The concept of specific goods and unascertained goods is crucial in the context of a contract of sale of

goods as it governs the moment of transfer of property.

Specific Goods:
 Specific goods are defined as "goods which are identified and agreed upon at the time the
contract of sale is made". This definition embraces nearly all the goods which people buy in
shops, market places, and supermarkets.
 In the context of transfer of property, the general rule is that 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 at the time when the contract is made. The time of payment or delivery being
postponed is immaterial.
 Source from "sale-of-goods-agency-hire-purchase-and-negotiable-instruments.pdf" also states
that ascertained/specific goods are "goods identified and agreed, upon at the time the
contract of sale is made".
Unascertained Goods:
 Unascertained goods are used in contradistinction to specific goods. This includes goods to be
manufactured or acquired by the seller after the making of the contract of sale.
 Source from "sale-of-goods-agency-hire-purchase-and-negotiable-instruments.pdf" provides
categories of unascertained goods:
 Goods to be manufactured by the seller.
 Crops to be grown by the seller.
 Purely generic goods.
 An unidentified portion of a special bulk or whole.
 Regarding the transfer of property, where there is a contract for the sale of unascertained or
future goods by description, the property in the goods does not pass to the buyer unless and
until the goods are ascertained or unconditionally appropriated to the contract so as to
bring them in a deliverable state.
 The term "unascertained goods" is also used in "Sale of Goods Act.wav" in the context that
ownership can't transfer until the specific goods being sold are clearly identified.
The distinction between specific and unascertained goods is important because it determines the precise
moment when the transfer of the property in goods takes place, which in turn affects issues like risk of
loss and the remedies available to the parties.
Based on the sources, the capacity to buy and sell goods is generally governed by the general law
concerning capacity to contract. This means that the same rules that determine whether a person can
enter into any legally binding agreement also apply to contracts for the sale of goods.
However, the sources highlight a specific exception concerning minors (infants) and persons of
unsound mind (or those incompetent to contract due to mental incapacity or drunkenness). When
necessaries are sold and delivered to such individuals, they must pay a reasonable price for them,
not necessarily the agreed price.
Necessaries are defined as goods which are suitable to the condition in life of the infant or other
incompetent person, and to their actual requirements at the time of sale and delivery. This implies
a context-dependent assessment of what constitutes necessaries.
In summary:
 The general rule is that capacity to buy and sell goods is determined by the general law of
contract.
 A specific exception exists for minors and persons of unsound mind (or those similarly
incapacitated).
 These individuals are liable to pay a reasonable price for necessaries sold and delivered to
them.
 Necessaries are defined based on the individual's condition in life and actual requirements at
the time of sale and delivery.
It's important to note that the sources do not delve deeply into the intricacies of the general law of
contract regarding capacity, but they establish the principle that it is the overarching legal framework,
with a specific provision addressing vulnerable individuals in the context of essential goods.

Drawing on the provided sources, here's a distinction between a sale of goods contract and hire
purchase, barter or exchange, gift, bailment, and a contract for work and labour:
Sale of Goods Contract:
 A sale of goods is defined as "a contract whereby the seller transfers or agrees to transfer
the property in goods to the buyer for a money consideration called the price".
 The essential elements include two distinct parties (buyer and seller), a transfer of property
(ownership) in goods, and a money consideration (price).
 A key characteristic is that ownership of the goods passes from the seller to the buyer. If the
transfer is immediate, it's a "sale"; if delayed, it's an "agreement to sell".
Distinction from Other Transactions:
 Hire Purchase:
  A hire-purchase agreement is an agreement for hiring goods with an option to
purchase them.
 Unlike a sale of goods, in hire purchase, ownership (property in goods) remains with
the owner (not the hirer) until the last and final installment is paid.
 The hirer only has possession and custody of the goods upon signing the agreement.
 Hire purchase is governed by the Hire-Purchase Act, whereas a sale of goods is
governed by the Sale of Goods Act.
 The hirer has the option to terminate the agreement before the due date.
 Barter or Exchange:
 A sale of goods requires a "money consideration" (price).
 In barter or exchange, the consideration is goods and not money. If goods are
exchanged for other goods, the transaction is a barter, not a sale of goods. However, if an
agreement involves the exchange of goods with a difference in value paid in cash, it may
still be considered a sale of goods.
 Gift:
 A sale of goods is based on a contractual relationship with a money consideration.
 A gift involves a transfer of property without any consideration from the recipient
[This is not explicitly mentioned in the sources, but is a fundamental legal concept].
