代写BUSN1101 Sale of Goods

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  • 代写BUSN1101 Sale of Goods
    nBUSN1101
    nSale of Goods
    nDefining a contract for the sale of goods
    ncontract of sale s6 Sale of Goods Act (ACT) –
    nA contract of sale of goods is a contract by which the seller transfers or agrees to transfer property in goods to the buyer for a money consideration, called the price .
    nGoods are movable chattels. The Act does not cover contracts for the sale of land, choses in action (eg shares, intellectual property rights) or services.
    n
    nDefining a contract for the sale of goods
    nSale of Goods Act 1954 (ACT)
    n"goods" includes all chattels personal other than things in action and money and also includes emblements[profit from crops], industrial growing crops, and things attached to or forming part of the land, that are to be severed before sale or under the contract of sale.
    n
    nDefining a contract for the sale of goods
    nSt Albans City and District Council v International Computers Ltd [1996] 4 All ER 48 text 2021
    nA software fault resulted in an overestimation of numbers of payers and underestimation of the rate of the charge. The contract was for transfer of a computer program without any transfer of a disk or other tangible thing on which the program was encoded.
    nHeld the program itself is not goods and the transfer of the program did not constitute a transfer of goods.
    nDefining a contract for the sale of goods
    nE v Australian Red Cross Society(1991) 105 ALR 53 text 221
    nP  was infected with HIV as a result of receiving a blood transfusion following hospital surgery.
    nIssue as to whether there was a contract for the supply of goods under s 19 SGA or under what is not the Australian Consumer Law.
    nContract with the hospital for “the provision of nursing services and perhaps for medical attention, but there was no contract for the supply of the blood plasma which was intended to be supplied, if necessary, and supplied free of charge.” per Lockhart J
    nDefining a contract for the sale of goods
    n“ It is sometimes difficult to determine whether a particular agreement is for the sale of goods or the performance of services and the distinction between the two is often a fine one. The traditional test is to distinguish between the two is for the Court to have regard to “the substance” of the contract.” per Lockhart J
    nThe particular contract was held to be for the provision of services with the supply  of goods such as good, tablets, dressings etc being incidental to the contract for the supply of services and the contract was not divisible.
    nNote that in Q v Australian Red Cross Society [1992] 1 VR 19 blood was assumed to be goods.
    nDefining a contract for the sale of goods
    nContract for the sale of goods or contract for work and materials
    nRobinson v Graves [1935] 1 KB 579 text 221
    nIs the main substance the transfer of title to a chattel or is the main substance the skill and experience of one of the parties with transfer of title to a chattel being ancillary to that? (substance of the contract test)
    nHeld that the substance of an oral contract of the painting of a portrait was the skill and experience of the artist in producing the picture and was not a contract for the sale of goods.
    n
    nTransfer of property
    nClassification of goods see text 222-223
    nExisting - currently owned or possessed
    nFuture – to be manufactured or acquired
    nSpecific – existing and identified and agreed upon
    nUnascertained – not yet identified (may be existing or future)
    nAscertained – have become identified (specific)
    nPassing of risk s 25 –risk (of loss, deterioration or damage) generally passes with property

    nTransfer of property
    nSALE OF GOODS ACT 1954 - SECT 11
    nGoods that have perished If there is a contract for the sale of specific goods and the goods have, without the knowledge of the seller, perished at the time when the contract was made, the contract is void.
    nWhy did this not apply to McRae?
    nTransfer of property
    nRules about the passing of property s 23 (these apply unless parties agree otherwise):
    1.unconditional contract for the sale of specific goods in a deliverable state – property passes when the contract is made
    See Bodilingo Pty Ltd v Webb Projects Pty Ltd (1990) ASC ¶ 56-001 text 227
    n代写BUSN1101 Sale of Goods
    nTransfer of property
    2.contract for the sale of specific goods and the seller is bound to do something to the goods to put them in a deliverable state - property does not pass until that thing has been done and the buyer has notice of that (eg registration of a car)
    See Underwood Ltd v Burgh Castle Brick and Cement Syndicate [1922] 1KB 343 text 228
    nTransfer of property
    3.  contract for the sale of specific goods in a deliverable state but the seller has to weigh, measure, test or do something to the goods to determine the price -property does not pass until that thing has been done and the buyer has notice of that
    n
    nTransfer of property
    4.  goods delivered on approval – property passes
    nwhen the buyer signifies approval or acceptance or otherwise adopts the transaction
    See Kirkham v Attenborough [1897] 1 QB 201 text 229
    nor
    nthe buyer retains the goods without giving notice of rejection property will pass after fixed time for return of goods has expired or if no time fixed then after a reasonable time.
