Act No. 14 of 1979
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AN ACT
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TO RE-ENACT AND AMEND THE LAW RELATING TO THE SALE OF GOODS AND
SERVICES, LAYBY SALES, UNSOLICITED GOODS AND MISREPRESENTATION
[1 January 1980]
PART I-PRELIMINARY
Short title
1. This Act may be cited as the Sale of Goods Act.
Interpretation
2.-(1) In this Act, unless the context otherwise requires-
"action" includes counter-claim and set-off;
"business" includes a profession and the activities of a government
department, local authority or statutory undertaking;
"buyer" means a person who buys or agrees to buy goods;
"contract of sale" includes an agreement to sell as well as a sale;
"contravention", in relation to any requirement, includes a failure to comply
with that requirement, and cognate expressions shall be construed accordingly;
"delivery" means the voluntary transfer of possession from 1 person to
another;
"document of title to goods" 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 authorising or purporting to authorise either by endorsement or by
delivery the possession of the document to transfer or receive the goods thereby
represented;
"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 which are the subject of trade or
commerce and component parts of any such chattels. The term 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 land which are agreed to be severed before
sale or under the contract of sale or things annexed to the land which in contemplation of
law do not become part of the land;
"plaintiff" includes a defendant counter-claiming;
"property'' means the general property in goods and not merely a special property;
"quality of goods" includes their state or condition:
"quantity" includes weight, length, width, height, area, volume, capacity and
number:
"sale" includes a bargain and sale as well as sale and delivery;
"seller" means a person who sells goods or agrees to sell goods;
"service" or "services" includes (without limiting the generality
of that expression) the rights or benefits that are to be supplied under a contract for-
(a) the performance of work (including work of a professional nature but not including
work under a contract of service), whether with or without the supply of goods;
(b) the provision of, or of the use or enjoyment of facilities for
accommodation, amusement, entertainment, recreation or instruction; or
(c) the conferring of rights or privileges for which remuneration is payable in the
form of a royalty, tribute, levy, or similar exaction;
"specific goods" means goods identified and agreed upon at the time a
contract of sale is made;
"supply", when used as a verb, includes-
(a) in relation to goods - the supply by way of sale, exchange, lease, hire or hire
purchase; and
(b) in relation to services - provide, render, grant or confer and when used as
a noun has a corresponding meaning, and
"supplied" and "supplier" shall have corresponding meanings;
"trade" includes any transaction for the transferring or rendering of money
or money's worth in consideration of money or money's worth;
"unsolicited" means, in relation to goods sent or services rendered to any
person, that they are sent or rendered without any prior request made by him or on his
behalf;
"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.
(2) Goods (of any kind) are of merchantable quality if they are as fit for the purpose
or purposes for which goods of that kind are commonly bought as it is reasonable to
expect, having regard to any description applied to them, the price and all other relevant
circumstances.
(3) A thing is deemed to be done in good faith, within the meaning of this Act, when it
is in fact done honestly, whether it be done negligently or not.
(4) A person is deemed to be 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, whether he has committed an act of bankruptcy or not.
(5) 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.
PART II-SALE OF GOODS
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Division 1-Contract of Sale
Sale and agreement to sell
3-( 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.
There may be a contract of sale between 1 part owner and another.
(2) A contract of sale may be absolute or conditional.
(3) 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.
(4) 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.
Capacity
to buy and sell-
sale of necessaries to persons incompetent to contract
4. Capacity to buy and sell is regulated by the general law concerning capacity
contract and to transfer and acquire property:
Provided that, where necessaries are sold and delivered to an infant or minor or to a
person who by reason of mental incapacity or drunkenness is incompetent to contract, he
must pay a reasonable price therefor.
"Necessaries", in this section, means goods suitable to the condition in life
of such infant or minor or other person and to his actual requirements at the time of the
sale and delivery.
Contract of sale, how
made
5. Subject to the provisions of this Act and of any Act in that behalf, a contract of
sale may be made in writing 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.
Sale
and agreement to sell goods on credit in course of retail trade
to be accompanied by invoice
6.-(1) A sale of goods on creditor an agreement to sell goods on credit in the course
of trade shall not be enforceable by action at the suit of the seller, unless-
(a) at the time of the sale or agreement to sell, an invoice or docket, serially
numbered, be made in writing in duplicate, both original and duplicate containing-
(i) the serial number;
(ii) the date of the transaction;
(iii) the name of the buyer;
(iv) the nature and, except in the case of goods exempted from this provision by order
of the Minister, the quantity of the goods, in the English language and in figures; and
(v) the price in English words or figures; and
(b) at the time of delivery of the goods, the original or duplicate of the invoice or
docket be delivered to the buyer or to some person to whom the goods may properly be
delivered on his behalf:
Provided that the provisions of this section shall not apply to an agreement to sell,
over a period of time, goods of nature such as are commonly delivered at regular
intervals, such as newspapers, bread or milk, or to any sale in pursuance of such
agreement, where a written order signed by the buyer or his agent in that behalf is given
to the seller at the time of the agreement to sell.
