Sale of Goods Act 1895 (SA)

An Act for codifying the Law relating - to the Salt. of

rAss~*?rf~.i - Go? to, Dmwzbrr o f h, -: " rJ'p5.i -

B E i t Enacted by the Gowmor of' the Provilic-(1 of South Aus- tralia, wit11 the advice nncl coiisei~t of' the Lcgislntis-e Council

and House of Aissclmblv of the said province: in this present Par-

liament nssemblcd, as ~ ~ U O J V S	:
PART I. PART r.

1. (l) 9 contract of sale of goods is n cuntmct whereby the "Jeandagteerncnt to sell.

seller transfers or agrees to transfer the property in goods to the

buyer for a money consideration. called the price. Thcre may be a 56 5; v;.., i l,

cogtract of sale between one part owner and another. sec. I.

(2) A contract of snle may be absolute or conditional.

(3) Where under n contract of snle the prnpertv ill the moods is

transferred from the seller to the buyer, the contract is called?n sale;

but where the transfer of the property in the goods is to take place

a t a, future time, or snbject to some condition thereafter to be h.11-

filled, the contract is called an agreement to sell.

(4) An agreement to sell becomes a snle when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

A-630 2. Capacity

58" 61 59' VICTORILE, No. 630.

The Sale of Goods Act.-1895.

Yanr I. 2. Capacity to buy and sell is regulated by the general lam

Capacity to buy nni	concerning capacity to contract, and to trausfer and acquire pro-
sell.	perty: Provided that where necessaries are sold and delivered to m
56 & 57 Vic., eh. 71,	infant or minor, or to a person who by reason of mental incapacity
sec. 2.	or drunkenness is incompetent to contract, he must pay a reason-
able price therefor.

" Necessaries " in this section mean goods suitable to the coldition

in life of such infant or minor or other person. and to his

nrtnnl rcqiliwn~ents at the time of the sale and delivery.

Contmct of sale, h o ~ 3. Snbjcct to the provisions of this Act: and of any Statute in

made.

tllat behalf: a contract of sale may be made in ~ n i t i n g (eithrr with or withmt seal), or by word of mouth, or pilrtlv in writing and

~ b. , sec. 3.

partly by word of modth. or mar be implied fro& thc colldnct of the parties: Piwrided that notl&q in this section shall affect the

law relating to corpor n t' wns.

Contract for sale of 4. (1) A contract for the sale of anv goods of the vnlne of Ten

Ten Pounds and up-

W-ards.	Pounds or upwards shall not be enfoicible by action unless the
buyer stiall accept part of the yoocls so sold. and actually receive - -

Car- 25 c - 33 sec. the sauitl. or give something in earnest to bincl the contract, or in L,

17, and 9 Geo. 4, c.

14, sec. 7.	part pavmmt; or nlilers sornlL not^ or niemomnclui~~ in writin5 of the
9 Geo. 4, ch. 1-1,	contract be made and sigliccl by the party to be charged or ins agent
seo. 7.	in that behalf.

56 8 .57 Tic., ch.

71, sec 4.

( 2 ) The provisions of this section applv to errrv snch contract: notw~thstsildinz k that the goods mav bp intenled to be delivered at some future time, or may not nt the time of such contract be actually ninde, proc~zretl, or pro~ided? or fit or ready for delivery, or some act may be reqnisite for the inaliiag or completing thereof.

section wheri the buyer does ilny act in relation to the goods which or rendering the same fit for clelivw+v. (3) 'l'here is an acceptance of' goods within the meaning of this

rccogniscs a pm-existing contract of sale. whether there be an

acceptance in perforlr~nnce of the contract or not.

Subjtct-matter u f' Coll trtzcf.

Existing or future

goods.

5. (1) The goods which form the subject of a contract of sale

mnv be either existing goods: owned or possessed by the seller, or

h,	aec. 5.	godds to be manufactured or ocqnircd by the seller after the
making of the contract of salu, in this Act called f ~ ~ t u r e goods."
(2) There may be n contract for the salu of goods, the acquisition of which by the seller depends upon s 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 ss an agreement to sell the goods.

6. Where

58" & 5 9 O VICTOIIIE, No. 630.

The Hale of Goods Act-1895.

6. Where there is a contract for the sale of specific goods, and PART 1.

the goods without the knowlcdgc of the seller have perished at the G O O ~ ~ which h v e

perished.

timerwhen the contract is made, the contract is void.	66 & 67 Vic., oh. 71,
sec. 6.

