Sellers Remedies

8/12/2019 Sellers Remedies

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The lessons taught in great books aremisleading. The commerce in life is rarelyso simple and never so just.

Anita Brookner, English novelist


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Sellers remedies


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SGA, s. 31 It is the duty of the seller todeliver the goods, and of the buyer toaccept and pay for them, in accordance

with the terms of the contract of sale.


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32 Unless otherwise agreed, delivery of thegoods and payment of the price are concurrentconditions; that is to say, the seller must beready and willing to give possession of thegoods to the buyer in exchange for the price,and the buyer must be ready and willing to

pay the price in exchange for possession ofthe goods.


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52 (1) If, under a contract of sale, the property in the goods

has passed to the buyer, and the buyer wrongfully neglects orrefuses to pay for the goods according to the terms of thecontract, the seller may maintain an action against the buyerfor the price of the goods.

(2) If, under a contract of sale, the price is payable on a daycertain, irrespective of delivery, and the buyer wrongfullyneglects or refuses to pay such price, the seller may maintainan action for the price, although the property in the goods hasnot passed, and the goods have not been appropriated to the

contract .


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4 (1) When the seller is ready and willing to deliver thegoods, and requests the buyer to take delivery, and thebuyer does not within a reasonable time after therequest take delivery of the goods, the buyer is liable tothe seller for(a) any loss occasioned by the buyer's neglect orrefusal to take delivery, and

(b) a reasonable charge for the care and custody of thegoods.(2) Nothing in this section affects the rights of the sellerif the neglect or refusal of the buyer to take delivery

amounts to a repudiation of the contract.


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H adley v Baxendale : remoteness andquantum


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Measurement of Damages in LostVolume Sales


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Anticipatory Repudiation and

Measurement of Damages


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53 (1) If the buyer wrongfully neglects or refuses to acceptand pay for the goods, the seller may maintain an actionagainst the buyer for damages for nonacceptance. (2) The measure of damages is the estimated loss directly andnaturally resulting, in the ordinary course of events, from the

buyer's breach of contract. (3) If there is an available market for the goods in question,

the measure of damages is to be ascertained, unless there isevidence to the contrary, by the difference between thecontract price and the market or current price at the time ortimes when the goods ought to have been accepted, or if no

time was set for acceptance, then at the time of the refusal toaccept.


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42 (1) In this Part, "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 oragent who has himself or herself paid or is directlyresponsible for the price. (2) The seller of the goods is deemed to be an unpaid sellerwithin 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 because of thedishonour of the instrument or otherwise.


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43 (1) Subject to this or any other Act, even if the property inthe goods may have passed to the buyer, the unpaid seller ofgoods, as such, has by implication of law (a) a lien on the goods or right to retain them for the pricewhile the seller is in possession of them, (b) in case of the insolvency of the buyer, a right of stoppingthe goods in transit after the seller has parted with the

possession of them, and (c) a right of resale as limited by this Act. (2) If the property in goods has not passed to the buyer, theunpaid seller has, in addition to any other remedies, a right ofwithholding delivery similar to and coextensive with theseller's rights of lien and stoppage in transit where the

property has passed to the buyer.


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44 (1) Subject to this Act, the unpaid seller of goodswho is in possession of them is entitled to retain

possession of them until payment or tender of the price in the following cases: (a) if the goods have been sold without anystipulation as to credit; (b) if the goods have been sold on credit, but theterm of credit has expired; (c) if the buyer becomes insolvent. (2) The seller may exercise the right of lien even ifthe seller is in possession of the goods as agent or

bailee for the buyer.


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45 An unpaid seller who has made part delivery ofthe goods may exercise the right of lien or retentionon the remainder, unless that part delivery has beenmade under circumstances that show an agreement towaive the lien or right of retention.


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46 (1) The unpaid seller of goods loses the lien or right ofretention (a) when the seller delivers the goods to a carrier or other

bailee for transmission to the buyer without reserving theright of disposal of the goods, (b) when the buyer or the buyer's agent lawfully obtains

possession of the goods, and (c) by waiver of it. (2) The unpaid seller of goods, having a lien or right ofretention, does not lose the lien or right of retention merely

because the seller has obtained judgment or decree for the price of the goods.