(2) In this section-
"docket" includes a packing note, delivery note or other printed form
customarily used for recording the particulars of a sale;
"sale or agreement to sell in the course of trade" means a sale or an
agreement to sell to a person by or on behalf of a person who carries on the business of
selling goods.
Division 2-Subject Matter of Contract
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Existing or future goods
7.-(1) The goods which form the subject of a contract of sale may be either existing
goods or future goods.
(2) There may be a contract for the sale of goods the acquisition of which by the
seller depends upon 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.
Sale of perished goods
8. 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.
Goods perished after
agreement to sell
9. 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 hereby avoided.
Division 3-The Price
Ascertainment of price
10.-(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 the foregoing provisions, 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.
Agreement to sell at
valuation
11.-(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 such third party cannot or does not make such
valuation, the agreement is avoided:
Provided that, if the goods or any part thereof have been delivered to and appropriated
by the buyer, he must pay a reasonable price therefor.
(2) Where such 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.
Division 4-Conditions and Warranties
Stipulations as to time
12.-(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. Whether any other stipulation as to time is of the essence of the contract or not
depends on the terms of the contract.
(2) In a contract of sale, "month" means, prima facie, calendar month.
When conditions
to be treated as warranty
13.-(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 such
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, 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 thereof, 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
fulfillment of which is excused by law by reason of impossibility or otherwise.
Implied Undertakings
as to tale, etc.
14.-(1) In every contract of sale, other than one to which subsection (2) applies,
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, 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; and
(b) an implied warranty that the goods are free, and will remain free until the time
when the property is to pass, from any charge or encumbrance not disclosed or known to the
buyer before the contract is made and that the buyer will enjoy quiet possession of the
goods, except so far as it may be, disturbed by the owner or other person entitled to the
benefit of any charge or encumbrance so disclosed or known.
(2) In a contract of sale, in the case of which there appears from the contract or is
to be inferred from the circumstances of the contract an intention that the seller should
transfer only such title as he or a third person may have, there is-
(a) an implied warranty that all charges or encumbrances known to the seller and not
known to the buyer have been disclosed to the buyer before the contract is made; and
(b) an implied warranty that neither-
(i) the seller; nor
(ii) in a case where the parties to the contract intend that the seller should transfer
only such title as a third person may have, that person; nor
(iii) anyone claiming through or under the seller or that third person otherwise than
under a charge or encumbrance disclosed or known to the buyer before the contract is made,
will disturb the buyer's quiet possession of the goods.
Conditions implied by
description
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15.-(1) 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; and, if the sale
be by sample as well as by description, it is not sufficient that the bulk of the goods
corresponds with the sample if the goods do not also correspond with the description.
(2) A sale of goods shall not be prevented from being a sale by description by reason
only that, being exposed for sale or hire, they are selected by the buyer.
Implied
undertakings as to quality or fitness
16.-(1) Subject to the provisions of this or any other section of this or any other
Act, there is no implied condition or warranty as to the quality or fitness for any
particular purpose of goods supplied under a contract of sale.
(2) Where the seller sells goods in the course of a business there is an implied
condition that the goods supplied under the contract are of merchantable quality, except
that there is no such condition-
(a) as regards defects specifically drawn to the buyer's attention before the contract
is made; or
(b) if the buyer examines the goods before the contract is made, as regards defects
which that examination ought to reveal.
(3) Where the seller sells goods in the course of a business and the buyer, expressly
or by implication, makes known to the seller any particular purpose for which the goods
are being bought, there is an implied condition that the goods supplied under the contract
are reasonably fit for that purpose, whether or not that is a purpose for which such goods
are commonly supplied, except where the circumstances show that the buyer does not rely,
or that it is unreasonable for him to rely, on the seller's skill or judgment.
(4) An implied condition or warranty as to quality or fitness for a particular purpose
may be annexed to a contract of sale by usage.
(5) The foregoing provisions of this section apply to a sale by a person who, in the
course of a business, is acting as agent for another as they apply to a sale by a
principal in the course of a business, except where that other is not selling in the
course of a business and either the buyer knows that fact or reasonable steps are taken to
bring it to the notice of the buyer before the contract is made.
(6) In the application of subsection (3) to an agreement for the sale of goods under
which the purchase price or part of it is payable by instalments, any reference to the
seller shall include a reference to the person by whom any antecedent negotiations are
conducted.
Division 5-Sale by Sample
Sale by sample
17.-(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, there is-
(a) an implied condition that the bulk shall correspond with the sample in
quality;
(b) an implied condition that the buyer shall have a reasonable opportunity of
comparing the bulk with the sample;
(c) 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.
Division 6-Effects of the Contract
Property in unascertained
goods
18. 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.
Property
in specific or ascertained goods passes when intended to pass
19.-(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 the purpose of 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.
Rules for
ascertaining intention as to time when property passes
20. Unless a different intention appears, the following are rules for ascertaining the
intention of the parties as to the time at which the property in the goods is to pass to
the buyer:-
Rule I - 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.