    n
    nTransfer of property
    Atari Corporation (UK) Ltd v Electronic Boutique Stores (UK) Ltd [1998] QB 539 text 229
      EB received computer games from Atari on terms providing for sale or return until 31 Jan, On 19 Jan EB wrote to Atari saying it would return unsold goods. Atari had to accept return even though goods not returned by 31 Jan. Notice of rejection prior to 31 Jan sufficient.
    n
    nTransfer of property
    n5.  contract for the sale of unascertained future goods by description –property passes when either party with the assent of the other unconditionally appropriates goods of that description to the contract.
    nTransfer of property
    nPignataro v Gilroy [1919] 1 KB 459 text 231
      D agreed to sell 140 bags of rice to P (unascertained). P paid and was told 125 bags at wharf for collection and 15 bags available for collection at D’s business premises. P waited a month and then went to collect the 15 bags only to discover they had been stolen. P sued. Who bore the loss?
    n
    n
    nTransfer of property
    Rule 5 cont – What is  unconditional appropriation?
      Includes unconditional delivery to a carrier.
    nTransfer of property
    Wardar’s (Import & Export) Co Ltd v W Norwood & Sons Ltd [1968] 2 QB 663 text 231
      Contract to buy 600 cartons of frozen kidneys Carrier arrived at 8 am to collect and handed over delivery note. Loading not  complete until noon by which time the cartons were thawing and the following day at the plaintiff’s premises were unfit for human consumption. The plaintiff sued. When did property and risk pass?
    n
    n
    nTransfer of property
    nReservation of title s 24 – can be specified that property won’t pass until payment made (or other condition fulfilled) so that the purchaser may be in possession of the goods but not be the owner of the goods.
    nExceptions to nemo dat
    nTransfer of property by a non-owner  s 26 –
      -nemo dat rule – generally only the true owner can pass good title
      -nemo dat quod non habet – you cannot sell what you do not own – you cannot pass a better title than you have yourself
    n
    nExceptions to nemo dat
    nEstoppel s 26 – if buyer’s belief in seller’s ownership has been induced by true owner, the true owner may be estopped from denying the seller’s right to sell
    n
    nExceptions to nemo dat
    nEastern Distributors Ltd v Goldring [1957] 2 QB 600 text 232
      Murphy owned a Bedford van and wanted to purchase a Chrysler sedan but didn’t have the deposit. The car dealer suggested that the he tell the finance company that the dealer owned both vehicles and Murphy wanted to buy both of them. The car dealer would then sell both to the finance company and M would take them both back on hire purchase. The finance co only accepted the proposal for the Bedford which M already owned
    n
    nExceptions to nemo dat
    nEastern Distributors Ltd v Goldring [1957] 2 QB 600 text 232 cont
      The car dealer told M the deal was off but proceeded to transfer the Bedford to the finance company which then sought to repossess when payments weren’t made.
      In the meantime M had sold his business including the van to Goldring
      Who had title - the finance company or Goldring?
    nExceptions to nemo dat
    nSale by mercantile agent s 26(2)(a)
      agent having in the customary course of his or her business as a mercantile agent authority either to sell goods or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods or of documents of title to goods 
    n
    nExceptions to nemo dat
    nSale under voidable title s 27 – buyer (bona fide and for value) gets good title as long as title has not been avoided before sale
      Lewis v Averay [1927] 1 QB 198 refer to earlier work on mistake.
    nExceptions to nemo dat
    nSale by seller in possession s 29(1) – if the buyer leaves the seller in possession after sale and the seller resells them the second buyer (bona fide and for value) will get good title ie the seller bears the risk if the buyer resells them  
    nExceptions to nemo dat
    nPacific Motor Auctions Pty Ltd v Motor Credits (Hire Finance) Ltd [1965] AC 867 text 236
      Car dealer sold its stock to the finance company to finance its operations. The finance co allowed the dealer to display the cars and sell them to the public. It withdrew that authority but 16 cars were sold after that time. Did the purchasers of the 16 cars get good title?
