Performance of the Contract
Section 31. Duties of seller and buyer.
The seller has a duty to deliver the goods to the buyer.
The buyer has a duty to accept the goods and pay for them.
These duties must be carried out according to the terms stated in the contract of sale.
Section 32. Payment and delivery are concurrent conditions.
Unless the parties agree differently, delivery of goods and payment of the price must occur at the same time.
So these obligations are concurrent conditions which means both conditions should be satisfied at the same time.
The seller must be ready and willing to deliver the goods in exchange for the price.
The buyer must be ready and willing to pay the price in exchange for possession of the goods.
Section 33. Delivery.
Delivery of goods can be made by any method the parties agree upon.
Delivery also occurs when the seller does anything that effectively places the goods in the buyer’s possession.
Delivery is also valid if the goods are placed in the possession of any person authorised by the buyer to hold them.
Section 34. Effect of part delivery.
When part of the goods is delivered as part of the process of delivering the entire quantity, then:
This partial delivery is treated the same as delivering the whole, for the purpose of transferring ownership.
This applies only when the intention is to complete delivery of the entire lot.
However, if part of the goods is delivered with the intention of separating it from the rest, that delivery does not count as delivery of the remaining goods.
So,
Partial delivery toward full delivery will count as delivery of the whole.
Partial delivery meant to separate goods does not transfer ownership of the rest.
Section 35. Buyer to apply for delivery.
Unless the parties have made a specific agreement stating otherwise, the seller is not obligated to deliver the goods on his own.
The buyer must apply for delivery.
The buyer can apply by request or demand that the goods be delivered.
Section 36. Rules as to delivery.
36(1).
Whether the buyer must take possession of the goods or the seller must send the goods to the buyer depends on the terms of the contract.
The terms of the contact can be either express or implied.
If the contract does not specify who is responsible for taking or sending delivery, the default rules apply.
Delivery place of the Goods
Goods that are already sold must be delivered at the place where they are located at the time of the sale.
Goods that are agreed to be sold later must be delivered at the place where they are located at the time of the agreement to sell.
If the goods do not yet exist at the time of the agreement, they must be delivered at the place where they are manufactured or produced.
36(2).
Sometimes the contract of sale requires the seller to send the goods to the buyer.
If the contract does not specify a time for sending the goods, another rule applies.
In such cases, the seller must send the goods within a reasonable time.
So, when no time is fixed, the seller must send the goods without unreasonable delay.
36(3).
Sometimes, at the time of sale, the goods are in the possession of a third person.
In such cases, there is no delivery from the seller to the buyer until the third person acknowledges to the buyer that he now holds the goods.
The third eprson will hold these goods on the buyer’s behalf.
This acknowledgment is necessary to complete delivery.
This rule does not affect the legal effect of issuing or transferring a document of title.
Such documents may themselves operate as delivery.
So, if someone else holds the goods, delivery happens only when that person agrees to hold them for the buyer unless a document of title is transferred.
36(4).
A demand for delivery by the buyer, or a tender of delivery by the seller, may be considered ineffective if made at an unreasonable hour.
Delivery-related requests or offers must be made at a reasonable time of day.
What counts as a reasonable hour depends on the specific facts and circumstances of each case.
So , delivery cannot be demanded or offered at odd or impractical times.
36(5).
Some goods may require preparation before they are ready for delivery.
Unless the parties agree otherwise, the seller must bear all expenses involved in putting the goods into a deliverable state.
This includes both the direct costs and any incidental expenses required to make the goods ready for delivery.
Section 37. Delivery of wrong quantity.
37(1).
If the seller delivers less quantity than what was agreed in the contract, the buyer has a choice
The buyer may reject the goods because the delivery is short.
However, if the buyer accepts the lesser quantity, he must pay for that quantity at the contract rate.
37(2).
If the seller delivers more goods than the quantity agreed in the contract, the buyer has options.
The buyer may accept only the quantity agreed in the contract and reject the excess.
The buyer may also choose to reject the entire delivery.
If the buyer decides to accept all the goods delivered, he must pay for the entire quantity at the contract rate.
37(3).
Sometimes the seller delivers the correct goods, but they are mixed with goods of a different description that were not part of the contract.
In such cases, the buyer has two options:
Accept the goods that match the contract and reject the rest,.
Reject the entire delivery.
37(4).
The rules in this section can be overridden by certain factors.
