SALE
OF GOODS ACT, 1962 (ACT 137)
ARRANGEMENT OF SECTIONS
Section
PART I—NATURE AND FORMATION OF THE
CONTRACT
1. Contract of sale.
2. Capacity to buy and sell.
3. Contract of sale, how made.
4. Auction sales.
5. Specific and unascertained
goods.
6. The price.
7. Agreement to sell at
valuation.
PART II — DUTIES OF THE SELLER
Fundamental Obligation of the
Seller
8. Fundamental obligation of the
seller.
Existence of the Goods
9. Implied condition that specific
goods are in existence.
Undertakings as to Title
10. Implied undertakings as to
title.
Quality and Quantity of the Goods
11. Sale by description.
12. Sale by sample.
13. Quality and fitness of the
goods.
14. Quantity of goods.
Delivery of the Goods
15. Delivery concurrent with
payment.
16. Time of delivery.
17. Cost of putting goods into
deliverable state.
18. Means of delivery.
19. Place of delivery.
20. Despatch of goods by carrier.
PART III — DUTIES OF THE BUYER
21. Fundamental obligations of
the buyer.
22. Payment concurrent with
delivery.
23. Time of payment and accepting
delivery.
24. Buyer not bound to accept
delivery by instalments.
PART IV —TRANSFER OF PROPERTY AND
RISK
Transfer of Property
25. Goods must be ascertained.
26. When property passes.
Transfer of Risk
27. Transfer of risk.
Transfer of Property by a
Non-owner
28. Non-owner cannot generally
pass good title.
29. Disposition under voidable
title.
30. Disposition by mercantile
agent in possession of goods, etc.
31. Disposition by seller in
possession.
32. Disposition by buyer in
possession.
33. Provisions relating to
notice of ownership.
PART V— REMEDIES OF THE SELLER
Real Rights of Seller
34. Unpaid seller defined.
35. Unpaid seller's rights.
Lien
36. Seller's lien.
37. Termination of lien.
Stoppage in Transit
38. Stoppage in transit.
39. Duration of transit.
40. How stoppage in transit is
effected.
41. Position as between seller
and carrier.
42. Stoppage over goods lost or
damaged.
43. Effect of resale or other
disposition by buyer.
Recovery of Possession from Buyer
44. Seller's right to recover
possession after delivery.
Resale
45. Resale by seller.
Personal Rights of the Seller
46. Action for price.
47. Damages for non-acceptance.
48. Assessment of damages.
PART VI—REMEDIES OF THE BUYER
Rejection of the Goods
49. When buyer has right to
reject.
50. Effect of rejection.
51. No rejection after
acceptance.
52. Acceptance.
Personal Rights of the Buyer
53. Damages for non-delivery.
54. Assessment of damages for
non-delivery.
55. Damages for breach of
condition or warranty.
56. Assessment of damages under
section 55.
57. No forfeiture of sums paid
by buyer.
58. Specific performance.
PART VII—C.I.F. AND F.O.B. SALES
59. Parts I to VI to be read
subject to this Part.
60. Export and import licences.
61. C.I.F. contracts.
62. F.O.B. contracts.
63. Payment of price by bankers'
commercial credit.
64. Meaning of proper shipping
documents.
65. Duties under this Part to be
construed as conditions.
PART VIII — HIRE-PURCHASE
CONTRACTS
66. Formalities relating to
hire-purchase contracts.
67. Provision in hire-purchase
contract authorising seller to
enter buyer's premises to be void.
68. Special provisions as to
determination of hire-purchase
contracts.
69. Restriction on seller's right
to recover possession in
hire-purchase contracts.
70. Powers of court in action by
seller under hire-purchase
contract.
71. Effect of postponement of
operation of an order for specific
delivery of goods.
72. Assignments contrary to
contract.
73. Duty of seller to supply
documents and information.
74. Regulations as to
hire-purchase contracts.
75. Application of Part VIII.
PART IX — MISCELLANEOUS
76. Variation of rights, duties
and liabilities.
77. Reasonable time a question
of fact.
78. Application of the Act.
79. Act to bind the Republic.
80. Savings.
81. Interpretation.
82. Repeal.
83. Statutes ceasing to apply.
84. Commencement.
SCHEDULES
First Schedule—Notice to be
included in Note or Memorandum of
Hire-purchase Agreement.
Second Schedule—Statutes ceasing
to apply.
THE HUNDRED AND THIRTY-SEVENTH
ACT OF THE PARLIAMENT OF THE
REPUBLIC OF GHANA
ENTITLED
SALE OF GOODS ACT, 1962
AN ACT to codify with amendments
the law relating to the sale and
hire purchase of goods.
DATE OF ASSENT: 11th July, 1962
BE IT ENACTED by the President and
the National Assembly in this
present Parliament assembled as
follows:—
PART I—NATURE AND FORMATION OF THE
CONTRACT
Section 1—Contract of Sale.
(1) A contract of sale of goods is
a contract whereby the seller
agrees to transfer the property in
goods to the buyer for a
consideration called the price,
consisting wholly or partly of
money.
(2) Where, by virtue of one or
more contracts, a person has
agreed for value to bail goods to
a bailee on such terms that the
property in the goods will or may
at the option of the bailee pass
to the bailee then, for the
purposes of this Act, that person
is deemed to have agreed to
transfer the property in the goods
to the bailee, and the bailor
shall be deemed to be the seller
and the bailee shall be deemed to
be the buyer.
(3) There may be a contract of
sale between one part owner and
another.
(4) A contract of sale may be
absolute or conditional.
Section 2—Capacity to Buy and
Sell.
(1) Capacity to buy and sell is
regulated by the general law
concerning capacity to contract
and to transfer and acquire
property.
(2) Where necessaries are
delivered to a person under an
agreement which is void because of
that person's incapacity to
contract he shall be bound to pay
a reasonable price therefor.
(3) Necessaries in this section
means goods suitable to the
condition in life of the person to
whom they are delivered and to his
actual requirements at the time of
delivery.
Section 3—Contract of Sale, how
made.
Subject to the provisions of this
Act and subject to any other
enactment a contract of sale of
goods may be made in writing or by
word of mouth or partly in writing
and partly by word of mouth, or
may be implied from the conduct of
the parties.
Section 4—Auction Sales.
(1) In the case of a sale by
auction —
(a) where goods are put up for
sale in lots each lot is prima
facie deemed to be the subject of
a separate contract of sale;
(b) the sale is complete when the
auctioneer announces its
completion by the fall of the
hammer or in other customary
manner;
(c) until such announcement is
made any bidder may retract his
bid and, subject to paragraph (d),
the seller may withdraw the goods;
(d) where the sale is expressed to
be without reserve the highest
bona fide bidder shall be entitled
to buy the goods at the price bid
notwithstanding that the
auctioneer refuses to accept his
bid or to complete the sale;
(e) the seller or any one person
on his behalf may bid if a right
to bid is expressly reserved, but,
subject to paragraph (f), not
otherwise;
(f) where the sale is notified to
be subject to a reserve price it
shall be lawful for the seller or
any person on his behalf to make
one bid and no more; and such bid
shall be openly declared at the
auction before any other bid is
received.
(2) Where there is a breach of any
of the provisions of paragraph (e)
or (f) of subsection (1) the buyer
may treat the sale as fraudulent.
Section 5—Specific and
Unascertained Goods.
(1) The goods which form the
subject of a contract of sale may
be either specific goods,
identified and agreed upon before
or at the time when the contract
is made, or unascertained goods
not being so identified and agreed
upon.
(2) There may be a sale of goods
to be manufactured or grown or
acquired by the seller after the
making of the contract.