 Bailment:
 Bailment is the delivery of goods by one person (bailor) to another (bailee) for a
specific purpose, with the stipulation that the goods will be returned to the bailor or
disposed of according to their directions once the purpose is accomplished [This
definition is a common legal understanding of bailment and is not directly stated in the
provided sources. You may want to independently verify this definition].
 The crucial difference from a sale of goods is that bailment does not involve the
transfer of ownership of the goods. The bailee only has possession of the goods for a
specific purpose, while the bailor retains ownership. In a sale of goods, the seller
transfers or agrees to transfer ownership to the buyer.
 Contract for Work and Labour:
 In a contract for work and labour, the primary object is the provision of services or
the exercise of skill and labour, even if it results in the production of a good. The
payment is primarily for the work done.
 A sale of goods, on the other hand, has its primary object as the transfer of ownership
of goods for a price. The distinction lies in the essence of the contract: is it the transfer
of a chattel as such, or is it the skill and labour applied to produce a certain result, where
the delivery of a chattel is ancillary. The case of Robinson v Graves illustrates this,
where an agreement for a portrait was held to be a contract for work and materials, not a
sale of goods, because the substance of the contract was the artist's skill.
Based on the sources, here's an explanation of the meaning of "goods", "specific goods", and "future
goods":
Meaning of "Goods":
 According to the Sale of Goods Act (cap 31), which is a reproduction of the English Sale of
Goods Act 1893 and part of Kenya Law, the term "goods" includes "all chattels personnel
other than things in action and money".
 This covers anything that can be touched, moved, or taken away.
 However, it does not cover land and other species of commercial property such as shares,
debts, etc., which cannot be physically moved.
 "Money" may exceptionally be considered "goods" if bought or sold as a curio (e.g., by a coin
collector). However, money used as currency or legal tender cannot be sold as "goods" (e.g.,
a foreign exchange transaction at a bank).
 The term "goods" also includes "all emblements (annual growing crops and produce or
profits of such crops)", "industrial growing crops e.g. tobacco, cotton e.t.c.", and "things
attached to or forming part of the land which are agreed to be severed before sale or
under the contract of sale".
Specific Goods:
 Specific goods are "goods which are identified and agreed upon at the time the contract of
sale is made".
 This definition embraces nearly all the goods that people buy in shops, marketplaces, and
supermarkets.
 In our previous conversation, we also referred to these as "ascertained/specific goods", stating
they are "goods identified and agreed upon at the time the contract of sale is made" [Our
conversation history].
 The distinction between specific and unascertained goods is important because it governs
the moment of transfer of property.
Future Goods:
  Future goods are "goods to be acquired or manufactured by the seller after the contract is
made".
 The source "sale-of-goods-agency-hire-purchase-and-negotiable-instruments.pdf" further
clarifies that future goods are "Goods to be manufactured, produced or acquired by the
seller after the making of the contract of sale". An example provided is an agreement to sell
all the milk a cow may yield in the coming year.
 In a contract for the sale of unascertained or future goods, the "property in goods does not
pass to the buyer unless and until the goods are ascertained or unconditionally
appropriated to the contract so as to bring them in a deliverable state".
In summary: goods are generally movable personal property, specific goods are those identified at the
time of the contract, and future goods are those to be acquired or manufactured after the contract is
made. The classification of goods is crucial for determining when ownership transfers from the seller to
the buyer.
Based on the sources, a contract for the sale of goods includes both express terms and implied terms.
Express Terms:
 Express conditions and warranties are those that are clearly stated in the contract of sale.
 For example, if Sonia buys a Nokia Cellphone, model No. 1500, the Model No. is an express
condition. Similarly, a one-year warranty stated in the sale document is an express warranty.
 The common law relies on the intention of the parties as the basis for classifying express
terms.
Implied Terms:
 Implied conditions and warranties are not expressly included in the contract but are
presumed by law to exist in every contract of sale of goods unless they are specifically
excluded from the terms of the contract. These are incorporated into the contract by the Sale
of Goods Act.
 Implied terms are intended to protect the buyer against certain unfair consequences.
 An implied warranty is read into every contract of sale unless expressly excluded by the
express agreement of the parties, by the course of dealings between the parties, or by usage
of trade.
Implied Conditions:
The sources list several types of implied conditions:
 Condition as to title (Section 14 A): It is implied that the seller has the right to sell the goods
as the rightful owner or authorized agent. In an agreement to sell, the seller has the right to sell
at the time of sale. Breach of this allows the buyer to terminate the contract and recover the full
price, as seen in Rowland v. Divall, where a stolen car was sold. The case of Niblett v.
Confectioners’ Material Co. also illustrates a breach where the seller was restrained from selling
due to trademark infringement.
