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Law of Sale of Goods

Section 2(7) "goods" means every kind of moveable

property other than actionable claims and money;
includes stock and shares, growing crops, grass,
and things
attached to or forming part of the land which are
agreed to
be severed before sale or under the contract of sale
An Actionable Claim is a plain unsecured debt which can
be claimed by a person against another person and which
can be enforced in civil courts according to law.
Right to benefit of a contract falls within the definition of
Actionable Claim.
It means a claim to any debt other than a debt secured
under a mortgage or hypothecation or pledge on any
immovable or moveable property, possession of which is
given to person or institution which gave the loan.

Transactions in the nature of sale of goods form the subject matter of the Sale of
Goods Act, 1930.
The Act covers topics such as the concept of sale of goods, warranties and
conditions arising out of sale, delivery of goods and passing of property and
other obligations of the buyer and the seller.
It also covers the field of documents of title to goods and the transfer of
ownership on the basis of such documents. The Act came into force on 1 July,
Indian business persons, conducting their business against the backdrop of the
Sale of Goods Act, have not found it difficult to work out the several varieties of
contracts of sale of goods as resorted to in national and transnational business,
such as f.o.b. (free on board), c.i.f. (cost, insurance and freight) and ex-ship.

Definition and Essentials of A Contract of Sale

Definition and Essentials of a Contract of Sale

There must be at least two parties


Transfer or agreement to transfer the ownership of goods


The subject matter of the contract must necessarily be goods


Price is the consideration of the contract of sale


A contract of sale may be absolute or conditional [s.4(2)].


All other essentials of a valid contract as per the Indian Contract Act, 1872
must be present

Sale and Agreement to Sell. Where under a contract of sale, the property
(ownership) in the goods is transferred from the seller to the buyer, it is called a
sale [s. 4(3)]. Thus, sale takes place when there is a transfer of ownership in
goods from the seller to the buyer. A sale is an executed contract.

Example. Ramanathan sells his car to Bhim for Rs 1 lakh. If all essential
elements of a valid contract are present, it is a sale and therefore the ownership
of the car stands transferred from Ramanathan to Bhim. This is so even where
the payment of the price or the delivery of the car or both have been postponed.
Agreement to sell means a contract of sale under which the transfer of property
in goods is to take place at a future date or subject to some conditions thereafter
to be fulfilled.
Example. Amar agrees to sell certain goods to Akbar. The goods are on their
way from London to Mumbai in a ship. The ownership in the goods will pass to
the buyer when the goods come and the agreement is subject to the condition
that the ship arrives at port with the goods.

Distinction between sale and agreement to sell

The difference between sale and agreement to sell is as follows:





A sale is an executed contract.
Since the ownership has passed to the buyer, the
seller can sue the buyer for the price of the goods, if
the latter makes a default in payment.
It creates a right in rem, i.e., against the whole
In case of loss of goods, the loss will fall on the
buyer, even though the goods are in the possession
of the seller. It is because the risk is associated with
In case, the buyer pays the price and the seller
thereafter becomes insolvent, the buyer can claim
the goods from the official receiver or assignee, as
the case may be.
If the buyer becomes insolvent without paying the
price, the ownership having passed to the buyer, the
seller shall have to deliver the goods to the official
receiver or assignee, as the case may be, except
where he has a lien over the goods.

Agreement to sell
It is an executory contract.
In case of breach, the seller can only sue for
damages, unless the price was payable at a
stated date.
It creates a right in personam, i.e., against
specified person only.
The loss in this case shall be borne by the
seller, even though the goods are in the
possession of the buyer.
In this case, the buyer cannot claim the
goods but only a rateable dividend for the
money paid.
Under this, the seller can refuse to deliver
the goods to the official receiver or
assignee, as the case may be.