(3) There may be a sale of goods
the acquisition of which by the
seller depends upon a contingency
which may or may not happen.
Section 6—The Price.
(1) The price in a contract of
sale may be fixed by the contract
or may be left to be fixed in
manner thereby agreed, or may be
determined by the course of
dealing between the parties.
(2) Where the price is not
determined in accordance with the
foregoing provisions the buyer
must pay a reasonable price. What
is a reasonable price is a
question of fact dependent on the
circumstances of each particular
case.
Section 7—Agreement to Sell at
Valuation.
(1) Where there is an agreement to
sell goods on the terms that the
price is to be fixed by the
valuation of a third party, and
the third party cannot or does not
make such a valuation, the
agreement is avoided.
(2) Where the third party is
prevented from making the
valuation by the fault of the
seller or buyer the party not in
fault may maintain an action for
damages against the party in
fault.
PART II—DUTIES OF THE SELLER
Fundamental Obligation of the
Seller
Section 8—Fundamental Obligation
of the Seller.
(1) In a sale of specific goods
the fundamental obligation of the
seller is to deliver those goods
to the buyer.
(2) In a sale of unascertained
goods the fundamental obligation
of the seller is to deliver to the
buyer goods substantially
corresponding to the description
or sample by which they were sold.
(3) Any provision in a contract of
sale which is inconsistent with,
or repugnant to, the fundamental
obligation of the seller, is void
to the extent of the inconsistency
or repugnance.
Existence of the Goods
Section 9—Implied Condition that
Specific Goods are in Existence.
In a contract for the sale of
specific goods there is an implied
condition on the part of the
seller that the goods are in
existence at the time when the
contract is made.
Undertakings as to Title
Section 10—Implied Undertakings as
to Title.
(1) In a contract of sale there
is an implied warranty on the part
of the seller that he will have a
right to sell the goods at the
time when the property is to pass.
(2) The provisions of subsection
(1) are not affected by any
agreement to the contrary where
the goods are of a description
which are supplied by the seller
in the ordinary course of his
business.
Quality and Quantity of the Goods
Section 11—Sale by Description.
In a contract for the sale of
goods by description whether or
not the sale is by sample as well
as by description, there is an
implied condition that the goods
shall correspond exactly with the
description.
Section 12—Sale by Sample.
In a contract for the sale of
goods by sample, whether or not
the sale is by description as well
as by sample there is an implied
condition that the goods shall
correspond exactly with the
sample.
Section 13—Quality and Fitness of
Goods.
(1) Subject to the provisions of
this Act and any other enactment
there is no implied warranty or
condition as to the quality or
fitness for any particular purpose
of goods supplied under a contract
of sale except as follows—
(a) There is an implied condition
that the goods are free from
defects which are not declared or
known to the buyer before or at
the time when the contract is
made:
Provided that there is no such
implied condition—
(i)
where the buyer has examined the
goods, in respect of defects which
should have been revealed by the
examination;
(ii) in the case of a sale by
sample, in respect of defects
which could have been discovered
by a reasonable examination of the
sample;
(iii) where the goods are not sold
by the seller in the ordinary
course of his business, in respect
of defects of which the seller was
not, and could not reasonably have
been aware.
(b) Where the goods are of a
description which are supplied by
the seller in the course of his
business and the buyer expressly
or by implication makes known the
purpose for which the goods are
required there is an implied
condition that the goods are
reasonably fit for that purpose.
(2) The condition implied by
paragraph (a) of subsection (1) is
not affected by any provision to
the contrary in the agreement
where the goods are of a
description which are supplied by
the seller in the ordinary course
of his business and the condition
implied by paragraph (b) of
subsection (1) is not affected by
any provision to the contrary in
the agreement unless the seller
proves that before the contract
was made the provision was brought
to the notice of the buyer and its
effect made clear to him.
(3) An implied warranty or
condition as to quality or fitness
for a particular purpose may be
annexed by the usage of trade.
(4) An express warranty or
condition does not negative a
warranty or condition implied by
this Act unless inconsistent
therewith.
(5) The provisions of this section
apply to all goods delivered in
purported pursuance of the
contract and extend to all boxes,
tins, bottles or other containers
in which the goods are contained.
Section 14—Quantity of Goods.
(1) Where the seller delivers to
the buyer a quantity of goods less
than he contracted to sell the
buyer may reject them but if he
accepts the goods so delivered he
must pay for them at the contract
rate.
(2) Where the seller delivers to
the buyer a quantity of goods
larger than he contracted to sell
the buyer may not reject all the
goods delivered by reason only of
the excess in quantity but he may
accept all the goods so delivered,
paying for the extra goods at the
contract rate, or he may accept
the goods which should have been
delivered and reject the
remainder. In the latter event the
buyer may recover damages from the
seller representing the cost, if
any, of separating the goods which
should have been delivered from
the remainder.
(3) Where the seller delivers to
the buyer the goods he contracted
to sell together with goods of a
different description not included
in the contract—
(a) the buyer may accept all the
goods so delivered, paying a
reasonable price for the extra
goods; or
(b) if the goods which the seller
contracted to sell and has
delivered are less than the
quantity specified in the
contract, the buyer may reject the
whole; or
(c) the buyer may accept the
goods included in the contract and
reject the remainder. In this
event the buyer may recover
damages from the seller
representing the cost (if any) of
separating the goods included in
the contract from the remainder,
and also damages (if any) in
respect of the deficiency (if any)
in the goods delivered.
Delivery of the Goods
Section 15—Delivery Concurrent
with Payment.
(1) Unless otherwise agreed the
seller must be ready and willing
to deliver the goods in exchange
for the price.
(2) Tender of delivery may be
treated as ineffectual unless made
at a reasonable hour.
Section 16—Time of Delivery.
(1) If no time is fixed for the
delivery of the goods, they must
be delivered within a reasonable
time.
(2) Unless a contrary intention
appears stipulations as to the
time of delivery are conditions of
a contract of sale.
(3) The parties to a contract of
sale may, whether with or without
consideration, agree that delivery
should be made at a date or time
other than that stipulated for in
the contract, and in this event,
the seller is bound to deliver and
the buyer is bound to accept
delivery of, the goods at that
date or time unless the parties
agree to any further change.
(4) Where the buyer agrees to
accept delivery from the seller at
a date later than stipulated in
the contract without substituting
another date therefor the seller
must deliver the goods within a
reasonable time, having regard in
particular to the reasons for
which delivery was postponed, and
the buyer may, on reasonable
notice to the seller, notify him
of the latest date on which
delivery will be accepted.
(5) Where the seller contracts to
use his best endeavours to deliver
the goods on, or not later than, a
given date the seller must, unless
a contrary intention appears (but
without prejudice to his
obligations so to use his best
endeavours), deliver the goods
within a reasonable time after
that date.
Section 17—Cost of Putting Goods
into Deliverable State.
Unless otherwise agreed, the
expenses of and incidental to,
putting the goods into a
deliverable state must be borne by
the seller.
Section 18—Means of Delivery.
(1) Unless otherwise agreed the
seller may deliver the goods to
the buyer by—
(a) transferring to him the actual
physical control over the goods;
or
(b) transferring to him the means
of obtaining actual physical
control over the goods; or
(c) transferring to him documents
of title to the goods.
(2) Unless a contrary intention
appears, delivery of the goods to
the buyer's agent or to his order
is a delivery to the buyer.
(3) Unless a contrary intention
appears, delivery of the goods to
a carrier, pursuant to, or
consequent upon a contract of
sale, for transmission to the
buyer is a delivery to him.
(4) Where the goods are in the
possession of a third party they
are delivered to the buyer when
the third party acknowledges to
him that he holds the goods on his
behalf.
