is made, the contract isvoid.

9. Where there is an agreement to sell specific goods andsubsequently the goods, without any fault on the part of theseller or buyer, perish before the risk passes to the buyer, theagreement is avoided.

The price

10. (1) The price in a contract of sale may be fixed by thecontract, or may be left to be fixed in a manner agreed by thecontract, or may be determined by the course of dealingbetween the parties.

(2) Where the price is not determined as mentioned insubsection (1), the buyer must pay a reasonable price.

(3) What is a reasonable price is a question of factdependent on the circumstances of each particular case.

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11. (1) Where there is an agreement to sell goods on theterms that the price is to be fixed by the valuation ofa third party, and he cannot or does not make thevaluation, the agreement is avoided; but if the goods or anypart of them have been delivered to and appropriated by thebuyer he must pay a reasonable price for them.

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

Conditions and warranties

Agreementtosellatvaluation

12. (1) Unless a different intention appears from the terms Stipulationsof the contract, stipulations as to time of payment ar.e not of abouttimethe essence of a contract of sale.

(2) Whether any other stipulation as to time is or is notof the essence of the contract depends on the terms of thecontract.

(3) In a contract of sale, "month" prima facie meanscalendar month.

13. (1) Where a contract of sale is subject to a condition tobe fulfilled by the seller, the buyer may waive the condition, ormay elect to treat the breach of the condition as a breach ofwarranty and not, as a ground for treating the contract asrepudiated.

(2) Whether a stipulation in a contract of sale is acondition, the breach of which may give rise to a right to treatthe contract as repudiated, or a warranty, the breach of whichmay give rise to a claim for damages but not to a right to rejectthe goods and treat the contract as repudiated, depends in eachcase on the construction of the contract; and a stipulation maybe a condition, though called a warranty in the contract.

Whenconditiontobe treated aswarranty

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Implied termsabout titleetc.

(3) Where a contract of sale is not severable and thebuyer has accepted the goods or part of them, the breach of acondition to be fulfilled by the seller can only be treated as abreach of warranty, and not as a ground for rejecting thegoods and treating the contract as repudiated, unless there isan express or implied term of the contract to that effect.

(4) Nothing in this section affects a condition orwarranty whose fulfilment is excused by law by reason ofimpossibility or otherwise.

14. (1) In a contract of sale, other than one to whichsubsection (5) applies, there is an implied condition on the partof the seller that in the case of a sale he has a right to sell thegoods, and in the case of an agreement to sell he will have sucha right at the time when the property is to pass.

(2) In a contract of sale, other than one to whichsubsection (5) applies, there is also an implied warranty that-

(a) the goods are free, and will remain free untilthe time when the property is to pass, from any chargeor encumbrance not disclosed or known to the buyerbefore the contract is made; and

(b) the buyer will enjoy quiet possession of thegoods except so far as it may be disturbed by the owneror other person entitled to the benefit of any charge orencumbrance so disclosed or known.

(3) In a contract to which subsection (5) applies, thereis an implied warranty that all charges or encumbrancesknown to the seller and not known to the buyer have beendisclosed to the buyer before the contract is made.

(4) In a contract to which subsection (5) applies, thereis also an implied warranty that none of the following willdisturb the buyer's quiet possession of the goods, namely -

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(a) the seller;

(b) in a case where the parties to the contractintend that the seller should transfer only such title asa third person may have, that person;

(c) anyone claiming through or under the seller orthat third person otherwise than under a charge orencumbrance disclosed or known to the buyer beforethe contract is made.

(5) This subsection applies to a contract of sale in thecase of which there appears from the contract or is to beinferred from its circumstances an intention that the sellershould transfer only such title as he or a third person may have.

15. (1) Where there is a contract for the sale of goods by Salebydescription, there is an implied condition that the goods will descriptioncorrespond with the description.

(2) If the sale is by sample as well by description, it isnot sufficient that the bulk of the goods corresponds with thesample if the goods do not also correspond with thedescription.

