Escolar Documentos
Profissional Documentos
Cultura Documentos
Legislation overview
Sale of Goods Act 1923 (NSW) Governs contracts for sale of goods Mainly relevant to commercial contracts Consumer provisions included (ss 62, 63,64) Trade Practices Act 1974 (Cth) Our focus is on consumer protection Fair Trading Act 1987 (NSW) Parallels consumer protection provisions of TPA
Definitions
Goods (s5)
All chattels personal other than things in action and money. Includes emblements and things attached/forming part of the land which - agreed to be severed before sale or under the contract of sale. Examples: Does NOT include software: St Albans City and District Council v International Computers Ltd [1996] Does NOT include pay TV signals Telstra Corporation Ltd v Hurstville City Council (2000)
DOES include combined sale of computer system + software Toby Constructions Products Pty Ltd v Computa Bar Sales Pty Ltd [1983]
If agreed for 3rd party to make valuation 3rd party cannot/doesnt agreement is avoided. Wenning v Robinson (1964) 64 SR (NSW) 157 (plus stock at valuation) in my opinion, the intention which is to be ascertained from the agreement is that the stock would pass from the seller to the buyer at its value, that is to say, at its reasonable value, or (which is the same thing), at its reasonable price. Of course, it was possible that disputes might arise as to the proper basis of the valuation but, nevertheless, the parties are to be taken to have agreed that what would be paid was what was reasonable in the circumstancesPer Walsh J
Type of goods
Specific goods may be sold by description depending on circumstances. Example: Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631 FACT: Bull purchased as breeding bull. Sterile Bull is sterile. Held: purchaser could recover. LAW: Specific good buyer had chance to inspect usually not sale by description. BUT: can still be by description even where specific goods and buyer has inspected IF (!!) deviation of goods from description is NOT apparent.
By description:
Buyer has not seen goods relying on description alone. BUT can still be by description (even where scene) if buyer bought based on description. Grant v Australian Knitting Mills Ltd [1936] AC 85 Sale by description where though it is specific, so long as it is sold not merely as the specific thing but as a thing corresponding to a description Beale v Taylor [1967] 3 All ER 253 Ad for 1961 Triumph Herald Convertible. Seller didnt know made of two different Herald models welded together. Buyer inspected and drove.
ISSUE: sale by description OR sale of particular thing seen by buyer and bought purely based on his assessment. HELD: although buyer saw relied on description as showing the car he was buying. Ashington Piggeries v Christopher Hill [1971] 1 All ER 847 FACT: Mink food prepared to formula of P (mink farmer) by D (food compounder). Incl herring meal as ingredient reacted with preservative. Toxic to mink. P sued for damages. HELD: description of herring meal was NOT misdescription. Only bad QUALITY of preservative. LAW: distinction between description and quality.
Statements only form part of description if they are to IDENTIFY the goods (not about quality).
HELD: condition can be implied where: a) buyer makes known to seller the particular purpose for which he requires the goods; b) buyer indicates his reliance on sellers kill or judgment (not to be presumed). Reliance must be substantial/effective inducement leads buyer to agree to purchase Cammell Laird & Co v Manganese Bronze and Brass Co Ltd [1934] All ER Rep 1 Issue: whether the particular purpose for which the goods were required was not merely made knownbut was made known so as to show that the appellants as buyers relied on the sellers' skill and judgment. Must be affirmatively shown reliance must be brought home to the mind of the seller in such a way that the seller can be taken to have contracted on that footing Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 Lord Reid qualifies Wrights dictum in Cammell Laird I do not think, however, that he meant more than that in the whole circumstance a reasonable man in the shoes of the seller would have realised that he was being relied on [quoting Wright from another case] It is clear that the reliance must be brought home to the mind of the seller, expressly or by implication. Expo Aluminium (NSW) Pty Ltd v WR Pateman Pty Ltd (1990) ASC 55-978 House exposed to weather. Requested Appellant manufacturer to supply replacement aluminum windows from Respondent manufacturer. A Manuf said statement: nothing between this job and the South Pole. Windows unsuitable. Trial: owner got damages from A Manuf. A Manufs action against R Manuf failed. COA: A Manuf won. HELD: buyer must establish PURPOSE and RELIANCE from statement (express and implied). South Pole meant perils of wind and rain. Though not precise it is enough if (by express/implication) a particular purpose is made known to seller.