Rule II - 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
thereof.
Rule III - 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 thereof.
Rule IV - When goods are delivered to the buyer on approval or on "sale or
return" or other similar terms, the property therein 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 or, if no time has been fixed, on the
expiration of a reasonable time.
Rule V-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. Such assent may be express or implied and may be given either before
or after the appropriation is made.
(2) Where in pursuance of the contract, the seller delivers the goods to the buyer or
to a carrier or other bailee or custodier (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.
Reservation by
seller of right of disposal
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21.-(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. In such case, notwithstanding the delivery of the goods to a buyer or to a
carrier or other bailee or custodier 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.
(2) 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, prima facie, deemed to
reserve the right of disposal.
(3) 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.
Risk prima facie
passes with property
22. Unless otherwise agreed, the goods remain at the seller's risk until the property
therein is transferred to the buyer, but, when the property therein is transferred to the
buyer, the goods are at the buyer's risk whether delivery has been made or not:
Provided that-
(a) 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;
(b) nothing in this section shall affect the duties or liabilities of either
seller or buyer as a bailee or custodier of the goods of the other party.
Sale by person not the owner
23-(1) Subject to the provisions of this Act, where goods are sold by a person who is
not the owner thereof 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 that nothing in this Act shall affect-
(a) the provisions of any enactment enabling the apparent owner of goods to dispose of
them as if he were the true owner thereof;
(b) 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.
Sales under voidable title
24. When the seller of goods has a voidable title thereto but his title has not been
avoided at the time of the sale, the buyer acquires a good title to the goods, provided he
buys them in good faith and without notice of the seller's defect of title.
Revesting of
property in stolen goods on conviction of offender
25-(1) Where goods have been stolen and the offender is prosecuted to conviction, the
property in the goods so 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 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 such 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.
Re-sale
by seller or his agent in possession after sale
26.-(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 thereof 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 authorised by the owner of the goods to make the same.
(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 thereof 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) In this section, the term "mercantile agent" means a mercantile agent
having, in the customary course of his business as such 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.
Effect of writs of execution
27.-( 1) A writ of fieri facias or other writ of execution against goods shall
bind the property in the goods of the execution debtor as from the time when the writ is
delivered to the sheriff to be executed, and, for the better manifestation of such time,
it shall be the duty of the sheriff, without fee, upon the receipt of any such writ, to
endorse upon the back thereof the hour, day, month and year when he received the same:
Provided that no such writ shall prejudice the title to such goods acquired by any
person in good faith and for valuable consideration. unless such person had, at the
time when he acquired his title, notice that such writ or any other writ, by virtue of
which the goods of the execution debtor might be seized or attached, had been delivered to
and remained unexecuted in the hands of the sheriff.
(2) In this section, the term "sheriff" includes any officer charged with the
enforcement of a writ of execution.
Division 8-Performance of the Contract
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Duties of seller and buyer
28. 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.
Payment
and delivery prima facie concurrent conditions
29. 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.
Rules as to delivery
30.-(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:
Provided that, if the contract be 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 such third person acknowledges to
the buyer that he holds the goods on his behalf:
Provided that nothing in this section shall affect the operation or 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.
Delivery of wrong
quantity or description
31.-(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 so
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 so 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
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) The provisions of this section are subject to any usage of trade, special agreement
or course of dealing between the parties.
Delivery by instalments
32-(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery
thereof 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 1 or more instalments or the buyer neglects or refuses to take delivery of
or pay for 1 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.
Delivery to carrier as
buyer's agent
33.-(1) Where, in pursuance of a contract of sale, the seller is authorised or required
to send the goods to the buyer, delivery of the goods to the carrier, whether named by the
buyer or not, for the purpose of transmission to the buyer is, prima facie, deemed
to be a delivery of the goods to the buyer.
Seller's duty as
to contract with carrier
(2) Unless otherwise authorised 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 so to do 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.
Insurance on sea transit
(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 such
sea transit.
Risk
where goods are delivered elsewhere than at place of sale
34. 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.
Buyer's right of
examining the goods
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35.-(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.
Acceptance
36. The buyer is deemed to have accepted the goods when he intimates to the seller that
he has accepted them or, subject to the provisions of section 35, 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.
Buyer is not
bound to return rejected goods
37. 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.
Liability of
buyer for neglecting or refusing delivery of goods
38. 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 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:
Provided that 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.
Division 9-Rights of Unpaid Seller Against the Goods
Unpaid seller defined
39.-(1) The seller of 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;
(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 relation to the provisions of section 39 to 48, 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.
Rights of unpaid seller
40.-(1) Subject to the provisions of this Act and of any other Act in that behalf,
notwithstanding that the property in the goods may have passed to the buyer, the unpaid
seller of goods as such has, by 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 transitu
after he has parted with the possession of them;
(c) a right of re-sale 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
co-extensive with his rights of lien and stoppage in transitu where the property
has passed to the buyer.