Provided that nothing in this
subsection affects the operation
of the delivery of any document of
title.
Section 19—Place of Delivery.
Unless a contrary intention
appears the place of delivery is
the seller's place of business, if
he has one, and if not, his
residence:
Provided that in a contract for
the sale of specific goods which
to the knowledge of the parties
when the contract is made are in
some other place, then subject to
any contrary intention that place
is the place of delivery.
Section 20—Despatch of Goods by
Carrier.
(1) Where, in pursuance of a
contract of sale the seller is
authorised or required to send the
goods to the buyer by a carrier,
there is an implied condition that
the seller shall make such
contract with the carrier on
behalf of the buyer as may be
reasonable having regard to all
the circumstances of the case.
(2) Unless otherwise agreed where
goods are sent by the seller to
the buyer by a route involving sea
or air transit in circumstances in
which it is usual to insure, the
seller must give such notice (if
any) as may be required by the
buyer to enable him to insure them
during the sea or air transit, and
if the seller fails to do so the
goods shall be at his risk during
such transit.
PART III—DUTIES OF THE BUYER
Section 21—Fundamental Obligations
of the Buyer.
The fundamental obligations of the
buyer in a contract of sale are to
pay the price and accept delivery
of the goods.
Section 22—Payment Concurrent with
Delivery.
Unless otherwise agreed the buyer
must be ready and willing to pay
the price in exchange for delivery
of the goods.
Section 23—Time of Payment and
Accepting Delivery.
Unless otherwise agreed
stipulations as to the time of
payment or as to the time for
accepting delivery are not
conditions of a contract of sale.
Section 24—Buyer not Bound to
Accept Delivery by Instalments.
Unless otherwise agreed the buyer
is not bound to accept delivery of
the goods by instalments.
PART IV—TRANSFER OF PROPERTY AND
RISK
Transfer of Property
Section 25—Goods Must be
Ascertained.
Where there is a contract for the
sale of unascertained goods no
property in the goods is
transferred to the buyer unless
and until the goods are
ascertained.
Section 26—When Property Passes.
(1) Subject to section 25 of this
Act, the property in goods passes
under a contract of sale when the
parties intend it to pass.
(2) Unless a different intention
appears the property in the goods
passes under a contract of sale
when they are delivered to the
buyer.
(3) Where goods are delivered to
the buyer on approval or "on sale
or return" or other similar terms,
then, in the absence of a
contrary intention, the property
therein passes to the buyer—
(a) when he signifies his approval
or acceptance to the seller or
does any other act adopting the
transaction;
(b) if he does not signify his
approval or acceptance to the
seller but retains the 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 been
fixed, on the expiration of a
reasonable time.
Transfer of Risk
Section 27—Transfer of Risk
(1) The risk in the goods in a
contract of sale is transferred to
the buyer when the parties intend
it to be transferred.
(2) Unless a different intention
appears, the goods are at the
seller's risk until the property
in them passes to the buyer, after
which the goods are at the risk of
the buyer.
(3) Where delivery of the goods
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,
damage or deterioration which
might not have occurred but for
the delay.
(4) Nothing in this section
affects the duties or liabilities
of either seller or buyer as a
bailee of the goods of the other
party or any destruction or loss
or deterioration of or damage to
the goods which is caused by the
fault of either party.
Transfer of Property by a
Non-owner
Section 28—Non-Owner Cannot
Generally Pass Good Title.
(1) Subject to the provisions of
this Act and of any other
enactment where goods are sold by
a person who is not the owner
thereof and who does not sell them
under the authority or with the
consent of the owner, the buyer
acquires no better title than the
seller had.
(2) Nothing in this section
affects the operation of the
doctrine of estoppel, or any power
of sale which may be conferred by
or under any enactment or by a
contract of pledge or otherwise.
Section 29—Disposition under
Voidable Title.
Where a person has a voidable
title to goods any sale, pledge or
other disposition for value made
by that person before his title to
the goods has been avoided shall
be as effective as if his title
were not voidable, if the person
taking under the disposition acts
in good faith and without notice
of the defect in title of the
person making the disposition.
Section 30—Disposition by
Mercantile Agent in Possession of
Goods, Etc.
(1) Where a mercantile agent is,
with the consent of the owner, in
possession of goods or of the
documents of title to goods, any
sale, pledge or other disposition
for value of the goods or
documents of title made by him
apparently in the ordinary course
of his business as a mercantile
agent, shall be as valid as if he
were expressly authorised by the
owner of the goods to make the
same, if the person taking under
the disposition acts in good
faith, and has not at the time of
the disposition notice that the
mercantile agent has not authority
to make the same.
(2) Where a mercantile agent has,
with the consent of the owner,
been in possession of goods or of
the documents of title to goods,
any sale, pledge or other
disposition for value, which would
have been valid if the consent had
continued, shall be valid
notwithstanding the determination
of the consent unless the person
taking under the disposition has
at the time thereof notice that
the consent has been determined.
(3) Where a mercantile agent has
obtained possession of any
documents of title to goods by
reason of his being or having
been, with the consent of the
owner, in possession of the goods
represented thereby, or of any
other documents of title to the
goods, his possession of the first
mentioned documents shall, for the
purposes of this section, be
deemed to be with the consent of
the owner.
(4) For the purposes of this
section the consent of the owner
shall be presumed unless the
contrary is proved.
(5) The goods or documents of
title thereto are not deemed to be
in the possession of a mercantile
agent within the meaning of this
section unless they are in his
possession in his capacity as
mercantile agent.
(6) Nothing in this section
affects the liability of a
mercantile agent to the owner for
any wrongful sale, pledge or other
disposition of the goods or
documents of title.
Section 31—Disposition by Seller
in Possession.
(1) Where a person having agreed
to sell goods continues or is in
possession of them after the
property has passed to the buyer,
the delivery or transfer by the
seller, of the goods or documents
of title under any contract for
sale, pledge or other disposition
for value 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 seller were expressly
authorised by the original buyer
to make the same.
(2) This section applies whether
the seller is in possession of the
goods as bailee or in any other
capacity.
(3) Nothing in this section—
(a) derogates from the powers of a
seller in whom the property in the
goods is vested; or
(b) affects the liability of the
seller to the buyer for any
wrongful sale, pledge or other
disposition for value of the goods
or documents of title.
Section 32—Disposition by Buyer in
Possession.
(1) Where a buyer of goods obtains
the possession thereof or of
documents of title to the goods
with the consent of the seller
before the property passes to him,
the delivery or transfer by the
buyer, of the goods or documents
of title under any sale, pledge or
other disposition for value
thereof to any person receiving
the same in good faith and without
notice of the buyer's lack of
title, shall have the same effect
as if the buyer were expressly
authorised by the seller to make
the same.
(2) Where a buyer of goods obtains
the possession thereof with the
consent of the seller before the
property passes to him and
resells, pledges or otherwise
disposes of the goods for value to
a third party in such
circumstances that the sale,
pledge or other disposition would
not, but for this subsection,
transfer any rights in the goods
to the third party, under this Act
or otherwise, the third party may,
notwithstanding anything in the
original contract, retain or, as
the case may be, recover
possession of the goods on
tendering to the seller the unpaid
balance of the price due to the
seller and on his doing so the
seller's title shall thereupon
vest in him, but subject to the
rights of the buyer (if any)
against the third party.
(3) This section applies whether
the buyer is in possession of the
goods as a bailee or in any other
capacity.
(4) Nothing in this section —
(a) derogates from the powers of a
buyer in whom the property in the
goods is vested; or
(b) affects the liability of the
buyer to the seller for any
wrongful sale, pledge or other
disposition for value of the goods
or documents of title.
Section 33—Provisions Relating to
Notice of Ownership.