Meaning of Goods. Goods means every kind of movable property, other than
actionable claims and money; and includes stocks and shares. The term goods
excludes money. Money means legal tender and not the rare coins which can be
sold and purchased as goods.
Documents of Title to Goods. Section 2(4) recognises the following as
documents of title of goods: bill of lading, dock warrant, ware-housekeepers
certificate, wharf certificate, railway receipt, warrant or order for the delivery of
goods and any other document used in the ordinary course of business as a
document of title.
Classification of Goods. Goods may be classified as existing, future and
contingent. Existing goods are those which are owned or possessed by the seller
at the time of the contract (s.6). Instances of goods possessed but not owned by
the seller are sales by agents and pledgees.

Meaning. Price means the money consideration for the sale of goods. Price is
an integral part of a contract of sale. If price is not fixed, or is not capable of
being fixed, the contract is void ab initio.
Mode of Payment of the Price.
Earnest money. Also known as deposit, it is paid by the buyer in advance
as security for the due performance of his part of the contract. It is not paid as
part payment of price.
Incidence of taxation. Tax revision means any increase or decrease or
remission in customs, or excise duty, or any tax on the sale or purchase of goods
imposed. Thus, the buyer would have to pay the increased price if the tax
increases and would be entitled to the benefit of reduction if taxes are reduced.
However, this provision can be excluded by the parties by a term in the sale


Conditions and Warranties (Ss.11-17). In a contract of sale, parties make
certain stipulations, i.e., agree to certain terms. All stipulations cannot be treated
on the same footing. Some may be intended by the parties to be of a fundamental
nature, e.g., quality of the goods to be supplied, the breach of which, therefore,
will be regarded as a breach of the contract. Some may be intended by the
parties to be binding, but of a subsidiary or inferior character, e.g., time of
payment, so that a breach of these terms will not put an end to the contract but
will make the party committing the breach liable to damages. The former
stipulations are called conditions and the latter warranties.
Example. Kaushal asks a dealer to supply him a shirt which would not shrink
after use and wash. The dealer supplies a shirt which shrinks after use and wash.
Kaushal can reject the shirt or keep the shirt and claim damages. Here the
stipulation to supply a shirt which would not shrink after use and wash is a


Meaning of Property in Goods. The phrase property in goods means
ownership of goods. The ownership of goods is different from possession of
goods. The possession of goods refers to the custody of goods, though
normally a person.
Rules Regarding Passing of Property in Goods from the Seller to the
Buyer. Sections 18 to 25 lay down the rules which determine when property
passes from the seller to the buyer.
Specific or ascertained goods:

Specific goods in a deliverable state


Specific goods not in a deliverable state

Unconditional appropriation

Mode of appropriation

Seller reserving the right of disposal

Unascertained or future goods


Risk Prima Facie Passes with Property. Section 26 (First paragraph) reads:
unless otherwise agreed, the goods remain at the sellers risk until the property
therein is transferred to the buyer,
Example. A buys goods of B and property has passed to him; but the goods
remain in Bs warehouse and the price is unpaid. Before delivery a fire burns
down the warehouse destroying the goods. A must pay the price of the goods as
A was the owner.

Performance of A Contract of Sale of Goods

The contract of sale of goods is to be performed. In this context, Ss.31-44
provide for the duties of the seller and the buyer and the rules regarding delivery
of goods.
Duties of the Seller and the Buyer. 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 (s.31).
The seller has the duty of giving delivery of goods according to the (i) terms of
the contract, and (ii) rules contained in the Act.
Delivery. Delivery is defined as a voluntary transfer of possession from one
person to another [s.2(2)]. Section 33 provides that delivery of goods sold may
be made by doing anything which the parties agree shall be treated as delivery
or which has the effect of putting the goods in the possession of the buyer or of
any person authorised to hold them on his behalf. Therefore, any other act, in
addition to transfer of physical possession, which the parties agree to treat as
equivalent thereto, has the effect of delivery.

Rules regarding delivery. The following are the rules regarding delivery of

Delivery of part of goods sold may amount to delivery of the whole if it is so

intended and agreed.


Unless agreed otherwise, the seller is not bound to deliver goods, till the
buyer applies for delivery (s.35).


Place of delivery.


Time of delivery.


Demand for and tender of delivery must be at a reasonable hour.


