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CONTRACT OF SALES
Contract
Is an agreement with legal force. It is an agreement which has legal binding nature.
An agreement: It is an offer (proposal) by one party and acceptance by one party. Is where the offeror and offeree relationship unconditionally. An offer made by one person is accepted by one person whom the offer is made.
Essentials of a contract (features)
(a) Agreement: Offer and acceptance
(b) Intention to create a legal relationship. There must be evidence that the parties involved intended to have a legally binding relationship. Example: An agreement for social interaction cannot be enforced by law, example you can’t sue a person who fails to turn up for an appointment to have cup of coffee with you.
(c) Consideration: something valuable whether tangible or intangible which is given in exchange for another valuable thing eg: If I give you a watch in exchange for money, therefore watch is consideration for money.
*Deed: A contract without consideration
(d) Contractual capacity: Parties to a contract must have contractual capacity e.g people with 18 years and above. There are people who are prohibited by the law to enter into a contract and these people are minors, drunkenness impaired, insane. Agreement made by such people are said to be Avoidable (because party lack contractual capacity so withdrawal from such contract is allowed).
Avoidable contracts can also be caused by the induced , misrepresentation and undue influence
(e) Form: There are prescribed forms for certain contracts. Eg A contract for sale of land, legal mortgages and leases must be writing.
(f) Definite term (contents of contract): Terms of the contract must be clear and explicit. If they are ambiguous and difficult to understand the courts of law will not enforce them.
*Terms of contract are: issues which have to be discussed while negotiating a contract and have to be agreed upon before the contract is made. The terms of contracts specify the rights and duties of the parties to the contract. Terms of contract are express terms or implied terms.
Express terms: Are those issues which have been specifically discussed and agreed upon by both parties in the process of negotiating the contract.
Express terms: Are those issues which have been specifically discussed and agreed upon by both parties in the process of negotiating the contract.
They are subdivided into
(a) Conditions
(b) Warranties
a) A condition is a term which is fundamental to the nature of the contract. Breach of a condition entitles the injured party to the right to cancel the contract, If he so wishes or to go ahead with it and get damages for the loss suffered, eg. If we agree that Iam going to buy your goat at 15,000/= you cannot give me a sheep instead because it is the same size as the goat I agreed to buy (this is breach of a condition).
b) A warranty: Is a minor issue which does which does not significantly affect the essence of the contract. From the example above. If you deliver to me a goat which fits my requirements but happens to have a broken horn (this is breach of warranty).
-A breach of a warranty allows the injured person to receive damages but not the right to repudiate the contract.
II: Implied terms: Are those issues which may have been overlooked or deliberately ignored at a time of negotiations, although their impact significantly affects the position of the parties to the contract.
-They are subdivided into
(a) Ones implied by the court
(b) Ones implied by statutes
(g)Legal objects: any agreements which is contrary to public policy is void (it does not have any legal force). Eg: All types of agreement to commit crime are not valid and if one party fails to perform his part the other party has no recourse.
(h)Genuine concept- This requires parties to contract to reach agreement without the influence of the acts such as fraud, Mispresentation, mistake, undue influence.
IMPORTANT CONTENTS OF A CONTRACT
A valid contract should possess the following contents;
- consideration
- time and date
- signature
- name and address of each party
- terms and conditions of the contract
CLASSIFICATION OF CONTRACTS:
1.Oral and written contract
1.Oral and written contract
*Oral contracts are contracts that are made by words of mouth
*Written contracts are contracts that are put into writing.
2. Uni-lateral contract and Bi – lateral contract
∗ Uni – lateral contract is a contract where one party to contract makes a promise that the other part can accept only by doing something
eg: will give you 10,000 if you bring back my wallet which was stolen yesterday.
∗ Uni – lateral contract is a contract where one party to contract makes a promise that the other part can accept only by doing something
eg: will give you 10,000 if you bring back my wallet which was stolen yesterday.
* Bi-lateral contract. Is a whereby both parties makes the promise.
3. Executory and executed contracts
* Executory Is a binding agreement in which one or all parties to contract have done or fulfilled its obligations.