7. Where there is an agreement to sell specific goods, and sub- Goob e*hing be- fore safe but after

sequently the goods, without any fault on the part of the seller or agreementtosell.

buyer, perish before the risk passes to the buyer, the ngreement is

thereby avoided. ~b., sec. 7.

The Price.

tract, or may he left to be fixed in manner thereby agreed, or may price. 8. (l) Thc pricc in a contract of sale may be fixed by the con- ascertainment of

be determined by the course of dealing between the parties.	lb., sec. 8.
(2) Where the price is not determined in accordance with thc foregoing provisions, the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circum- stances of each particular case.

9. (l) Where there is an agreement to sell goods on the terms Agreemen"~aellat yakation.

that the price is to be fixed bp the valuation of n third party,

and such third party cannot or does not make such valuation, the rb., sec. 9.

agreenieut is avoided: Proviclcd that i f the goods, or m y part thereof, have been clelivxed to and appropriated by the buyer he must pay n reasonable price thcrefor.

valuation by the fault ot' the seller or buyer, the party not in ('L) Where such third party is prevented from making the fault may maintain an action for damages ngains: the party in

f a d t.

10. (1) Unlcss c2 diffulenr, illtention appears from the terms stipulations as to

of the contract, stipu1;~tiolls as to tiinc of payrntmt are not clecmecl time.

to bc of the essence of ;L colltrilct of sale. VThether any othcr Ib.,

stipulation as to time is of the essence of the contract or not

depencls on the terms of ttle co~ltmct,

(2) In n contract of sale ' a m o u t l ~ " mean.; primr2 ,%tic cnlendsr

month.

11. [ l ) JVhere a co!ltr;~ct of s:de is subject to m y condition When condition to

to be fulfilled by the seller. tlic bn)-er may waive tlic condition, or ,,,,	be treated m war-
may elect to treat tlic brenc.11 of such condition as a h-cacti of

warranty, ailcl not ;LS a gronnd for treating thc contract as Ib., sec. 11.

reputlia tet?,

(2) Wlletller zl stipnlntion in a contract of sale is ix condition thc bwach of wlriull inay give riw to n ri@t to treat the contract as re~udiated, or n warranty thc bru:icl~ of. which irlav give rise to a c for dnm;~ges, bitt not to :L riqlr t to reject thc wgoods and treat

the contract as repdintcd, depcnds;n each cnsc on the constrnction

of the contract. A stipt~lntioil 1rl;ry be a co~ldition, thnngh called a

Tvarrimty ill tlic ~ u i l t r ~ ~ c t.

(3) Wllcre

58" & 59' VICTORIE, No. 630.

The Sale of Goods Act- 18%.

Yam I.

(3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods the property in which has passed to the buyer, 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 of warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.

Implied undertaking

as to title, &c.	12. In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is-
"

sec.	'	12.	57 vic-f	719	I. An implied condition on the part of the seller that it1 the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell hc will have a right to sell the goods at the time when the property is to pass:
11. 'An implied warranty that the buyer shall have and enjoy quiet possession of the goods:
111. -An implied warranty that the goods shall be free from any charge or encumbrance in favor of any third party, not declared or known t o the buyer before ar a t the time when

the contract is made.

Sale by description.

13, Where there is a contract for the sale of goods by descrip-

tion, there is a*implied condition that the goods shall correspond

~ b. , sec. 13.

with the description; and if the sale be by- sample, as well as by dcscription, it is not sufficient that the bulk of the goods corresponds with the sample if the goocls do not also correspond with the description.

Implied conditions 14. Subject to the provisions of this Act, and of any Statute in

as to quality or

iitness,	that belialf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under
lb., sec. 14.	a contract of sale, except as follows-

I. Where the buyer, expressely or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of ,z dcscription which it is in the course of the seller's bnsirl~ss to supply (whether he

be the manufacturer or not), there is an impli&d condition that

the p o d s shall bc reasonably fit f u r such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade nnmc, there is no implied condition as to its fitness for any particular purpose:

11. Where goods are bought by description from a seller' who deals in goods of that description (whether he be the manu- facturer or not), there is an implied condition that the goods shall be of merchantsble quality: Provided that if the -.. .-

buyer

58" & 59' VICTORIE, No. 630. 5

The Sale o f Goods Act.-1895.

buyer has examined the goods, there shall be no implied	Pasr I.
condition as regards defects which such examination ought

, to have revealed:

III. An implied warranty or condition as to quality or fitness

for a particulax purpose may be annexed by the usage of

trade:

IV. An express warranty or condition does not negative a war- ranty or condition implied by this Act unless inconsistent there- with.

