INTRODUCTION
One of the contract mostly performed in any society is the contract of sale of goods, it is
said so because we gets our daily needs like food, clothes, beverages and other personal
property like shoes, television, cars, books by performing this kind of contract. In
Tanzania all contract of sale of goods is governed by two statutes, that’s, The Law Of
Contract Act1 and The Sales Of Goods Act.2
Hence in respect of foregoing discussion, the first concern will base on giving concept of
key terms in a question and the then the discussion will go to the root of the question
which needs to discuss duties and rights of a seller with relevant authority.
MEANING OR CONCEPT OF TERMS
The main terms which will be discussed are seller, contract of sale of goods, duties and
rights.
A seller is a person who sales or agrees to sell goods.3 Also it is defined as a party to a
contract of sale of goods who transfer or agrees to transfer ownership of the goods to the
buyer.4
A contract of sale of goods is a contract whereby the seller transfer or agrees to transfer
the property in goods to the buyer for a money consideration, called the price, and there
may be a contract of sale between one party owner and another.5 Moreover it is defined
by Oxford Dictionary of Law (supra) as a contract by which a seller transfers or agrees to
transfer the ownership of goods to a buyer in exchange for money price.
Duties, according to Oxford Dictionary of Law it is a legal requirement to carry out or
refrain from carrying out any act. Also it is defined to mean something that you feel you
have to do because it is your moral duty or legal responsibility.6
So it can be said that duty it is something that you have to do because it is part of your
work or job.
Rights it is defined as an interest or privilege recognized and protected by law.7
MAIN BODY
THE DUTIES OF A SELLER
In the performance of a contract of sale of goods both parties (buyer and seller) has some
obligation towards another for the betterment of their contract. Hence as question
requires the following are the duties of a seller.
The duty to make sure the goods exist at the time of contracting seller, has this duty
especially on sale of specific goods this are the goods identified and agreed upon at the
time the contract of sale is made.
1
[ cap 433 RE 2002] 8. S 2(1) of cap 214 ibid
2
[ cap 214 RE 2002]
3
S.2(1) Ibid
4
Oxford dictionary of law, 15 Ed, 2002, pg 453
5
S.3(1) of [cap 214] ibid
6
Oxford Advanced learners Dictionary, 6th ed, 2002, pg 364
7
Oxford Dictionary of Law, ibid pg 435
So the seller has this obligation failure to comply with will led to the breach o contract
as it was stated in Bell Vs Lever Bros Ltd8 where Lord Atkin was of the view that at the
time of contracting whether the defendant contracted that the good existed or was there
implied condition that the goods existed? And if there is no goods existed there would be
no contract. This was also seen in McRae Vs Commonwealth Disposal Commission 9
whereby defendants were held liable for breach of contract as during contracting there
was implied condition that goods where in existence on specified place but it was later
found out that, there was no tanker and even the ship has never existed. This kind of
obligation to the seller has also discussed in detail in Coutier Vs Hastie.10
The duty to pass goods title, according to S.3(1) of Cap 214 in a contract of sale of
goods there must be a transfer of property from the seller to the buyer for considerable
price or money. Here transfer of property means pass of title of ownership of property.
The leading case which discussed this duty was of Rowland Vs Divall11 on of the held in
this case was that ;
“The object of sale is surely to transfer to the buyer the use and enjoyment of
the good free from any adverse from third party claim…”
This observation was also seen in Butterworth Vs Kingsway Motors Ltd.12 Also in
Payne Vs Elsden13where it was held that goods seized are sold under distress warrant, for
instance, are without any warrant of title.
So in sale of goods seller has an implied obligation of passing title of ownership to the
buyer as it may led to the breach of contract.
The duty to deliver goods, it is the seller’s obligation to deliver goods if it is stipulated
on agreed terms of a contract. Delivery of goods means voluntary transfer of possession
of goods from one person to another, if the transfer of possession is obtained under pistol
point or by theft there is no delivery 14 according Kuchhal there are three modes of
delivery of goods thus;
Actual delivery; where goods are physical handed by the seller or his agent to the buyer
or his authorized agent. Here the delivery is said to be actual.
Symbolic delivery; here the goods remain where they are (probably because their bulky)
but the means of obtaining possession of goods is delivered example handing over the
key of the go down.
