ascertained goods

s17 (1): Where there is a contract for the sale of specific or ascertained goods the pty is trfed at time parties intend. (2): For purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.
s18
Rule 1 - Where there is an unconditional K for sale of goods...the pty in the goods passes to buyer when K is made, and it is immaterial whether the time of payment/delivery is postponed
Rule 2 - Where seller is bound to do something to the goods... pty does not pass until thing is done, and buyer has notice of it
Rule 3 - where seller is bound to weigh, measure, test, or do some other act...for purpose of ascertaining px, pty does not pass until it is done, and buyer has notice
Rule 4 - Where gds are delivered to buyer on approval or on sale or return, pty passes when buyer adopts transaction, or through an expiration of a reasonable time.
Unconditional K
Specific goods
Deliverable state
Factors indicating contrary intention
Varley v Whipp - sale of a reaping machine was not an unconditional sale despite fact that it was clearly not subj to any conditions precedent, but no reason given.
s61: goods identified and agreed upon at the time a contract of sale is made
Howell v Coupland - a crop to be grown on certain field treated as specific good
Kursell v Timber Operators - timber not specified
s61(5): ... when they are in such a state that the buyer would under the contract be bound to take delivery of them.
physical moveability of the goods: Underwood Ltd v Burgh Castle Brick & Cement Syndicate - engine not in deliverable state as it had to be dismantled after being detached from floor.
Kursell v Timber Operators - since timber had to be cut prior to delivery, and for 15 years into the future, not of deliverable state
Lacis v Cashmarts - implied intention that pty should not pass until gds are properly paid for.
despite s18 r1, not difficult to persuade court of contrary intention that pty doesn't pass till delivery
relevant factors to consider: 1. where seller advises buyer to insure, 2. seller may retain some interest in gds through lien or charge; 3. if its land, passes only on conveyance
Nanka-Bruce v Commonwealth Trust - held, weighing did not make contract conditional and pty passed from A to B before px was ascertained to B's purchaser
Weiner v Harris - 'buyer' was mere agent for seller, next buyer had good title and was protected from jeweller.
Re Neville - goods delivered to Neville with px list tt he was not payable for them until sold. Neville free to sell at any px, only account to seller.
Kirkham v Attenborough - buyer of goods on sale or return pawned goods for loan. held, pawnbroker aquired goods because he adopted the transaction. any act which shows he's a purchaser is sufficient.
Poole v Smith - car supplied by one motor dealer to another on sale or return & car was returned in damaged condition. held, buyers had adopted transaction for using car for own purposes rather than selling it off.
Factors Act 1889 can protect bona fide 3rd party because mercantile agent can bind his principal in relation to any transaction that he enters into in relation to goods that he possesses.
Atari Corporation v Electronics Boutique Stores - CA held in absence of specific provision, any intimation to seller that buyer does not wish to exercise option to purchase suffices.

	Created by tystania over 9 years ago

	Copied to Note by tystania over 9 years ago

Note on Passing of Property - created from Mind Map, created by tystania on 10/30/2014.

Passing of Property - created from Mind Map