SnZe by Sample.

15. (1) A contract of sale is a contract for sale by sarnplc where sale by sample.

there is a term in the contract, express or implied, to that effect. 56 & 57 Vic., ch. 71,

(2) In the case of a contract for sale by sample-	eec. 15.
(a) There is an implied condition that the bulk shall correspond

with the sample in quality:

( b ) There is an implied condition that the buyer shall have

a reasonable opportunity of comparing the bulk with the

sample:

( c ) There is 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.

--

PART 11.

EFFECTS O F THE CONTRACT.

goods, no property in the goods is transferred to the buyer unless ascertained. 16, Where there is a contract for the sale of unascertained Goodsmust be

and until the goods are ascertained. ~ b. , aec. 16.

17, (1) Where there is n contract for the sale of specific or Pmpertgpaaeesrhen " Pa'.

ascertdtierl goods the property in them is transferred to the buyer

at such time as the parties to the contract intend it to be trans-	see.
ferred.
(2) For the purpose of ascertaining the intentioii of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.

18. Unless a different intention appears, the following are rules R U I ~ S for ascertaining

for ascertaining the intention of the parties as to the time at which intention. the property in the goods is to p s s to the buyer :- ~ b. , sec. 18.

ltule l. 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 oE payment or the time of

delivery, or both, be postponed. R~l le

58" & 5 9 O VICTORIE, No. 630.

me Sale of Goods Act.-1895.

Rule 2. 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 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 thing with reference to the goods for the purpose of ascertaining the price, the pro- perty does not pass until snch act or thing be done, and the buyer has notice thereof.

Rule 4. When goods are delivered to the buyer on approval, or on a sale or return," or other similar terms, the property therein passes to the buyer-

(Q) When he signifies his approval or acceptance to the seller, or does my other act adopting thc transaction:

' b ) If he does not signify his approval or acceptance to the seller, but rctnins thc 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: and, if no time has bccn fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.

Rule 5. (1) Where there is a contract for the sale of unascer- tained or future goods by description, and goods of that description ancl in a deliverable state are unconditionally appropriated to the contmct, cither by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the yr-perty in the goods thereupon passes to the buyer. Such assent l m y be express or impliecl, ancl may be given either before .)r after the appropriation is made.

(2) Where, in pursuance of the contract3 the seller delivers the goods to the bnper or to : L carrier o r other bailee or cus-

toclier (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 of right

of disposal.

19, (1.) Where therc is a contract for the snle of specific goods,

or where goods are subsequently appropriated to the contract, the

56 & 57 Vic., ch. 71,

seller may, by the terms of the contract or appropriation, reserve

aec. 19.

the right of the disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the 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 sllipped, and b\- the bill of lading the goods

am deliverable to the order of the sell& or his ngcnt, thc seller is

primd facie deemed to reserve the right of disposal. (8) Where

58" & 59' VICTORIE, No. 630. 7

The 8aZe of Goods Act.-1895.

(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 U together to secure acceptance or payment of the bgl of exchange, the buyer is bound to return the bill of lading i f he does not honor the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. PART 11.

20. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the pRamS with property* ~ i ~ k - a fmid

W .

A -

property iherein is transferred to the buyer the goods are at the ,, ,,7,ic., ch. 71,

buyer's risk, whether delivery has been made or not: Provided that sec. 20.

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 m g h t not have occurred but for such f a ~ d t: Provided also that 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.

sold by a person who is not the owner thereof, and who does not the owner. 21. (1) Subject to the provisions of this Act, where goods are Sal0 by person not

scll 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 owney of thc goods is by his conduct precluded from denying the seller's authority to sell.

(2) Provided also that nothing in this Act shall affect--

( a ) The provisions of " The Mercantile Law Amendment Act,

1861," or 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 com-

mon law, or statntory power of sale, or under the order of a

Court of competent jurisdiction.

