I. (1) (1) I. II.
Real remedies o Exercisable against the goods, so using the goods as a form of security to protect his position
Resale Lien Stoppage in Transit o As a general rule when both property and possession has passed the seller has no more right over the goods and has to resort to personal remedies Personal remedies o Action for price s.49 – effect is to affirm the contract o Action for damages for nonacceptance s.50 – based on the fact that the sale has not taken place o Special damages under s.54 – can be used in either situation o Scenarios
Property has passed and B has accepted the goods – action for price Property has not passed and B refuses to accept the goods – action for damages Property has passed and B refuses to accept the goods – Either
1. Action for price is more favourable than an action for damages 2. But where property has not passed S is in a dilemma a. HE can argue that property has passed to B i. Disclaim all responsibility and sue on price b. But he runs the risk that the court may decide that property had not passed i. And S’s remedy is for nonacceptance ii. Thus, the seller would have been responsible for mitigating damage by attempting to resell 1. Which he wouldn’t have done, reducing damages. iii. BUT If he has done that, the court may treat this as evidence of an acceptance by the seller of repudiation of the contract by the buyer 1. Thus, even if the property had originally passed to B it will now revert in S and an action in price will no longer lie. 2. So if his efforts to resell the goods have failed, he will have made his own position worse by attempting to dispose of them, as in the case of Ward v Bignall (1967)
BUYERS DUTIES
I.
Duty to pay the price − Unless otherwise agreed, S is not bound to accept anything other than cash
− A cheque is conditional payment only • If the cheque is not honoured seller can sue A) On the cheque itself (1) In which case the buyer cannot set up defences based on breaches of contract B) On the contract of sale for the price of goods (1) The buyer is deemed to be an unpaid seller if a cheque has been received and then dishonoured, s.38(1)b SGA 1979
SELLERS REAL REMEDIES
I.
Fundamental Requirement – Unpaid Seller − Unpaid
• Refers to the fact of being unpaid, so applies whether or not payment is due according tot eh contract • S.38(1) SGA 1979 includes failed conditional payment, partial payment etc
II.
Lien, s.39(1)a SGA 1979 − What is it?
• A right to retain the goods until the whole of the price has been tendered
− Requirements
Real remedies o Exercisable against the goods, so using the goods as a form of security to protect his position
Resale Lien Stoppage in Transit o As a general rule when both property and possession has passed the seller has no more right over the goods and has to resort to personal remedies Personal remedies o Action for price s.49 – effect is to affirm the contract o Action for damages for nonacceptance s.50 – based on the fact that the sale has not taken place o Special damages under s.54 – can be used in either situation o Scenarios
Property has passed and B has accepted the goods – action for price Property has not passed and B refuses to accept the goods – action for damages Property has passed and B refuses to accept the goods – Either
1. Action for price is more favourable than an action for damages 2. But where property has not passed S is in a dilemma a. HE can argue that property has passed to B i. Disclaim all responsibility and sue on price b. But he runs the risk that the court may decide that property had not passed i. And S’s remedy is for nonacceptance ii. Thus, the seller would have been responsible for mitigating damage by attempting to resell 1. Which he wouldn’t have done, reducing damages. iii. BUT If he has done that, the court may treat this as evidence of an acceptance by the seller of repudiation of the contract by the buyer 1. Thus, even if the property had originally passed to B it will now revert in S and an action in price will no longer lie. 2. So if his efforts to resell the goods have failed, he will have made his own position worse by attempting to dispose of them, as in the case of Ward v Bignall (1967)
BUYERS DUTIES
I.
Duty to pay the price − Unless otherwise agreed, S is not bound to accept anything other than cash
− A cheque is conditional payment only • If the cheque is not honoured seller can sue A) On the cheque itself (1) In which case the buyer cannot set up defences based on breaches of contract B) On the contract of sale for the price of goods (1) The buyer is deemed to be an unpaid seller if a cheque has been received and then dishonoured, s.38(1)b SGA 1979
SELLERS REAL REMEDIES
I.
Fundamental Requirement – Unpaid Seller − Unpaid
• Refers to the fact of being unpaid, so applies whether or not payment is due according tot eh contract • S.38(1) SGA 1979 includes failed conditional payment, partial payment etc
II.
Lien, s.39(1)a SGA 1979 − What is it?
• A right to retain the goods until the whole of the price has been tendered
− Requirements
