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SALE OF GOODS

Commercial Law Part III
by

Clement Akapame

on 16 November 2016

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Transcript of SALE OF GOODS

INTRODUCTION TO SALE OF GOODS
Introduction
What Constitutes a Sale
The Transfer of
ALL
the rights that the
SELLER
has in a
specific object
to the
BUYER
in return for the Purchase
PRICE
.
NOT ALL TRANSFERS OF GOODS TO ANOTHER PERSON CONSTITUTES A SALE
Lease
: Transferred use only
Bailment
: Transferred for safekeeping or storage possible transfer to 3ptys. See Sec, 1(2) of Act 137,
Busi & Stephenson (Ghana) Ltd. v. Opoku [1962] 2 G.L.R. 96.
Gift
: Present
Barter
: Goods in exchange for another
good
Hire-Purchase
: Use rights withoption to purchase See Part Eight of Act 137,
Royal Exchange Case, Yayo v. Nyniase
Mortgage, Lien, Charge or Pledge
: Absence of transfer of Property.
Licence to use IP
: Seller might not be owner
Agency
:
????
See Sec 1 of Act 137
Historical Development of the Sale of Goods Act in Ghana
Prior to Independence
Customary
Common Law
English Statues (17th Century) on Sale of Goods
Hire Purchase Act of 1958

See Ackaah v. Asane
In 1962 a Bill was introduced to codify and amend the existing law-Part of the Statute Law Reform Programme of government.
See Parliamentary Debate Session 1961-62
After Independence
Some Definitions
CONTRACT OF SALE
A contract by which the
SELLER
agrees to
TRANSFER
the
PROPERTY IN THE GOODS
to the
BUYER
for a consideration called the
PRICE
, consisting wholly or partly of money.
Sec 1 of Act 137, Sec 81 of Act 137

GOODS
Includes
movable property
and
growing crops or plants and any other things attached to or forming part of the land which are agreed to be severed before sale
by or under the contract of sale.
See Sec 81
Classification of Goods

Ascertained Goods
”means goods identified and agreed on
AFTER
a contract of sale is made;

Specific Goods
” means goods identified and agreed on
BEFORE
OR
AT THE TIME
a contract of sale is made.


Halaby v. Wiredu
Atta v. Adevor:
Sec 44 and 57 not in the English Sale of Goods Act
The Price
The Price in a Contract of Sale maybe:
Forson v. Koens [1975] 2 GLR 479 at 481
Ghassoub v. Cox Long (Ghana) Ltd [1975] 1 GLR 384
Halaby v. Wiredu, Birch v. Asempa
Sec 6 of Act 137
Creation and Capacity to Buy and Sell
Creation
Written or Oral
Partly Written or Partly Oral
Implied conduct of Parties.
See Sec 3 of Act 137
Capacity
Governed by the General Law on:
Lartey v. Bannerman [1972] 2 GLR 438
Capacity to contract
Wilson v. Osei, Jabranska v. Oysa, 79
GLR 129
Capacity to transfer and acquire property.
See Sec 2(1) of Act 137
Necessaries
Section 2(2):
payment of reasonable price for necessaries upon delivery of necessaries
Necessaries mean
: goods suitable to the condition in life of the person to whom they are
delivered
and to the
actual requirement
of that person at
the time of

delivery

. See Sec 2(3)
Transfer of Property
Nemo dat rule
Nemo dat quod non habet ‘no-one can transfer what he has not got’.

A seller can only pass ownership if he owns or has the right to sell the goods

Application of the Rule
Where a buyer purchases stolen property
Where a seller has no right to sell the goods but nevertheless sells them.
Purpose of the rule

Protects the true owner of the goods
Innocent Purcahser
Exceptions to the Nemo dat Rule
NEMO DAT
See Sec 28(1) of Act 137
Sec 28(1)
Estoppel

S. 28 (2)
Special Power
28 (2)
Voidable Title
S. 29
s
Mercantile Agent
S. 30
Seller in possession
S. 31
Buyers in possession
S. 32
Forms of Sale
Conditional Sale
S 1(4)

Auction sales
S 4

Sale by description
S 11

Sale by sample
S 12
Sackey v. Fattal
Ownership of Property
Alhassan v. SSB
Ghana Rubber v. Criterion
Kaguin v. Umarco
Seidu v. ADB
Passing of Property
No property passes in unascertained goods
Basic Rules
The Intention of Parties determines when property passes
See Secs 25 and 26
Yirenkyi v. Tormekpey

, Rockson v. Armah, Mok Beer Case, Georgia Hotel v.Sliver Star
Passing of Risk
Risk passes when the parties intend
Risk passes when property passes
Risk in delayed delivery is borne by the party that caused the delay
See Sec 27, 62 (g)