 Sale by Description (Section 15): Where goods are sold by description, there is an implied
condition that the goods shall correspond with the description. This applies when the buyer is
relying on the description alone. An example is "seedless pears" which must have no seeds. The
case of Andrews Bros. V. Singer & Co. shows a breach when a "new Singer Car" supplied was
not new.
 Sale by Sample (Section 17): Where a sample is provided, there's an implied condition that the
bulk shall correspond with the sample in quality and that the buyer has a reasonable
opportunity to compare the bulk with the sample. The goods must also be free from any
unmerchantable defect not apparent on reasonable examination of the sample.
 Sale by Sample and Description (Section 15): If goods are sold by both sample and
description, the bulk must correspond with both.
 Condition for fitness and quality [Section 16 (i)]: When the buyer makes known to the seller
the particular purpose for which the goods are required and relies on the seller's skill or
judgment, there is an implied condition that the goods shall be reasonably fit for that
 purpose. This is particularly relevant when the seller deals in goods of that description. The
case of the hot water bottle bought from a chemist illustrates this. Similarly, false teeth bought
from a dentist that did not fit were a breach.
 Condition as to Merchantability [Section 16(2)]: Where goods are bought by description from
a seller who deals in goods of that description, there is an implied condition that the goods shall
be of merchantable quality. This means the goods should be fit for resale (if bought for resale)
or usable for their intended purpose (if bought for use). This condition applies even if the goods
are sold under a patent or trade name and whether or not the buyer relies on the seller's skill.
However, it does not apply to defects that the buyer has examined and were evident. The Grant
v. Australian Knitting Mills case illustrates this with harmful hidden sulphites in underwear.
 Condition as to wholesomeness: In the case of goods for human consumption (eatables),
there's an implied condition that the goods shall be wholesome, i.e., fit for the purpose of
consumption. This is considered part of the condition as to merchantability. Frost v. Aylesbury
Dairy Col Ltd. demonstrates a breach of this condition when milk was contaminated.
 Condition implied by custom [Section 16(3)]: An implied condition as to quality or fitness for
a particular purpose may be attached by the usage of trade.
Implied Warranties:
The sources also outline several implied warranties:
 Warranty as to Quiet Possession [Section 14(b)]: There is an implied warranty that the buyer
shall have and enjoy quiet possession of the goods. Breach of this gives the buyer the right to
claim damages. This warranty applies not just at the time of sale but also in the future, as seen
in Microbeads v Vinhurst Road Markers Limited.
 Warranty as to Non-Existence of Encumbrances [Section 14(c)]: There is an implied
warranty that the goods are free from any charge or encumbrance in favour of any third
person if the buyer is not aware of it. Breach allows the buyer to claim damages. The
illustration of the hypothecated radio being sold demonstrates this.
 Warranty to Disclose Dangerous Nature of Goods: In the case of goods of a dangerous
nature, the seller must disclose or warn the buyer of the probable danger. Failure to do so
may make the seller liable for breach of implied warranty. The Clarke v. Army and Navy
Cooperative Society Ltd. case involves disinfectant powder requiring specific opening
instructions.
 A warranty may be annexed by trade custom.
Relationship Between Express and Implied Terms:
 Generally, implied conditions and warranties apply unless excluded or varied by express
agreement, by the course of dealing between the parties, or by usage of trade.
 However, an express condition does not negate a condition implied by the Act unless they
are mutually inconsistent.
 Importantly, an express warranty cannot negate the effect of an implied condition. The case
of Baldry v Marshall illustrates this, where an exclusion clause for warranties did not exclude
liability for the implied condition of fitness for a particular purpose.
  In case of conflict between express and implied warranties, the express terms shall prevail,
and the implied terms shall not be considered.
In summary, both express terms (explicitly stated) and implied terms (legally presumed) form part of a
contract of sale of goods. Implied conditions are fundamental and their breach can allow the buyer to
repudiate the contract, while implied warranties are less critical, with breach leading to a claim for
damages. Express terms can modify implied terms to some extent, but there are limitations, particularly
concerning implied conditions.
Based on the sources, buyers and sellers enjoy various rights and remedies under a contract of sale.
Rights and Remedies of the Seller:
The seller primarily has rights related to receiving payment for the goods sold. When the buyer
breaches the contract, the seller has several remedies:
 Action for Price:
 The unpaid seller has a right of action against the buyer for the price of the goods if
the property in the goods has passed to the buyer, and the buyer wrongfully refuses to
pay according to the contract.
 This right also exists if the buyer has agreed to pay for the goods on a certain day, and
wrongfully refuses to pay, even if the property has not passed.
