Remedies of the seller
unpaid seller?
s38(2)
whole of price not paid or tendered
conditional payment not fulfilled
Real Remedies
s39
use goods themselves as form of security
ownership in goods
with buyer
lien (rights in possession)
retain (rights in possession)
stoppage in transit
resale
not with buyer
right to withhold delivery coextensive with his right of retention and stoppage in transit
s41
goods sold without any stipulation as to credit
goods sold on credit but term expired
B becomes insolvent
ceased to pay debts in the ordinary course of business
only when property passed to B
he cannot pay his debts as they become due
severable contract - each installment paid for separately
seller cannot withhold delivery and charge lien over one of the installments to compel B to pay for other installments
however, if failure to pay = repudiatory breach then seller excused from further performance of his cont obligations
only in relation to price. prev debts and disputes not relevant (or claim in damages where B fails to take delivery)
termination
seller in possession needed (in ay capacity)
.
lose possession when s43(1)
delivers goods to carrier, bailee, custodian for purposes of further transmission to the B without reserving right of disposal
B or his agent lawfully obtains possession
waiver of lien or right of retention
s47(1)
seller's right to lien or retention or stoppage is not affected by any sale/other disposition by B unless the seller has assented to it
Mordaunt Brothers v BOCM
acknowledging the orders and entering then in the ledgers ⛔assent
assent must be given in such circumstances to show an intention on part of seller to renounce his rights against the goods
DF Mount v Jay
s47(2)
doc of title to goods lawfully transferred to any person as B or owner of the goods and that person transfer the doc to a person who take it in good faith for valuable consideration then
seller's rights when last transfer by way of sale 🚫
way of pledge or other disposition for value unpaid seller's right subject to rights of the transferee 🚩
Ant Jurgens v Louis Dreyfus
Seller has delivered or transferred docs of title to goods
lawfully transferred to person as B or owner of goods and he transfers it to someone who takes it in goods faith n for valuable consideration - sale - seller rights 🚫
person must transfer the same docs of title to another person
B must be insolvent
ceased to pay debts in ordinary course of business or fail to pay them as they become due
s44
parted with possession if he passes possession to a carrier independent of himself
only then stoppage apply
transit comes to an end when delivery made
could be made before destination arrived or carrier unlawfully refuses to deliver
taking actual possession of the goods
giving notice of his claim to the carrier
he must redeliver the goods to or according to directions of the seller
expenses borne by seller
provide clear instructions to carrier in case of disposal or return and carrier must act on them
failure to be clear
carrier has no liability
seller has no right, carrier not liable for following orders
wrongly delivery after notice
tort of conversion - liable to seller
right of lien for freight charges
s48
contract not rescinded merely because S exercised right
resale by unpaid seller - B acquires good title
perishable nature of goods or notice of intention to resell
B not respond within reasonable time - may resell and recover from original B damages for any loss due to his breach
seller expressly reserves the right to resell on B's default
default - contract rescinded. seller claim damages ✅
no need for this B to have good faith w/o notice
property reverts to seller in case of default
resale
loss cause
can recover from original B
profit
can keep it
Ward v Bignall
FA s8/SGA s24
applies seller paid/unpaid
s48(2)
seller continues or is in possession or docs of title
bona fide purchaser without notice
goods or docs to title delivered to second B
benefit of sub B and someone who takes under pledge or other disposition of goods
only when seller unpaid
only when seller exercise rights (lien etc)
applies irrespective of good faith and without notice o
whether or not goods delivered to 2nd B
only in case of resale of the goods
Personal remedies
ss49 and 50 SGA 1979
sue for
price
damages for non acceptance
s49(1)
property in goods passed to B and he wrongfully neglects or refuses to pay for goods according to terns of the contract
failure to pay not wrongful unless price is due under terms of contract
only available when property in the goods have passed to B
legitimate reason for refusal - remedy ❌
FG wilson v John Holt
expressly provide for date of payment and exclude property pass requirement
s49(2)
contract for sale
price payable on certain date irrespective of delivery
✅
price payable on delivery even if date of delivery agreed ❌
debt claim
remoteness causation and mitigation 🚫
assessment/contributory negligence 🚫
s50(1)
wrongfully neglects or refuses to accept and pay for goods
s50(2)
measuring
estimated loss directly and naturally resulting in ordinary course of business from breach
whether seller already procured or manufactured goods at time of breach
yes
contract price - value of goods at time of breach
no market
entire sale price
no
profit he would have made on contract but for breach
market
s50(3)
contract price - current/market price at time when goods ought to have been accepted or if no time set then time of refusal
market = goods could be freely sold if B defaulted
unique goods
s54 additional claim for
interest
special damages
losses from B's failure to take delivery
arising from any special circumstances of which the parties were aware at the time the contract was made
s37
seller ready and willing to deliver - req B to take delivery
within reasonable time accept ❌
liable for loss caused by neglect / refusal and reasonable cost of care and custody of goods
failure or refusal ⛔ breach always
wrongful refusal or neglect needed