Delivery of wrong quantity.


Instalment delivery.


Delivery to the carrier or wharfinger (s.39).

9. Where goods are delivered to a buyer, which he has not personally

10. Buyer not bound to return the rejected goods.


Unpaid Seller and His Rights

A contract is comprised of reciprocal promises. In a contract of sale, if seller is
under an obligation to deliver goods, buyer has to pay for it. In case buyer fails or
refuses to pay, the seller, as unpaid seller, shall have certain rights.
Who is an Unpaid Seller? A seller of goods is an unpaid seller when (i) the
whole of the price has not been paid or tendered. (ii) a bill of exchange or other
negotiable instrument has been received as conditional payment.
Rights of an Unpaid Seller. The rights of an unpaid seller may broadly be
classified under two heads, namely: (i) Rights under the Ss.73-74 of the Indian
Contract Act, 1872, i.e., to recover damages for breach of contract. (ii) Rights
under the Sale of Goods Act, 1930: (a) rights against the goods; (b) rights
against the buyer personally. The rights against the goods are as follows:

Lien on Goods (Ss. 47-49)

Right of Stoppage in Transit

Lien and Stoppage-in-Transit Distinguished


Available only when the goods are in the
possession of the unpaid seller
Available, even when the buyer is not an

Right of Resale (s.54)

Available only after the seller has parted with the
possession of the goods.
Available only when the buyer becomes an

Remedies for Breach of A Contract

In addition to the rights of a seller against goods provided in Ss. 47 to 54, the
seller has the following remedies against the buyer personally. (i) suit for price
(s.55); (ii) damages for non-acceptance of goods (s.56); (iii) suit for interest
Buyers Remedies against Seller. The buyer has the following rights against
the seller for breach of contract: (i) damages for non-delivery (s.57); (ii) right of
recovery of the price; (iii) specific performance (s.58); (iv) suit for breach of
condition; (v) suit for breach of warranty (s.59); (vi) anticipatory breach (s.60);
(vii) recovery of interest (s.61).

Sale by Auction [s.64]

When the goods are put up for sale in lots, each lot is deemed prima facie,
to be the subject matter of a separate contract of sale.
ii. At an auction, the sale is complete when the auctioneer announces its
completion by the fall of the hammer or in other customary manner; until
such completion any bidder may withdraw his bid. It is also the practice to
say three times.
iii. A right to bid may be reserved expressly by or on behalf of the seller and
where such right is expressly reserved but not otherwise, the seller or any
person on his behalf may bid at the auction.
iv. Where the sale is not notified to be subject to a right to bid on behalf of the
seller, it shall not be lawful for the seller to bid for himself or to employ any
person to bid at such sale, or for the auctioneer knowingly to take any bid
from the seller or any such person.
v. The sale may be notified to be subject to a reserved or upset price.
vi. If the seller makes use of pretended bidding to raise the price, sale is
voidable at the option of the buyer.

Implied Conditions
Regarding description
If sale is through a sample
Quality of fitness
On the part of the seller that, in the case of a sale, he has a
right to sell the goods and that, in the case of an agreement
to sell, he will have a right to sell the goods at the time when
the property is to pass;

Implied Warranty
(b) an implied warranty that the buyer shall have and enjoy
quiet possession of the goods;
(c) an implied warranty that the goods shall be free from any
charge or encumbrance in favour of any third party not
declared or known to the buyer before or at the time when
the contract is made.

Doctrine Of Caveat Emptor Let the

Buyer Beware
Under the doctrine of Caveat Emptor, the
buyer can not recover from the seller for
defects on the property that rendered the
property unfit for ordinary purposes.
The only exception is if the seller actively
concealed latent defects.

A proof of purchase will validate the claim if a buyer wants to enforce

his rights.
In the case of software, movies and other copyrighted material many
vendors will only do a direct exchange for another copy of the exact
same title. Most stores require proof of purchase and impose time
limits on exchanges or refunds; however, some larger chain stores will
do exchanges or refunds at any time with or without proof of