(3) A sale of goods is not prevented from being a saleby description by reason only that, being exposed for sale orhire, they are selected by the buyer.

16. (1) Except as provided by this section and section 17 Impliedtermsand subject to any other law, there is no implied condition or :~~~~~~alitywarranty about the quality or fitness for any particularpurpose of goods supplied under a contract of sale.

(2) Where the seller sells goods in the course of abusiness, there is an implied condition that the goods suppliedunder the contract are of merchantable quality, except thatthere is no such condition -

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(a) as regards defects specifically drawn to thebuyer's attention before the contract is made; or

(b) if the buyer examines the goods before thecontract is made, as regards defects which theexamination ought to revel.

(3) Where the seller sells goods in the course of abusiness and the buyer, expressly or by implication, makesknown -

(a) to the seller; or

(b) Where the purchase price or part of it ispayable by instalments and the goods were previouslysold by a credit broker to the seller, to that credit-broker,

any particular purpose for which the goods are being bought,there is an implied condition that the goods supplied under thecontract are reasonably fit for that purpose, whether or notthat is a purpose for which such goods are commonly supplies,except where the circumstances show that the buyer does notrely, or that it is unreasonable for him to rely, on the skill orjudgment of the seller or credit-broker.

(4) An implied condition or warranty about quality offitness for a particular purposes may be annexed to acontract of sale by usage.

(5) The preceding provisions of this section apply to asale by a person who in the course of a business is acting asagent for another as they apply toa sale by a principal in thecourse of a business, except where that other is not selling inthe course of a business and either the buyer knows that factor reasonable steps are taken to bring it to the notice of thebuyer before the contract is made.

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(6) Goods of any kind are of merchantable qualitywithin the meaning of subsection (2) if they are as fit for thepurpose or purposes for which goods of that kind arecommonlybought as it is reasonable to excepthaving regardto any description applied to them, the price (if relevant) andall the other relevantcircumstances.

Sale by sample

17. (1) A contract of sale is a contract for sale by sample Salebywhere there is an express or implied term to that effect in the samplecontract.

(2) In the case of a contract for saleby sample,there isan impliedcondition -

(a) that the bulk will correspond with the samplein quality;

(b) that the buyer will have a reasonableopportunity of comparing the bulk with the sample;

(c) that the goods will be free from any defect,rendering them unmerchantable, which would not beapparent on reasonable examination of the sample.

(3) In subsection (2)(c), "unmerchantable" is to beconstrued in accordance with section 16(6).

PART III

EFFECTS OF THE CONTRACT

Transfer of property as between seller and buyer

18. Where there is a contract for the sale of unascertained Goodsmustgoods, no property in the goods is transferred to the buyer beascertainedunless and until the goods are ascertained.

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Propertypasses whenintendedtopass

Rulesforascertainingintention

19. (1) Where there is a contract for the sale of specificorascertained goods, the property in them is transferred to thebuyer at such time as the parties the contract intend it to betransferred.

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

20. Unless a different intention appears, the following arerules for ascertaining the intention of the parties as to the timeat which the property in the goods is to pass to the buyer.

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

Rule 2 - Where there is a contract for the sale of specificgoods and the seller is bound to do something .to the"goodsfor the purpose of putting them into a deliverable state, theproperty does not pass until the thing is done and the buyerhas notice that it has been done.

Rule 3 - Where there is a contract for the sale of specificgoods in a deliverable state but the seller is bound to weigh,measure, test, or do some other act or thing with referenceto the goods for the purpose of ascertaining the price, theproperty does not pass until the act or thing is done and thebuyer has notice that it has been done.