Constructive delivery or delivery of attornment; such delivery took place when the person
in possession of the goods of the seller acknowledges in accordance with the seller’s
order that he holds the goods on behalf of the buyer and the buyer has assented to it this
was stated In Dixon Vs Yates15
8
[1932] AC 161
9
(1951) 84 CLR 377
10
(1856) 5HLC 673
11
[1923] 2 KB 500
12
[1954] 1 WLR 1286
13
[1900] 19 TLR 161
14
MC Kuchhal, Bussiness Law ,pg 273
15
5B & A 313
The duty to supply goods at the right time, according to S.31(1) of Cap 214 states inter
alia that if the seller is to supply goods to the buyer it depends on the terms of the
contract agreed between the two parties and S.31(2) of the same Cap states if the terms
agreed is to deliver goods at specific time or if there is no such agreement the seller must
deliver goods at a reasonable time. In Tanzania case of Tanzania Transport Co Ltd Vs
D. G. Dauda and Others16where it was held that failure to deliver goods to the buyer at
the time and place agreed will amount to the breach of contract. Furthermore in Hartley
Vs Hymans 17whereby it was held in ordinary commercial contract for the sale of goods
the rule is clearly that time is prema facie of the essence with respect to delivery. In
Bowes Vs Shand 18 it was also stated that failure to comply with stipulations of contract
the other party may treat it end. Not only that but also in Thomas Borthwick ( Glasgow
) Ltd Vs Bunge and Co Ltd 19 where it was held that failure to deliver within a
reasonable time ( like failure to deliver within a specific time ) may amount to breach of
condition by the seller.
Hence a seller has an obligation to make sure he delivers goods on time as it might led to
loss on both sides example if one orders a food for part if the seller delivers goods after
party done the buyer may reject them then it will be loss in his business.
The duty to supply goods in the right quantity, the seller has an obligation of
delivering goods at the right quantity as agreed with the buyer during contracting.
According to S. 32 of Cap 214 (supra) if the seller supply goods in lesser amount than
agreed or larger quantity the buyer might do the following;
i. To reject the whole, or
ii. To accept the whole, or
iii. To accept the quantity and he ordered and reject the rest of the goods
delivered20
This duty was also discussed in Drewno Vs Fenwick and Co Ltd 21where by the seller
sold timber of specific measurement to the buyer there where certain permuted but
strictly defined variation from this specification. Slightly under one percent of timber
failed to comply with the contract requirements. In was held that buyer were entitled to
reject the goods since it is the duty of the seller to make sure that goods supplied are in a
specific quantity as required.
The duty to supply goods of the merchantable quality and in a reasonable condition;
goods should be fit for human conception this according to S. 16 of Cap 214.
It is the duty of the seller to make sure that the goods he supply is fit and safe for human
consumption as the buyer trust to him that e will not supply goods which are unfit and
can cause injuries to him as discussed in Grant Vs Australian Knitting Mills Ltd. In
16
[1974] LRT 114
17
[1920] 3 KB 475
18
(1877) 2 AC 455
19
[1969] 1Lloyds Rep 17
20
M C Kuchhal, Bussiness Law, 3rd Ed, 1999, pg 276
21
[1938] 3 All ER 429
Tanzania this duty was discussed in Magirini Mahinya Vs Mbwiga Mkeya22 whereby
Machame J held that goods to be delivered should be in a reasonable condition failure to
do so would amount to breach of implied warrant on his part. Moreover in Arcos Ltd Vs
E A Ronaasen & Son 23 in which it was stated that buyers are entitled to reject the goods
as the seller delivers staves of different quality than what conformed in a contract. Also
this was discussed in Robert Monroe and Co Ltd Vs Meyer24were meat was unfit for
human use.
RIGHT OF THE SELLER
The following are the right of the seller;
Right to resale; is a very valuable right given to unpaid seller. In case the buyer remain
in fault, unpaid seller has the limited right to resale the goods. A seller mayexercise this
duty when;
The goods are perishable in nature or,
In case the buyer make a default
Where the seller has given a notice to the buyer of his intention to resale and the
buyer does not pay or tender the price within a reasonable time
Under S. 49(3) of Cap 214 state inter alia that if the unpaid seller resale the goods and
loss occurs, the seller can recover it from defaulting buyer. However where there is
surplus the seller can keep it because the buyer can not be allowed to take advantage of
his own wrong.