*Executed:Is a binding agreement in which one or all parties to contract have done or fulfilled its obligation
4. Valid or invalid contracts
4. Valid or invalid contracts
* Valid contract is the contract that satisfies all the law requirements.
* Invalid contract: Is the contract that doesn’t satisfy the relevant law requirements.
(It may be void ,voidable or unenforceable contract)
* Void contract: Is the contract in which the parties have attempted to contract, but the law did not give effect to the agreement because there are common mistake on some major terms. In a void contract there are no contractual rights or obligations and so has no legal effect. Is an agreement that neither party may legally enforce. eg: the purpose of the agreement was illegal or because one part lacked capacity to make it.
∗ Voidable contract: Is an agreement that because of some defects may be terminated by wronged party but not by both.
NOTE
Not all contracts that contain illegal terms are necessarily void. An illegal term can
be removed from the contract to form a valid contract providing that the remaining terms of a contract are sufficient.
* Unenforceable contract: Is a contract where the parties intend to form a valid bargain but a court declares that some rules of laws prevents enforcing it.
DETAIL DISCUSSION OF SOM
E TERMINOLOGIES:
E TERMINOLOGIES:
- Parties: Any contract must have two parties. The parties may be natural person like Neema Maganga or artificial person created by law such as corporate bodies like companies.
- An offer (proposal): Is a statement that proposes definite terms and permit the other party to accept the terms. The one who give an offer is called offeror or proposer.
–Characteristics of an offer:
(a) It must be made willingly i.e offeror must be willing to be bound by the terms she
(b) It must be clear and certain
(c) It must be final expression by the offeror of his willingness to be bound should his offer be accepted
(d) It must be communicated orally, in writing or by conduct .
(e) It should be complete when it comes to the knowledge of the offeree.
NOTE
Contrary to above characteristics it is called invitation to treat (offer to chaffer): is
an invitation for other people to submit offers which may be accepted or rejected.
eg: Goods displayed in a shop. Advertisement, auction, inviting tenders.
Termination of an offer: An offer can be terminated as follows :-
(a) Revocation: withdraw before it is accepted,here the offeror can withdraw his offer before acceptance by offeree.
(b) Lapse of time: If is time stated in the offer or after reasonable time.
(c) Failure of the acceptor to fulfill conditions.
(d) Death or Insanity of offeror or offeree
(e) Counter offer or rejection. Response acceptance with new terms can lead to termination.
3. Acceptance: Is an agreement to terms of an offer, this converts the offer into legally binding contract .
Characteristics of acceptance
(a) It is an assent to the proposal by the person to whom it was made.
(a) It is an assent to the proposal by the person to whom it was made.
(b) An acceptance should be absolute and unconditional to all terms set out in the Offer. Acceptance must exactly mirror the original offer made.
(c) Acceptance must communicated to the offeror in writing or orally by an authorized person.
(d) Acceptance is complete when it comes to the knowledge of the proposer.
(e) Acceptance by post is complete as soon as it is posted (provided it was implied in negotiations)
4. Consideration: Is some rights, interest, profit or benefit acrueing to the one party,loss or responsibility given, suffered or undertaken by the other eg one party provides money and the other provides goods/services both money and goods/services are regarded as legal consideration.
NOTE : In gift giving no consideration, therefore no contract
Characteristics of consideration
(a) Must be adequacy and sufficient: Must be fixed by the parties out of their own free will or consent. It does not base on the market value only but also on the wishes of the parties
(b) Must have economic value: That is why sentimental motives such as natural love
and affection have no economic value therefore cannot qualify as good
consideration
(c) Must be legal
Types of consideration
(a) Executory consideration:
A consideration resulting from an exchange promises to perform acts in the future. Eg: A promises to deliver goods to B and B agrees to pay for them.
(b) Executed consideration: Happens when one party promised to do something in return for the act of another not mere promise of future performance.
(c) Past consideration: Comprises an act which was done before the promise was made and not in response to sub-sequent promise(It is not a good consideration)
5.Capacity to contract: means competence to enter into a legally binding agreement because both parties are mentally capable to understand a contract.