22, 'Whe~e goods are sold in market overt, according to the Market overt.

usage of the market, the buyer acquires a good title to the goods,

'c- 22.

provided he buys them in good faith, and without notice of any

defect or want of title on the part of the seller.

his title has not been avoided a t the time of the sale, the buyer title. 23. When the scller of goods has a voidable title thereto, but Sale under voidable

acquires a good title to the goods, provided he buys them in good	11,
faith and without notice of the seller's defect of title.

24. (1) Where goods have been stolen and the offender is ~e- stingo of pro-

prosecuted to conviction, the property in the goods so stolen re-vests ,, perty in etolen oodr

in the person who was the owner of the goods, or his personal offender.

!

representative, nothwithstz~nding any intermediate dealing with

them, whether by sale in market overt or otherwise.

(2) Notwithstanding

58" & 59' VICTORIIEi, No. 630.

The Sale of Goods Act.-1895.

p

PART 11. (2) Notwithstanding any enactment to the contrary, where goods

56 t 67Vic., ch. 71, have been obtained by fraud or other wrongful mcans not

sec. 24. amounting to larceny, the property in such goods shall not re-vest

lSof 1876j sec. 222. in the person who was the owner of the goods, or his personal

representative, by reason only of the conviction of the offender.

Seller or buyer in

possession after sde. 26. (1) Where a person having sold goods continues or is in possession of the goods, or of the clocuments of title to the goods. L V U

56 & 57 Vict., ch. 71, the delivery or transfer by that person, or by a mercantile agent

aec. 25. 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 ob- tains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that per- son, or by a mercantile agent acting for him, of the goods or docu- ments of title, under any sale, pledge, or other disposition thereof,

to m y person receiving the same in good faith and without notice of

any lieu 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 docu- ments of title with the consent of the owner.

(3) In this section the term L mercantile agent" shall mean 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 26. (1) A writ or warrant of execution against goods shall bind

execution.

the property in the goods of the execution debtor as from the time when the wkt or warrant is delivered to the sheriff to be executed;

~b., 26

and, for the better manifestation of such time, i t shall be the duty of the sheriff, without fee, upon the receipt of any such writ, to indorse upon the back thereof the hour, ddy, month, and year when he received the same: Provided that no such writ or warrant shall prejudice the title to such goods acquired by any person in good fiiith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ, or warrant, or any other writ by virtue of which the goods of the exe- cution 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 G sheriff " includes any officer charged with the enforcement of a writ or warrant of execution.

PART

58" & 59' VICTORIR, No. 63-0.

The Sale oj' Goods Act.-1895.

PART 111. YART. ISI.

PERFORMANCE OF THE CONTRACT.

27. I t is the duty of the seller to deliver the goods, and of f ie Duties of aeUw md

buyer to accept and pay for them, in accordance with the terms of

56 & 57 Vic., ch. 71,

the contract of sale. sec. 27.

28, Unless otherwise agreed, delivery of the goods and payment Payment and delivery are concment con-

of the price are concurrent conditions, that is to say, the seller ditions.

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 Ib., sec. 28.

willing to pay the price in exchange for possession of the goods.

29. (1) IVhether it is for the buyer to take possession of the Rdesna to delivery. Ib., sec. 29.

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 have one, and if not, his residence: Provided that if the contract be for the sale of specific goods, which to the hornledge of the 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 tlrr time of sale are in the possession of

a third person, there is no delivery by seller to buyer unless ancl

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 of the issue or transfer of any document of title to goods.

(4) Demand or tender of deliveiy 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 ancl incidental to putting the goods into a deliverable state must be borne by the seller.

30. (1) Where the seller delivers to the buyer n ntitv of Delivery of wrong quantity.

goods less than he contracted to sell, the buyer ma,y r

hut if the buyer accepts the goods so delivered he mnst ;ay for 30.

-

them at the coLtract 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 or quality not

B-630 inc:lnded

& 5 9 O VICTORIE, No. 630.

The Sale of Goods Act.-1895.

PART	111.	included in the contmct, 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 prov.isions of this section are subject to any usage of

trade, spccid agreement, or course of dealing between the parties.

Instalment deliveries. 31, (1) Unless otherwise agreed, the buyer of goods is not

56 & 57 Vic., ch. 71,	bound to accept delivery thereof by instalments, except in accord-
sec. 31.	ance with the usage of the trade.