Rule 4 - When goods are delivered to the buyer onapproval or on sale or return or other similar terms, theproperty in the goods passes to the buyer :-

(a) When he signifies his approval or acceptanceto the seller or does any other act adopting thetransaction;

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(b) If he does not signify his approval oracceptance to the seller but retains the goods withoutgiving notice of rejection, then, if a time has been fixedfor the return of the goods, on the expiration of thattime, and, if no time has been fixed, on the expirationof a reasonable time.

Rule 5 - (1) Where there is a contract for the sale ofunascertained or future goods by description, and goods ofthat description and in a deliverable state are unconditionallyappropriated to the contract, either by the seller with theassent of the buyer or by the buyer with the assent of the seller,the property in the goods then passes to the buyer; and theassent may be express or implied, and may be given eitherbefore or after the appropriation is made.

(2) Where, in pursuance of the contract, theseller delivers the goods to the buyer or to a carrier or otherbailee (whether named by the buyer or not) for the purpose oftransmission to the buyer, and does not reserve the rightof disposal, he is to be taken to have unconditionallyappropriated the goods to the contract.

21. (1) Where there is a contract for the sale of specificgoods or where goods are subsequently appropriated to thecontract, the seller may, by the terms of the contract orappropriation, reserve the right 'of di&posalof the goods untilcertain conditions are fulfilled; and in such a case,notwithstanding the delivery of the goods to the buyer, or toa carrier or other bailee for the purpose of transmission to thebuyer, the property in the goods does not pass to the buyeruntil the conditions imposed by the seller are fulfilled.

(2) Where goods are shipped, and by the bill of ladingthe goods are deliverable to the order of ~hesell~r or his agent,the seller is prima facie to be taken to reserve the right ofdisposal.

Reservation

of right ofdisposal

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Riskprimafaciepasseswith property

Salebypersonnotthe owner

(3) Where the seller of goods draws on the buyer for theprice, and transmits the bill of exchange and bill of lading tothe buyer together to secure acceptance or payment of the billof exchange, the buyer is bound to return the bill of lading ifhe does not honour the bill of exchange, and if he wrongfullyretains the bill of lading the property in the goods does notpass to him.

22. (1) Unless otherwise agreed, the goods remain at theseller's risk until the property in them is transferred to thebuyer, but when the property in them is transferred to thebuyer the goods are at the buyer's risk whether delivery hasbeen made or not.

(2) But where delivery has been delayed through thefault of either buyer or seller, the goods are at the risk of theparty at fault as regards any loss which might not haveoccurred but for such fault.

(3) Nothing in this section affects the duties orliabilities of either seller or buyer as a bailee of the goods ofthe other party.

Transfer of title

23. (1) Subjectto this Act, where goods are sold by personwho is not their owner, and who does not sell them under theauthority or with the consent.ofthe owner, the buyer acquir-esno better title to the goods than the seller had, unless the ownerof the goods is by his conduct precluded from denying thesseller's authority to sell.

(2) Nothing in this Act affects-

(a) the provisions of any law enabling theapparent owner of goods to dispose of them as if hewere their true owner;

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(b) the validity of any contract of sale under anyspecial common law or statutory power of sale orunder the order of a court of competent jurisdiction.

24. Where goods are sold in market overt, according to the Marketovertusage of the market, the buyer acquires a good title to thegoods, provided he buys them in good faith and without noticeof any defect or want of title on the part of the seller.

25. When the seller of goods has a voidable title to them, but Saleunderhis title has not been avoided at the time of the sale, the buyer voidabletitleacquires a good title to the goods, provided he buys them ingood faith and without notice of the seller's defect of titie.

26. Where a person having sold goods continues or is inpossession of the goods, or of the documents of title tothe goods, the delivery or transfer by that person, or by amercantile agent (as defined in section 28) acting for him, ofthe goods or documents of title under any sale, pledge or otherdisposition thereof, to any person receiving the same in goodfaith and without notice of the previous sale, has the sameeffect as if the person making the delivery or transfer wereexpressly authorised by the owner of-the goods to make thesame.