5.Capacity to contract: means competence to enter into a legally binding agreement because both parties are mentally capable to understand a contract.
Factors considered or factors vitiating capacity : The following factors should be considered when deciding on capacity to contract
(a) Age: A minor/infant is not competent to contract because she has not attained majority age/ contract age. In Tanzania the age of majority is 18 years and above. Below 18 years lack experience to exercise sound judgements, she cannot protect herself. Except for necessaries and beneficial contracts.
(i) necessaries: goods suitable to the conditions in life of a minor and to his requirement at the time of the sale and delivery.
(ii) beneficial contracts like training that is advantageous to the minor.
(i) necessaries: goods suitable to the conditions in life of a minor and to his requirement at the time of the sale and delivery.
(ii) beneficial contracts like training that is advantageous to the minor.
(b) Soundness of mind: A person who is of sound mind is a person capable of understanding the contract and forming rational judgement eg Mentally disorder, drunkard have no sound mind.
(c) Personal disqualified by law: Persons disqualified by law are
(c) Personal disqualified by law: Persons disqualified by law are
(i) Bankrupt persons: the law disqualifies a person declared bankrupt to enter contract.
(ii) Unincorporated bodies eg club associations and societies can’t enter into contract because they have no separate existence in law, they can do so through agents.
6. Free consent: contracting out of own free will i.e freedom of contract. Two or more person are said to consent when they agree upon the same thing in the same sense.
Factors which undermine free consent:
(a) Coercion or Duress: Committing or threatening to commit any act unlawful,detain any properly with intention of causing any person to enter into an agreement
(b) Undue influence occurs where the relationship between the parties such that one of the parties are in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other.
(c)Mispresentation /Representation
(d) Mistakes: Entering the contract believing that something material exist while does not exist.
7. Legally /lawful object: The subject matter or object of the contract must be lawful or legal eg supplying heroin is illegal,therefore heroin is lawful object. This is the matter of jurisdiction i.e to be decided by law.
DISCHARGE OF CONTRACT:
Means the rights and the obligations of both parties to the contract have been properly fulfilled. i.e the contractual relationship between them is terminated and none of them has any more claims from or owes the other. Therefore obligating and rights come to an end. This is where parties to contract are no longer under a duty to perform their part of agreement.
WAYS A CONTRACT CAN BE DISCHARGED
A. Discharge by performance: The common way of discharging contracts is by performing them to the satisfaction of the parties involved i.e by fulfilling the agreement with free will. The contract then comes to an end.
B) Discharge by agreement: Sometimes performance is impossible needing the parties to discharge the contract by natural agreement with free will. Discharge by agreement may take the following forms:
(i) Satisfaction and accord: This is applicable to executory contracts where a contract has been performed partly and a party which has performed its obligation (innocent party) may require some compensation for what it performed.
(ii)Waiver: Here the innocent party (with the right to demand compensation) may agree to waive her rights i.e not claim any compensation for the part it performed.
(iii) Novation: This happen where the existing contract is substituted for a new contract or a new contract is formed to discharge the old contract with the free consent of all parties concerned.
C) Discharge by the subsequence impossibility (Frustration): A contract may become impossible to perform because of certain circumstances. After a contract has been made by both parties willing to perform their roles effectively, circumstances may change to the extent that it become impossible or illegal or unreasonable to perform the contract. Circumstance can be :-
C) Discharge by the subsequence impossibility (Frustration): A contract may become impossible to perform because of certain circumstances. After a contract has been made by both parties willing to perform their roles effectively, circumstances may change to the extent that it become impossible or illegal or unreasonable to perform the contract. Circumstance can be :-
(i)Subsequent physical impossibility. Where it is impossible to physically fulfil duties and obligations under a contract, the physical impossibility may however arise after the contract has been made.
(ii) Subsequent illegality. This is where after a contract has been made there is new legislation which makes the contract illegal, therefore the contract become illegal common law.
