Buyer’s Remedies
Sale of Goods Act
Part II.
Part III.
Performance of the Contract.
Duties of seller and buyer.
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.
Payment and delivery are concurrent conditions.
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.
Rules as to delivery.
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 have one, and if not, his residence: Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.
(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.
F9[(2A) Where the buyer deals as consumer—
(a) subsection (2) does not apply, and
(b) subsections (2B) to (2F) apply.
(2B) Unless the parties have agreed otherwise, the seller shall deliver the goods by transferring the physical possession or control of the goods to the buyer without undue delay and not later than 30 days from the conclusion of the contract.
(2C) If the seller does not deliver the goods at the time agreed with the buyer, the buyer may require the seller to make the delivery within an additional period of time appropriate to the circumstances.
(2D) Subsection (2C) does not apply if—
(a) the seller has refused to deliver the goods,
(b) delivery of the goods within the time agreed with the buyer is essential, taking into account all the relevant circumstances at the time of the conclusion of the contract, or
(c) the buyer has informed the seller prior to the conclusion of the contract that delivery on or by a specified date is essential.
(2E) Where the seller—
(a) fails to deliver the goods within any additional period of time for delivery applicable under subsection (2C), or
(b) fails to deliver the goods—
(i) within the time agreed with the buyer under subsection (2D)(b), or
(ii) on or by the date the date specified by the buyer under subsection (2D)(c),
the buyer may treat the failure as a breach of a condition of the contract which entitles the buyer to repudiate the contract.
(2F) If the buyer repudiates the contract in accordance with subsection (2E), the seller shall, without undue delay, reimburse all sums paid under the contract.]
(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until 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.
(5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.
Annotations:
Amendments:
F9
Inserted (13.06.2014) by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 30.
Delivery of wrong quantity.
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 the goods so delivered he must pay for them at the contract rate.
(3) Where the seller delivers to the buyer the goods he contracted to sell mixed 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.
Instalment deliveries.
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.
Delivery to carrier.
32.—(1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is primâ facie deemed to be a delivery of the goods to the buyer.
(2) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of 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 goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to ensure 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.
F10[(4) In a contract of sale where the buyer deals as consumer, subsections (1) to (3) do not apply.]
Annotations:
Amendments:
F10
Inserted (13.06.2014) by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 31.
Risk where goods are delivered at distant place.
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.
Buyer’s right of examining the goods.
F11[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 request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.]
Annotations:
Amendments:
F11
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 20, commenced as per s. 1(2).
F12[
Acceptance.
35.—The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or, subject to section 34 of this Act, 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, without good and sufficient reason, he retains the goods without intimitating to the seller that he has rejected them.]
Annotations:
Amendments:
F12
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 20, commenced as per s. 1(2).
Buyer not bound to return rejected goods.
36.—Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, 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.
Liability of buyer for neglecting or refusing delivery of goods.
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.
Remedies of the Buyer.
Damages for non-delivery.
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 primâ facie to be ascertained 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, then at the time of the refusal to deliver.
Specific performance.
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 or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree.
The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland.
F13[
Remedy for breach of warranty.
53.—(1) Subject to subsection (2), 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) Where—
(a) the buyer deals as consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty, and
(b) the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition,
then, if the seller refuses to comply with the request or fails to do so within a reasonable time, the buyer is entitled:
(i) to reject the goods and repudiate the contract, or
(ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him.
(3) The onus of proving that the buyer acted with promptness under subsection (2) shall lie on him.
(4) 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.
(5) 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.
(6) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied a breach does not of itself prevent the buyer from maintaining an action for the same breach of warranty if he has suffered further damage.]
Annotations:
Amendments:
F13
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 21, commenced as per s. 1(2).
Interest and special damages.
54.—Nothing in this Act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.
Part VI.
Supplementary.
EU Consumer Protection Regulations
Liability of seller and remedies available to consumer.
7. (1) The seller shall be liable to the consumer for any lack of conformity referred to in Regulation 5 which exists at the time the goods were delivered.
(2) In the case of such a lack of conformity, the consumer shall, subject to, and, in accordance with, this Regulation, be entitled to have —
(a) the goods brought into conformity free of charge by repair or replacement, or
(b) an appropriate reduction made in the price, or
(c) the contract rescinded with regard to those goods.
(3) In the first place, the consumer may require the seller to repair the goods or to replace them (in either case free of charge) unless this is impossible or disproportionate.
(4) Either of these remedies shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with those of the other remedy or of any other remedy mentioned in this Regulation, are unreasonable, taking into account —
(a) the value the goods would have if there were no lack of conformity,
(b) the significance of the lack of conformity, and
(c) whether the alternative remedy could be completed without significant inconvenience to the consumer.
(5) Where the remedy of repair or replacement is provided the repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required them.
(6) In paragraphs (2) and (3) “free of charge” means free of the costs that must necessarily be incurred to bring the goods into conformity, including the cost of carriage postage, labour and materials.
(7) The consumer may require an appropriate reduction of the price or have the contract rescinded if —
(a) the consumer is entitled to neither repair nor replacement, or
(b) the seller has not completed the repair or replacement within a reasonable time, or
(c) the seller has not completed the repair or replacement without significant inconvenience to the consumer.
(8) The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.
Presumption that lack of conformity existed at time of delivery.
8. (1) Subject to paragraph (2), any lack of conformity which becomes apparent within 6 months from the date of delivery of the goods shall, unless the contrary is proved, be presumed to have existed at the time of delivery of the goods.
(2) Paragraph (1) shall not apply if, by reason of —
(a) the nature of the goods concerned,
or
(b) the nature of the lack of conformity concerned,
it would not be a reasonable inference that the lack of conformity existed at the time of delivery.
Guarantees.
9. (1) A guarantee shall be legally binding on the offerer under the conditions laid down in the guarantee statement and the associated advertising.
(2) The guarantee shall —
(a) state that the consumer has legal rights under these Regulations and the other enactments governing the sale of consumer goods and make clear that those rights are not affected by the guarantee, and
(b) set out in plain intelligible language the contents of the guarantee and the essential particulars necessary for making claims under the guarantee, including the duration and territorial scope of the guarantee as well as the name and address of the guarantor.
(3) On request by the consumer, the guarantee shall be made available in writing or another durable medium available and accessible to him or her.
(4) The fact that a guarantee does not comply with any of the requirements of paragraph (2) or (3) shall not affect the validity of the guarantee and, accordingly, the consumer may invoke and enforce the guarantee despite any such non-compliance.