Interpretation

1.  In this Act

"action" includes counterclaim and set off;

"buyer" means a person who buys or agrees to buy goods;

"contract of sale" includes an agreement to sell as well as a sale;

"delivery" means voluntary transfer of possession from one person to another;

"document of title" includes any bill of lading, dock warrant, warehouse keeper's certificate and warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods represented by it;

"fault" means wrongful act or default;

"future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale;

"goods" includes all chattels personal, other than things in action and money, and includes emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

"mercantile agent" means a mercantile agent having, in the customary course of his business as an agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods;

"pledge" includes any contract pledging or giving a lien or security on goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability;

"property" means the general property in goods, and not merely a special property;

"quality of goods" includes their state or condition;

"sale" includes a bargain and sale as well as a sale and delivery;

"seller" means a person who sells or agrees to sell goods;

"specific goods" means goods identified and agreed on at the time a contract of sale is made;

"warranty" means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated.

Historical Note(s): RS1960-344-2.

In good faith

2.  A thing is done in good faith within the meaning of this Act when it is in fact done honestly, whether done negligently or not.

Historical Note(s): RS1960-344-3.

Insolvent person

3.  A person is insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due.

Historical Note(s): RS1960-344-4.

Deliverable state

4.  Goods are in a deliverable state within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.

Historical Note(s): RS1960-344-5.

Possession

5.  A person shall be deemed to be in possession of goods, or of the documents of title to goods, where the goods or documents are in his actual custody or are held by any other person subject to his control or for him or on his behalf.

Historical Note(s): RS1960-344-6.

Sale and agreement to sell

6.  (1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.

(2) There may be a contract of sale between one part owner and another.

(3) A contract of sale may be absolute or conditional.

(4) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(5) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

Historical Note(s): RS1960-344-8.

Capacity to buy and sell

7.  (1) Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property; except that where necessaries are sold and delivered to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them.

(2) Necessaries in this section means goods suitable to the condition in life of the person, and to his actual requirements at the time of the sale and delivery.

Historical Note(s): RS1960-344-9; 1985-10-10, effective July 8, 1985 (B.C. Reg. 137/85).

Contract of sale

8.  Subject to this Act and any Statute in that behalf, a contract of sale may be made in writing, either with or without seal, or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties; provided that nothing in this section shall affect the law relating to corporations.

Historical Note(s): RS1960-344-10.

Existing or future goods

9.  (1) The goods which form the subject of a contract of sale may be either existing goods owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this Act called future goods.

(2) There may be a contract for the sale of goods, the acquisition of which by the seller depends on a contingency which may or may not happen.

(3) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.

Historical Note(s): RS1960-344-11.

Goods which have perished

10.  Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.

Historical Note(s): RS1960-344-12.

Goods perishing before sale but after agreement to sell

11.  Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is avoided.

Historical Note(s): RS1960-344-13.

Ascertainment of price

12.  (1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.

(2) Where the price is not determined in accordance with subsection (1), the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.

Historical Note(s): RS1960-344-14.

Agreement to sell at valuation

13.  (1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and the third party cannot or does not make the valuation, the agreement is avoided; provided that if the goods or any part of them have been delivered to and appropriated by the buyer he must pay a reasonable price for them.

(2) Where the third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.

Historical Note(s): RS1960-344-15.

Stipulations as to time

14.  (1) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale.

(2) Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(3) In a contract of sale, in the absence of evidence to the contrary, month means calendar month.

Historical Note(s): RS1960-344-16.

Condition may be treated as warranty

15.  (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or may elect to treat the breach of the condition as a breach of warranty, and not as a ground for treating the contract as repudiated.

(2) Whether a stipulation in a contract of sale is a condition the breach of which may give rise to a right to treat the contract as repudiated, or a warranty the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition though called a warranty in the contract.

(3) Where a contract of sale is not severable, and the buyer has accepted the goods or part of them, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.

(4) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.

Historical Note(s): RS1960-344-17.

Implied undertaking as to title, and implied warranty of quiet possession

16.  In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is

(a) an implied condition 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;

(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods; and

(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.

Historical Note(s): RS1960-344-18.

Sale by description

17.  Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description. If the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.

Historical Note(s): RS1960-344-19.