27. (1) Where a person having bought or agreed to buygoods obtains, with the consent of the seller, possession of thegoods or the documents of title to the goods, the delivery ortransfer by that person, or by a mercantile agent (as defined insection 28) acting for him, of the goods or documents of title,under any sale, pledge or other disposition thereof, to anyperson receiving the same in good faith and without notice ofany lien or other right of the original seller in respect of thegoods, has the same effect as if the person making the deliveryor transfer were a mercantile agent in possession of the goodsor documents of title with the consent of the owner.

(2) For the purposes of subsection (1) -

Sellerinpossessionafter sale

Buyerinpossessionafter sale

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Supplemen-tary tosections26and 27

Dutiesofsellerandbuyer

Paymentanddeliveryareconcurrentconditions

(a) the buyer under a conditional sale agreementis to be taken not to be a person who has bought oragreed to buy goods; and

(b) "conditional sale agreement" means anagreement for the sale of goods which is a consumercredit agreement under which the purchase price orpart of it is payable by instalments, and the propertyin the goods is to remain in the seller (notwithstandingthat the buyer is to be in possession ofthe goods) untilsuch conditions as to the payment of instalments orotherwise as may be specified in the agreement arefulmled.

28. In sections 26 and 27, "mercantile agent" means amercantile agent having in the customary 'Course of hisbusiness as such agent authority either -

(a) to-sell goods;

(b) to consign goods for the purpose of sale;

(c) to buy goods; or

(d) to raise money on the security of goods.

PART IV

PERFORMANCE OF THE CONTRACT

29. It is the duty of the seller to deliver the goods, and of thebuyer to accept and pay for them, in accordance with the termsof the contract of sale.

30. Unless otherwise agreed, delivery of the goods andpayment of the price are concurrent conditions, that is to say,the seller must be ready and willing to give possession of the

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goods to the buyer in exchange for the price and the buyermust be ready and willing to pay the price in exchange forpossession of the goods.

31. (1) Whether it is for the buyer to take possession of the Rulesaboutgoods or for the seller to send them to the buyer is a question deliverydepending in each case on the contract, express or implied,between the parties.

(2) Apart from any such contract, express or implied,the place of delivery is the seller's place of business if he hasone, and if not, his residence; except that, if the contract is forthe sale of specific goods, which to the knowledge of the partieswhen the contract is made are in some other place, then thatplace is the place of delivery.

(3) Where under the contract of sale the seller is boundto send the goods to the buyer, but no time for sending themis fixed, the seller is bound to send them within a reasonabletime.

(4) Where the goods at the time of sale are in thepossession of a third person, there is no delivery by seller tobuyer unless and until the third person acknowledges to thebuyer that he holds the goods on his behalf; but nothing inthis section affects the operation of the issue or transfer of anydocument of title to goods.

(5) Demand or tender of delivery may be treated asineffectual unless made at a reasonable hour; and what is areasonable hour is a question of fact.

(6) Unless otherwise agreed, the expenses of andincidental to putting the goods into a deliverable state must beborne by the seller.

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Deliveryofwrongquantity

Instalmentdeliveries

32. (1) Where the seller delivers to the buyer a quantity ofgoods less than he contracted to sell, the buyer may rejectthem, but if the buyer accepts the goods so delivered he mustpay for them at the contract rate.

(2) Where the seller delivers to the buyer a quantity ofgoods larger than he contracted to sell, the buyer may acceptthe goods included in the contract and reject the rest, or hemay reject the whole.

(3) Where the seller delivers to the buyer a quantity ofgoods larger than he contracted to sell and the buyer acceptsthe whole of the goods so delivered he must pay for them atthe contract rate.

(4) Where the seller delivers to the buyer the goods hecontracted to sell mixed with goods of a different descriptionnot included in the contract, the buyer may accept the goodswhich are in accordance with the contract and reject the rest,or he may reject the whole.

(5) This section is subject to any usage of trade, specialagreement, or course of dealing between the parties.