 Action for Damages for Non-Acceptance:
 If the buyer wrongfully neglects or refuses to accept and pay for the goods (i.e., the
property has not passed), the seller can sue for damages for non-acceptance.
 The amount of damages is the estimated loss caused by the buyer's breach of
contract. This is typically the difference between the contract price and the market price
at the time the goods should have been accepted. However, if there is no available
market, the damages can be the lost profit.
 Rights of the Unpaid Seller Against the Goods: If the seller hasn't been paid the full price,
they have certain rights over the goods themselves, even if the property has passed to the buyer:
 Right of Lien: An unpaid seller in possession of the goods can retain possession until
payment if the goods were sold without credit, the credit term has expired, or the buyer
becomes insolvent. The lien is lost if the seller delivers the goods to a carrier without
reserving the right of disposal, the buyer lawfully obtains possession, or the seller
waives the lien.
 Right of Stoppage in Transitu: If the buyer becomes insolvent while the goods are in
transit (i.e., with a carrier), the unpaid seller can stop the goods and resume possession
until payment. This right ends when the buyer takes delivery.
 Right of Resale: The unpaid seller has a limited right to resell the goods in certain
circumstances: if the goods are perishable, if the seller gives notice to the buyer of their
intention to resell and the buyer doesn't pay within a reasonable time, or if the right to
resell was expressly reserved in the contract. If the seller resells, the original contract is
rescinded.
Rights and Remedies of the Buyer:
The buyer primarily has rights related to receiving goods that conform to the contract and remedies if
the seller breaches their obligations.
 Right to Delivery of Conforming Goods: The buyer has the right to receive goods that meet
the express and implied conditions and warranties of the contract regarding title, description,
sample, quality, fitness, and merchantability.
 Remedies for Breach of Condition: If the seller breaches a condition, which is essential to the
main purpose of the contract, the buyer has the right to:
 Repudiate (reject) the contract: The buyer can refuse to accept the goods or return
them and is entitled to a refund of the price paid. Illustration 1 shows Sita returning a
wet grinder that was unfit for purpose and getting a refund.
 Sue for damages: In addition to repudiation, the buyer can also claim damages for any
loss suffered due to the breach of condition.
 Treat the breach as a breach of warranty: The buyer may choose to waive the
condition and only claim damages, accepting the goods. This is also the case if the buyer
has already accepted the goods (in which case the contract cannot be terminated), or if
the condition is waived by the buyer.
 Remedies for Breach of Warranty: If the seller breaches a warranty, which is collateral to the
main purpose of the contract, the buyer is:
 Entitled to sue for damages only: The buyer cannot reject the goods or terminate the
contract based solely on a breach of warranty. Illustration 2 shows Varuna claiming
compensation for a sofa-cum-bed that broke, and Illustration in shows Malti claiming
damages for a non-waterproof eyeliner.
 Set up the breach of warranty in diminution or extinction of the price: If the buyer
hasn't fully paid, they can reduce the price owed by the amount of damage suffered due
to the breach.
 Suit for Damages for Non-Delivery: If the seller wrongfully neglects or refuses to deliver
the goods, the buyer can sue for damages for non-delivery. The measure of damages is the
estimated loss directly and naturally resulting from the seller's breach, usually the difference
between the contract price and the market price at the time of delivery.
 Suit for Specific Performance: In cases of breach of contract to deliver specific or
ascertained goods, the court may order specific performance, requiring the seller to deliver
the specific goods, rather than just paying damages. This is usually granted when the goods are
unique or of special value.
 Recovery of Price: If the buyer has paid the price and the goods are not delivered or are
defective leading to rejection, the buyer can sue for the recovery of the price paid, along with
interest.
 Rejection of Goods: The buyer has the right to reject the goods if they do not conform to the
conditions of the contract, such as in sale by description or sample if the bulk doesn't match.
However, the right to reject may be lost if the buyer has accepted the goods.
It's important to note the distinction between conditions and warranties. A breach of a condition gives
more significant remedies to the buyer, including the right to end the contract, while a breach of
warranty primarily allows for a claim of damages. However, under certain circumstances, a breach of
condition can be treated as a breach of warranty.

Drawing on the sources and our previous discussion, conditions and warranties are crucial terms in a
contract of sale under the Sale of Goods Act. Both represent promises made by the seller, but they
differ in their significance to the contract.
Conditions:
 A condition is a stipulation essential to the main purpose of the contract. Its non-fulfilment
defeats the very purpose of the buyer.
 According to Section 12(2), a condition is a stipulation essential to the main purpose of the
contract, the breach of which gives rise to a right to treat the contract as repudiated. This
means the buyer can end the contract, return the goods, and get their money back.
