What are the Seller’s Obligations as to Delivery?

What are the seller’s obligations as to delivery? • Is it stipulated in the contract where, when, and how delivery is to take place? If no, look to SGA a. ‘Delivery’: defined in s 1 as the voluntary transfer of possession from one person to another b. S 31: seller has the duty to deliver the goods and the buyer has the duty to accept and pay for them i. S 5: deems someone to be in possession of the goods if in custody c. S 32: if the contract doesn’t stipulate when delivery and payment are to happen, they are concurrent conditions i. Seller must be ready and willing to give possession, buyer must be ready and willing to pay the price ii. Kay Corporation v Dekeyser: If there is not time of payment stipulated in the contract, then the buyer must be ready to pay upon delivery due to the operation of 32 a. Facts: delivery of meat, buyer thought he had 90 days credit, seller thought on delivery, seller wins d. S 14(1): unless a different intention appears, time of payment is a warranty and not of the essence of the contract i. (2): whether any other time stipulations are of the essence depends on the contract e. In a mercantile contract, the time of delivery is generally of the essence and is a condition (Bowes v Shand) i. Facts: contract for rice to be shipped in Mar/Apr, but most loaded in Feb; rice is fine but buyer has issues with timing of delivery; breach because bulk was loaded too early f. If the parties make time of delivery of the essence, a buyer can waive it, but can also impose a new deadline i. Just because a buyer has waived one or more deadlines does not mean the seller can say the new deadline is not of the essence (no estoppel) (Charles Rickards v Oppenheim) ii. Facts: contract for car that had to be put in a certain condition before possession transfer; buyer waived original time, set several other deadlines; finally gave 4 week notice and cancelled the K when not delivered g. S 33 states that whether the buyer must take possession of the goods or if the seller must send them to the buyer is a question of fact depending on the contract i. (4): if the seller must send the goods to the buyer, but there is no set time, the seller must send them within a reasonable time ii. (9): unless contract states otherwise, the seller bears any cost of putting the goods into a deliverable state • • Have the goods been accepted? For the purposes of s 15(4) the buyer must “unconditionally accept” the goods, until then, he can reject them a. S 39 stipulates when a buyer has been deemed to have accepted the goods: i. (a) implicitly or explicitly communicates acceptance to the seller ii. (b) when goods have been delivered and buyer does something inconsistent with the seller’s ownership iii. (c) when the goods have been delivered and a reasonable amount of time has passed b. S 38(1): If goods are delivered to the buyer that the buyer has not previously examined, acceptance is not deemed until the buyer has had a reasonable opportunity of examining them to see if they conform with the contract i. Courts have seen 38 as subordinate to 39: If you can make out deemed acceptance under 39 then the buyer may lose his right to a reasonable time for examination under 38 c. S 41: when the seller is ready and willing to deliver the goods, asks the buyer to take delivery and the buyer refuses to do so within a reasonable time, then the buyer is liable for: i. any loss stemming from this refusal ii. a reasonable charge for the care of the goods • Has the proper quantity been delivered? a. S 34(1): If the seller delivers LESS than agreed, the buyer may reject them (is a condition) i. ‘reject them’ includes goods delivered in previous installments (combine with 35) ii. (2) If the buyer accepts the delivered goods, the buyer must pay for them at the contract rate b. (3) If the seller delivers MORE than agreed, the buyer may i. (a) accept the correct amount and reject the rest, or ii. (b) reject the whole iii. (4) if the buyer accepts everything delivered, they must pay the contract rate c. (5) If the seller the goods agreed upon MIXED with other goods not of that description, the buyer may i. (a) accept the goods that are in accordance with the contract and reject the rest, or ii. (b) reject the whole d. (6) This section is subject to any usage of trade, special agreement or course of dealing between the parties e. A vendor must supply goods in accordance with the contract description, including quantity, and he is not entitled to say that another description of goods will suffice for the purposes of the purchaser i. The buyer may be placed in considerable difficulty by having goods tender to him which do not comply with the description under which he bought, or under which he has resold (Re Moore and Landauer) ii. Facts: contract for fruit in 30 tins/case, total tins was correct but some were delivered as 24/case; buyers are entitled to reject the whole delivery (packaging the goods wrong can constitute improper delivery) • • Did the buyer and seller contract for delivery by installments? If no, then the buyer is not bound to accept delivery by installments (s 35(1)); if yes, then s 35(2) applies: a. (2) In a contract for the sale of goods that are to be delivered in stated installments, and the installments are to be paid for separately, If the seller then make a defective delivery as to one or more installment or the buyer refuses to take delivery of/pay for one or more installment then there is a breach (of quality, time, or quantity) i. The characterization of which as a condition or a warranty depends on the contract b. Bruce: in theory, if one installment delivery had less than you asked for, could use 34+35 to terminate entire K c. If the contract is not severable and the buyer has accepted some goods: i. 15(4) says the breach of condition is treated as a warranty and you cannot reject defective deliveries ii. BUT, 34/35 is more specific and trumps 15(4), so you can reject everything, but you need to have all the goods ready to return (if you’ve used or resold earlier deliveries, you cannot reject everything) d. The court assumes 35(2) is also concerned with quality as much as time/quantity e. The test for whether 35(2) applies (Maple Flock v Universal Furniture): i. (i) The ratio must be quantitatively large which the breach bears to the contract as a whole and ii. (ii) the degree of probability/improbability that such a breach will be repeated a. Facts: contract for deliveries of furniture stuffing (flock) in installments paid for separately; quality issue with one delivery – court says cannot reject whole contract, just damages, as breach was a small proportion of all deliveries (1 problem after 1520 deliveries) and not likely to occur again