Implied conditions as to quality or fitness

18.  Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, whether he is the manufacturer or not, there is an implied condition that the goods are reasonably fit for such purpose; except that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;

(b) where goods are bought by description from a seller who deals in goods of that description, whether he is the manufacturer or not, there is an implied condition that the goods shall be of merchantable quality; but if the buyer has examined the goods there is no implied condition as regards defects which such examination ought to have revealed;

(c) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; and

(d) an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it.

Historical Note(s): RS1960-344-20.

Sale by sample

19.  (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

(2) In the case of a contract for sale by sample,

(a) there is an implied condition that the bulk shall correspond with the sample in quality;

(b) there is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and

(c) there is an implied condition that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

Historical Note(s): RS1960-344-21.

Nonwaiver of warranties or conditions

20.  (1) For the purpose of this section retail sale includes every contract of sale made by a seller in the ordinary course of his business but does not include a sale of goods

(a) to a purchaser for resale;

(b) to a purchaser who intends to use the goods primarily in his business;

(c) to a corporation or an industrial or commercial enterprise; or

(d) by a trustee in bankruptcy, a liquidator or sheriff.

(2) Notwithstanding section 18 (d) or section 68, in the case of a retail sale of goods, other than goods that on reasonable inspection appear to be used goods or goods that are described or represented by the seller to be used, any term of a contract of sale, or any collateral or contemporaneous contract or agreement, that purports to negative or in any way diminish the conditions or warranties under sections 16, 17, 18 and 19 of this Act, shall,

(a) if a term, be severable from the contract, and be void; or

(b) if a collateral or contemporaneous contract or agreement, be void.

Historical Note(s): 1971-52-1; 1973-84-15.

Goods must be ascertained

21.  Where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained.

Historical Note(s): RS1960-344-22.

Property passes according to intent of parties

22.  (1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

Historical Note(s): RS1960-344-23.

Intention of the parties as to the passing of the property in the goods

23.  (1) Unless a different intention appears, the intention of the parties as to the time at which the property in the goods is to pass to the buyer is governed by the rules set out in subsections (2) to (7).

(2) Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

(3) Where there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done and the buyer has notice of it.

(4) Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done and the buyer has notice of it.

(5) When goods are delivered to the buyer on approval or "on sale or return", or other similar terms, the property passes to the buyer

(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;

(b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.

(6) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. The assent may be express or implied, and may be given either before or after the appropriation is made.

(7) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.

Historical Note(s): RS1960-344-24.

Reservation of right of disposal

24.  (1) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled.

(2) In such a case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(3) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is deemed, in the absence of evidence to the contrary, to reserve the right of disposal.

(4) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.

Historical Note(s): RS1960-344-25.

Risk passes with property

25.  Unless otherwise agreed, the goods remain at the seller's risk until the property in them is transferred to the buyer, but when the property in them is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not; provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault; provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or custodian of the goods of the other party.

Historical Note(s): RS1960-344-26.

Sale by person not owner

26.  Subject to this Act, where goods are sold by a person who is not the owner of them, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell; provided also that nothing in this Act shall affect the validity of any contract of sale under any special common law or statutory power of sale, or under the order of a court of competent jurisdiction.

Historical Note(s): RS1960-344-27.

Market overt

27.  (1) Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.

(2) This section does not affect the law relating to the sale of horses.

Historical Note(s): RS1960-344-28.

Sale under voidable title

28.  When the seller of goods has a voidable title to them, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if he buys them in good faith and without notice of the seller's defect of title.

Historical Note(s): RS1960-344-29.

Revesting of property in stolen goods on conviction of offender

29.  (1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.

(2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to theft, the property in the goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

Historical Note(s): RS1960-344-30.

Seller or buyer in possession after sale

30.  (1) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition of them, or under any agreement for the sale, pledge or other disposition of them, to any person receiving the same in good faith and without notice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.

(1.1) Subsection (1) does not apply to a sale, pledge or other disposition of

(a) goods, or

(b) documents of title to goods, other than negotiable documents of title,

that is out of the ordinary course of business of the seller, pledger or disposer where, before the sale, pledge or disposition, the owner's interest in the goods is registered in the personal property registry in accordance with the regulations made under the Personal Property Security Act, and Part 4 of that Act applies to the registration.

(2) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge or other disposition of them, or under any agreement for the sale, pledge or other disposition of them, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

(3) Subsection (2) does not apply to a sale, pledge or other disposition of goods or of documents of title to goods by a person who has obtained possession of the goods under a security agreement by which the seller has a security interest as defined in the Personal Property Security Act.