Division 10-Unpaid Seller's Lien
Seller's Lien
41.-(1) Subject to the provision of 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;
(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 or custodier for the buyer.
Lien after part delivery
42. Where an unpaid seller has made part delivery of the goods, he may exercise his
right of lien or retention on the remainder, unless such part delivery has been made under
such circumstances as to show an agreement to waive the lien or right of retention.
Termination of Lien
43.-(1) The unpaid seller of goods loses his lien or right of retention thereon-
(a) when he delivers the goods to a carrier or other bailee or custodier 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;
(c) by waiver thereof.
(2) The unpaid seller of goods having a lien or right of retention thereon 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.
Division 11 - Stoppage in Transitu
Right of stoppage in transitu
44. Subject to the provisions of 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 transitu, 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.
Duration of transit
45.-(1) Goods are deemed to be in course of transit from the time when they are
delivered to a carrier by land, air or water or other bailee or custodier 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 or custodier.
(2) If the buyer or his agent in that behalf obtains delivery of the goods before their
arrival at the appointed destination, the transit is at an end.
(3) If, after arrival of the goods at the appointed destination, the carrier or other
bailee or custodier acknowledges to the buyer or his agent that he holds the goods on his
behalf and continues in possession of them as bailee or custodier 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 or custodier
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 the possession
of the master as a carrier or as agent of the buyer.
(6) Where the carrier or other bailee or custodier 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 transitu, unless such part
delivery has been made under such circumstances as to show an agreement to give up
possession of the whole of the goods.
Mode of stopping in transitu
46.-(1) The unpaid seller may exercise his right of stoppage in transitu either
by taking actual possession of the goods or by giving notice of his claim to the carrier
or other bailee or custodier in whose possession the goods are. Such notice may be given
either to the person in actual possession of the goods or to his principal. In the latter
case, the notice, to be effectual, must be given at such time and under such 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.
(2) When notice of stoppage in transitu is given by the seller to the carrier or
other bailee or custodier in possession of the goods, he must re-deliver the goods to or
according to the directions of the seller. The expenses of such re-delivery must be borne
by the seller.
Division 12-Re-sale by Buyer or Seller
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Effect of subsale or
pledge by buyer
47. Subject to the provisions of this Act, the unpaid seller's right of lien or
retention or stoppage in transitu is not affected by any sale or other disposition
of the goods which the buyer may have made, unless the seller has assented thereto:
Provided 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 transitu 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 transitu can only be exercised subject to the
rights of the transferee.
Effect
on sale of exercise of lien or stoppage in transitu
48.-(1) Subject to the provisions of 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 transitu.
(2) Where an unpaid seller who has exercised his right of lien or retention or
stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as
against the original buyer.
Re-sale of
perishable goods or on notice
(3) Where the goods are of a perishable nature or where the unpaid seller gives notice
to the buyer of his intention to re-sell and the buyer does not, within a reasonable time,
pay or tender the price, the unpaid seller may re-sell the goods and recover from the
original buyer damages for any loss occasioned by his breach of contract.
Re-sale
under right expressly reserved by contract
(4) Where the seller expressly reserves a right of re-sale in case the buyer should
make default and, on the buyer making default, re-sells the goods, the original contract
of sale is thereby rescinded, but without prejudice to any claim the seller may have for
damages.
Division 13-Actions for Breach of the Contract
Subdivision A-Remedies of the Seller
Action for price
49.-(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.
Action for non-acceptance
50.-(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 non-acceptance.
Measure of damages
(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, prima facie, to be ascertained 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.
Subdivision B-Remedies of the Buyer
Action for non-delivery
51.-(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 non-delivery.
Measure of damages
(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, prima facie, to be ascertained 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.
Right to specific performance
52. 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. The judgment or decree
may be unconditional or upon such terms and conditions as to damages, payment of the price
and otherwise as to the court may seem just, and the application by the plaintiff may be
made at any time before judgement or decree.
Remedy for breach of warranty
53.-(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.
Measure of damages
(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, prima facie, 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.
Interest and damages
54. Nothing in this Act shall 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 payment of it has failed.
Division 14-Exclusion of Implied Terms
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Exclusion of
implied terms and conditions
55.-(1) Where any right, duty or liability would arise under a contract of sale of
goods 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 is such as to bind both
parties to the contract, but the foregoing provision shall have effect subject to the
following provisions of this section.
(2) Any express condition or warranty does not negative a condition or warranty implied
by this Act unless inconsistent therewith.
(3) In the case of a contract of sale of goods, any term of that or any other contract
exempting from all or any of the provisions of section 14 shall be void.
(4) In the case of a contract of sale of goods, any term of that or any other contract
exempting from all or any of the provisions of section 15, 16 or 17 shall be void in the
case of a consumer sale and shall, in any other case, not be enforceable, to the extent
that it is shown that it would not be fair or reasonable to allow reliance on the term.
