Passing of Property

Passing of Property

ascertained goods
1. 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.
2. s18
  1. 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
    1. Unconditional K
      1. 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.
    2. Specific goods
      1. s61: goods identified and agreed upon at the time a contract of sale is made
      2. Howell v Coupland - a crop to be grown on certain field treated as specific good
      3. Kursell v Timber Operators - timber not specified
    3. Deliverable state
      1. s61(5): ... when they are in such a state that the buyer would under the contract be bound to take delivery of them.
      2. 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.
      3. Kursell v Timber Operators - since timber had to be cut prior to delivery, and for 15 years into the future, not of deliverable state
    4. Factors indicating contrary intention
      1. Lacis v Cashmarts - implied intention that pty should not pass until gds are properly paid for.
      2. despite s18 r1, not difficult to persuade court of contrary intention that pty doesn't pass till delivery
      3. 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
  2. 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
  3. 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
    1. 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
  4. 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.
    1. Weiner v Harris - 'buyer' was mere agent for seller, next buyer had good title and was protected from jeweller.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
Unascertained goods
1. 1. Goods to be manufactured or grown by the seller; 2. generic goods; 3. unidentified portion of a specified bulk or whole
2. s16: for sale of unascertained gds, no pty in gds is trfed until gds are ascertained.
  1. Re Wait - if goods have not been separated out of larger bulk, no pty can pass
  2. Re Goldcorp Exchange - buyers were merely unsecured creditors in goldcorp's liquidation
3. s18
  1. "unconditional appropriation"
    1. Rule 5 - some ascertained and identified goods must be irrevocably attached or ear-marked for particular contract
    2. Healy v Howlett & Sons - D's boxes were not earmarked in time before fish had deteriorated. held, pty in fish had not passed to buyer because there were no identified goods
    3. Laurie & Morewood v John Dudin & Son = w/o severance, no pty could have passed because goods not identified.
    4. Carlos Federspiel & Co SA v Charles Twigg & Co Ltd - refer to quote on sheet.
  2. Goods forming part of a bulk

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