33. (1) Unless otherwise agreed, the buyer of goods is notbound to accept delivery of them by instalments.

(2) Where there is a contract for the sale of goods to bedelivered by stated instalments, which are to be separately paidfor, and the seller makes defective deliveries in respect of oneor more instalments, or the buyer neglects or refuses to takedelivery of or pay for one or more instalments, it is a questionin each case depending on the terms of the contract and thecircumstances of the case whether the breach of contract is a

repudiation of the whole contract or whether it is a severablebreach giving rise to a claim for compensation but not to aright to treat the whole contract as repudiated.

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34. (1) Where, in pursuance of a contract of sale, the selleris imthorised or required to send the goods to the buyer,delivery of the goods to a carrier (whether named by the buyeror not) for the purpose of transmission to the buyer is primafacie deemed to be a delivery of the goods to the buyer.

(2) Unless otherwise authorised by the buyer, the sellermust make such contract with the carrier on behalf of thebuyer as may be reasonable having regard to the nature of thegoods and the other circumstances of the case; and if the selleromits to do so, and the goods are lost or damaged in course oftransit, the buyer may decline to treat the delivery to the carrieras a delivery to himself or may hold the seller responsible indamages.

(3) Unless otherwise agreed, where goods are sent bythe seller to the buyer by a route involving sea transit, undercircumstances in which it is usual to insure, the seller must givesuch notice to the buyer as may enable him to insure themduring their sea transit; and if the seller fails to do so, thegoods are at his risk during such sea transit.

35. Where the seller or' goods agrees to deliver them at hisown risk at a place other than that where they are when sold,the buyer must nevertheless (unless otherwise agreed) take anyrisk of deterioration in the goods necessarily incident to thecourse of transit.

36. (1) Where goods are delivered to the buyer, and he hasnot previously examined them, he is not deemed to haveaccepted them until he has had a reasonable opportunity ofexamining them for the purpose of ascertaining whether theyare in conformity with the contract.

(2) Unless otherwise agreed, when the 'Seller tendersdelivery of goods to the buyer, he is bound on request to affordthe buyer a reasonable opportunity of examining the goodsfor the purpose of ascertaining whether they are in conformitywith the contract.

Deliverytocarrier

,Riskwheregoodsaredeliveredatdistant place

Buyer's rightof examinibgthe goods

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Acceptance

Buyernotbound toreturnrejectedgoods

Buyer'sliability fornot takingdelivery ofgoods

Unpaid sellerdefined

37. The buyer is deemed to have accepted the goods when heintimates to the seller that he has accepted them, or (exceptwhere section 36 otherwise provides) when the goods havebeen delivered to him and he does any act in relation to themwhich is inconsistent with the ownership of the seller, or whenafter the lapse of a reasonable time he retains the goodswithout intimating to the seller that he has rejected them.

38. Unless otherwise agreed, where goods are delivered tothe buyer and he refuses to accept them, having the right to doso, he is not bound to return them to the seller, but it issufficient if he intimates to the seller that he refuses to acceptthem.

39. (1) When the seller is ready and willing to deliver thegoods and requests the buyer to take delivery, and the buyerdoes not within a reasonable time after such request takedelivery of the goods, he is liable to the seller for any lossoccasioned by his neglect or refusal to take delivery, and alsofor a reasonable charge for the care and custody of the goods.

(2) Nothing in this section affects the rights of the sellerwhere the neglect or refusal of the buyer to take deliveryamounts to a repudiation of the contract.

PART V

RIGHTS OF UNPAID SELLER AGAINST THE GOODS

Preliminary

40. (1) The seller of goods is an unpaid seller within themeaning of this Act -

(a) When the whole of the price has not been paidor tendered;

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(b) When a bill of exchange or other negotiableinstrument has been received as conditional payment,and the condition on which it was received has notbeen fulfilled by reason of the dishonour of theinstrument or otherwise.