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Stoppage in transit


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47 Subject to this Act, when the buyer of goods becomes insolvent, the unpaid seller who has partedwith the possession of the goods has the right ofstopping them in transit; that is to say, the unpaidseller may resume possession of the goods as long asthey are in course of transit, and may retain themuntil payment or tender of the price.


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48 (1) Goods are deemed to be in course of transitfrom the time they are delivered to a carrier by landor water, or other bailee, for transmission to the

buyer, until the buyer or the buyer's agent in that behalf takes delivery of them from the carrier or

other bailee. (2) If the buyer or the buyer's agent in that behalfobtains delivery of the goods before the arrival at theappointed destination, the transit is at an end.


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(3) If after the arrival of the goods at the appointed

destination the carrier or other bailee acknowledgesto the buyer or the buyer's agent that the carrier orother bailee holds the goods on the buyer's behalf,and continues in possession of them as bailee for the

buyer or the buyer's agent, the transit is at an end,and it is immaterial that a further destination for thegoods may have been indicated by the buyer. (4) If the goods are rejected by the buyer, and thecarrier or other bailee continues in possession ofthem, the transit is not deemed to be at an end, evenif the seller has refused to receive them back.


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(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 asa carrier or as agent to the buyer. (6) If the carrier or other bailee wrongfully refuses to deliverthe goods to the buyer or the buyer's agent in that behalf, thetransit is deemed to be at an end. (7) If part delivery of the goods has been made to the buyer orthe buyer's agent in that behalf, the remainder of the goods

may be stopped in transit, unless the part delivery has beenmade under circumstances that show an agreement to give up

possession of the whole of the goods.


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49 (1) The unpaid seller may exercise the right of stoppage in

transit (a) by taking actual possession of the goods, or (b) by giving notice of the seller's claim to the carrier, or other

bailee in whose possession the goods are. (2) Notice of stoppage in transit may be given either to the

person in actual possession of the goods or to that person's principal. (3) To be effectual, notice given to a principal undersubsection (2) at a time and under circumstances that the

principal, by the exercise of reasonable diligence, maycommunicate it to a servant or agent in time to prevent adelivery to the buyer.


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(4) When given notice of stoppage in transit by theseller, the carrier or other bailee in possession of thegoods must redeliver the goods to or according to thedirections of the seller. (5) The expenses of redelivery under subsection (4)must be borne by the seller.


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51 (1) Subject to this section, a contract ofsale is not rescinded by the mere exercise byan unpaid seller of the right of lien, or

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


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(3) If the goods are of a perishable nature, or if theunpaid seller gives notice to the buyer of the seller's

intention to resell, and the buyer does not within areasonable time pay or tender the price, the unpaidseller may resell the goods and recover from theoriginal buyer damages for any loss occasioned bythe buyer's breach of contract. (4) If the seller expressly reserves a right of resale incase the buyer should default, and on the buyerdefaulting resells the goods, the original contract ofsale is rescinded by that act, but without prejudice toany claim the seller may have for damages.


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Relief from forfeitureof monies paid


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Under the rules set out inStockloser v Johnson , whatremedy will be applied where

there(a) is, and(b) isnt a forfeiture clause in thesales agreement?


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Section revision questions:

1. In what circumstances can a seller bring an action for the price?2. Compare and contrast actions for price and actions fordamages.3. To what extent can the seller exercise her rights other than

over the goods themselves?4. Anna tells the store clerk in The Ultimate Gourmet kitchenware shopthat she wants to buy three sets of Italian enamel cookware, and that shewill return in the afternoon with the $649 cash she will need to buy it. Shereturns later that day and informs the store manager that she has changed

her mind as she has found a similar product at the local discount mall forhalf the price. Advise The Ultimate Gourmet.

How would your answer differ if Anna had paid a $25 deposit?

Sellers Remedies

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