(1) For the purposes of the
provisions of this Part relating
to dispositions of goods to
persons receiving the same in good
faith and without notice of
defects in title, where a motor
vehicle is licensed by a licensing
authority under the provisions of
the Road Traffic Ordinance, 1952
(No.55) every person shall be
deemed to have notice of the
ownership or interest (if any) of
the person in whose name it is so
licensed.
(2) The Minister responsible for
trade may, with the concurrence of
the Minister responsible for
licensing authorities, make
regulations by legislative
instrument —
(a) prescribing the forms to be
used and fees to be paid by
persons wishing to inspect the
records of a licensing authority;
(b) providing that a copy of an
entry in the records of a
licensing authority purporting to
be signed and certified as a true
copy by the person in charge of
the licensing office shall be
admissible in evidence in any
legal proceedings; and
(c) generally for giving effect to
this section.
PART V—REMEDIES OF THE SELLER
Real Rights of Seller
Section 34—Unpaid Seller Defined.
(1) The seller of goods is an
unpaid seller within the meaning
of this Part —
(a) when the whole of the price
has not been paid or tendered;
(b) when a bill of exchange or
other negotiable instrument has
been received as conditional
payment and the condition on which
it was received has not been
fulfilled by reason of the
dishonour of the instrument or
otherwise.
(2) In this Part the term "seller"
includes 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 endorsed, or a consignor or
agent who has himself paid or is
directly responsible for the
price.
Section 35—Unpaid Seller's Rights.
(1) Subject to the provisions of
this Act, an unpaid seller of
goods has by implication of law —
(a) whether or not the property
therein has passed to the buyer —
(i)
a lien on the goods;
(ii) in case of the insolvency of
the buyer a right of stopping the
goods in transit after he has
parted with the possession of them
but before the buyer has obtained
the possession of them;
(iii) a right of resale;
(b) where the property has not
passed to the buyer but the goods
have been delivered to him, a
right to recover possession of the
goods.
(2) Nothing in this Part derogates
from the powers of an unpaid
seller where the contract is for
the sale of unascertained goods
and no goods have been
appropriated to the contract.
Lien
Section 36—Seller's Lien.
(1) Subject to the provisions of
this Act, an unpaid seller of
goods who is in possession of them
is entitled to retain possession
of them until payment or tender of
the price if—
(a) the seller has not agreed to
deliver the goods before payment
of the price;
(b) the goods have been sold on
credit but the term of credit has
expired; or
(c) the buyer has become
insolvent.
(2) The seller may exercise his
right of lien notwithstanding that
he is in possession of the goods
as bailee or in any other
capacity.
(3) Where an unpaid seller has
made part delivery of the goods he
may exercise his right of lien on
the remainder unless the part
delivery has been made in such
circumstances as to show an
agreement to waive the lien.
(4) A contract of sale of goods is
not rescinded by reason only that
the seller has exercised his lien.
Section 37—Termination of lien.
(1) An unpaid seller of goods
loses his lien thereon—
(a) when he delivers the goods to
a carrier or other bailee for the
purpose of transmission to the
buyer without reserving the right
of disposal of the goods;
(b) when the buyer obtains the
possession of the goods with the
consent of the seller; or
(c) by waiver thereof.
(2) An unpaid seller of goods does
not lose his lien by reason only
that he has obtained judgment for
the price.
Stoppage in Transit
Section 38— Stoppage in Transit.
(1) Subject to the provisions of
this Act, when the buyer of goods
becomes insolvent an unpaid seller
who has parted with the possession
of the goods has the right of
stopping them in transit, that is
to say, he may resume possession
of the goods as long as they are
in course of transit and may
retain them until payment or
tender of the price.
(2) A contract of sale is not
rescinded by reason only that the
seller has exercised his right of
stoppage in transit.
Section 39—Duration of Transit.
(1) Goods are in course of transit
from the time when they are
delivered to a carrier or other
bailee until the buyer takes
delivery of them from the carrier
or bailee.
(2) If the buyer 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 acknowledges to the buyer
that he holds the goods on his
behalf and continues in possession
of them as bailee for the buyer,
then subject to subsection (4),
the transit is at an end, and 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 continues in possession of
them the transit is not deemed to
be at an end even if the seller
refuses to receive them back.
(5) When goods are delivered to a
ship chartered by the buyer it is
a question depending on the
circumstances of the case whether
they are in the possession of the
master as a carrier, or as agent
for the buyer.
(6) Where the carrier or other
bailee wrongfully refuses to
deliver the goods to the buyer,
the transit is deemed to be at an
end.
(7) Where part delivery has been
made to the buyer the remainder of
the goods may be stopped in
transit unless the part delivery
has been made under such
circumstances as to show an
agreement to waive the right of
stoppage in transit.
Section 40—How Stoppage in Transit
is Effected.
An unpaid seller may exercise his
right of stoppage in transit
either by taking actual possession
of the goods, or by giving notice
of his claim to the carrier or
other bailee 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 notice, to be effectual,
must be given at such time and
under such circumstances that the
principal, by the exercise of
reasonable diligence, may
communicate it to his servant or
agent in time to prevent a
delivery to the buyer.
Section 41—Position as between
Seller and Carrier.
(1) The right of an unpaid seller
to take possession of goods which
he has stopped in transit is
subject to a particular lien (if
any) of the carrier or other
bailee in respect of freight due
on the goods, but takes priority
over any other lien.
(2) Where notice of stoppage in
transit is given by the seller to
the carrier or other bailee in
possession of the goods, the
seller is bound to give
instructions within a reasonable
time to the carrier or other
bailee with respect to the
redelivery of the goods to the
seller or his order, and the
carrier is bound to deliver the
goods according to those
instructions. The expenses of such
redelivery as well as of the
original carriage must, as between
the seller and the carrier, be
borne by the seller.
Section 42—Stoppage Over Goods
Lost or Damaged, Etc.
Where an unpaid seller exercises
his right of stoppage in transit
over goods which are lost or
damaged, or which deteriorate, in
transit, then, as between the
seller and the buyer, the proceeds
of any policy of insurance
respecting the goods shall be
payable —
(a) to the seller if the insurance
was effected by him and he
exercises his right of stoppage in
transit before the loss, damage or
deterioration occurs;
(b) to the buyer, in any other
case.
Section 43—Effect of Resale or
Other Disposition by Buyer.
Where a seller has a right of lien
or stoppage in transit over goods
—
(a) if the seller assents to a
resale or other disposition by the
buyer he loses his right of lien
or stoppage in transit;
(b) if the buyer resells the goods
or documents of title thereto in
such circumstances that the resale
is effective to pass a title,
under section 32 of this Act or
otherwise, the seller loses his
right of lien or stoppage in
transit;
(c) if the buyer disposes of the
goods or the documents of title
thereto otherwise than by way of
sale, in such circumstances that
the disposition is effective under
section 32 of this Act or
otherwise, the seller may exercise
his right of lien or stoppage in
transit subject to the rights of
any person claiming by or under
such disposition as aforesaid.
Recovery of Possession from Buyer
Section 44—Seller's Right to
Recover Possession after Delivery.
Subject to the provisions of this
Act, and subject to any contrary
intention an unpaid seller may
recover possession of the goods
from the buyer after they have
been delivered to him if —
(a) the property has not passed to
the buyer; or
(b) the property has passed to the
buyer but the contract
nevertheless expressly confers a
right on the seller to recover
possession;
and the buyer fails to pay the
price in accordance with the terms
of the contract, but not
otherwise.
Resale
Section 45—Resale by Seller.