(iii) Disappearance of purpose of the contract: A contract which is made on the basis of a future event occurring if that does event not happen a contract is frustrated and therefore discharged.
(iv)Distortion of the commercial viability of the contract: Sometimes changes which make a contract an unreasonable undertaking take place after the contract has been made. Therefore it may be rational to terminate the contract if this makes both parties better.
(v) Destruction of the subject matter i.e the subject matter being destroyed
(vi) Death, insanity, incapacity and illness, this is applied mainly for personal services eg employment.
(vii) Acts of God like floods, famine, droughts, earthquake and the like of which their occurrence frustrates the contract.
D) Discharge by breach: Breach of a contract is an actual failure by a party to a contract to perform his obligation under that contract or an indication of his intention not to do so without any justifying cause, therefore injured(not in breach) party may choose not to sue the other party and treat the contract as discharged. Discharge by breach can be :-
D) Discharge by breach: Breach of a contract is an actual failure by a party to a contract to perform his obligation under that contract or an indication of his intention not to do so without any justifying cause, therefore injured(not in breach) party may choose not to sue the other party and treat the contract as discharged. Discharge by breach can be :-
(i)Actual breach: occurs when obligations are violated having become due eg. seller fails to deliver the goods on due date.
(ii)Anticipated breach: Takes place where obligations are violated before they become due eg. a seller informs the buyer about his intention of failing to deliver goods.
REMEDIES FOR BREACH OF CONTRACT
Remedy means any of the methods available at law for the enforcement, protection or recovery of rights or for obtaining redress. i.e where a party breach the contract the other party may be favoured by one of the following remedies depending on the nature of the breach.
- Damages: Injured party may claim compensation in money form to cover loss suffered due to the breach. The aim is to put the injured party as near as possible in the same position so far as money can do as if he had not been injured
- Restitution: Remedy to an innocent party, here the injured party claims back his performance, an item or its reasonable value(for item if an item can be traced)
- Specific reliefs(equitable reliefs):These includes:
(i) Specific performance. Here the innocent party asks the court to order the other party to do according to the terms of the contract. It is mainly applicable in respect of contracts requiring personal services.
(ii) Injunction (stop order): Innocent party will ask the court to order the breaching party to undo a breach of contract.
(iii) Rectification: This remedy will be granted where there has been a mistake not in the actual agreement but which come into existance when the agreement is put into writing.
- Quantum meruit (so much as deserves): Where the contract has been breached but one party still enjoying the benefits out of the transaction, the party enjoying will be liable for the benefits deriving to avoid unfair advantages. This is based on the implied condition that in a void contract a party deriving benefits should pay for those benefits
SALE OF GOODS CONTRACT
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 money consideration called the price. It is an agreement to sell where the transfer of property in goods is at a future date or subject to the completion of specific conditions.The sale of goods contract is complete when the terms and clauses set out in the contract have been fulfilled and the transfer of property took place.
Essentials of sale of goods contract (characteristics)
- Parties to contracts: The parties to sale of goods contract are seller and buyer
-A seller means a person who sells or agrees to sell goods.
-A buyer means a person who buys or agrees to buy goods.
2. Transfer of property: What is transferred in sale of goods contract is properly in goods
3. Subject matter of contract: The subject matter of sale of goods contract are goods.
4.Price: This is consideration which must be in terms of money. Goods for goods do not fall under contract of sale of goods.
5.Agreement to sell and sale: Contract of sale includes sale and an agreement to sell
5.Agreement to sell and sale: Contract of sale includes sale and an agreement to sell
-Sale: There is immediate transfer of goods in property from seller to buyer.
-An agreement to sell a property in goods is transferred in future or on fulfillment of certain conditions stipulated in a contract.
6. Formalities of a contract: The contract of sale of goods may be made in writing (either with or without seal) , orally that is by word of mouth or as implied from the conduct of parties
7. Nature of parties: The capacity to buy and sell is regulated by general law of capacity to contract (person entering into a contract must be competent). But under this contract persons who are incompetent to contract can also enter into a contract to sale but these contracts must be for necessaries and they will be liable to pay a reasonable price for them.
