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Difference between revisions of "Contracts for Sale of Goods (11:III)"
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Contracts for Sale of Goods (11:III) (view source)
Revision as of 00:50, 6 August 2021
, 00:50, 6 August 2021→5. Other Sale of Goods Act Provisions
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==== a) Stipulations as to Time ==== | ==== a) Stipulations as to Time ==== | ||
Under s 14, unless there is a different intention, stipulations as to the time of payment do not go to the essence of a contract of sale (i.e. they are '''not''' conditions). | |||
==== b) Stipulations as to Quantity ==== | ==== b) Stipulations as to Quantity ==== | ||
Under s 34, if the seller delivers a quantity of goods either greater or lesser than that contracted for, the buyer may either reject the entire shipment, or accept the quantity delivered and pay accordingly, or, if the quantity is greater than ordered, reject the balance over that ordered. There is likely an exception when the difference in quantity is so slight as to be ''de minimis''. | Under s 34, if the seller delivers a quantity of goods either greater or lesser than that contracted for, the buyer may either reject the entire shipment, or accept the quantity delivered and pay accordingly, or, if the quantity is greater than ordered, reject the balance over that ordered. There is likely an exception when the difference in quantity is so slight as to be ''de minimis''. | ||
==== c) Stipulations as to Price ==== | ==== c) Stipulations as to Price ==== | ||
Under s 12, where a contract is silent as to price, the court will infer a reasonable price, but where the price would be too vague for the court to infer, there may be no consensus upon an essential term, and therefore no contract. | Under s 12, where a contract is silent as to price, the court will infer a reasonable price, but where the price would be too vague for the court to infer, there may be no consensus upon an essential term, and therefore no contract. | ||
==== d) Installments ==== | ==== d) Installments ==== | ||
Under s 35(1), a buyer need not accept delivery by | Under s 35(1), a buyer need not accept delivery by instalments unless that is agreed to. Where a contract is for separately paid instalments, circumstances and construction of the contract determine whether a breach allows for repudiation of the entire contract, or only a right to sue for damages regarding the defective instalment. | ||
=== 6. Rules as to Transfer of Title and Risk === | |||
The ''SGA'' sets out five key rules regarding the transfer of title (and thus risk) of goods between the seller and the consumer in ss 22 – 23. Generally, the intent of the parties is the overriding consideration in determining when title to the goods passes (s 22). However, if the parties did not consider or address the issue of transfer of title in the contract, then the rules under s 23 apply. | |||
The first four rules pertain to specific goods, while the fifth rule pertains to unascertained goods. | |||
:'''NOTE:''' Recall that specific goods are goods that are agreed to be the only goods whose transfer will satisfy the contract, while unascertained goods are goods that are agreed to be the subject matter of the contract. | |||
#For an unconditional contract for the sale of specific goods in a '''deliverable''' state, then title (and thus risk) passes at the time of contract formation, regardless of when the payment or delivery is made (s 23(2)); | |||
#For a sale of specific goods where the seller is bound to perform something to put the goods in a '''deliverable state''', then title (and thus risk) passes when the task has been performed '''and''' the buyer has been notified (s 23(3)); | |||
#For a sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or perform any other task to '''appraise''' (set the price of) the good, then title (and thus risk) passes when the appraisal has been performed '''and''' the buyer has been notified (s 23(4)); | |||
#For the sale of goods subject to approval, then the title (and thus risk) passes when the consumer signifies their approval '''or''' after a specified or reasonable amount of time (ss 23(5) and 23(6)); and | |||
#For the sale of '''unascertained''' or future goods by description, then title passes when the goods are unconditionally appropriated to the contract by the seller (i.e. set aside specifically for sale to the consumer) with the assent of the buyer or the seller delivers the goods to a carrier pursuant to a contract and does not reserve a right of disposal (ss 23(7) and 23(8)). See [https://www.canlii.org/en/bc/bcca/doc/2008/2008bcca66/2008bcca66.html?autocompleteStr=bevo%20farms&autocompletePos=3 ''Bevo Farms Ltd. v Veg Gro Inc.'', 2008 BCCA 66] for an example of unascertained goods (tomato seedlings) that became unconditionally appropriated when the seller contracted with the carrier for delivery, and thus title and risk had passed to the consumer when the goods were destroyed. | |||
The timing of transfer of title affects the consumer’s legal rights in ways including, but not limited to, the following: | |||
*If property was supposed to pass to the consumer by a specified time, but the seller does not deliver by that time, then this is a breach of contract. See A. Identifying and Classifying the Terms of a Contract to determine whether this is a breach of condition or breach of warranty, which determines the remedies available to the buyer; | |||
*Whichever party has property of the goods is presumptively the person who is responsible for the goods, if something happens to the goods. See <u>''Kovacs v Holtom'', [1997] A.J. 775</u> for an example where a convertible was destroyed while being restored at the defendants’ garage shop, and the defendant was liable to the consumer for damages as title (and thus risk) did not yet pass to the consumer under rule #2 | |||
(s 23(3)); and | |||
*Whether the seller or the buyer has title to the goods may affect third party claims to the property (e.g. a creditor who has a security interest in the goods). | |||
== D. Remedies for Breach of Contract == | == D. Remedies for Breach of Contract == | ||