An unpaid seller who is in
possession of the goods is
entitled as against the buyer to
resell them in any of the
following cases —
(a) where they are of a perishable
nature and the buyer does not
within a reasonable time pay or
tender the price;
(b) where the buyer has repudiated
the contract and the seller has
accepted the repudiation;
(c) where the seller gives notice
to the buyer of his intention to
resell and the buyer does not
within a reasonable time pay or
tender the price.
Personal Rights of the Seller
Section 46—Action for Price.
(1) Where, under a contract of
sale of goods, the property has
passed to the buyer, and the buyer
wrongfully refuses or neglects 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 of goods, the price or a part
thereof is payable on a day
certain, and the buyer wrongfully
neglects or refuses to pay the
price or the part which has become
due, according to the terms of the
contract, the seller may maintain
an action for the price or the
part which has become due, as the
case may be, notwithstanding that
the property in the goods may not
have passed to the buyer.
(3) Where, under a contract of
sale of goods, the seller delivers
part only of the goods and the
buyer accepts or is bound to
accept that part, the seller may
maintain an action against the
buyer for a proportionate part of
the price without prejudice to any
counterclaim by the buyer for
damages in accordance with section
53 of this Act. This subsection
does not apply to any contract to
which Part I of the Contracts Act,
1960 (Act 25) applies.
(4) Nothing in this section
prevents a seller from maintaining
an action for damages in addition
to an action for the price where
the circumstances warrant.
Section 47—Damages for
Non-acceptance.
(1) Where the buyer wrongfully
neglects or refuses to accept and
pay for the goods in accordance
with the terms of the contract the
seller may maintain an action
against him for damages for
non-acceptance.
(2) In a contract for the sale of
goods to be delivered by
instalments —
(a) if each instalment is to be
separately paid for subsection (1)
shall apply to each instalment
separately:
Provided that where the buyer has
by his words or conduct shown an
intention to repudiate the
contract the seller may, if he
accepts the repudiation, maintain
an action for damages for
non-acceptance in respect of all
the goods;
(b) in any other case, such a
breach as is referred to in
subsection (1) in respect of one
or more instalments shall be
treated for the purposes of that
subsection as though it were a
breach in respect of the whole
contract or of all the remaining
part of the contract, as the case
may be.
Section 48—Assessment of Damages.
(1) The measure of damages in an
action under section 47 of this
Act is the loss which could
reasonably have been foreseen by
the buyer at the time when the
contract was made as likely to
arise from his breach of contract.
(2) Where there is an available
market for the goods in question
the measure of damages is prima
facie to be ascertained by the
difference between the contract
price and the market or current
price—
(a) if a time has been fixed for
acceptance, or if the buyer
repudiates the contract before the
time of performance, and the
seller does not accept the
repudiation, at the time or times
when the goods ought to have been
accepted;
(b) in any other case, at the time
or times of the refusal to accept
the goods.
(3) In this section a time is not
deemed to have been fixed for
acceptance by reason only that the
goods are to be accepted within a
reasonable time.
PART VI—REMEDIES OF THE BUYER
Rejection of the goods
Section 49—When Buyer has Right to
Reject.
(1) Subject to the provisions of
this Act the buyer is entitled to
reject the goods and to refuse to
pay, or as the case may be, to
recover, the price where —
(a) the seller is guilty of a
breach of a fundamental
obligation; or
(b) the seller is guilty of a
breach, not being of a trivial
nature, of a condition of the
contract, whether the breach is in
respect of all of the goods or,
subject to subsection (2), of part
only; or
(c) the buyer has entered into the
contract as a result of fraudulent
or innocent misrepresentation on
the part of the seller.
(2) Where there is a contract for
the sale of goods which are to be
delivered by instalments, then—
(a) if each instalment is to be
separately paid for, subsection
(1) shall apply to each instalment
separately:
Provided that where there are
persistent and grave breaches by
the seller in respect of two or
more instalments the buyer may
treat the whole contract as
repudiated.
Provided further that nothing in
this paragraph shall affect the
buyer's rights under paragraph (c)
of subsection (1);
(b) in any other case, such a
breach as is referred to in
subsection (1) in respect of one
or more instalments shall be
treated for the purpose of that
subsection as though it were a
breach in respect of the whole
contract.
Section 50—Effect of Rejection.
(1) Where goods are delivered to
the buyer and he rejects them,
having the right so to do, he is
not bound to return them to the
seller, but it is sufficient if he
intimates to the seller that he
rejects them.
(2) After the buyer has intimated
to the seller that he rejects the
goods the seller is entitled to
have the goods placed at his
disposal:
Provided that where the buyer has
paid the price or any part thereof
he may retain the possession of
the goods until the seller repays
or tenders the amounts he has
received from the buyer.
Section 51—No Rejection after
Acceptance.
(1) The buyer may not reject goods
which he has accepted.
(2) The acceptance of a part of
the goods does not deprive the
buyer of any right to reject any
other part unless the contract is
not severable.
Section 52—Acceptance.
The buyer is deemed to have
accepted the goods when—
(a) he intimates to the seller
that he accepts them; or
(b) he does not, within a
reasonable time after delivery of
the goods, inform the seller that
he rejects them; or
(c) he wrongfully refuses or
neglects to place the goods at the
disposal of the seller after
notifying the seller that he
rejects them.
Personal Rights of the Buyer
Section 53—Damages for
Non-Delivery.
Where the seller wrongfully
neglects or refuses to deliver the
goods to the buyer, in accordance
with the terms of the contract, or
where the buyer rejects the goods
delivered by the seller having the
right so to do, the buyer may
maintain an action against the
seller for damages for
non-delivery.
Section 54—Assessment of Damages
for Non-Delivery.
(1) The measure of damages in an
action under section 53 of this
Act is the loss which could
reasonably have been foreseen by
the seller at the time when the
contract was made as likely to
result from his breach of
contract.
(2) Where there is an available
market for the goods in question
the measure of damages is prima
facie to be ascertained by the
difference between the market or
current price and the contract
price —
(a) if a time has been fixed for
delivery, or if the seller
repudiates the contract before the
time of performance, and the buyer
does not accept the repudiation,
at the time or times when the
goods ought to have been
delivered;
(b) in any other case, at the
time or times of the refusal to
deliver the goods.
(3) In this section a time is not
deemed to have been fixed for
delivery by reason only that the
goods are to be delivered within a
reasonable time.
Section 55—Damages for Breach of
Condition or Warranty.
Where the seller is guilty of a
breach of his fundamental
obligation or of a condition or
warranty of the contract the buyer
may maintain an action against the
seller for damages for the breach
complained of or may set up a
claim to such damages in
diminution or extinction of the
price.
Section 56—Assessment of Damages
Under Sec. 55.
The measure of damages in an
action under section 55 of this
Act is the loss which could
reasonably have been foreseen by
the seller at the time when the
contract was made as likely to
result from his breach of
contract.
Section 57—No Forfeiture of Sums
Paid by Buyer.
(1) Where under a contract of sale
the buyer has paid a part or all
of the price to the seller and the
seller refuses or neglects to
deliver the goods to the buyer,
having the right so to do, or,
after delivering the goods,
recovers the possession thereof
having the right so to do, the
buyer is entitled (without
prejudice to any other rights, but
subject to any counterclaim for
damages by the seller) to recover
from the seller the amounts which
he has paid.
(2) This section applies whether
the amounts paid by the buyer were
expressed to be by way of part
payment or deposit or otherwise,
and notwithstanding any agreement
to the contrary.
(3) Nothing in this section
affects any case where the
seller's refusal or neglect to
deliver the goods, or his recovery
of the possession thereof is
wrongful.
Section 58—Specific Performance.