8. Value of goods: The value of goods is ascertained by price. It may be fixed by the contract or may be left to be fixed in manner provided by the contract(eg. by valuation). It may also be determined by the course of dealing between the parties eg: according to previous transactions between them,custom of trade profession.
CONDITIONS AND WARRANTIES
Under the law of contract, two types of statement are made in the course of negotiating a contract of sale of goods
i.The pre-contractual i.e. Representations
ii.Contractual statements or terms these being either conditions or warranties.
Implied condition and warranties in a contract of sale.
A: Title
i) Conditions as to title: Unless the circumstances show different interition, there is an implied condition on the part of the seller that i
n case of a sell she has the right to sell goods, and in case of an agreement to sell will have the right to sell the goods at the time when the property is to pass.
n case of a sell she has the right to sell goods, and in case of an agreement to sell will have the right to sell the goods at the time when the property is to pass.
*The implication is that the person who buys goods to which the seller has no title is allowed to recover the whole price even though she had some use and enjoyment from the goods before they are dispossessed by the true owner.
ii) Warrants as to title: unless the contract show different intention there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods. Also there is an implied warranty that the goods shall be free from any charge/encumbrance in favor of any third part not known or declared to the buyer before or at a time when the contact is made.
B.Time
i.Time of payment: Unless a different intention appears from the contract by stipulations the time of payment is not of essence so failure to pay on time is a breach of warranty no of condition but a seller can provide expressly for right of resale in the absence of prompt payment in case of perishable goods prompt payment is a condition not a warranty.
ii. Time of delivery: The act is silent but we use English laws where time of delivery is fixed by the contract and breach of it is breach of condition and the buyer can reject the goods.
C) Quality and Fitness: This is governed by Caveat Emptor (buyer beware) i.e. When buying you must be aware of all defects obtainable in the goods, except for :
i.An implied condition of quality and fitness for any particular purpose of goods supplied: i.e. when the buyer expressly or impliedly makes known to the seller the particular purpose for which goods are required.
ii.An implied condition that the goods should be of merchantable quality where goods are bought by description from a seller who deals in goods of that description.
iii.An implied condition or warranty as to quality or fitness for goods attached by the usage of trade.
D) Sale by description: There is an implied condition that the goods shall correspond with the description in case there is a contract for the sale of goods by description.
E) Sale by sample. In the sale by sample there is:
i) An implied condition that the bulk shall correspond with the sample in the quality.
ii) An implied condition that the buyer shall have a respond opportunity of comparing the bulk with sample.
iii) An implied condition as to freedom from any defect, rendering them un-merchantable which would not be apparent on reasonable examination of the sample.
EFFECTS OF CONTRACT OF SALE
Effect of contract of sales as provision of the act is divided into two parts
- Transfer of property in goods
- Transfer of title
TRANSFER OF PROPERTY IN GOODS
The provisions of act regarding the transfer of property in the goods are important due to the following reasons:
i.The parties to contract of sale do not usually express their intentions as to the passing of the property.
ii.The risk normally passes when the property passes and the seller can in general terms only sue for the price as distinct from damages if the property has passed.”Res perit domino” (a thing perishes to the disadvantages of its owner).
Rules of ascertaining intention as time when property passes:
According to the sale of goods act the rules of ascertaining interition as to time when property passes are five.
Rule 1. For the goods in a deliverable state the property in goods passes to the buyer when the contract is made.
Rule 2. In case of the goods not in a deliverable state, the property doesn’t pass until the seller puts them. Into a deliverable state and the buyer is notified thereof.
Rule 3. 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 things for the purpose of ascertaining the price, the property doesn’t pass until such act or thing is done and the buyer has notice thereof.
Rule 4. In case of sales on approval or in case of sale or return or other similar terms, the property passes to the buyer by either of the two ways:
- When the buyer signifies her approval or acceptance to the seller.
- The buyer retains the goods without giving notice of rejection and then the property passes on the expiry of a return period or reasonable time.
