Rights and
Remedies
Lyla Latif, PhD
Warwick Law School (2023)

Rights: If not agreed, SOGA 1979 to apply
Seller
• B accepts the goods – sec 27
• Within reasonable time
• If not, liable to S for any loss and
reasonable charge for care and custody
• If rejects, must intimate refusal to accept
• B pays the purchase price – sec 27
• Retain possession until pay – sec 41
• Right of stoppage in transit – sec 44
Buyer
• S delivers the goods
• on time, at the place and as agreed with
the buyer – sec 27
• of the correct quantity – sec 30
• Reject the goods
• Examine the goods – sec 34
• Partial rejection – sec 35A

Delivery + Acceptance

Reflections
1. S delivers goods to B’s agent – can this be considered as
delivery?
2. S delivers goods to B’s neighbour – can this be
considered as delivery?
3. S delivers goods to his warehouse and notifies B to come
collect – can this be considered as delivery?

Delivery – sec 61(1)
• Delivery: sec 61(1) – voluntary transfer of possession from S to B
Constructive
delivery
S transfers
control of
goods to B
because S does
not have
physical
possession
Actual
delivery
S transfer
physical
possession
to B
S’s duty on AD of the goods to B’s
premises is limited to handing them
over to someone who appears to
have the authority to receive them.
S should take reasonable care to
ensure that no unauthorised person
receives them.
See:
1. Galbraith & Grant v Block (1922)
2. Computer 2000 Distribution ltd v
ICM Computer Solutions plc (2004)

Galbraith…
• G contracted a carrier to deliver champagne to B’s premises.
Delivery driver said that he delivered the champagne to a
man at the side entrance of B’s premises and that someone
on the premises signed the delivery note in B’s name. B
argued that:
1. his premises were closed at the time of delivery
2. he never received the champagne
3. the signature was not his
4. nor did he authorise anyone to sign
B refused to pay.

Held:
‘A seller who is told to deliver goods at the buyer’s premises discharges his obligations if he delivers
them there w/t negligence to a person apparently having authority to receive them.
He cannot know what authority the actual recipient has.
His duty is to deliver the goods at the proper place and to take all proper care to see that no
unauthorised person receives them.
He is under no obligation to do more.
If the buyer has been unfortunate enough to have had access to his premises obtained by some
apparently respectable person who takes his goods and signs for them in his absence, the loss must
fall on him, and not on the innocent carrier or seller’.

Computer 2000…
• Rogue pretended to act on behalf of B – a reputable company and ordered
electronic goods from S. S placed an order with its suppliers. Rogue gave S
instructions to deliver to Mr Richard Cole at a given business address. S similarly
instructed the suppliers. Security guard at the premises signed for the goods.
Goods collected by Mr. Richard Cole (presumably the rogue) and he absconded
with the goods. S refused to pay the suppliers.
• Held:
• Instructions were to deliver to Mr. RC at a given business address. Suppliers followed the
instructions and goods had been collected by an individual of that name. Supplier, therefore,
delivered the goods in accordance with the terms.
• It was found that the security guard had authority to receive goods on behalf of persons
carrying on business at the business address and there was no reason for supplier to suspect
that the named individual and company were not carrying on business at the address

Delivery – sec 28
• Delivery and the payment of the price must
be concurrent – sec 28
• Concurrent: both S and B have to be
‘ready and willing’ to give possession (S)
and paying price (B)

Rules relating to delivery
1. General rules
2. Quantity
3. Instalments
4. Involvement of a carrier (by rail or sea)

1. Rules regulating delivery – sec 29 (general)
• General Rule:
• the contract between B and S determines whether it is B who is to take possession or S is to send them to B.
• S is only responsible to convey the goods. Duty is on B to collect the goods
• No Contract:
• s29.2: Where is the place of delivery? S’s place of business or residence. If sale of specific goods and its in the
parties knowledge that the goods are at a different place – then that different place is the place of delivery
• s29.3: Time of delivery? At the time specified. If no time – reasonable time
• Reasonable time means reasonable hour and THAT IS A QUESTION OF FACT (s29.5) – see Charles Rickards Ltd v Oppenheim
(1950)
• s29.4: Delivery through 3P? No delivery by S to B until 3P acknowledges to B that he holds the goods on B’s
behalf – referred to as attornment
• s29.6: Expenses for delivery? S bears all expenses to putting goods in a deliverable state

2. Rules regulating delivery – sec 30 (quantity)
• If S delivers the wrong quantity of goods to B:
• Less (sec 30.1): B may reject. If B accepts, must pay for them
• B entitled to sue for non-delivery in respect of the shortfall. Can only sue if 3 conditions
met:
• Sec 30(2D)(a): de minimis non curat lex rule – B can not reject goods due to shortfall, unless
shortfall is material
• If unreasonable for B to reject the goods
• Goods are prone to shortages (fuel which evaporates) – B entitled to pay a lesser price
instead to cover goods delivered
• More (sec 30.2): B may accept the goods included in the contract and reject
the surplus, or may reject the whole. B can accept the surplus – must pay for
the surplus as it forms a new contract.
• See: Shipton, Anderson & Co v Weil Bros 7 Co (1912)- B cannot reject surplus, unless
‘material’