These factors include:
Usage of trade : Established customs or practices in a particular line of business
Special agreement : Any specific terms agreed upon by the parties.
Course of dealing : The way the parties have regularly conducted business with each other in the past.
Section 38. Instalment deliveries.
38(1).
Unless the parties have agreed differently, the buyer is not obliged to accept delivery of the goods in instalments.
So , the buyer can insist on receiving the entire delivery at once, unless an instalment arrangement has been agreed upon.
38(2).
Some contracts require goods to be delivered in instalments, with each instalment being separately paid for.
If the seller fails to deliver one or more instalments, or delivers them defectively, this may amount to a breach.
Similarly, if the buyer neglects or refuses to take delivery of or pay for one or more instalments, that too may amount to a breach.
In each situation, it must be determined based on the terms of the contract and the circumstances whether the breach:
Amounts to repudiation of the entire contract. (Cancellation of the entire contract).
is only a severable breach, which allows a claim for compensation but does not justify ending the whole contract.
Section 39. Delivery to carrier or wharfinger.
39(1).
Under a contract of sale, the seller may be authorised or required to send the goods to the buyer.
When the seller delivers the goods to a carrier for the purpose of sending them to the buyer, this is prima facie treated as delivery to the buyer.
It does not matter whether the carrier is chosen by the buyer or not.
Likewise, if the seller delivers the goods to a wharfinger for safe custody, this is also prima facie considered delivery to the buyer.
39(2).
Unless the buyer gives different instructions, the seller must make a reasonable contract with the carrier or wharfinger on behalf of the buyer.
What is considered reasonable depends on the nature of the goods and the circumstances of the case.
If the seller fails to make such a reasonable contract, and the goods are lost or damaged during transit or while with the wharfinger, the buyer has two options:
The buyer may refuse to treat the delivery to the carrier or wharfinger as delivery to himself.
The buyer may hold the seller liable for damages resulting from the loss or damage.
Section 40. Risk where goods are delivered at distant place.
Sometimes the seller agrees to deliver the goods at his own risk to a place different from where the goods were located at the time of sale.
Even in such cases, the buyer must bear the risk of natural or unavoidable deterioration that occurs during transit.
This applies unless the parties have agreed otherwise.
So , if the goods naturally deteriorate during normal transport, the buyer carries that risk, even though the seller agreed to deliver them at his own risk.
Section 41. Buyer’s right of examining the goods.
41(1).
Sometimes goods are delivered to the buyer without prior examination.
In such cases, the buyer is not considered to have accepted the goods immediately.
Acceptance occurs only after the buyer has had a reasonable opportunity to examine the goods.
The purpose of this examination is to check whether the goods conform to the contract.
The goods should match the description, quality, and terms agreed upon.
41(2).
When the seller offers (tenders) delivery of the goods, certain obligations arise.
Unless the parties have agreed otherwise, the seller must when the buyer requests give the buyer a reasonable opportunity to examine the goods.
The purpose of this examination is to check whether the goods match the contract in description, quality, and condition.
Section 42. Acceptance.
A buyer is considered to have accepted the goods in any of the following situations:
When the buyer informs the seller that he accepts the goods.
When the goods are delivered and the buyer performs any act inconsistent with the seller’s ownership, such as using, selling, or altering them.
When the buyer keeps the goods for a reasonable time without telling the seller that he rejects them.
Section 43. Buyer not bound to return rejected goods.
Sometimes the buyer has the right to refuse the goods delivered to him.
If the buyer lawfully refuses to accept the goods, he is not required to return the goods to the seller.
It is enough for the buyer to inform (intimate) the seller that he refuses to accept the goods.
Section 44. Liability of buyer for neglecting or refusing delivery of goods.
The seller may be ready and willing to deliver the goods and may request the buyer to take delivery.
If the buyer does not take delivery within a reasonable time after such a request, certain consequences follow.
The buyer becomes liable to the seller for:
Any loss the seller suffers because the buyer neglected or refused to take delivery.
A reasonable charge for the care and custody of the goods during the delay.
If the buyer’s neglect or refusal to take delivery amounts to repudiation of the contract then:
The seller’s legal rights in such a situation remain unaffected.
This means the seller can pursue remedies available for repudiation, such as damages or resale.
So,
If the buyer delays taking delivery, he must pay for losses and storage.
If the delay effectively cancels the contract, the seller retains all rights available for breach.