In any action for breach of
contract to deliver specific or
ascertained goods the Court may,
if it thinks fit, by its judgment
direct that the contract should be
specifically performed without
giving the seller the option of
retaining the goods on payment of
damages. The judgment may be
unconditional or upon such terms
as to damages, costs and otherwise
as the Court may think fit.
PART VII—C.I.F. AND F.O.B. SALES
Section 59—Parts I to VI to be
Read Subject to This Part.
(1) The provisions of Parts I to
VI of this Act shall, in relation
to c.i.f. and f.o.b. contracts, be
subject to the provisions of this
Part.
(2) The provisions of this Part
shall apply, with any necessary
modifications to contracts
analogous to c.i.f. or f.o.b.
contracts respectively, and in
particular to c. and f. contracts,
f.o.r. contracts and f.a.s.
contracts.
(3) In this Part —
"c.i.f"
means cost, insurance, freight;
"f.o.b." means free on board;
"c. and f." means cost and
freight;
"f.o.r."
means free on rail;
"f.a.s." means free alongside.
Section 60—Export and Import
Licences.
(1) In a c.i.f. contract, unless a
contrary intention appears—
(a) it is the duty of the seller
to obtain any necessary export
licence;
(b) it is the duty of the buyer to
obtain any necessary import
licence.
(2) In a f.o.b. contract, unless a
contrary intention appears—
(a) where the buyer is resident in
the country from which shipment is
to be made, it is the duty of the
buyer to obtain any necessary
export licence;
(b) in any other case, it is the
duty of the seller to obtain any
necessary export licence;
(c) it is the duty of the buyer to
obtain any necessary import
licence.
(3) Where a party is under a duty,
whether under this section or
otherwise, to obtain any necessary
export or import licence, it is a
question depending on all the
circumstances of the case whether
the duty is discharged where the
party has used his best endeavours
to obtain a licence, but
nevertheless has not obtained one,
or whether he is still bound to
deliver or, as the case may be, to
accept delivery of the goods.
(4) In a c.i.f. or f.o.b. contract
the party who is required to
obtain any necessary export
licence is, unless a contrary
intention appears, bound to pay
any export taxes or dues in the
nature of taxes, and the party who
is required to obtain any
necessary import licence is, in
the absence of a contrary
intention, bound to pay any import
taxes, or customs duties or dues
in the nature of taxes.
(5) In this section export and
import licences include all
permits without which it would be
illegal to export or import the
goods from or to, the country in
question.
Section 61—C.I.F. Contracts.
In a c.i.f. contract, unless a
contrary intention appears —
(a) the seller is bound at his own
expense, to ship the goods during
the agreed period, if any, to the
port agreed upon or to acquire
goods afloat which have been so
shipped;
(b) the seller is bound, at his
own expense, to effect on the
goods an insurance of the type
normal for goods and a voyage of
the kind in question;
(c) the seller is bound to
transfer to the buyer proper
shipping documents in accordance
with the terms of the contract;
(d) the buyer is bound to take up
proper shipping documents and, on
doing so, to pay the price in
accordance with the terms of the
contract;
(e) the goods are deemed to be
delivered to the buyer, and the
property therein accordingly
passes to the buyer, on the
transfer to him of the bills of
lading;
(f) the risk in the goods passes
to the buyer when they are shipped
or acquired afloat.
Section 62—F.O.B. Contracts.
In a f.o.b. contract, unless a
contrary intention appears —
(a) the buyer is entitled and
bound to nominate a ship to the
seller calling during the agreed
period, if any, at the agreed, or
where the buyer has an option, one
of the agreed, ports, and ready
and willing to carry the goods;
(b) the seller is bound, at his
own expense, to have the goods
loaded on the ship nominated by
the buyer;
(c) the seller is bound to give
such notice to the buyer as
required by section 20(2) of this
Act except where the buyer already
has the necessary information;
(d) the seller is not bound to
effect any insurance on the goods;
(e) the seller is bound to
transmit to the buyer bills of
lading by which the goods are
deliverable to the buyer or his
order or to transfer to the buyer
bills of lading by which the goods
are deliverable to the seller or
his order;
(f) where by the bills of lading,
the goods are deliverable to, or
to the order of the seller, the
property passes to the buyer when
the bills of lading are
transferred to him, and where by
the bills of lading the goods are
deliverable to, or to the order of
the buyer, the property passes to
the buyer when the goods are
shipped;
(g) the risk in the goods passes
to the buyer when they are
shipped.
Section 63—Payment of Price by
Bankers' Commercial Credit.
Where, in a c.i.f. or f.o.b.
contract the price is to be paid
by means of a letter of credit
opened at a bank to be nominated
by the seller, then in the absence
of a contrary intention—
(a) the credit must be opened not
later than the earliest date on
which the seller may ship the
goods, or where the date of
shipment is to be fixed by the
buyer, not later than the earliest
date on which the seller may be
required to ship the goods;
(b) as against the buyer, the
seller is only entitled to draw
against the credit on presentation
to the bank of proper shipping
documents.
Section 64—Meaning of Proper
Shipping Documents.
For the purposes of this Part
"proper shipping documents" means—
(a) the seller's invoices for the
goods;
(b) bills of lading which
acknowledge that the goods have
been shipped and which contain no
reservation as to the apparent
good order and condition of the
goods or the packing; and
(c) in a c.i.f. contract and in
any other contract where the
seller is bound to effect
insurance on the goods, policies
of insurance, or, where permitted
by commercial custom, certificates
of insurance.
Section 65—Duties Under This Part
to be Construed as Conditions.
All duties imposed on a buyer or
seller under this Part are, unless
a contrary intention appears in
the contract, conditions and not
warranties.
PART VIII—HIRE-PURCHASE CONTRACTS
Section 66—Formalities Relating to
Hire-Purchase Contracts.
(1) Before any hire-purchase
contract is entered into in
respect of any goods, the seller
shall state in writing to the
prospective buyer (otherwise than
in the note or memorandum referred
to in subsection (3)), a price at
which the goods may be purchased
by him for cash (in this Part
referred to as the "cash price"),
and shall also state the cash
price to the purchaser orally.
(2) Subsection (1) shall be deemed
to have been sufficiently complied
with if the seller states the cash
price to the buyer orally, and—
(a) if the buyer has inspected the
goods or like goods and at the
time of his inspection tickets or
labels were attached to or
displayed with the goods clearly
stating the cash price, either of
the goods as a whole or of all the
different articles or sets of
articles comprised therein; or
(b) if the buyer has selected the
goods by reference to a catalogue,
price list, or advertisement,
which clearly stated the cash
price either of the goods as a
whole or of all the different
articles or sets of articles
comprised therein.
(3) A seller shall not be entitled
to enforce a hire-purchase
contract or any contract of
guarantee relating thereto or any
right to recover the goods from
the buyer, and no security given
by the buyer in respect of money
payable under the hire-purchase
contract or given by the guarantor
in respect of money payable under
such a contract of guarantee as
aforesaid shall be enforceable
against the buyer or guarantor by
any holder thereof, unless the
requirement specified in
subsection (1) has been complied
with, and —
(a) a note or memorandum of the
agreement is made and signed by
the buyer and by or on behalf of
all other parties to the
agreement, and
(b) the note or memorandum
contains a statement of the
hire-purchase price and the cash
price of the goods to which the
agreement relates and of the
amount of each of the instalments
by which the price is to be paid
and of the date or the mode of
determining the date upon which
each instalment is payable, and
contains a list of the goods to
which the agreement relates
sufficiently to identify them, and
(c) the note or memorandum
contains a notice which is at
least as prominent as the rest of
the contents of the note or
memorandum, in the terms
prescribed in the First Schedule
to this Act, and
(d) a copy of the note or
memorandum is delivered or sent to
the buyer within fourteen days of
the making of the agreement.