KLM Ductch Airline Case, Kwetey v. Botchway
Statutory Implied Terms
There are two types:
Condition
a stipulation which is
essential to the main purpose of the contract
.
Breach of of a condition gives the aggrieved party:
A right to repudiate the contract.
May maintain an action for damages for loss suffered due to nonperformance.
Warranty: stipulation which is
collateral to the main purpose of the contract.
See Sec 9, 11, 12
,
13
A breach of a warranty gives the aggrieved party a
right to sue for damages only.
See Sec 10
:
See Nanor v. Auto Parts, Georgia Hotel v. Silver Star Auto
Delivery of Goods
Delivery Concurrent with Payment
Seller agrees to deliver goods in exchange for the price.
see sec 15(1)
Delivery must be made at a reasonable hour
see sec 15(1)
See Sections 15-20
Putting of goods in deliverable state is the burden of the seller.
see sec 17
Time of Delivery
see sec 16
Stipulations as to time is a condition unless a contrary intention
Where time is not fixed delivery should be done in a reasonable time
Time for delivery can be varied by the parties to the contract of sale
Duties of the Buyer
Buyers Fundamental Obligation:
Pay the Price
Accept Delivery
see sec 21
sec 21-24
Buyer not bound to accept delivery by installment
see sec 24
Remedies of the Buyer
Rejection of the goods.
Ghana Rubber Products Case see sec 49
Effects of Rejection
Sections 50-52
No rejection after Acceptance
see sections 51 and 52
Personal Right
of damages for non-delivery
Assessment of Damages
Duties of the Seller
Fundamental obligation of the seller

For specific goods-Deliver the goods

For unascertained goods-Deliver according to description or sample

Implied Conditions as the to the existence of specific goods and title
See Section8-10
Rights of the Seller
Unpaid Seller:
The whole of the price has not been paid or tendered.
Rights of unpaid seller:
Lien
Stoppage in Transit
Recovery of Possession from
Recovery of possession after delivery.
Resale
Personal Rights of the Seller
:
Action for price.
Damages for non-acceptance.
International Sales of Goods
Introduction
Regulated by the International Convention on the Sale of Good
Signed in Vienna in 11th April 1980 under the UNCITRAL.
Came into force on the 1st of January 1988
Ghana has signed 11th April 1980 but has not ratified?!! 7th Oct, 97
CISG Framework

Part I: Sphere of Application and General Provisions (Articles 1 to 13)

• Part II: Formation of the Contract (Articles 14 to 24)

• Part III: Sale of Goods (Articles 25 to 88)

• Part IV: Final Provisions (Articles 89 to 101)
See handout for advantages and disadvantages of the CISG!!!
CIF, FOB and FAS Contracts
CIF:
A contract in which the price fixed between the parties includes
cost, insurance and freight. Section 61

A real C.I.F. contract, however, is distinguishable from the normal contract of sale of goods.

Delivery of relevant
“shipping documents” not the goods.

What the buyer can demand of the seller before payment of the price is delivery of the proper
“shipping documents”. See sec 61 and 64 of Act 137

FOB:
The contract specifies which party (buyer or seller) pays for:
shipment and loading costs,
responsibility for the goods is transferred.
See Sec 64

Future of CISG
See Sec 35-45
See sec 46 and 47
Train more lawyers on the CISG
Businessmen will gain the interest
UNCITRAL must make it attractive
“free along side”. This contract means that the seller is responsible for
delivering goods to a specific port or vessel.
The
buyer would then assume the risk
of loss once the
goods were delivered to the side of the vessel
. Once the loading process begins, the risk of loss shifts to the buyer.

FAS
THE END!!!
Section 5
See Nanor v. Auto Parts
Robin Hood v. Farah, Frafra v. Boakye
Georgia Hotel v. Silver Star Auto


International Sales of Goods
Introduction
Regulated by the International Convention on the Sale of Good
Signed in Vienna in 11th April 1980 under the UNCITRAL.
Came into force on the 1st of January 1988
Ghana has signed 11th April 1980 but has not ratified?!! 7th Oct, 97

CISG Framework

Part I: Sphere of Application and General Provisions (Articles 1 to 13)

• Part II: Formation of the Contract (Articles 14 to 24)

• Part III: Sale of Goods (Articles 25 to 88)

• Part IV: Final Provisions (Articles 89 to 101)
Future of CISG
Train more lawyers on the CISG
Businessmen will gain the interest
UNCITRAL must make it attractive

International Sale of Goods
Full transcript