    n
    n
    nExceptions to nemo dat
    nSale by buyer in possession s 29(2) – a seller who gives the buyer possession of the goods before the sale is finalised is in the same position as a buyer who leaves the goods with the seller after sale
     
    nRemedies of the unpaid seller
    Against the goods:
    nLien s 44 – right to retain possession until goods have been paid for (where property has passed)
    nWithholding delivery s 43 (if property has not passed)
    nStoppage of goods in transit s 47 (applies in case of insolvency of buyer where property has passed)
    nResale s 51
    n
    nRemedies of the unpaid seller
    Against the buyer:
    nPrice s 52
    nDamages for non-acceptance s 31 – difference between contract price and market price.
    n
    nRemedies of the buyer
    nRejection s 16 – depends on whether breach of condition
    nRecovery of the price s 57 (buyer would use this if the goods can be readily bought elsewhere for the same or a lesser price)
    nDamages for breach of warranty of quality s 56 –  difference between the value of the goods as delivered and the value they would have had if delivered without the breach
    nDamages for non-delivery s 54 – difference between contract price and market price
    nSpecific performance s 55 – at court’s discretion generally only where damages would not be an adequate remedy.

    nConsumer law
    nThe general rule which applies to purchasers is that of caveat emptor or buyer beware – purchasers need to look after their own interests by making inspections and inquiries.
    nThe Sale of Goods Act (early consumer protection legislation) however implies certain terms into all contracts for the sale of goods to provide consumers with a level of protection. However these terms can be excluded by an exclusion clause for example.
    n
    nConsumer law
    nIn 1974 the Commonwealth enacted the Trade Practices Act which provided more general consumer protection rights.
    nConsumer protection is now dealt with in the Competition and Consumer Act 2010 (Cth) and schedule 2 contains the Australian Consumer Law
    nThe ACL has also been adopted in all Australian states and territories eg Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 7.
    n
    nMeaning of consumer
    Who is a consumer? S 3
    A consumer is a person who:
    nacquires goods or services of less than
    $40 000; or
    nacquires goods or services of a kind ordinarily acquired for personal, domestic or household use (of any value); or
    nacquires a commercial road vehicle or trailer principally to transport goods (of any value);
    n
    nMeaning of consumer
    A person is not a consumer
    nif the goods (of any value) were acquired for resupply; or
    nacquired for the purpose of using them up or transforming them, in trade or commerce as an ingredient in a manufactured product or to repair or treat other goods or fixtures on land.
    n
    nMeaning of consumer
    nBunnings Group Ltd v Laminex Group Ltd (2006) 230 ALR 269 text 297
    nBunnings alleged that insulation used in the construction of Bunnings warehouses were not fit for purpose.
    nWere the products of a kind ordinarily acquired for personal domestic or household use or consumption?
    nHeld that insulation was ordinarily acquired for personal domestic or household use. Ordinarily means commonly or regularly but not principally or predominantly.
    nImplied terms and consumer guarantees
    nThe Sale of Goods Act implies terms into contracts for the sale of goods
    nThe ACL provides equivalent consumer guarantees in relation to consumer transactions.
    nIt is only the SGA which will apply to non-consumer transactions.
    nTerms implied by the SGA can be excluded. The application of consumer guarantees under the ACL cannot be excluded. S 64 ACL
    nImplied terms under the Sale of Goods Act
    ntitle s 17 SGA
    nThere is an implied condition that the seller has the right to sell the goods
      Rowland v Divall [1923] 2 KB 500 text 300 – R bought a car from D –  unknown to D the car had been stolen and was repossessed by police. R successfully sued D – he had not received title (ownership).
    n
    nImplied terms under the Sale of Goods Act
    nquiet possession
    - There is an implied warranty that the buyer shall have quiet possession
      Microbeads AG v Vinhurst Road Markings Ltd [1975] 1 WLR 218 text 301  - defendants bought 3 road marking machines but didn’t get quiet possession because they were sued by another party claiming their patent was being infringed
    nfree from encumbrance There is an implied warranty that the goods are free from encumbrance (such as a mortgage).
    n
    n
    nCorrespondence with description
    ncorrespondence with description s 18  - If there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
    nagreement to sell unascertained goods eg 1 tonne of wheat
    n
    nCorrespondence with description
    nspecific goods not seen by the buyer
      Varley v Whipp [1900] 1 QB 513 text 302
      Reaping machine described as new last year and had cut only 50 – 60 acres. Machine was older and in worse condition – breach - as goods did not correspond with description
    n
    nCorrespondence with description
    nspecific goods which the buyer has seen but which are sold by description
      Beale v Taylor [1967]  3 All ER 253
      Described as 1961 Herald convertible – breach – back half was 1961 – welded to the front half of an earlier model
    nCorrespondence with description
    nAshington Piggeries Ltd v Christopher Hill Ltd [1971] 1 All ER 847
    nAP had a mink farm and asked CH to make a compound feed for the mink. CH engaged N to supply herring meal of “fair average quality of the season” for the feed compound. The herring meal contained DMNA (which was produced by a chemical reaction because of the preservative agent) which was toxic for mink (although not necessarily other animals) and the mink died.