(4) The interest of an owner under subsection (1) that, immediately before the coming into force of subsection (1.1), was covered by an unexpired registration under the Chattel Mortgage Act is deemed for the purposes of subsection (1.1) to be registered in the personal property registry and the registration continues,

(a) in the case of an interest in a motor vehicle registered under section 7 of the Chattel Mortgage Act, for the unexpired portion of the registration, and

(b) in the case of an interest in goods other than a motor vehicle under section 7 of the Chattel Mortgage Act, for 3 years from the date subsection (1.1) of this Act comes into force.

(5) Before the expiry of the registration under subsection (4) (a) or (b), registration of the owner's interest may be further continued by registration in the personal property registry in accordance with regulations made under the Personal Property Security Act, and Part 4 of the Personal Property Security Act applies to the registration.

Historical Note(s): RS1960-344-31; 1990-11-104.

Duties of seller and buyer

31.  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.

Historical Note(s): RS1960-344-32.

Payment and delivery are concurrent conditions

32.  Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, 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.

Historical Note(s): RS1960-344-33.

Rules as to delivery

33.  (1) Whether it is for the buyer to take possession of the goods, or for the seller to send them to the buyer, is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if he has one, and if not, his residence; except that if the contract is for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.

(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until that third person acknowledges to the buyer that he holds the goods on his behalf; but nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.

(4) Demand or tender of delivery may be treated as ineffectual, unless made at a reasonable hour. What is a reasonable hour is a question of fact.

(5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

Historical Note(s): RS1960-344-34.

Delivery of wrong quantity

34.  (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts the goods delivered, he must pay for them at the contract rate.

(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods delivered, he must pay for them at the contract rate.

(3) Where the seller delivers to the buyer the goods he contracted to sell mixed with the goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

(4) This section is subject to any usage of trade, special agreement or course of dealing between the parties.

Historical Note(s): RS1960-344-35.

Instalment deliveries

35.  (1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery by instalments.

(2) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated.

Historical Note(s): RS1960-344-36.

Delivery to carrier

36.  (1) Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed, in the absence of evidence to the contrary, to be a delivery of the goods to the buyer.

(2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omits to do so, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages.

(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and if the seller fails to do so the goods shall be deemed to be at his risk during the sea transit.

Historical Note(s): RS1960-344-37.

Risk where goods are delivered at distant place

37.  Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.

Historical Note(s): RS1960-344-38.

Buyer's right of examining goods

38.  (1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

Historical Note(s): RS1960-344-39.

Acceptance

39.  The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.

Historical Note(s): RS1960-344-40.

Buyer not bound to return rejected goods

40.  Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.

Historical Note(s): RS1960-344-41.

Liability of buyer for neglecting or refusing to take delivery of goods

41.  When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods; but nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

Historical Note(s): RS1960-344-42.

Unpaid seller and seller

42.  (1) The seller of the goods is deemed to be an unpaid seller within the meaning of this Act

(a) when the whole of the price has not been paid or tendered; or

(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.

(2) In this Part the term seller includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid or is directly responsible for the price.

Historical Note(s): RS1960-344-43.

Unpaid seller's rights

43.  (1) Subject to this Act and of any Statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has implication of law

(a) a lien on the goods or right to retain them for the price while he is in possession of them;

(b) in case of the insolvency of the buyer, a right of stopping the goods in transit after he has parted with the possession of them; and

(c) a right of resale as limited by this Act.

(2) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transit where the property has passed to the buyer.

Historical Note(s): RS1960-344-44.

Unpaid seller's lien

44.  (1) Subject to this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely:

(a) where the goods have been sold without any stipulation as to credit;

(b) where the goods have been sold on credit, but the term of credit has expired; or

(c) where the buyer becomes insolvent.

(2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer.

Historical Note(s): RS1960-344-45.

Part delivery

45.  Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless that part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.

Historical Note(s): RS1960-344-46.

Termination of lien

46.  (1) The unpaid seller of goods loses his lien or right of retention

(a) when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the right of disposal of the goods;

(b) when the buyer or his agent lawfully obtains possession of the goods; and

(c) by waiver of it.

(2) The unpaid seller of goods, having a lien or right of retention, does not lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods.

