THE SALE OF GOODS. P S Atiyah QC, DCL, FBA. of the Inner Temple, Barrister Formerly Professor of English Law in the University of Oxford

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1 THE SALE OF GOODS P S Atiyah QC, DCL, FBA of the Inner Temple, Barrister Formerly Professor of English Law in the University of Oxford NINTH EDITION J N Adams LLB Barrister of the Inner Temple, Professor of Intellectual Property in the University of Sheffield, Director of the Intellectual Property Institute PITMAN PUBLISHING

2 CONTENTS Preface to the Ninth Edition Table of Statutes Table of Cases xi xiii xvii PARTI NATURE AND FORMATION OF THE CONTRACT OF SALE 1 SOURCES OF THE LAW OF SALE OF GOODS 1 The Sale of Goods Act DEFINITION AND NATURE OF THE CONTRACT OF SALE 5 Definition 5 Sale distinguished from other contracts 5 Number of parties 27 The price 28 Conveyancing effect of the contract 32 3 FORMATION OF THE CONTRACT 33 Offer and acceptance 33 Auction sales 33 Mistake in the offer or acceptance 36 Doorstep selling 41 4 FORMALITIES 43 Repeal of formal requirements 43 Bills of sale 44 5 SUBJECT-MATTER OF THE CONTRACT 46 Meaning of 'goods' 46 Different types of goods 49 6 THE TYPES OF OBLIGATION CREATED 53 Fundamental terms 53 Conditions 56 Innominate terms 57 Warranties 63 Representations 64

3 PART II THE DUTIES OF THE SELLER 7 THE EXISTENCE OF THE GOODS 67 No implied condition that the goods exist 67 8 THE DUTY TO PASS A GOOD TITLE 77 The seller's right to sell the goods 77 Warranty of freedom from encumbrances and of quiet possession 84 9 THE DUTY TO DELIVER THE GOODS 88 The duty to deliver 88 Payment and delivery concurrent conditions 90 The meaning of delivery THE DUTY TO SUPPLY THE GOODS AT THE RIGHT TIME 97 The time of delivery 97 Waiver of conditions as to delivery time THE DUTY TO SUPPLY GOODS IN THE RIGHT QUANTITY 104 Delivery of the right quantity THE DUTY TO SUPPLY GOODS OF THE RIGHT QUALITY 111 From caveat emptor to caveat venditor} Express terms Implied terms that the goods must correspond with their description Implied terms that the goods are satisfactory Implied terms that the goods are fit for a particular purpose Implied terms in sales by sample Implied terms annexed by trade usage Other implied terms 181 Mistake as to quality EXCLUSION OF SELLER'S LIABILITY 188 Exemption clauses 188 Construction of exemption clauses 190 Fundamental breach 196 UCTA and the EC Directive on Unfair Contract Terms in Consumer Contracts 198 The Unfair Contract Terms Act 199 The EC Directive on Unfair Terms in Consumer Contracts 217 VI

4 14 PRODUCT LIABILITY AND CONSUMER PROTECTION 223 Product liability at common law 223 Product liability under the Consumer Protection Act 231 Claims in respect of defects in the goods 243 Exemption clauses and manufacturers' guarantees 247 Statutory duties 250 Consumer remedies 253 PART III THE DUTIES OF THE BUYER 15 THE DUTY TO PAY THE PRICE 259 Payment of the price THE DUTY TO TAKE DELIVERY 263 PART IV THE EFFECTS OF THE CONTRACT 17 THE TRANSFER OF PROPERTY 265 The meaning of 'property' 265 The passing of property: I Specific goods 271 The passing of property: II Unascertained goods RISK AND FRUSTRATION 300 Risk and frustration distinguished 300 Transfer of risk 300 Frustration 306 Effects of frustration TRANSFER OF TITLE BY A NON-OWNER 319 Nemo dat quod non habet 319 Estoppel 322 Sale by agent 332 Section 2 of the Factors Act Special powers of sale 340 Sale in market overt 341 Sale under a voidable title 342 Seller in possession 344 Buyer in possession 348 Part III of the Hire-Purchase Act Writs of execution 362 Proposals for reform 363 vn

5 PART V EXPORT SALES 20 EXPORT SALES 367 Ex-works or ex-store contracts 368 F.o.b. contracts 368 C.i.f. contracts 375 Ex-ship contracts EXPORT AND IMPORT LICENCES 384 Whose duty 384 Whether duty absolute or to use best endeavours BANKERS' COMMERCIAL CREDITS 389 Payment of price by bankers' commercial credit 389 PART VI THE REMEDIES OF THE SELLER 23 REAL REMEDIES 397 Seller's rights and powers against the goods 397 Unpaid seller's lien 401 Unpaid seller's right of stoppage in transit 408 Unpaid seller's right of resale 414 Reservation of title clauses PERSONAL REMEDIES 431 Action for the price 431 Action for damages 437 PART VII THE REMEDIES OF THE BUYER 25 REJECTION OF THE GOODS 449 Buyer's right to reject the goods 449 Loss of the right to reject RESCISSION FOR MISREPRESENTATION 477 Rescission of the contract 477 via

6 27 ACTION FOR DAMAGES 481 Damages for non-delivery 481 Damages for breach of condition or warranty 489 Damages in tort 500 Damages for misrepresentation 501 Remedies available to a buyer in breach SPECIFIC PERFORMANCE 507 Index 511 IX

INDEX. ABANDONMENT waiver, distinguished from, 242. AGENCY apparent, seller with, sale by, 110 necessity, of, 126, 288 sale, distinguished from, 11

INDEX. ABANDONMENT waiver, distinguished from, 242. AGENCY apparent, seller with, sale by, 110 necessity, of, 126, 288 sale, distinguished from, 11 INDEX ABANDONMENT waiver, distinguished from, 242 ABSOLUTE SALE OF GOODS, 23 ACCELERATION CLAUSES, 296 ACCEPTANCE acts of, inconsistent with seller s ownership, 223 breach of condition, after, effect of,