(5) In determining, for the purposes of subsection (4), whether or not reliance on any
such term would be fair or reasonable, regard shall be had to all the circumstances of the
case and, in particular, to the following matters:-
(a) the strength of the bargaining positions of the seller and buyer, relative to each
other, taking into account, among other things, the availability of suitable alternative
products and source of supply;
(b) whether the buyer received an inducement to agree to the term or in accepting it
had an opportunity of buying the goods or suitable alternatives without it from any source
of supply;
(c) whether the buyer knew or ought reasonably to have known of the existence and
extent of the term (having regard, among other things, to any custom of the trade and any
previous course of dealing between the parties);
(d) where the term exempts from all or any of the provisions of section 15, 16, or 17
if some condition is not complied with, whether it was reasonable at the time of the
contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed, or adapted to the special order of
the buyer.
(6) Subsection (5) shall not prevent the court from holding, in accordance with any
rule of law, that a term which purports to exclude or restrict any of the provisions of
section 15, 16 or 17 is not a term of the contract.
(7) In this section, "consumer sale" means a sale of goods (other than a sale
by auction or by competitive tender) by a seller in the course of a business where the goods-
(a) are of a type ordinarily bought for private use or consumption: and
(b) are sold to a person who does not buy or hold himself out as buying them in the
course of a business.
(8) The onus of proving that a sale falls to be treated, for the purposes of this
section, as not being a consumer sale shall lie on the party so contending.
(9) Any reference in this section to a term exempting from all or any of the provisions
of any section of this Act is a reference to a term which purports to exclude or restrict,
or has the effect of excluding or restricting, the operation of all or any of the
provisions of that section, or the exercise of a right conferred by any provision of that
section, or any liability of the seller for breach of a condition or warranty implied by
any provision of that section.
(10) It is hereby declared that any reference in this section to a term of a contract
includes a reference to a term which, although not contained in a contract, is
incorporated in the contract by another term of the contract.
Conflict of laws
56. Where the proper law of a contract for the sale of goods would, apart from a term
that it should be the law of some other country or a term to the like effect, be the law
of Fiji, or where any such contract contains a term which purports to substitute, or has
the effect of substituting, provisions of the law of some other country for all or any of
the provisions of sections 14 to 17 and 55, those sections shall, notwithstanding that
term, apply to the contract.
Reasonable time
57. Where, by this Act, any reference is made to a reasonable time, the question what
is a reasonable time is a question of fact.
Rights, etc.,
enforceable by action
58. Where any right, duty or liability is declared by this Act, it may, unless
otherwise by this Act provided, be enforced by action.
Auction sales
59. In the case of sale by auction-
(a) where goods are put up for sale by auction in lots, each lot is, prima facie,
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. Until such announcement is made, any
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 sale or for the auctioneer knowingly to take any bid from the seller
or any such person. 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.
Where a right to bid is expressly reserved, but not otherwise, the seller or any 1
person on his behalf may bid at the auction.
Savings
60.-(1) The rules in bankruptcy relating to contracts of sale shall continue to apply
thereto notwithstanding anything in this Act contained.
(2) The rules of the common law, including the law merchant, save in 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.
(3) Nothing in this Act shall affect the enactments relating to bills of sale or any
other enactment relating to the sale of goods.
(4) 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.
PART III-SUPPLY OF GOODS AND SERVICES.
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Implied term in
relation to supply of goods
61. In a contract for the supply, in the course of business, of goods, not being a
contract of sale, the provisions of section 14, 15, 16, 17 and 55 shall apply, mutatis
mutandis, in relation to the goods supplied.
Implied
terms in relation, to supply of services
62.-(1) In every contract for the supply, in the course of a business, of services,
there is an implied warranty on the part of the supplier that the services will be
rendered with due care and skill and that any materials supplied in connection with those
services will be reasonably fit for the purpose for which they are supplied.
(2) Where services are supplied in the course of a business and the person to whom the
services are supplied, expressly or by implication, makes known to the supplier any
particular purpose for which the services are required or the result that he desires the
services to achieve, there is an implied warranty on the part of the supplier that the
services supplied and any materials supplied in connection with those services will be
reasonably fit for that purpose or are of such a nature and quality that they might
reasonably be expected to achieve that result.
PART IV-LAYBY SALES
Interpretation
63. In this Part, unless the context otherwise requires-
"buyer" means a person who buys or agrees to buy goods by a layby
sale, and, if the rights of that person are assigned or are transferred by operation of
law, include the person for the time being entitled to those rights;
"cancel", in relation to a layby sale, means cancel, rescind, or terminate by
any means whatsoever, except by performance, and "cancellation" has a
corresponding meaning;
"purchase price" means the total sum of money required to be paid by the
buyer under a layby sale, plus the value of any other consideration provided or required
to be provided by the buyer to purchase the goods to which the sale relates;
"seller" means a person who sells or agrees to sell goods by a layby sale,
and, if the rights of that person are assigned or are transferred by operation of law,
includes the person for the time being entitled to those rights.