Historical Note(s): RS1960-344-47.

Right of stoppage in transit

47.  Subject to this Act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transit; that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price.

Historical Note(s): RS1960-344-48.

Duration of transit

48.  (1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee.

(2) If the buyer or his agent in that behalf obtains delivery of the goods before the arrival at the appointed destination, the transit is at an end.

(3) If after the arrival of the goods at the appointed destination the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf, and continues in possession of them as bailee for the buyer or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.

(4) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.

(5) When the goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case whether they are in possession of the master as a carrier or as agent to the buyer.

(6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end.

(7) Where part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transit, unless such part delivery has been made under the circumstances as to show an agreement to give up possession of the whole of the goods.

Historical Note(s): RS1960-344-49.

How stoppage in transit effected

49.  (1) The unpaid seller may exercise his right of stoppage in transit either by taking actual possession of the goods or by giving notice of his claim to the carrier, or other bailee in whose possession the goods are.

(2) Such notice may be given either to the person in actual possession of the goods or to his principal and in the latter case the notice, to be effectual, must be given at a time and under circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.

(3) When notice of stoppage in transit is given by the seller to the carrier, or other bailee in possession of the goods, he must redeliver the goods to or according to the directions of the seller. The expenses of such redelivery must be borne by the seller.

Historical Note(s): RS1960-344-50.

Effect of subsale or pledge by buyer

50.  Subject to this Act, the unpaid seller's right of lien, or retention or stoppage in transit, is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented to it; except that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last mentioned transfer was by way of sale, the unpaid seller's right of lien, or retention or stoppage in transit, is defeated, and if such last mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien, or retention or stoppage in transit, can only be exercised subject to the rights of the transferee.

Historical Note(s): RS1960-344-51.

Sale not generally rescinded by exercise of right of lien or stoppage in transit

51.  (1) Subject to this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien, or retention or stoppage in transit.

(2) When an unpaid seller who has exercised his right of lien, or retention or stoppage in transit, resells the goods, the buyer acquires a good title to it as against the original buyer.

(3) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.

(4) Where the seller expressly reserves a right of resale in case the buyer should make default, and on the buyer making default resells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages.

Historical Note(s): RS1960-344-52.

Action for price

52.  (1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

(2) Where, under a contract of sale, the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.

Historical Note(s): RS1960-344-53.

Damages for nonacceptance

53.  (1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance.

(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.

(3) Where there is an available market for the goods in question, the measure of damages is to be ascertained, in the absence of evidence to the contrary, by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or if no time was fixed for acceptance, then at the time of the refusal to accept.

Historical Note(s): RS1960-344-54.

Damages for nondelivery

54.  (1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for nondelivery.

(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.

(3) Where there is an available market for the goods in question, the measure of damages is to be ascertained, in the absence of evidence to the contrary, by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.

Historical Note(s): RS1960-344-55.

Specific performance

55.  (1) In any action for breach of contract to deliver specific or ascertained goods, the court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods on payment of damages.

(2) The judgment or decree may be unconditional, or on terms and conditions as to damages, payment of the price, and otherwise, as the court thinks just, and the application by the plaintiff may be made at any time before judgment or decree.

Historical Note(s): RS1960-344-56.

Remedy for breach of warranty

56.  (1) Where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may

(a) set up against the seller the breach of warranty in diminution or extinction of the price; or

(b) maintain an action against the seller for damages for the breach of warranty.

(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting in the ordinary course of events from the breach of warranty.

(3) In the case of breach of warranty of quality, such loss is, in the absence of evidence to the contrary, the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.

Historical Note(s): RS1960-344-57; 1981-20-58.

Interest and special damages

57.  This Act does not affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

Historical Note(s): RS1960-344-58.

Non-application

57.1  Sections 58 to 61 do not apply to a consignment to which the Personal Property Security Act applies.

Historical Note(s): 1990-11-105.

Disposition by mercantile agent

58.  (1) Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent is, subject to this Act, as valid as if he were expressly authorized by the owner of the goods to make the same, if the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same.

(2) Where a mercantile agent has, with the consent of the owner, been in possession of goods, or of the documents of title to goods, any sale, pledge or other disposition which would have been valid if the consent had continued is valid notwithstanding the determination of the consent, if the person taking under the disposition has not at that time notice that the consent has been determined.