(2) In this Part, "seller" includes any person who is inthe position of a seller, as, for instance, an agent of the sellerto whom the bill of lading has been indorsed, or a consignoror agent who has himself paid (or is directly responsible for)the price.

41. (1) Subject to this Act and any other law, Unpaidnotwithst!lnding that the property in the goods may have seller'srightspassed to the buyer, the unpaid seller of goods, as such, has byimplication of law-

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

,

(b) in case of the insolvency of the buyer, a rightof stopping the goods in transit after he has partedwith the possession of them;

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

(2) Where the property in goods has not passed to thebuyer, the unpaid seller has (in addition to his otherremedies) a right of withholding delivery similar to and co-extensive with his rights of lien or retention and stoppage intransit where the property has passed to the buyer.

Unpaid seller's lien

42. (1) Subject to this Act, the unpaid seller of goods who Seller'slienis in possession of them is entitled to retain possession of themuntil payment or tender of the price in the following cases :-

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Part delivery

Terminationoflien

(a) where the goods have been sold without anystip~lation as to credit;

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

(c) where the buyer becomes insolvent.

(2) The seller may exercise his lien or right of retentionnotwithstanding that he is in possession of the goods as agentor bailee for the buyer.

43. Where an unpaid seller has made part delivery of thegoods, he may exercise his lien or right of retention on theremainder, unless such part delivery has been made under suchcircumstances as to show an agreement to waive the lien orright of retention.

44. (1) The unpaid seller of goods loses his lien or right ofretention in respectof them -

(a) when he delivers the goods to a carrier orother bailee for the purpose, of transmission to thebuyer without reserving the right of disposal of thegoods;

(b) when the buyer or his agent lawfully obtainspossession of the goods;

(c) by waiver of the lien or right of retention.

(2) An unpaid .sellerof goods who has a lien or right ofretention in respect of them does not lose his lien or right ofretention by reason only that he has obtained judgment ordocree for the price of the goods.

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Stoppage in transit

45. Subject to this Act, when the buyer of goods becomesinsolvent the unpaid seller who has parted with the possessionof the goods has the right of stopping them in transit, that isto say, he may resume possession of the goods as long as theyare in course of transit, and may retain them until payment ortender of the price.

46. (1) Goods are deemed to be in course of transit fromthe time when they are delivered to a carrier or other bailee forthe purpose of transmission to the buyer, until the buyer or hisagent in that behalf takes delivery of them from the carrier orother bailee.

(2) If the buyer or his agent in that behalf obtainsdelivery of the goods before their arrival at the appointeddestination, the transit is at an end.

(3) If, after the arrival of the goods at the appointeddestination, the carrier or other bailee acknowledges to thebuyer or his agent that he holds the goods on his behalf andcontinues in possession of -them as bailee for the buyer or hisagent, the transit is at an end, and it is immaterial that a furtherdestination for the goods may have been indicated by thebuyer.

(4) If the goods are rejected by the buyer, and thecarrier or other bailee continues in possession of them, thetransit is not deemed to be at an end, even if the seller hasrefused to receive them back.

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

Rightsofstoppageintransit

Duration oftransit

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Howstoppageintransit iseffected

Effect ofsub-sale etc.by buyer

(6) Where the carrier or other bailee wrongfully refusesto 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 tothe buyer or his agent in that behalf, the remainder of thegoods may be stopped in transit, unless such part delivery hasbeen made under such circumstances as to show an agreementto give up possession of the whole of the goods.

47. (I) The unpaid seller may exercise his right of stoppagein transit either by taking actual possession of the goods or bygiving notice of his claim to the carrier or other bailee in whosepossession the goods are.

(2) The notice may be given either to the person inactual possession of the goods or to his principal.

(3) If given to the principal, the notice is ineffectiveunless given at such time and under such circumstances thatthe principal, by the exercise of reasonable diligence, maycommunicate it to his servant or agent in time to prevent adelivery to the buyer.