"Layby sale"
defined
64.-(1) For the purpose of this Act, a layby sale is a contract of sale of goods by
retail under terms, express or implied, which provide that-
(a) the goods are not to be delivered to the buyer until the purchase price or a
specified part or proportion thereon is paid, whether or not any charge is expressed to be
payable for storage or delivery of the goods; and
(b) the whole or part of the purchase price-
(i) is to be paid by instalments (whether the number of instalments or the amounts of
all or any of them is fixed by the contract or left at the option of the buyer) payable
over a fixed or ascertainable period; or
(ii) is to be paid at the expiration of a fixed or ascertainable period with the
option, express or implied, for the buyer to make payments in respect of the purchase
price during that period, but a contract of sale of goods to be delivered by instalments,
where the whole of the purchase price of each instalment is payable at the time that
instalment is delivered, is not a layby sale.
(2) Where, by virtue of 2 or more agreements, none of which by itself constitutes a
layby sale, there is a transaction which is, in substance or effect, a layby sale, the
agreements shall be treated, for the purposes of this Act, as a layby sale made at the
time when the last of those agreements was made.
Risk not to pass
until goods delivered
65. Notwithstanding the provisions of section 22, goods that are the subject of a layby
sale remain at the seller's risk until the property therein is transferred to the buyer
and the goods are delivered to him:
Provided that, where delivery has been delayed through the fault of the buyer, the
goods are at the risk of the buyer as regards any loss which might not have occurred but
for such fault.
Buyer
to be entitled to a statement of his present position
66.-(1) The seller shall, within 7 days after he has received a request in writing from
the buyer and the buyer has tendered to the seller the sum of 25 cents for expenses, give
to the buyer a statement in writing signed by the seller or his agent showing-
(a) the purchase price; and
(b) the total amount of the money paid and the value of any other consideration
provided by the buyer in respect of the layby sale; and
(c) the amount which the seller estimates to be the retail value of the goods at the
time of the notice or of the cancellation of the layby sale, whichever is the sooner,
indicating whether or not such value is the same as at the date of sale; and
(d) the amount which the seller estimates is sufficient to recoup him for selling costs
in respect of the layby sale, and
(e) the balance estimated to be due to the seller or the buyer, as the case may be: and
(f) if there is a balance due to the seller, particulars of the time and manner within
which that balance is required to be paid.
(2) The seller need not comply with a request under subsection (1) if-
(a) the layby sale has been completed by performance: or
(b) he has given the buyer a statement complying with that subsection within the 30
days immediately preceding the receipt of the request; or
(c) the layby sale has been cancelled by the buyer and more than 30 days have elapsed
since the date of cancellation.
(3) Where the seller cancels a layby sale, he shall, upon request, give to the buyer,
free of charge, a statement complying with subsection (1) within 7 days after the date of
cancellation.
(4) Every seller who makes default in complying with subsection (1) or subsection (3)
commits an offence and is liable, on conviction, to a fine not exceeding $20.
Right of buyer to
cancel layby sale
67.-(1) The buyer may, at any time before the purchase price has been paid, cancel the
layby sale by giving to the seller oral or written notice of his desire to cancel the
sale.
(2) Where a layby sale is cancelled under subsection (1), the date of cancellation
shall be the date on which the notice is given.
(3) Nothing in this section shall prejudice any right of the buyer to cancel a layby
sale otherwise than by virtue of this section.
(4) The right of cancellation conferred on the buyer by subsection (1) may be exercised
notwithstanding the winding up or bankruptcy of the seller or the appointment of any
person to act as the receiver or manager of the property of the seller.
Rights
of seller and buyer on cancellation of layby sale
68.-(1) Where a layby sale is cancelled by the buyer under section 67 or, is cancelled
by the seller, the following provisions shall apply:-
(a) if the total amount of money paid plus the value of any other consideration
provided by the buyer in respect of layby sale, together with the retail value of the
goods at the time when the layby sale is cancelled, exceeds the purchase price and an
amount sufficient to recoup the seller for his selling costs in respect of the layby sale,
the buyer shall be entitled, subject to subsection (2), to recover the excess from the
seller as a debt due and payable by him to the buyer;
(b) if the purchase price and an amount sufficient to recoup the seller for his selling
costs in respect of the layby sale exceeds the total amount of money paid plus the value
of any other consideration provided by the buyer in respect of the layby sale, together
with the retail value of the goods at the time when the sale is cancelled, the seller
shall be entitled, subject to subsection (3), to recover the excess from the buyer as a
debt due and payable by him to the seller, but shall not be entitled to recover any
additional sum. whether as penalty or compensation or otherwise in consequence of the
cancellation of the layby sale.
(2) Where a layby sale is cancelled by the buyer, other than by reason of a breach by
the seller, which entitles the buyer to cancel the sale, the buyer shall not in any case
be entitled to a refund exceeding the total amount of money paid plus the value of any
other consideration provided by him.