Right to lien; is the right to retain possession of goods and refuse to deliver the to the
buyer until the price due in the respect of the is paid or tendered25 this right arises when;
Goods has been sold without any stipulation as to credit
Goods are sold on credit but terms of credit has passed
Where the buyer becomes insolvency even though the period of credit may have not
expired as in Griffith Vs Perry26 in the Sales of Goods [Cap 214 Re 2002] S. 42 (1) and
S. 41(1) (a) sellers lien is discussed.
Right of stoppage of goods in transit; under S.41(1)(b) of Cap 214, this means that
right of stopping further transit of the goods while they with carrier for them and
retaining the possession until payment or tender of the price.
This can be said to the extension of right of lien since it entitles the seller to regain
possession even when the seller has parted with the possession of the goods this is also
stated under S.45 of the same Act.
Reservation of right of disposal; seller has the right to reserve disposal of the goods
until certain condition (payment of price) are fulfilled. The seller may reserve that right
expressly while making contract or while making appropriation of uncertain goods.S.21
22
[1989] TLR 185
23
[1933] AC 470
24
[1930]2 KB 312
25
MC Kuchhal op cit pg 281
26
(1859) 16 & E 680
of Cap 214. the delivery of goods to the buyer or carrier does not pass until the
conditions imposed by the seller are fulfilled.
Right of unpaid seller
Right to suit for the price; where the buyer wrongfully neglect or refuse to pay the
price according to the terms of contract the has the right or is entitled to sue the buyer for
the price this is according to S. 50(1) of Cap 214.
Right to suit for damages for non acceptance; the seller may sue for damages for non
acceptance where the buyer wrongful neglect or refuse to accept and pay for the goods.
For this the sellers remedy is suit for damages rather than action for the full price of the
goods this was stated in Chauter Vs Sulliran27. The damages is estimated directly and
naturally resulting in the ordinary course of event from the buyers breach of contract
under S. 51 of Cap 214 one of the which damages to the seller was Thomson Ltd Vs
Robinson28 where by damages where assessed on basis of profit cost.
CONCLUSION
This paper can therefore be concluded that in any contract there must be rights and duties
in order for law to be just not only that but also parties to a contract must know their
duties and right so as to enforce law in case there is any breach as above explained.
27
(1957) 2QB 117
28
(1957) Ch 117
BIBLIOGRAPHY
STATUTE
Tanzania Government of, The Sales Of Goods Act [Cap 214 RE 2002], The
Government Printers, Dar-es-Salaam.
BOOKS
Anderson, R. A (1980) Business Law, 11th Ed, South-Western Publishing Co, Ohio
Atiyah, P. S (1985) The Sales Of Goods, 7th Ed, Pitman Publishing, Great Britain
Hornby, A. S (2002) Oxford Advanced Learners Dictionary, 6th Ed, Oxford University
Press, New york
Kuchhal, M. C (1999) Business Law, 3rd Ed,
Martin, E. A (2003) Oxford; Dictionary of Law, 5th Ed, Oxford University Press, New
York.
OUTLINE OF THE QUESTION
INTRODUCTION
o -Introductory remarks of the question
o -Meaning and concept of terms
MAINBODY
-DUTIES OF THE SELLER
The duty to make sure that goods exist
The duty to pass goods title
The duty to deliver goods
The duty to supply goods at the right time
The duty to supply good in the right quantity
The duty to supply goods of the merchantable quality and
reasonable condition
-RIGHTS OF THE SELLER
Right to resale
Right to lien
Right of stoppage of goods in transit
Reservation of right of disposal
Right to suit for the price
Right to suit for damages for non acceptance
CONCLUSION
BIBLIOGRAPHY
( MU)
MZUMBE UNIVERSITY
MBEYA CAMPUS
FACULTY OF LAW
COURSE: LLB III 2007/2008
SUBJECT: THE SALE OF GOODS AND AGENCY (LAW 354)
NAME OF STUDENT: MOSSIE KAIMA
NAME OF A LECTURER: MR ROSS KINEMO
NATURE OF WORK: INDIVIDUAL ASSIGNMENT
SUBMISSION DATE: 14TH DECEMBER 2007
QUESTION:
Out line and discuss the duties and rights of the seller.
By using relevant authorities and cases