(4) When notice of stoppage in transit is given by theseller to the carrier of other bailee in possession of the goods,he must re-deliver the goods to, or according to the directionsof, the seller; and the expenses of the re-delivery must be borneby the seller.

Re-sale etc. by buyer

48. (1) Subject to this Act, the unpaid seller's right of lienor retention or stoppage in transit is not affected by any saleor other disposition of the goods which the buyer may havemade, unless the seller has assented to it.

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Sale a/Goods CAP. 170 29

(2) Where a document of title to goods has beenlawfully transferred to any person as buyer or owner of thegoods, and that person transfers the document to a person whotakes it in good faith and for valuable consideration, then-

(a) if the last-mentioned transfer was by way ofsale the unpaid seller's right of lien or retention orstoppage in transit is defeated; and

(b) if the last-mentioned transfer was made bywayof pledge or other disposition for value, the unpaidseller's right of lien or retention or stoppage in transitcan only be exercised subject to the rights of thetransferee.

Rescission: and re-sale by seller

49. (1) Subject to this section, a contract of sale is not Rescission:

rescinded by the mere exercise by an unpaid seller of his right :.fe;e-salebyof lien or retention or stoppage in transit.

(2) Where an unpaid seller who has exercised his rightof lien or retention or stoppage in transit re-sells the goods,the buyer acquires a good title to them as against the originalbuyer.

(3) Where the goods are of a perishable nature, orwhere the unpaid seller gives notice to the buyer of hisintention to re-sell, and the buyer does not within a reasonabletime payor tender the price, the unpaid seller may re-sell thegoods and recover from the original buyer damages for anyloss occasioned by his breach of contract.

(4) Where the seller expresslyreserves the right of re-sale in case the buyer should make default, and on the buyermaking default re-sellsthe goods, the originalcontract of saleis rescindedbut without prejudiceto any claim the sellermayhave for damages.

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PART VI

Actionforprice

Damagesfornon-acceptance

Damages fornon-delivery

ACTIONS FOR BREACH OF THE CONTRACT

Seller's remedies

so. (I) Where, under a contract of sale, the property in thegoods has passed to the buyer and he wrongfully neglects orrefuses to pay for the goods according to the terms of thecontract, the seller may maintain an action against him for theprice of the goods.

(2) Where, under a contract of sale, the price is payableon a day certain irrespective of delivery and the buyerwrongfully neglects or refuses to pay such price, the seller maymaintain an action for the price, although the property in thegoods has not passed and the goods have not beenappropriated to the contract.

51. (1) Where the buyer wrongfully neglects or refuses toaccept and pay for the goods, the seller may maintain an actionagainst him for damages for non-acceptance.

(2) The measure of damages is. the estimated lossdirectly and naturally resulting, in the ordinary course ofevents, from the buyer's breach of contract.

(3) Where there is an available market for the goods inquestion the measure of damages is prima facie to beascertained by the difference between the contract price andthe market or current price at the time or times when the goodsought to have been accepted or (if no. time was fixed foracceptance) at the time of the refusal to accept.

Buyer's remedies

52. (I) Where the seller wrongfully neglects or refuses todeliver the goods to the buyer, the buyer may maintain anaction against the seller for damages for non-delivery.

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(2) The measure of damages is the estimated lossdirectly and naturally resulting, in the ordinary course ofevents, from the seller's breach of contract.

(3) Where there is an availablemarket for the goods inquestion the measure of damages is prima facie to beascertained by the differencebetween the contract price andthe market or current price of the goods at the time or timeswhen they ought to have been delivered of (if no time wasfixed)at the time or the refusal to deliver.

53. (1) In any action for breach of contract to deliverspecific or ascertained goods, the court may, if it thinks fit, onthe plaintiff's application, by its judgment or decree direct thatthe contract shall be performed specifically, without giving thedefendant the option of retaining the goods on payment ofdamages.