 A breach of condition can also be considered a breach of warranty.
 Illustrations of Breach of Condition:
 Sita bought a wet grinder for a specific purpose known to the seller, but it was unfit for
that purpose. This was a breach of an express condition, entitling Sita to return the
grinder and get a refund.
 Baldry told a car dealer he wanted a car for touring, and the dealer suggested a Bugati.
The car was unsuitable for touring. The court ruled the suitability was a condition,
allowing Baldry to return the car and get a refund.
 In a sale by description of "seedless pears," if the fruit has seeds, it's a breach of an
implied condition, and the buyer can reject the contract.
 If goods sold by sample and description do not correspond with the description, even if
they match the sample, it's a breach of condition, and the buyer can reject them.
 Types of Conditions:
 Express Conditions: Clearly stated in the contract of sale. For example, the model
number of a cellphone.
 Implied Conditions: Presumed by law in every contract of sale unless specifically
excluded. These relate to:
 Title (Section 14 A): The seller has the right to sell the goods. If the seller does
not have rightful ownership, the buyer can terminate the contract and recover the
price.
  Sale by Description (Section 15): Goods must correspond with the description.
 Sale by Sample (Section 17): The bulk of the goods must correspond with the
sample in quality, the buyer must have an opportunity to compare, and the goods
must be free from hidden unmerchantable defects.
 Sale by Sample and Description (Section 15): Goods must correspond with
both the sample and the description.
 Condition for Fitness and Quality [Section 16 (i)]: Goods should be fit for the
particular purpose made known to the seller, relying on the seller's expertise.
 Condition as to Merchantability [Section 16(2)]: Goods must be of
merchantable quality if bought by description from a seller who deals in such
goods.
 Condition as to Wholesomeness: Goods for human consumption must be fit for
that purpose; considered part of merchantability.
 Condition implied by custom [Section 16(3)]: Quality or fitness for a particular
purpose may be implied by trade usage.
Warranties:
 A warranty is a stipulation collateral to the main purpose of the contract. Its non-
fulfilment does not defeat the very purpose of the buyer.
 According to Section 12(3), a warranty is a stipulation collateral to the main purpose of the
contract, the breach of which gives rise to a claim for damages but not the right to reject
the goods and to terminate the contract. The buyer can claim compensation for the loss
suffered.
 A breach of warranty cannot be considered a breach of condition.
 Illustration of Breach of Warranty:
 Varuna bought a sofa-cum-bed with an implied warranty that it could be used as both.
When it broke as a bed, Varuna could claim compensation.
 A shopkeeper stated an eyeliner was waterproof, but it wasn't. This was a breach of
warranty, and Malti could claim damages.
 Types of Warranties:
 Express Warranties: Clearly stated in the contract of sale. For example, a one-year
warranty on a cellphone stated in the sale document.
 Implied Warranties: Presumed by law in every contract of sale of goods unless
specifically excluded. These include:
 Warranty as to Quiet Possession [Section 14(b)]: The buyer shall have and
enjoy quiet possession of the goods. Breach allows the buyer to claim damages.
 Warranty as to Non-Existence of Encumbrances [Section 14(c)]: The goods
are free from any charge or encumbrance in favor of a third person, if the buyer
is not aware. Breach allows the buyer to claim damages.
 Warranty as to Quality or Fitness for a Particular Purpose which may be
Annexed by the Usage of Trade [Section 16(3)]: Relates to quality or fitness
attached by trade usage.
  Warranty to Disclose Dangerous Nature of Goods: The seller must warn the
buyer of probable danger in dangerous goods. Failure to do so makes the seller
liable for breach of implied warranty.
Distinction between Conditions and Warranties:

Basis of
Conditions Warranties
Distinction
Essential vs. Very important for the purpose of the Collateral to the main purpose of the
Collateral contract. contract.
Party can bring the contract to an end and
Effect of Breach Party can only claim damages.
claim damages.
A breach of condition can also be A breach of warranty cannot be
Relationship
considered a breach of warranty. considered a breach of condition.
When a Condition can be treated as a Warranty:
According to Section 13, a breach of condition can be treated as a breach of warranty in the following
situations:
 Where the buyer waives the condition.
 Where the buyer chooses to treat the breach of condition as a breach of warranty and only
claims damages.
 Where the buyer has accepted the goods, whole or in part. In this case, the contract cannot be
terminated, and the buyer can only claim damages.
Understanding the difference between conditions and warranties is essential as it dictates the remedies
available to the buyer in case of a breach by the seller.