( 2 ) Where there is a contract for the sale of goods to bc delivered

by stated instalments, wliich are to be separat~ly paid for, and thc seller makes defective deliveries in respect of one or more instal- ments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is n question in each cssc depending on the terms of the contract ancl the circunlstances of the case whether the breach of contract is n repudiation of thc whole contrnct or whether it is a severable breach giving rise to a claim for compeusation, but not to a right to treat the whole contract as repudiated.

Delivery to carrier. 32, (l) Where, in pursuance of a contract of sale, the seller is

antholised or required to send the goods to the buyer, delivery of

Ib., sec. 32.	the p o d s to a carrier, whether named by the buyer or not, for tlic purpose of transniission to the buye~. is primri f k i e cleenml to be
n delivery of the goods to the buyer.
(2) Unless othenrise authorised by the buyer, the seller mnst make such contract with the carrier on behalf of the buyer as may be reasonable, having rcynrd to the nature of the goods and the other circumstances of the case. If the seller omit so to do, ant1 the wocls arc lost or clamnged in course of tmnsit, the boyer may P declme t o treat the delivery to the carrier as a delivery to himself, or mav hold the seller responsible in damages.
( 3 ) Unless otherwise agreed, where goods are sent by the seller to the buyer by n route involving sea transit, under circnin- stances in which it is usual to insnrc, the seller must give such notice to the buyer as may enable him to inslure them during their sea transit, ancl, if the seller fails to do so, the goods shall be deeemed to Fe at his risk during such sea transit.
Risk where goods

are delivered at 33, Where the sellel* of goods agrees to deliver them a t his own

distant place. risli at a place other than that where they are when sold, the buyer must, nevertheless, unless otl~e~wisc: agreed, take any risk

~ b. , sec. 33. of deterioration in the goods neccssiwily incident to the course of tmnsit.

Buyer's right of 34. ( 1) Where goods are dclivercd to the bnyer, which he has

examining the goods. not previoiisly esanl~nd, he is not dremerl to h v e ctcccpted them

unless and until hc has had a rensonahlr opport~mity of examining

~ b. , sec 34.

tllenl for the purposc of ascertniniyg wliethrr tliey are in conformity with the contract. (2) Unless

58' & 59" VICTORIE, No. 630.

The Sale of Goods Act-1895.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is hound, on request, to afford the buyer a reassnable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. PART

35. The buyer is cleenled to haw accepted the goods when he Acceptance.

intimates to tl1; seller that he has accepted them, or when the goods 66 & 57 Tic., ch. 71

have been delivered to him, and he does any act in relation to them ,	.	,	,	35.
which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goocls without intimating to the seller that he has rejected them,

36. IJnlcss othcrwise agreed, where goods are delivered to the Buyer not bound to

buyer, and he refuses to accept them, having the right so to do, he	return rejected good*.
is not bound to return them to the seller, but it is sugcient if he	Ib., sec. 36.
intimates to the sellcr that hc refuses to accept them.
37. When the seller is rendv and milling to deliver the goods, and requests the buyer to take delivery, and the buyer does not	Liability of buyer for neglecting or
refusing delivery
within a reasonable time after such request take deli~ery of the	of goods.
goods, he is liable to the seller for anv loss occasioned by his neglect	Ib., sec. 37.

or to take delivery, :-tnd dso for a reasonable charge for the

care and custody of the goods: Proviiled that nothing in this section shall affect the rights of the sellcr where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

PART IV.

RIGHTS OF UN'AID SELLER AGAINST THE GOODS.

38. (l) The seller of goods is deemed to be an L. unpaid seller " Unpaid sellrr defined.

within the meaning of this dct-

( n ) Wllen the whole of the price has not been paid or tendered:	Ib., sec. 38.
( h ) When a bill of exchange or other negotiable instrmnent has

been received as con& tionnl pay men t, and the conciitior~

on which it was received has not been fulfilled by reason of

the dishonor of the instrument or otherwise:

(2) I n this part of this 9 c t thc term "seller " inclucies 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 indorsed, or a, consignor or agent who has himself paid, or is directly reponsible for, the

price. .

39. ( 1 ) Subject to the provisions of this Act, and of any Statute Unpuid seller's rights.

in that behalf, notwithstanding that the property in the goocls may

have passed to the buyer, the unpaid seller of goods, ns such, has by	Ib., sec. 39.
implication of law-

(a)	A lien on the goods or right to retain them for the price while
he is in possession of them: (V In

12 58" & ' ~ 59' VICTORIE, No. 630.