(4) If the Court is satisfied in
any action that a failure to
comply with the requirement
specified in subsection (1) or any
requirement specified in paragraph
(b), (c) or (d) of subsection (3)
has not prejudiced the buyer and
that it would be just and
equitable to dispense with the
requirement, the Court may,
subject to any conditions that it
thinks fit to impose, dispense
with that requirement for the
purposes of the action.
Section 67—Provision in
Hire-Purchase Contract Authorising
Seller to Enter Buyer's Premises
to be Void.
Any provision in a hire-purchase
contract whereby the seller or any
person acting on his behalf is
authorised to enter upon any
premises for the purpose of taking
possession of the goods, or is
relieved from liability for any
such entry, is void.
Section 68—Special Provisions as
to Determination of Hire-Purchase
Contracts.
(1) A buyer may, at any time
before the final payment under a
hire-purchase contract falls due,
and not withstanding anything in
the contract, determine the
contract by returning the goods to
the seller.
(2) On the termination of a
contract of hire purchase, whether
by the seller lawfully retaking
the possession of the goods from
the buyer, or under the provisions
of subsection (1) or otherwise,
then, without prejudice to any
liability which has accrued before
the termination, the buyer shall
be liable to pay to the seller the
amount, if any, by which one-half
of the hire-purchase price exceeds
the total of the sums paid and the
sums due in respect of the
hire-purchase price immediately
before the termination.
(3) where a hire-purchase contract
has been determined under this
section, the buyer shall, if he
has failed to take reasonable care
of the goods, be liable to pay
damages for the failure.
(4) Nothing in this section
affects—
(a) any right of a buyer to
determine a hire-purchase contract
otherwise than by virtue of this
section;
(b) any contract of hire-purchase
which is the subject of an order
of the court under section 70 of
this Act.
Section 69—Restriction of Seller's
Right to Recover Possession in
Hire-Purchase Contracts.
(1) Where goods have been
delivered to a buyer under a
contract of hire-purchase, and at
least fifty per cent, or such
other minimum percentage as may be
prescribed, of the hire-purchase
price has been paid or tendered by
or on behalf of the buyer, the
seller may not enforce any right
to recover possession of the goods
from the buyer otherwise than by
action.
(2) If a seller recovers
possession of goods in
contravention of subsection (1)
the hire-purchase contract, if not
previously determined, shall
determine, and—
(a) the buyer shall be released
from all liability under the
contract and shall be entitled to
recover from the seller all sums
paid by the buyer under or in
respect of the contract; and
(b) any guarantor shall be
entitled to recover from the
seller all sums paid by him under
or in respect of the contract of
guarantee.
(3) Subsections (1) and (2) do not
apply where the contract has been
determined by the buyer by virtue
of any right vested in him.
(4) Where by virtue of this
section the enforcement by a
seller of a right to recover
possession of goods is subject to
any restriction, and the buyer
refuses to give up possession of
the goods to the seller, the
buyer shall not by reason only of
the refusal be liable to the
seller for conversion of the
goods.
Section 70—Powers of Court in
Action by Seller under
Hire-Purchase Contract.
(1) Where, in any case to which
section 69 of this Act applies, a
seller commences an action to
recover possession of goods from a
buyer after at least the
appropriate percentage of the
hire-purchase price has been paid
or tendered as aforesaid the
seller shall not after the action
has been commenced take any step
to enforce payment of any sum due
under or in respect of the
hire-purchase contract except by
claiming the money in the action.
(2) Pending the hearing of the
action the Court may, upon the
application of the seller make
such orders as it thinks just for
the purpose of protecting the
goods from damage or depreciation,
including orders restricting or
prohibiting the use of the goods
or giving directions as to their
custody.
(3) On the hearing of the action
the Court may, notwithstanding
anything in the contract to the
contrary—
(a) order the buyer to deliver a
part or all of the goods to the
seller without giving him the
option of retaining the goods on
payment of damages;
(b) order the buyer to pay the
unpaid part of the hire-purchase
price at such times and in such
amounts and subject to such
conditions as the Court thinks
fit;
(c) make an order under paragraph
(a) but subject to the condition
that the seller refunds to the
buyer such part of the sums paid
by him as the Court thinks fit;
(d) make an order under paragraph
(a) but postpone its operation on
condition that the buyer pays the
unpaid balance of the
hire-purchase price at such times
and in such amounts and subject to
such other conditions, as the
Court thinks fit; or
(e) allocate the sums which have
been paid or a part thereof to a
part of the goods and make an
order transferring the seller's
title in respect thereof to the
buyer, or
(f) make orders under two or more
of paragraphs (a) to (e), and may
make such further incidental
orders as may be just.
Section 71—Effect of Postponement
of Operation of an Order for
Specific Delivery of Goods.
(1) While the operation of an
order for the specific delivery of
goods to the owner is postponed
under section 70 of this Act the
buyer shall be deemed to hold the
goods under and on the terms of
the hire-purchase agreement:
Provided that no further sum shall
be or become payable by the hirer
or a guarantor on account of the
unpaid balance of the
hire-purchase price except in
accordance with the terms of the
order.
(2) If while the operation of an
order for the specific delivery of
the goods to the owner is so
postponed the buyer or a guarantor
fails to comply with any condition
of the postponement, or with any
term of the contract as varied by
the Court, or wrongfully disposes
of the goods, the seller shall not
take any civil proceedings against
the hirer or guarantor otherwise
than by making an application to
the Court by which the order was
made:
Provided that, in the case of a
breach of any condition relating
to the payment of the unpaid
balance of the hire-purchase
price, the seller may recover the
possession of the goods unless the
order of the Court otherwise
directs, but subject to the right
of the buyer to apply to the Court
under subsection (4).
(3) When the unpaid balance of the
hire-purchase price has been paid
in accordance with the terms of
the order, the seller's title in
the goods shall vest in the buyer.
(4) The Court may, on the
application of the buyer or the
seller, at any time during the
postponement of the operation of
such an order as aforesaid, revoke
or vary the order, and may make
any other order under section 70,
and where the seller has recovered
possession of the goods the Court
may order him to return them to
the buyer.
Section 72—Assignments Contrary to
Contract.
Where a hire-purchase contract
provides that the buyer shall not
assign or part with the possession
or control of the goods:—
(1) the buyer shall on the written
request of the seller, inform him
where the goods are at the time
when the information is given or,
if it is sent by post, at the time
of posting, and if the buyer fails
without reasonable cause to give
the information within fourteen
days of receiving the request, he
shall be liable on conviction to a
fine not exceeding ten pounds;
(2) if the buyer, before the
property has passed to him,
resells, pledges or otherwise
disposes of the goods for value to
a third party in such
circumstances that section 32 of
this Act gives rights in the goods
to the third party, he shall be
guilty of a misdemeanour.
Section 73—Duty of Seller to
Supply Documents and Information.
(1) At any time before the final
payment has been made under a
hire-purchase contract, the seller
shall, within seven days after he
has received a request in writing
from the buyer and the buyer has
tendered to him the sum of one
shilling for expenses, supply to
the buyer a copy of any memorandum
or note of the agreement, together
with a statement signed by the
seller or his agent showing—
(a) the amount paid by or on
behalf of the buyer;
(b) the amount which has become
due under the contract but remains
unpaid, and the date upon which
each unpaid instalment became due,
and the amount of each such
instalment, and
(c) the amount which is to become
payable under the contract, and
the date or the mode of
determining the date upon which
each future instalment is to
become payable, and the amount of
each such instalment.
