Duties of seller and buyer
s.27: It is the duty of the seller to deliver the goods, and of the buyer to accept and pay from
them in accordance with the terms of the contract of sale.
Payment and delivery are concurrent conditions
Unless otherwise agreed, delivery of the goods and payment of the price are concurrent
conditions.
s.28: The seller must be ready and willing to give possession of the goods to the buyer in
exchange for the price and the buyer must be ready and willing to pay the price in exchange
for possession of the goods.
- No requirement for the seller actually to tender delivery before he becomes entitled
to sue the buyer for the price or damages provided he can show that the buyer
would have refused to accept the goods if delivery had been tendered.
- All the seller needs to do is to show that he was ready and willing to give possession.
Delivery
S. 61(1) defines delivery as ‘the voluntary transfer of possession from one person to
another’.
- Does not require the seller to hand over the goods to the buyer.
- S.29 makes clear that, unless otherwise agreed, it is not the seller’s responsibility to
convey the goods to the buyer but it is for the buyer to collect them.
- Actual delivery: Where the seller does transfer physical possession of the goods to
the buyer.
- Constructive delivery: Occurs where the seller who does not have physical
possession of the goods transfers control of those goods to the buyer. May occur in
the following ways:
1) Where the buyer continues in possession of the goods although in his own
right: e.g during the period of hire purchase he possessed the goods as bailee but
when he exercises his option to purchase he possesses them as owner.
2) Where the is delivery of something that provides physical control of the goods:
e.g handling a key to locked premises where the goods are, so giving physical
control
3) Where the seller transfers to the buyer the document of title to the goods.
4) Attornment: where the goods are in the possession of a 3rd party. An
attornment in respect of goods occurs where the party in possession of the goods
acknowledges to the buyer that he holds them on his behalf. s 29 (4)
Place and time of delivery
s.29(1): Whether delivery is to be made by the seller to the buyer or the buyer is to collect
from the seller depends on agreement between the parties.
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