Rule 5. Where there is a contract of sale of ascertained / future goods by description and goods of that description the transfer to buyer will only be made when the goods have been ascertained, identified and valued.
- TRANSFER OF TITLE
This is that transfer of the right to legal ownership, this is only possible with the presence of true owner of the goods who possess a good title i.e. the buyer who takes goods from a seller with no title receives no better title than the seller e.g. buying goods from a thief goods would then have to be restored to the true owner possessing title when so claimed.
Exceptions to this rule: According to the sale of goods act:
i. Buying in good faith from mercantile agents who holds the goods with the owner’s consent.
ii. Where a second buyer, acting in good faith buys goods left in possession of the seller by the first buyer.
iii. Where a second buyer, acting a good faith buys goods held by a first buyer who has not fulfilled all the sellers conditions of purchase.
iv. Where a buyer, acting in good faith, buys goods without notice of any defect of title of the seller.
v.where the sale is ordered by the court, the buyer received a good title and where a seller has led the buyer to believe in the formers title the buyer receives a good title.
PERFORMANCE OF CONTRACT OF SALE OF GOODS
(A) Duties and rights to parties
i) Duties of seller: To deliver the goods to the buyer or to allow delivery of the goods to take place where the seller agree to deliver the goods at his own risk at a place than the place of sale the buyer (unless agreed) take any risk of deterioration in goods in transit.
ii) Right of seller: To be paid the contract price for goods delivered. Where the ownership has not passed to the buyer, the sell
er is free to act on goods. Where the buyer has not paid and ownership has passed to the buyer the seller may exercise lien on the goods if they are still in his possession/stoppage in transit and the right of repossession and limited right of resale where the goods are perishable or the right is reserved in the contract.
er is free to act on goods. Where the buyer has not paid and ownership has passed to the buyer the seller may exercise lien on the goods if they are still in his possession/stoppage in transit and the right of repossession and limited right of resale where the goods are perishable or the right is reserved in the contract.
iii) Duties of buyer: To accept the goods and pay for them in accordance with terms of the contract of sale. The buyer is deemed to have accepted the goods when the he has accepted them or when the goods have been delivered to him or after lapse of a reasonable time or he retains the goods without information the seller that he has rejected them. When the seller is ready and willing to deliver the goods and the buyer does not with a reasonable time take delivery of the goods, the buyer will be liable to seller for any loss and charge for neglect to take delivery.
iv) Rights of buyer: To receive goods under the terms of contract. When goods not previous examined, are delivered by the seller, the buyer is not deemed to have accepted them unless and until he examine them. A seller should give a buyer reasonable time of examining the goods. Where the wrong quantity is delivered, the buyer has the right either rejected the delivery or accepted and pay the contract price for what he has received.
To reject delivery by instalments, unless he has agreed to this procedures.
B) Delivery of the goods:
Definition; Delivery is a voluntary transfer of possession from one person to another. Delivery may take any of the following forms:
i.By physical transfer of the goods and where the goods are handled to the buyer with the intention of transferring possession.
ii.By delivery of the means of control e.g. handle of the key.
iii.By attornment (where the goods are in possession of the third party) e.g. a warehouse man who acknowledges to the buyer that he holds the goods on his behalf.
iv.By delivery of documents of title e.g. bills of loading representing the goods is delivered.
v.By constructive delivery as where the buyers already has possession of the goods as a bailee e.g. in a hire purchase.
Place of delivery: In absence of express agreement place of delivery is the place of business of the seller or if he has no place of business his residence. Therefore the sellers duty to deliver does not mean he must necessarity take or send the goods to the buyer. Therefore the buyer is under a duty to collect the goods from the seller’s premises or storage center.
NOTE : For sales of specific goods which are found in some other place then the place of delivery is where they are foun
d.
d.
Time of delivery: Under the contract of sale, if the seller is bound to send the goods to the buyer if no time for sending is fixed the seller is bound to send them within a reasonable time and at reasonable hour.
*What is reasonable time/hour it is matter of fact.