    nCorrespondence with description
    nWas there a failure to correspond with description when there was nothing added to the meal and where the meal was not necessarily harmful to other animals?
    nHeld by the majority that the description was Norwegian herring meal and the goods met that description.
    nThe dissenting judges said that herring meal does not normally contain poison and the contaminated meal was therefore different in kind from the description.
    nSee also fitness for purpose – plaintiffs were successful on that ground.
    nMerchantable quality
      Merchantable quality s 19(3) –
    nIf goods are bought by description from a seller who deals in goods of that description (whether the seller is a manufacturer or not), there is an implied condition that the goods shall be of merchantable quality (ie suitable for the purpose for which they are normally used)
    nbut if the buyer has examined the goods there is no implied condition as to defects that the examination ought to have revealed.
    n
    nMerchantable quality
    nDavid Jones v Willis (1934) 52 CLR 110
      Willis asked an employee for a pair of walking shoes to accommodate her bunion. The heel fell off on the third occasion of wearing them and Willis broke her leg. Shoes not of merchantable quality or fit for their purpose.
    nFitness for purpose
    nfitness for purpose ss 19(1) and (2) –

      (1)     Subject to subsection (2), if 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 a description that it is in the course of the seller's business to supply (whether the seller is a manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose.

      (2)     For a contract for the sale of a specified article under a trade name, there is no implied condition as to its fitness for a particular purpose.
    nFitness for purpose
    nGrant v Australian Knitting Mills Ltd (1936) 54 CLR 49 – Dr Grant bought some woollen underwear and contracted dermatitis due to a chemical residue in the underpants. He successfully sued the retailer for breach of implied conditions, correspondence with description, merchantable quality and fitness for purpose. He was also successful in an action against the manufacturer in negligence
    nFitness for purpose
      Griffiths v Peter Conway Ltd [1939] 1 All ER 685
      Griffiths had a Harris tweed coat made by a tailor for her. She developed dermatitis from wearing the coat but it would not have affected a normal person. Griffiths had abnormally sensitive skin – coat was of merchantable quality -no breach of fitness for purpose – she didn’t make her particular requirements known.
    n
    nFitness for purpose
    nHenry Kendall & Sons v William Lillico & Sons Ltd [1968] 2 All ER 444 text 305
      Suppliers sold nut extract to manufacturers of cattle and poultry foods. The extract was suitable for cattle and older poultry but not young poultry. Supplier sold to manufacturer which only made poultry foods. Purchasers of the meal made with the extract lost young poultry.
      Nut extract was of merchantable quality – fit to be made into meal for cattle and older poultry (where several usual purposes it is OK if suitable for any one of them) but not fit for purpose – supplier knew manufacturer only made poultry food.
    n
    nFitness for purpose
    nSee also
    nAshington Piggeries Ltd v Christopher Hill Ltd [1971] 1 All ER 847.
    nThe seller made it clear that he knew nothing about the nutritional requirements of mink and simply agreed to manufacture a feed stuff in accordance with the formula which the buyer supplied. The purpose of the purchase of herring meal was compounding into animal feedstuff but the seller knew that may include mink.
    nSeller was in breach because although the buyer had relied on his own judgment as to the suitability of the compound for mink, he relied on the seller to select and acquire good quality ingredients and to combine them satisfactorily. The seller warranted the fitness of the ingredients.
    nLord Wilberforce “a man can hardly claim that the product he sells is suitable, especially if that is a foodstuff, merely because it fails to kill more than one species to which it is fed.”
    nSale by sample
    nsale by sample s 20 - there is an implied condition that the
    nBulk will correspond with sample
    nBuyer will have a reasonable opportunity of comparing the bulk with the sample
    nGoods will be free from any defects rendering them unmerchantable which would not be apparent on reasonable examination
    n
    nSale by sample
    nRasell & anor v Garden City Vinyl and Carpet Centre Pty Ltd & anor (1991) ATPR 41-152 – carpet sold by sample – sample did not reveal that carpet would shade or water mark and purchaser was not told this – breach of implied condition that goods correspond with sample.
    n
    代写BUSN1101 Sale of Goods