Partial Reliance
Sufficient that buyer relies PARTIALLY on skill/judgment of seller as long as matter complained off is ABOUT what the buyer relied upon. Ashington Piggeries v Christopher Hill [1971] 1 All ER 847:
FACT: P (food compounder) compound mink food for D (mink farmer), formula provided by D. Included herring meal (contaminated by preservative). Highly toxic to mink. P sued for mink food and D sued for damages. HELD: P liable for breach of fitness for purpose. D had relied on own judgment (formula) BUT had also relied on P to use GOOD quality ingredients.
Merchantability
19 (2) Where goods are bought by description from a seller who deals in goods of that description (manufacturer or not), there is an implied condition that the goods shall be of merchantable quality provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed. Explanation: Goods must be purchased by description Seller must deal in goods of that description If goods inspected no condition in relation to defects which inspection ought to have revealed (latent defects are those which cannot be detected on examination) Examination Thornett & Fehr v Beers [1919] 1 KB 486 FACT: A buy glue from B. Went to warehouse and offered for inspection. A only looked at outside. HELD: A examined the goods no implied condition of merchantability.
LAW: if buyer wants more get seller to sell on basis that goods are fit for some stated purpose. If a buyer wants more than this he must get his seller to sell on the basis that the goods are reasonably fit for some stated purpose (per Lord Morris, quoting from Lord Wright in an earlier case)
Consumer sales
s62 Definition: a sale of goods (other than auction) by a seller in the course of a business where the goods: o are of a kind commonly bought for private use or consumption, and o are sold to a person who does not buy or hold himself or herself out as buying them in the course of a business. s 64 (3): NOT of MQ if they are not as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to their price, to any description applied to them by the seller and to all other circumstances. s 64 (5): where goods, at time of delivery to buyer, not (by defect or other reason) of MQ Court can add manufacturer as party to proceedings. And if decide defect should be remedied by manufacturer may make against the manufacturer
Merchantable Quality
Nemo dat quod non habet (no person gives what they dont possess)
Buyer cannot get better title than that of seller goods sold by person (not owner) no title to goods.
Exceptions to nemo dat s26(1) Sale by person not the owner owner estopped from denying authority of seller. s27 Sale under voidable title seller has voidable title s28: seller or buyer in possession after sale S 26 Sale by person not the owner
Owner of the goods is by their conduct precluded from denying the sellers authority to sell Eg. permitting goods to be possessed by person in circumstances, which make it seem like person has authority to sell goods. Eastern Distributors v Goldring [1957] 2 All ER 525 M (owner of van) gives ownership docs to C. C sells to ED. M (still in possession) sells to G. ED demands van from G. HELD: M gave C documents to represent to ED that C was owner precluded from denying Cs authority to sell.
S 27 Voidable title
Seller has voidable title (eg. gained thru fraud) not avoided at time of sale buyer gets GOOD title IF in good faith and without notice of sellers defect.
Title can be voidable by: misrep, fraud, duress. Title can be avoided by: retaking possession of goods/title, notice of intention to rescind Car and Universal Finance Co Ltd v Caldwell [1964] 1 All ER 290 Rogue gets car with bad cheque. Seller contacted police etc to track down car (avoided). Sells to another dealer. Dealer had enough info to infer car had been fraudulently gotten. HELD: sufficiently avoided (rescinded) in circumstance where rogue has absconded and made notice of rescission impossible. Thus: property revested in Seller, never transferred to any buyers. Newtons of Wembley v Williams [1964] 2 All ER 135 Rogue sold car to innocent P BEFORE seller notified authorities. HELD: Innocent P has good title.
If available market for the goods: different between contract price and market price, at time when goods meant to be accepted (otherwise at time of refusal). WL Thompson v R Robinson (Gunmakers) Ltd [1955] Ch 177 R buy cars from T (car dealers). R refused to accept delivery and T return car to suppliers. HELD: T get damages for loss of bargain (profit) because they sold 1 car less than otherwise would have sold. Lazenby Garages Ltd v Wright [1976] 2 All ER 770 P1 agree to buy car for 1670. P1 changes mind. Sold to P2 for 1770. Dealer sues P1 for difference btw wholesale and agreed (even though later sold). HELD: no market price. Loss determined by natural consequences of breach. BUT car sold at higher price no loss.
Specific Performance
If seller fail to deliver specific/ascertained goods can have SP Generally: court will not SP unless goods are UNIQUE or damages would not be ADEQUATE. Eg. SP ordered on sale of taxicab as it came with valuable license: Dougan v Ley