(3) Where a layby sale is cancelled by the seller, other than by reason of a breach by
the buyer which entitles the seller to cancel the sale, the buyer shall be entitled to a
refund not less than the total amount of money paid plus the value of any other
consideration provided by him.
(4) Where the buyer under a layby sale has paid an initial deposit but has made no
other payments at the time when the sale is cancelled, the amount that the seller shall be
entitled to recover under paragraph (b) of subsection (1) shall not exceed the amount of
the deposit.
(5) Where a layby sale of specific goods is cancelled within 1 month after the date of
the sale or where any layby sale (not being a sale of specific goods) is cancelled at any
time, the retail value of the goods at the time of cancellation shall, for the purposes of
this Act, unless the contrary is proved, be deemed to be the retail value of the goods at
the time when the layby sale was made; and any loss of value of such goods, whether due to
deterioration of the goods or otherwise, shall be disregarded.
Completion on
winding up, bankruptcy, or receivership of seller
69.-(1) If, on the winding up or bankruptcy of the seller or on the appointment of any
person to act as the receiver or manager of the property of any seller that is a company,
the assets of the seller include the goods, or goods of the kind, which the seller has
agreed to sell to the buyer, whether those goods have been appropriated to the sale or
not, the buyer shall be entitled, on payment of the balance (if any) of the purchase price
in the manner and at the times prescribed by the contract, to complete the, purchase and
obtain the property in, and delivery, of the goods.
(2) If there are not enough goods to satisfy all buyers, priority shall be governed by
the date of the sale, so that goods shall be available to earlier buyers in preference to
later buyers. Where 2 or more buyers agreed to purchase on the same day, priority between
them shall be determined by lot.
(3) No buyer shall be entitled to exercise the right conferred by subsection (1) if-
(a) in breach of his agreement with the seller, he has made no payment to the seller on
account of the purchase price during the 3 months immediately preceding the filing of the
petition on which the seller is adjudged bankrupt, the commencement of the winding up, or
the appointment; or
(b) he is an officer or employee of the seller or the spouse of such an officer or
employee.
(4) If any buyer makes any payment on account of the purchase price after the
commencement of the bankruptcy or winding up or the appointment, he shall be entitled to
have that payment refunded in full, unless the purchase is completed in accordance with
subsection (1).
Preference
on winding up, bankruptcy or receivership of seller
70.-(1) If, on the winding up or bankruptcy of any seller or on the appointment of any
person to act as the receiver or manager of the property of any seller that is a company,
there are no goods or not enough goods to enable the layby sale to be completed, or if any
buyer is or becomes entitled under section 68 to recover any sum of money, then the buyer
shall be a creditor in the liquidation, bankruptcy, or receivership to the extent of the
payments that he has made to the seller on account of the purchase price of the goods or
to the extent of the sum that he is entitled to recover, as the case may require, with
priority, subject to subsection (2), over all other unsecured creditors and over creditors
secured by a floating charge.
(2) The rights conferred by subsection (1) shall not be available to any buyer of the
kind described in paragraph (a) or paragraph (b) of subsection (3) of section 69.
Service of notices
71.-(1) Any written notice or other document required or authorised by this Part to be
given to any person shall be sufficiently given if it is delivered to that person, or if
it is left at his usual or last known place of abode or business or at an address
specified for the purposes of the layby sale, or if it is posted in a letter addressed to
him by name at that place of abode or business or address.
(2) If the person is absent from Fiji, the notice or other document may be given to his
agent in Fiji. If the person is deceased, it may be given to his personal representatives.
(3) If the person is not known, or is absent from Fiji and has no known agent in Fiji,
or is deceased and has no personal representatives, the notice or other document shall be
given in such manner as may be directed by an order of a magistrate's court.
(4) If any such notice or other document is sent to any person by registered letter, it
shall be deemed to have been delivered to him on the fourth day after the day on which it
was posted and, in proving the delivery, it shall be sufficient to prove that the letter
was properly addressed and posted.
(5) Notwithstanding anything in the foregoing provisions of this section, a
magistrate's court may, in any case, make an order directing the manner in which any
notice or other document is to be served or given, or dispensing with the service or
giving thereof.
(6) This section does not apply to notices or other documents served in any proceedings
in any court.
Buyer's rights protected
72.-(1) The provisions of this Part shall have effect in favour of the buyer,
notwithstanding any provision to the contrary in any agreement relating to any layby sale.
(2) Nothing in this Act shall prevent any layby sale from having effect according to
its tenor in so far as the terms of that sale are more favourable to the buyer than the
terms that the buyer would enjoy by virtue of the provisions of this Act.
(3) Section 55 shall be read subject to the provisions of this section.
PART V-UNSOLICITED GOODS AND SERVICES
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Unsolicited goods
73.-(1) In the circumstances specified in subsection (2), a person who, after 1 January
1980, receives unsolicited goods may, as between himself and the sender, use, deal with or
dispose of them as if they were an unconditional gift to him, and any right of the sender
to the goods shall be extinguished.