(3) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods represented by it, or of any other documents of title to the goods, his possession of the first mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner.

(4) For the purposes of this Act, the consent of the owner shall be presumed in the absence of evidence to the contrary.

Historical Note(s): RS1960-344-59.

Pledge of documents of title

59.  A pledge of the documents of title to goods shall be deemed to be a pledge of the goods.

Historical Note(s): RS1960-344-60.

Pledge for antecedent debt

60.  Where a mercantile agent pledges goods as security for a debt or liability due from the pledger to the pledgee before the time of the pledge, the pledgee acquires no further right to the goods than could have been enforced by the pledger at the time of the pledge.

Historical Note(s): RS1960-344-61.

Exchange of goods or documents

61.  The consideration necessary for the validity of a sale, pledge or other disposition of goods, in pursuance of this Act, may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable consideration; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee acquires no right or interest in the goods so pledged in excess of the value of the goods, documents or security when so delivered or transferred in exchange.

Historical Note(s): RS1960-344-62.

Agreements through clerks

62.  For the purposes of this Act, an agreement made with a mercantile agent through a clerk or other person authorized in the ordinary course of business to make contracts of sale or pledge on his behalf shall be deemed to be an agreement with the agent.

Historical Note(s): RS1960-344-63.

Consignors and consignees

63.  (1) Where the owner of goods has given possession of the goods to another person for the purpose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person.

(2) Nothing in this section limits or affects the validity of any sale, pledge or disposition by a mercantile agent.

Historical Note(s): RS1960-344-64.

Effect of transfer of documents on vendor's lien or right of stoppage in transit

64.  Where a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last mentioned transfer has the same effect for defeating any vendor's lien or right of stoppage in transit as the transfer of a bill of lading has for defeating the right of stoppage in transit.

Historical Note(s): RS1960-344-65.

Transfer of documents

65.  For the purposes of this Act, the transfer of a document may be by endorsement, or where the document is by custom or by its express terms transferable by delivery, or makes the goods deliverable to the bearer, then by delivery.

Historical Note(s): RS1960-344-66.

True owner

66.  (1) This Act does not authorize an agent to exceed or depart from his authority as between himself and his principal, or exempt him from any liability, civil or criminal, for so doing.

(2) This Act does not prevent the owner of goods from recovering the goods from an agent or assignee for the benefit of creditors at any time before the sale or pledge of them, or does not prevent the owner of goods pledged by an agent from having a right to redeem the goods at any time before the sale of them, on satisfying the claim for which the goods were pledged, and paying to the agent, if by him required, any money in respect of which the agent would by law be entitled to retain the goods or the documents of title to them, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods have been pledged any balance of money remaining in his hands as the produce of the sale of the goods, after deducting the amount of his lien.

(3) This Act does not prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of set off on the part of the buyer against the agent.

Historical Note(s): RS1960-344-67.

Common law powers of agent

67.  This Act shall be construed in amplification and not in derogation of the powers exercisable by an agent independently of this Act.

Historical Note(s): RS1960-344-68.

Exclusion of implied terms and conditions

68.  Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract.

Historical Note(s): RS1960-344-69.

Reasonable time

69.  Where by this Act any reference is made to a reasonable time, the question what is a reasonable time is a question of fact.

Historical Note(s): RS1960-344-70.

Rights, etc., enforceable by action

70.  Where any right, duty or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action.

Historical Note(s): RS1960-344-71.

Auction sales

71.  In the case of a sale by auction

(a) where goods are put up for sale by auction in lots, each lot is, in the absence of evidence to the contrary, deemed to be the subject of a separate contract of sale;

(b) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner, and until such an announcement is made a bidder may retract his bid;

(c) where a sale by auction 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 himself or to employ any person to bid at such a sale, or for the auctioneer knowingly to take any bid from the seller or any such person, and any sale contravening this rule may be treated as fraudulent by the buyer;

(d) a sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller, and where a right to bid is expressly reserved, but not otherwise, the seller or any one person on his behalf may bid at the auction.

Historical Note(s): RS1960-344-72.

Common law, bills of sale and mortgages

72.  (1) The rules of the common law, including the law merchant, except so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake or other invalidating cause, shall continue to apply to contracts for the sale of goods.

(2) This Act does not affect the enactments relating to bills of sale.

(3) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security.

Historical Note(s): RS1960-344-73.