The Sale of Goods Act-1895.

PART rv. (6) I n case of the insolvency of the buyer, a right of stopping the goods in transitzc after he has parted with the possession of

, them: .

( c ) h 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 with- holding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer.

Unpaid Sr Uer 'S L im.

Seller's lien. 40. (1) Subject to the provisions of this Act, the unpaid seller

56 & 57 Vic., ch. 71,

of goods who i s in possession of them is entitled to retain passession

sec. 41.

of them until payment or tender of the price in the following cases,

nalnely :-

( n ) Where the goods have been sold without any stipulation as

to credit:

( h ) Where the goods have been sold on credit, but the term of credit has expired:

(c) Where the b~lyer becomes insolvent:

The seller may exercise his right of lien notwithstanding that he is in possession of' the goods as agent, or bailee, or custodier for ( 2 )

the buyer.

Part deli~erq*. 41. Where m unpaid seller has made part deliverv of the

goo-ds, he may exercise his right of lien or retenhon on the rekainder, unless such part clelivery has been made under such circumstances

Ib., sec. 42.

ss to show a ; ageemend to waive the lien or right of retention.

Termination of lien. 42. ( 1 ) The unpaid seller of goods loses his lien or right of

~ b. , aec. 43. retention thereon-

(a) When he delivers t'he goods to a carrier, or other bailee, or custodier for the purpose of transmission to the buyer without reserving the right of disymal of the goods:

(6) When the buyer or his agent lmvfully obtains possession of

the goods:

(c) 13y waiver thereof.

(2) The urlpilid seller of ~oods, having a lien or right'of retention

thereon, does not lose his lwn or right of retention by reason only that he has obtained judgment or decree for the price of the goods.

~Stoyiuup in transitu..

Right of ato~page i*

transitcr.

43. Subject to the provisions of this Act, when the buyer of

goods becomes insolvent, the unpaid seller who has parted wiih the

Ib., sec. 44.

possession of the goods has the right of stopping them in transitu,

that

58" & 59' VICTORIA, No. 630.

The &le of Goods Act.--1895.

that is to say, he may resume possession of the goods as long as they

PABT W.

are in course of transit, and may retain them until payment or

tender of the price.

44. (1) Goods are deemed to be in course of transit from the Durationof transit.

time whin they are delivered to n carrier by land or water, or other

bailee or custodier, for the purpose of transmission to the buyer, sec. 45.

66 & 57 Tic., ch, 71,

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 the 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, a d 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 custotiier continues i11 possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive theill Back.

(3) JVhen goods are delivered to a ship chartered by the buyer,

it is x question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier

OF as agerit to the buyer.

(6) Where the carrier, or other bailee, or custodier wrongfully refuses to deliver the goods to the buver, or his agent in that behalf, the transit is decrned to be at anend.

( 7 ) Whcrc part delivery of the goods has been made to the buyer,

or his ament in that behalf, the remainder of the goods may be	stopped zn tl.nnsit?l, unless such part delivery has been made under P
such circumstances as to show an agreement to give up possession
of the whole of the goods.

45. (1) The unpaid seller may exercise his right of stoppage HOW stoppagein

in trcr.rasitu either by taking actual possession of the goods or by transitu is effected.

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 uotice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate i t to his servant or agent in time to prevent a delivery to the buyer.

(2) When notice of stoppage in transihb is given by the seller

to the carrier, or other bailee, or custodier in possession of the goods,

he ~uust 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. Re-NZ Ze

58" & 59' VICTORIAE, No. 630.

The Snle of Goods Act-1895.

Re-sate by Buyer or Seller.

Effect of sub-sale 46. Subject to the provisions of this Act, the unpaid seller's

pledge by buyer. right of lien or retention or stoppage ii17 bmsittr is not affected by

66 & 57 Vic., ch.	. 71, 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 docnment to a person who takcs 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 retentior~ or stoppage i n trnnsittc 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 iu tronsitrr c m oiily be exercised subject to the rights of the transferee,
sec. 47.
Sale not generally

rescinded by lien or 47. (1) Subject to the provisions of this section, x contract of

stoppage in transitzc.	sale is not rescinded by the mere exercise by an nnpnid seller of his
right of lien or retention or stoppage in trn~tsitn.
Ib., sec. 48.
(2) Where an unpaid seller who has exercised his right of lien or retention or stoppage in r r a ~ ~ s i t n re-sells the goods, the boyer
acquires a good title thereto as against the original buyer.
(3) Wllerc the goods are of a pe~ishable 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 tlie goods and recover from the original bnyer damages for any loss occasioned by his breach of contract.
(4) Where thc 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 origii~nl contract of sale is thereby rescinded, but without prejudice to any claim the seller may have
for damages.