3. Rules regulating delivery – (instalments)
• B not bound to accept delivery by instalments unless agreed to in
writing
• If B accepts short delivery (can sue to recover price paid for goods not
delivered and damages for non delivery), S cannot later compel B to
accept the remainder at a later date – See: Behrend & Co Ltd v
Produce Brokers Co Ltd (1920)

3. Rules regulating delivery – (instalments
cont’d)
• Where goods are delivered by instalments and the buyer accepts the first
instalment – this act does not prevent the buyer from rejecting later
instalments if the later instalments contain goods that breach the implied
terms under sections 12, 13, 14 or 15. – See Jackson v Rotax Motor and
Cycle Company (1910)
• Note: two possible routes:
• Treat breach of contract as a condition - repudiation of the whole contract
• Treat contract as severable – only claim compensation
Depends on the terms of the contract and the circumstances of each case

Maple Flock Co Ltd v Universal
Furniture Products (1934)
• Severable contract to purchase 100 tonnes of rag flock to be DBI
• 15 instalment deliveries were satisfactory, 16th delivery was not –
defective. 17th -20th deliveries were satisfactory
• UFP sought to rescind the ENTIRE contract, refused to accept further
deliveries. MP sued for BOC
• UFP not entitled to repudiate the entire contract. This was a sale
under a severable contract and only some of the instalments were
defective. 2 tests:
• Quantitative ratio which the breach bears to the contract as a
whole
• Degree of probability that such a breach would be repeated

4. Delivery to a carrier – sec 32(1), unlike sec
29.4 - bailee
• Where S is authorised or required to send the goods to B, the delivery of
the goods to a carrier for the purpose of transmission to B is prima facie
deemed to be a delivery of the goods to B
• The carrier must not be an agent of S: Galbraith & Grant v Block (1922)
• S must make the contract with the carrier on behalf of B as may be
reasonable (w/r to the nature of goods and other circumstances of the
case) – otherwise
• S will be liable if goods are lost or damaged in the course of transit (implications: B
can decline to treat delivery of goods to himself and sue S for damages) – Thomas
Young & Sons v Hobson & Partner (1949)

4. Delivery to a carrier: rail v sea
• Rail: S must make the contract with the carrier on behalf of B as may
be reasonable (w/r to the nature of goods and other circumstances of
the case) – otherwise
• S will be liable if goods are lost or damaged in the course of transit
(implications: B can decline to treat delivery of goods to himself and sue S for
damages) – Thomas Young & Sons v Hobson & Partner (1949)
• Sea: risk lies with B where goods carried by sea (FOB – free on board),
since B has to insure the goods. S only liable if:
• Did not give B sufficient notice to enable B to insure the goods during sea
transit

Mercuria Energy Trading Pte Ltd v Citibank NA
[2015]
• S delivered goods to W – warehouse operator; has there been
delivery to B?
• No. Why? Because W is a third party and must therefore attorn to B
that he holds the goods on B’s behalf for delivery to be effected
• W, therefore, becomes B’s bailee at the point of attornment and B
acquires constructive possession of the goods
Question: If S transfers to B receipts issued by W in respect of the
goods – does this in itself effect delivery?

Remedies -
Seller

Seller’s Remedies
• If B refuses to accept the goods – damages for non-acceptance
• Sec 38.1: If the buyer
(1) refuses to pay the purchase price,
(2) or has not paid the purchase price, or
(3) has made conditional payment and the condition has not been fulfilled, the
unpaid seller has two remedies:
• Real remedies
• Personal remedies

Seller’s Real Remedies (sec 39)
• Real remedies:
• targeted towards the goods and depend on whether or not property in the
goods has passed to B:
• Where property has passed: Sec 39.1 –
(1) lien on the goods or right to retain goods while in possession
(2) if B is insolvent – right of stopping the goods in transit after S has parted with
possession
(3) re-sell
• Where property has not passed: Sec 39.2 – in addition to the remedies under 39.1, S has
an additional remedy: withholding delivery

Seller’s Personal Remedies (secs 49, 50 and
54)
• Personal remedies: remedy against the buyer –
• Sec 49.1: Action for the price (when property has passed to B and he wrongfully
neglects or refuses to pay)
• If S has retained title, cannot sue for price - FG Wilson Engineering Ltd v John Holt & Co Ltd
(2014)
• Sec 50.1: Damages for non-acceptance of the goods (where B wrongfully neglects or
refuses to accept and pay for the goods)
• Sec 54: recover interest or claim special damages based on the loss arising from any
special circumstances of which the parties were aware at the time of making the
contract

Damages
• What are damages? compensation
• When does a claim for damages arise? when there is a BOC
• When does a BOC arise? when either party fails to perform any of
their obligations arising under the contract or as implied under SOGA
1979
• Instances where failure to perform will not entitle the other party to
damages:
• Impediment is beyond the defaulting party’s control and could not be
reasonably foreseen
• Failure to perform was as a result of the action or omission of the other party