(2) In the event of a failure
without reasonable cause to comply
with subsection (1), then, while
the default continues—
(a) the seller shall not be
entitled to enforce the agreement
against the buyer or to enforce
any contract of guarantee relating
to the contract, and the seller
shall not be entitled to enforce
any right to recover the goods
from the buyer, and
(b) no security given by the
buyer, in respect of money payable
under the contract or given by a
guarantor in respect of money
payable under such a contract of
guarantee shall be enforceable
against the buyer or the guarantor
by any holder thereof,
and, if the default continues for
a period of one month, the
defaulter shall be guilty of an
offence under this section and
shall be liable on conviction
thereof to a fine not exceeding
ten pounds.
Section 74—Regulations as to
Hire-Purchase Contracts.
(1) The Minister responsible for
trade may by legislative
instrument make regulations
providing for the regulation and
control of the selling under
hire-purchase contracts of goods
or of any class or description of
goods.
(2) Without prejudice to the
generality of subsection (1),
regulations may provide for—
(a) the form of contracts,
(b) limiting the rate of interest
and other charges,
(c) the minimum deposit to be paid
by a buyer,
(d) the maximum period of payment,
and the amount and frequency of
instalments or rentals,
(e) the appropriation of payments
as between two or more contracts
between the same seller and buyer,
(f) the information to be given in
any advertisement or announcement
published or made in any form or
manner whatsoever relating to
goods for sale by way of
hire-purchase regarding the terms
upon which the goods will be sold,
(g) the inclusion in any such
advertisement or announcement of a
statement of the price at which
the goods will be sold for cash.
(3) Regulations under this section
may also provide that a person who
sells goods to which the
regulations apply shall not be
entitled to enforce any agreement
for such sale or any right to
recover the goods unless specified
provisions of the regulations are
complied with.
(4) Regulations under this section
may also prescribe whether for
goods generally or for any class
or description of goods, a minimum
percentage for the purposes of
sections 69 and 70 of this Act in
lieu of fifty per cent.
Section 75—Application of Part
VIII.
(1) Subject to subsection (2),
this Part applies to every
contract.
(2) The application of this Part,
or of any provision thereof, may,
in the case of a contract in which
the cash price of the goods
exceeds ŁG1,000, be excluded by
agreement between the parties.
PART IX—MISCELLANEOUS
Section 76—Variation of Rights,
Duties and Liabilities.
Subject to the provisions of this
Act, the rights, duties and
liabilities of the parties to a
contract of sale, as laid down in
this Act may, as between the
parties themselves, be varied by
express agreement, or by the
course of dealing between the
parties, or by trade usage, or by
a custom (whether a rule of
customary law or not) which the
parties may be taken to have
agreed to be applicable to the
contract.
Section 77—Reasonable Time a
Question of Fact.
Where, by this Act, any reference
is made to a reasonable time the
question what is a reasonable time
is a question of fact.
Section 78—Application of the Act.
This Act applies to every contract
of sale of goods made after the
commencement of this Act.
Section 79—Act to Bind the
Republic.
This Act applies to contracts
entered into by or on behalf of
the Republic as it applies to
other contracts.
Section 80—Savings.
The rules of the common law and of
customary law, save in so far as
they are inconsistent with the
provisions of this Act, shall
continue to apply to contracts for
the sale of goods.
Section 81—Interpretation.
(1) In this Act, unless the
context otherwise requires—
"action" includes counterclaim and
set-off;
"agreement to sell" has the same
meaning as "sale";
"ascertained goods" means goods
identified and agreed upon after a
contract of sale is made;
"buyer" shall be construed in
accordance with section 1;
"contract of sale of goods" has
the meaning assigned to it in
section 1;
"delivery" means voluntary
transfer of possession from one
person to another;
"document of title" means any bill
of lading, dock warrant,
warehousekeeper's certificate and
any other document used in the
ordinary course of business as
proof of the possession or control
of goods, or authorizing or
purporting to authorise, either by
endorsement or delivery, the
possessor of the document to
transfer or receive goods thereby
represented;
"goods" means movable property of
every description, and includes
growing crops or plants and other
things attached to or forming part
of the land which are agreed to be
severed before sale by or under
the contract of sale;
"hire-purchase contract" means a
contract of sale of goods in which
the price is to be paid in five or
more instalments;
"hire-purchase price" means the
total sum payable by the buyer
under a hire-purchase contract in
respect of the goods being sold
excluding any sums payable as a
penalty or as damages or
compensation, but including any
deposit or initial payment, and
any charges for installation of
the goods, paid or payable by the
buyer;
"mercantile agent" means an agent
having in the ordinary course of
his business as an agent authority
to sell goods, or to consign goods
for sale, or to buy goods, or to
raise money on the security of
goods;
"plaintiff" includes defendant in
relation to a counterclaim;
"property" means the general
property in the goods and not
merely a special property;
"quality of goods" includes their
state or condition;
"sale" means a contract of sale of
goods;
"seller" shall be construed in
accordance with section 1;
"specific goods" means goods
identified and agreed upon at the
time a contract of sale is made.
(2) A person is insolvent within
the meaning of this Act if he has
ceased to pay his debts in the
ordinary course of business, or
cannot pay his debts as they
become due.
(3) Goods are in "a deliverable
state" within the meaning of this
Act when they are in such a state
that the buyer would under the
contract be bound to take delivery
of them.
Section 82—Repeal.
(1) The Hire Purchase Act, 1958
(No.55) is repealed but shall
continue to apply to contracts
made before the commencement of
this Act.
(2) Section 17 of the Auction
Sales Ordinance (Cap. 196) shall
not apply to the sale of goods.
Section 83—Statutes Ceasing to
Apply.
The enactments indicated in the
Second Schedule to this Act shall,
in so far as they apply in Ghana,
cease to apply to the extent
indicated in the third column of
the Schedule.
Section 84—Commencement.
This Act shall come into operation
three months after the date of
assent.
FIRST SCHEDULE
Section 66.
NOTICE TO BE INCLUDED IN NOTE OR
MEMORANDUM OF HIRE-PURCHASE
AGREEMENT NOTICE
Right of Buyer to Terminate
Agreement
1. The buyer may put an end to
this agreement by returning the
goods to the seller.
2. He must then pay any
instalments which are in arrears
at the time when he returns the
goods. If, when he has paid those
instalments, the total amount
which he has paid under the
contract is less than (here insert
the minimum amount which the buyer
is required to pay in accordance
with the provisions of section 68
of Act), he must also pay enough
to make up that sum.
3. The buyer should see whether
this agreement contains provisions
allowing him to put an end to the
agreement on terms more favourable
to him than those just mentioned.
If it does, he may put an end to
the agreement on those terms.
Restriction of Owner's Right to
Recover Goods
1. After (here insert a figure
equal to fifty per cent or other
prescribed percentage of the
hire-purchase price) has been
paid, then, unless the buyer has
himself put an end to the
agreement, the seller cannot take
them back from the buyer without
the buyer's consent unless the
seller obtains an order of the
court.
2. If the seller applies to the
court for such an order the court
may, if it thinks it just to do
so, allow the buyer to keep either
—
(a) the whole of the goods on
condition that the buyer pays the
balance of the price in the manner
ordered by the court; or
(b) a fair proportion of the goods
having regard to what the buyer
has already paid.
SECOND SCHEDULE
STATUTES CEASING TO APPLY
Session and Chapter
Subject Matter Extent of
Cesser
1 Jac. 1, c. 21
(1603)
Brokers The
whole Act.
4 Geo. 4, c. 83
(1823)
Factors The
whole Act
6 Geo. 4, c. 94
(1825)
Factors The
whole Act.
5 and 6 Vict., c. 39
(1842)
Mercantile Agents The whole
Act.
19 and 20 Vict.,c. 97
(1856)
Mercantile Law
(Amendment) Sections 1
and 2.
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