(2) The plaintiff's application may be made at any timebefore judgment or decree.

(3) The judgment or decree may be-unconditional, oron such terms and conditions as to damages, payment of theprice and otherwise as seem just to the court.

54. (1) Where there is a breach of warranty by the seller, orwhere the buyer elects (or is compelled) to treat any breach ofa condition on the part of the seller as a breach of warranty,the buyer is not by reason only of such breach or warrantyentitled to reject the goods; but he may -

(a) set up against the seller the breach of warrantyin diminution or extinction of the price; or

(b) maintain an action against the seller fordamages for the breach of warranty.

Specificperfonnance

Remedyforbreachofwarranty

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Interest etc.

Exclusionofimpliedterms

Auction sales

(2) The measure of damages for breach of warranty isthe estimated loss directly and naturally resulting, in theordinary course of events, from the breach of warranty.

(3) In the case of breach of warranty of quality suchloss isprima facie the difference between the value of the goodsat the time of delivery to the buyer and the value they wouldhave had if they had fulfilled the warranty.

(4) The fact that the buyer has set up the breach ofwarranty in diminution or extinction of the price does notprevent him from maintaining an action for the same breachof warranty if he has suffered further damage.

Interest etc.

55. Nothing in this Act affects the right of the buyer or theseller to recover interest or special damages in any case whereby law interest or special damages may be recoverable, or torecover money paid where the consideration for the paymentof it has failed.

PART VII

SUPPLEMENT AR Y

56. (1) Where a right, duty or liability would arise under acontract of sale of goods by implication of law, it may (subjectto any other law to the contrary) be negatived or varied byexpress agreement, or by the course of dealing between theparties, or by such usage as binds both parties to the contract.

(2) An express condition or warranty does not negativea condition or warranty implied by this Act unless inconsistentwith it.

57. (1) Where goods are put up for sale by auction in lots,each lot is prima facie deemed to be the subject of a separatecontract of sale.

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(2) A sale by auction is complete when the auctioneerannounces its completion by the fall of the hammer, or in othercustomary manner; and until the announcement is made anybidder may retract his bid.

(3) A sale by auction may be notified to be subject to areserve or upset price, and a right to bid may also be reservedexpressly by or on behalf of the seller.

(4) Where a sale by auction is not notified to be subjectto a right to bid by or on behalf of the seller, it is not lawfulfor the seller to bid himself or to employ any person to bid atthe sale, or for the auctioneer knowingly to take any bid fromthe seller or any such person.

(5) A sale contravening subsection (4) may be treatedas fraudulent by the buyer.

(6) Where, in respect of a sale by auction, a right to bidis expressly reserved (but not otherwise) the seller or anyoneperson on his behalf may bid at the auction.

58. Where a reference is made in this Act to a reasonable Reasonable

time, the question what is a reasonable time is a question of ~:~t~on offact. fact

59. Where a right, duty or liability is declared by this Act, it Rightsetc.

may (unless otherwise provided by this Act) be enforced by ~nf~::~le. yactIon.

60. (1) The rules in bankruptcy relating t<?contracts of sale Savings:rulesapply to those contracts, notwithstanding anything in this Act. oflawetc.

(2) The Contracts Act and the rules ofthe common law,including the law merchants, except in so far as they areinconsistent with the provisions of this Act, and i~ particularthe rules relating to the law of principal and agent and theeffect of fraud, misrepresentation, duress, mjstake, or otherinvalidating cause, apply to contracts for the sale of goods.

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(3) Nothing in this Act affectsany law relating to billsof sale, or any other law r~latingto sale of goods.

(4) The provisions of this Act about contracts of saledo not apply to a transaction in the form of a contract of salewhich is intended to operate by way of mortgage, pledge,charge or other security.

chapter 170 sale of goods - agc.gov.bn images/lob/pdf/chp.170.pdf · laws of brunei 2 cap. 170 sale...

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