PART T. PART V.

ACTIONS FOR BREACH OF THE CONTRACT.

Remedies of the Sellcr.

Action for price.

48. (1) Where, under a contract of sale, the property in the

goods has passed to the buyer, and the buyer wrongfully neglects or

Ib., sec. 49.

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 wroiigfully neglects or refuses to pay such price, the sellcr 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.

49. (1) Where

The Sale of Goods Act.-1895.

49. (1) Mrherc the buyer wrongfully neglects or refuses to PART V. .

accept and pay for the goods, the seller may maintain an action

Damages for non-

against him for damages for non-acceptance.

acceptance.

(2) The measure of damages is the estimated loss directly and

naturally resulting, in tlie ordinary course of events, from the

buyer's breach of contract.

56 & 67 Vic., ch. 71,

sec. 50.

(3) Where there is an available market for the goods in question, the measure of damages is prim4 f k c k to bc ascertained by the difference between the contract price and the market or current price a t the time or times when the goods ought to have bean accepted, or, if no time was fixed for nc~eptaace, then a t the time

of thc refusal to accept.

Rumrrli,>s of' the B?y~r.

50. (1) Where the d l e r wrongfully neglects or ref'uses to Dnmngos for non-

deliver the goods to the buyer, the huycr m a y tnaintain an action	delivery.
against the seller for damages for non-dolivery.	Ib., sec. 51.
(2) The n~easiire of damages is the estimated loss clir~ctly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.
(3) TVhere there is nn :I\-ailwble m:wket for the goods ill question the measure of da~nagcs is priuzci f i tc ie to be ascertained by the difference 11etwct.n the coritract price and the mnrkrt or current price of the goocls at tlie titnc or tiirxcs when thcy onglit to have beell deliverecl, or, if no time was fixed: then at the time of the refusal to &liver.

51, In any action for breach of contract to cleliwr specific or Specific p?rforrnaace.

ascertained goods the C'oart ~ l i ~ y, if it thinks fit, on the application 56 6 5 1 Tric., sec. 52.

of the plaintiff, by its judgment or decree direct that the contract - shall be pwformetl spwificnlly, witliout giving the defentinnt; the option of retaining the goods on payment of dnmnps. Thc juclg-	merit or dwree may bc ulironditional, or npon such terms and	conditions as to clamngos, payrrlent of the price, and otherwise as
to the Court may seem just, ancl the npplicntion by the plaintiff inay

be made a t any time befoi*o judgrr~mt or decree.

52, (1) Where there is n breach of ~var rmty by the seller, or Remedy for breach of

mhcre the buyer elects or is compclletl to treat anv breach of a wa"antY.

condition on the part of the sellelo as rr breach of 'warranty, thc 56 & 57ViP.,

s3.

buyer is not hy reason only of such 1,reach of warranty entitled to

reject the goods; but hc may-

( 1 1 )	Set up against the seller the brcaclx of wnrrinltp in diminution
or extinction of' the price; or

(b) Maintain an action against the seller for damages for the

breach of warranty:

(2) The measure of dainoges for breach of warmnty is the esti-

mated loss directly and n n t u d l y resulting, in the ordinary course of

events, from the breach of warranty. (3) h

16 58" & 59" VICTORIW, No. 630. !

The Sale of Goods Act.-1895.

PART v. (3) In the case of breach of warranty of quality, such loss is primri facie the difference between the value of the goods a t the

r	time df 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 special

53. 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

damages.

66 c 57 Tic., ch. 71, law interest or special damages may be recoverable, or to recover

eec. 54. money paid where the consideration for the payment of i t has

fkilecl.

Exclusion of implied

terms and conditions. tract of sale, by implication of lam, it may be neptised or varied 54. Where any right. duty, or liability would arise under a con-

~ b. , sec. 55. by express agreement, or by the course of deding between the parties, or by usage, if the usage be such as to bind both parties to the contract.