Recovery and calculation of damages
(general)
• What is recoverable – a sum equal to the loss, as well as profits
• How much is recoverable – an amount that does not exceed the loss which
the party in breach foresaw or ought to have foreseen at the time of
concluding the contract
• The duty to mitigate also applies here in assessing the amount to be
recovered
• This is to be understood on a case-by-case basis
• There are no clear-cut general rules, but guidance exists on how to assess the
amount – examples in the next slide

Assessing damages
General rules around compensation Foreseeability rule (remoteness)
• Only foreseeable losses will be
recoverable
• Reasonable person standard test
• Damages are to compensate the
injured party for its losses
• Every type of loss is compensable
as long as requirements are met
(BOC, reasonably foreseeable)
• There must be causation – BUT
FOR test (limited by foreseeability
rule)

Illustration – Hadley v Baxendale (1854)
• H’s mill came to a standstill due to a broken crankshaft. H engaged B to deliver a broken
crankshaft to the place where it would be repaired and then return it to H’s mill the next
day after it had been repaired. B was neglectful and delivered the repaired crankshaft 7
days late. H, in the meantime, was unable to use the mill and claimed loss of profit. B
argued that he did not know that the mill would have to be closed during the delay and the
loss of profit was too remote.
• Held:
• A nonbreaching party is entitled damages arising naturally from the breach itself or those that are in the reasonable
contemplation of the parties at the time of contracting.
• Here, while the breach by Defendants was the actual cause of the lost profits of Plaintiffs, it cannot be said that under
ordinary circumstances such loss arises naturally from this type of breach. There is a multitude of reasons for a miller to
send a crank shaft to a third party. Defendants had no way of knowing that their breach would cause a longer shutdown of
the mill, resulting in lost profits. Further, Plaintiffs never communicated the special circumstances to Defendants, nor did
Defendants know of the special circumstances.

Calculating damages for non-acceptance (sec
50.2)
Sec 50.2:
“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”
Calculation: difference between the contract price and the value of the
goods to the seller at the date of the buyer’s breach
No available market
Harlow & Jones Ltd v Panex Ltd (1967)
Available market
Apply sec 50.3
Thompson Ltd v Robinson Ltd (1955)

Acceptance of goods

B loses his right
to reject goods
if he has
accepted them
Accepted
Not accepted
Read: J & H Ritchie Ltd v Lloyd
Ltd (2007)
Fiat Auto Financial Services v
Connelly (2007)
See: table 17.2 (Baskind, Ch 17)

Remedies -
Buyer

Remedies
• Damages for non-delivery – sec 51
• Specific performance – sec 52
• Damages for breach of warranty
• Reject the goods
• Remedy unavailable: if B accepted the goods under sec 35; agreed to repair;
retaining goods for more than a reasonable length of time; waiver or election;
where breach is slight
• Repudiation

Calculating damages for non-delivery
• Only arises where seller’s refusal to deliver is wrongful
• Also arises where seller delivers goods that are not in accordance with the
contract (implied terms)
• Depends on whether goods bought for buyer’s own use or for purpose of
resale
• Measure of damages:
• If B can buy elsewhere goods S wrongfully did not deliver at the same price –
nominal damages
• If B has to pay more: damages will be difference between the contract price and the
market price (e.g., CP 3000, MP 4500, Damages = 1500) – MP to be determined AT
THE DATE OF THE BREACH – READ: Pagnan & Fratelli v Corbisa… (1970)

Market price depends on:
• Available market
• Sec 51.3: if there is an AM the measure of damages is to be ascertained by
the difference between the CP and MP at the time the goods ought to be
delivered
• No available market
• Sec 51.2: damages will be assessed under common law in accordance with
the foreseeability rule under Hadley v Baxendale (loss which would arise
naturally ‘according to the usual course of things’)

Calculating damages for breach of warranty
Sec 50.2:
“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”
• There must be a causal link between the breach and the loss sustained
• Liability is only for those losses that can be said to be within contemplation of
the parties at the time they made the contract as the probable result of its
breach
• Remoteness rule: Hadley v Baxendale (1854)

Calculating damages for breach of warranty of
quality – sec 53.3
• To compensate B for the lower value in goods as a result of the
defects
• Loss is prima facie the difference between the value of the goods at
the time of delivery to B and the value they would have had if they
had conformed to the contract

Specific Performance – sec 52
• There are occasions where a monetary award will not provide the buyer with an adequate
remedy – the B will require S to perform: specific performance
• B can ask the court to make an order for specific performance (where S has retained the goods, to
compel the seller to deliver the goods)
• Sky Petroleum Ltd v VIP Petroleum Ltd (1974): SPL had a 10-year fixed price agreement with VIP
to purchase fuel. Due to shortages VIP terminated the agreement and SPL was left w/t
alternative. Granted SP
• Note on SP: At the discretion of the court and in respect of BOC to deliver specific/ascertained
goods, order for SP can be made even if property in goods has passed
• Case law: see table 17.1 (Ch 17 Baskind)

Next: Retention of Title and Transfer of Title
by Non-Owners