C: Quantity of goods delivered
The provisions as to quantity delivered are
i.Where the sellers delivers to the buyer a quantity less than the contact quantity the buyer may reject them but if he accepts them he must pay at the contractual rate.
ii.Where the seller delivers to the buyer a quantity larger than he contracted the buyer may accept the goods included in the contract and reject the rest or reject the whole.
iii.Where the goods delivered are mixed with goods of different descriptions not included in the contract the buyer may accept the goods in accordance with contract and reject the rest or he may reject the whole.
NOTE : Usage of trade, special agreements or course of dealing between parties can lead to exceptionals.
D) Delivery by instalments: Unless a greed, the buyer is not bound to accept delivery thereof by instalments.
*If the agreement is the delivery by instalments and that the seller fails to make one or more instalments delivery or the buyer neglects or refuses to take delivery or pay for one or more instalments (depending on the terms of contract) the contract is repudiated or give rise to claim for compensation.
E) Delivery to a carrier:
Where the seller is required to send goods to the buyer through carrier (whether named by the buyer or not) for the purpose of transmission to the buyer it is deemed to be a delivery of goods to the buyer.
Types of carries
a) Common carrier :Is the carrier who publicly hold himself out to carry goods of any customers from place to place in accordance with specified routes and often scheduled timing. A common carrier accepts all customers offered to him except where:
i) No room is left in his transport.
ii)The goods are not of kind which he advertises to carry.
iii)The goods are improperly packed.
iv)The goods are of dangerous character.
v) Goods are not fit to be carried by the public carrier.
Duties of common carrier
1. To transport goods for any person on his schedules routes provided payment for the hire at reasonable rates is tendered.
2. To carry goods without unnecessary delay or deviation and deliver in similar manner.
3. To deliver in good condition and responsible for loss or damage except for Act of God, war, unsuitability of travel due to risk of injury (animals), negligence of the sender
b)Private carrier: Is a carrier who carry goods on selected routes for selective customers. He deals with each customers according to his specific needs and contract accordingly. Unless otherwise authorized by the buyer, the seller shall make contract with the carrier on behalf of the buyer as having regarded to the nature and other circumstances. If the seller to otherwise and the goods are lost/damaged in transit the buyer may hold the seller responsible.
BREACH OF CONTRACT OF SALE
The contract of sale may be either be breached by the seller or the buyer. The injured party is entitled to certain remedies.
Remedies of the seller: This happens when there is a breach by the buyer. Remedies of the seller is divided in two:
i) Real remedies against the goods: Even if the property in the goods has passed to the buyer the unpaid seller of the goods has by implication of law the following remedies:
a)A lien on the goods or the right to retain them while he is in possession of them.
b)In the case of the insolvency of the buyer, a right of stopping the goods in transit.
c)A right to re-sale where the property has not passed to the buyer.
Definition of unpaid seller: A seller when the whole of the price has not been paid or tendered or a seller when a bill of exchange or other negotiable instruments has been received as conditional payment and the condition has not been fulfilled e.g. Dishonour
ii)Personal remedies against the buyer
: In addition to the real remedies the seller has personal actions against the buyer in the following ways:
: In addition to the real remedies the seller has personal actions against the buyer in the following ways:
a)Action for the price: This is maintainable where the property in the goods has passed to the buyer and the buyer neglects or refuses to pay for the goods according to the terms of contract.
b)Action for damage: This is maintainable WHERE the buyer neglects or refuses to accept and pay for the goods.
Remedies of the buyer: This happens when there is a breach by the seller. Remedies of the buyer is divided in to three:
i) Rejection of the goods: Where the seller breaches a condition the buyer may repudiate the contract and reject the goods. The buyer is not bound to return the goods rejected but he must inform the seller of his rejection.
ii) .Action for demages:This can be maintained when,
a)Non-delivery of goods: When the seller neglects or refuses to deliver the goods, the buyer may maintain an action against seller for damages.
b)Breach of Warranty: In case of breach of warranty the buyer do not reject the goods but he may maintain actions against the seller for damages.
iii) Right to specific performance: The court upon application by plaintiff may direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods on payment of damages.