Reasonable time a

question of fact. 55, Where by this Act any reference is made to a reasonable

Ib., sec. 6 6. time, the qucstion what is a reasonable time is a question of fact.

Rights, &C., enforce-	56. Where any right, duty, or liability is clcclarecl by this Act,
able by action.

lb., sec. 57. it may, unless otherwise by this Act provicled, be enforced by action,

Auction sales. 57, I n the case of a sale by auction-

(1) Where goods are pat up for sale by auction in lots, each lot

is yrimB .fizcL~ deemed to be the subject of a separate contract of

sale.

~ b. , sec. 58.

(2) 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 n ~ a d e any bidder may retract his bid.

(3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, i t shall not he lawful for the seller to bid hirnsclf 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.

(4) A sale by auction may be notified to be subject to a reserved

or upset price, and a right td bid may also be resc~kxl	expressly by
or on behalf of the sellex.

Where

58" 8r 59" VICTORIB, No. 630.

The Bale of Gods Act,--1895.

Where a right to bid is expressly reserved, but not otherwise, the

or any one person on his behalf, may bid a t the auction.

58, The enactrnents mentioned in the Schedule to this Act shall have no force or effect within the Province of South Australia

66 & 57 Vio., oh. 71,

RS from the commencement of this Act, to the extent in that

aeo. 60.

Schedule mentioned: Provided that nothing herein contained shall

Schedule a ) b a.

affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest.

59, (1) The rules in insolvency relating to contracts of sale

shall continue to apply thereto, notwithstanding anything in this

lb., m. 61, -

Act contained.

altered.

(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, durcss, or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods.

(3) Nothing in this Act or in any repeal effected thereby shall

affect the enactments relating to bills of sale, or any enactment relating to the sale of goods, which is not expressly repealed by this Act.

(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 b y way of mortgage, pledge, charge, or other security.

60. (1) In this Act, unless the context or subject-matter other- Interpretation of

wise requires- tern.

" Action " includes counter-claim and set-off: lb., sec. 62, altered.

" Buyer " means a person who buys or agrees to buy goods:

" Contract of sale " includes an agreement to sell as well as a aale:

" Delivery " means voluntary transfer of possession from one

person to another:

"Document of title to goods " has the same meaning as i t has in

" The Mercantile Law Arnendmer!t Act, 1861 ":

" Fault " means wrongful act or default:

" Future goods " mean goods to be manufactured or acquired by

the seller after the making of the contract for sale:

" Goods " include all chattels ~ersonal other than things in action and money. 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 contract of sale: Plaintiff"

C-630

58' & $9' VICTORIfi, No. 630.

The Sale of Goods Act.-1895.

PABT vr.	Plaintiff " includes defendant counter-claiming:
Property " means the general property in goods, and not merely

a special property:

'' Quality of goods " includes their state or condition:

Sale " includes a bargain and sale as well as a sale and dclivery:

Seller " means a person who sells or agrees to sell goods:

Cc Specific goods " mean goods identified and agreed upon at the

time a contract of sale is made:

Warranty " means an agreement with reference to goods which

are the subject of a contract of salc, 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) 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.

(8) A person is deemed to he 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 insolvency or not, and whether

he has become an insolvent or not.

(4) Goods are in a " deliverable state " within the meaning of this Act when they are in such a state that thc.buyer would, under the contract, be bound to take delivery of them.

Commencement. $1, This Act shall come into operation on the first day of

January, one thousand eight hundred and ninety-six.

Bhort title. (32, This Act may be cited as The Sale of Goods Act, 1895."

In the name and on behalf of Her Majesty, I hereby assent to

this Bill.

T. FOWELL BUXTON, overn nor.

SCHEDULE.

No*

SCHEDULE.

This Schedule is to be read aa referring to the revised edition of the Statutes

p-epared under the direction of the Statute Law Committee.

--

Session and Chapter. Title of Act.

- -- l

l Jac. l, c. 21 . .. .. .. .. , An Act against Brokera. The whole Act.

An Act for the prevention of Frauds and Perjuries.

In part; that is to say, sections 15 and 16."

9 Geo. 4, c. 14. .. .. .. .. . An Act for rendering a Written Memorandum necessary to the validity of certain Promises and Engage-

ments. In part; that is to say, section 7.

* Commonly cited as sections 16 and 17.

-- -

Adelaide : By authority, C. E. Baxs~ow, Government Printer, North-temce.