Performance Issues
Sale of Goods Act
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).
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.
Part IV.
Rights of Unpaid Seller against the Goods.
Unpaid seller defined.
38.— (1) The seller of goods is deemed to be an “ unpaid seller” within the meaning of this Act—
( 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 of this Act the term “ 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.
Unpaid seller’s rights.
39.— (1) Subject to the provisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law—
( a) A lien on the goods or right to retain them for the price while he is in possession of them;
( b) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them;
( c) A right of re-sale as limited by this Act.
(2) 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.