(2) The circumstances referred to in subsection (1) are that the goods were sent to the
recipient with a view to his acquiring them, that the recipient has no reasonable cause to
believe that they were sent with a view to their being acquired for the purposes of a
trade or business and has neither agreed to acquire nor agreed to return them, and either-
(a) that, during the period of 6 months beginning with the day on which the
recipient received the goods, the sender did not take possession of them and the recipient
did not unreasonably refuse to permit the sender to do so; or
(b) that, not less than 30 days before the expiration of the period aforesaid,
the recipient gave notice to the sender in accordance with subsection (3) and that, during
the period of 30 days beginning with the day on which the notice was given, the sender did
not take possession of the goods and the recipient did not unreasonably refuse to permit
the sender to do so.
(3) A notice in pursuance of subsection (2) shall be in writing and shall-
(a) state the recipient's name and address and, if possession of the goods in
question may not be taken by the sender at that address, the address at which it may be so
taken;
(b) contain a statement, however expressed, that the goods are unsolicited, and may be
sent by post.
(4) In this section-
"acquire" includes hire;
"send" includes deliver, and "sender" shall be construed
accordingly;
"sender", in relation to any goods, includes any person on whose behalf or
with whose consent the goods are sent and any other person claiming through or under the
sender or any such person.
Unsolicited services
74.-(1) The Minister may, by regulation, prescribe a service to be a service to which
this section shall apply.
(2) A person is not liable to make any payment and is entitled to recover a payment
made by him in full or part satisfaction of a charge or fee under a contract or agreement
for the supply of a prescribed service, unless there has been signed by that person, or a
person authorised by him in that behalf, a note complying with this section and that
first-mentioned person has been supplied with a copy of the note as signed by him or on
his behalf.
(3) In order to comply with this section, a note referred to in subsection (2) shall,
in relation to a contract or agreement for the supply of a prescribed service, specify-
(a) the particulars of the service supplied or proposed to be supplied; and
(b) the amount of the charge of fee or the basis on which the charge or fee is
to be calculated.
PART VI-MISREPRESENTATION
Removal of
certain bars to rescission for innocent misrepresentation
75. Where a person has entered into a contract after a misrepresentation has been made
to him, and-
(a) the misrepresentation has become a term of the contract, or
(b) the contract has been performed,
or both, then, if otherwise he would be entitled to rescind the contract without
alleging fraud, he shall be so entitled, subject to the provisions of this Act,
notwithstanding the matters mentioned in paragraphs (a) and (b).
Damages for misrepresentation
76.-(1) Where a person has entered into a contract after a misrepresentation has been
made to him by another party thereto and as a result thereof he has suffered loss, then,
if the person making the misrepresentation would be liable to damages in respect thereof
had the misrepresentation been made fraudulently, that person shall be so liable
notwithstanding that the misrepresentation was not made fraudulently, unless he proves
that he had reasonable ground to believe and did believe up to the time the contract was
made that facts represented were true.
(2) Where a person has entered into a contract after a misrepresentation has been made
to him otherwise than fraudulently, and he would be entitled, by reason of the
misrepresentation, to rescind the contract, then, if it is claimed in any proceedings
arising out of the contract, that the contract ought to be or has been rescinded, the
court or arbitrator may declare the contract subsisting and award damages in lieu of
recision, if of the opinion that it would be equitable to do so, having regard to the
nature of the misrepresentation and the loss that would be caused by it if the contract
were upheld, as well as to the loss that rescission would cause to the other party.
(3) Damages may be awarded against a person under subsection (2), whether or not he is
liable to damages under subsection (1), but, where he is so liable, any award under the
said subsection (2) shall be taken into account in assessing his liability under the said
subsection (1).
Avoidance
of certain provisions excluding liability for misrepresentation
77. If any agreement (whether made before or after 1 January 1980) contains a provision
which would exclude or restrict-
(a) any liability to which a party to a contract may be subject by reason of any
misrepresentation made by him before the contract was made; or
(b) any remedy available to another party to the contract by reason of such a
misrepresentation,
that provision shall be of no effect, except to the extent (if any) that, in any
proceedings arising out of the contract, the court or arbitrator may allow reliance on it
as being fair and reasonable in the circumstances of the case.
Representations
78. Any statement or representation made in relation to goods and services by an
employee or a person acting on behalf of a supplier shall be deemed to be a statement or
representation made by the supplier.
PART VII-SUPPLEMENTAL
Regulations
79. The Minister may make regulations for any of the following purposes:-
(a) prescribing or approving standard forms of agreements or contracts for the supply
of prescribed goods or services;
(b) securing that agreements, contracts, forms, notices, invoices, dockets and other
documents supplied pursuant to this Act are easily legible and comprehensible;
(c) prescribing offences in respect of the contravention of or non-compliance with any
regulations made under this Act.
Repeal
80. The Sale of Goods Act* is hereby repealed.
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Controlled by Ministry of Economic Development, Planning and Tourism
* Chapter 206, 1967 Edition (Ordinance No. 35 of 1932).
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