Seller’s remedies
General personal remedies upon default of buyer’s obligation to make payment of the price
- However, the position of seller in such situation is unsatisfactory if his remedy is confined to only his
personal action on the contract.
- The law developed ‘real’ rights or remedies to improve the position of the seller.
Where the seller can still look to the goods as security for payment of the price.
- Four situations in relation to this.
In a sale of specific goods, the property has been passed to the buyer + the goods have been delivered to
the buyer.
o The seller has relinquished all right to look to the goods for his price.
The only remedy lies in his personal right of action against the buyer.
Has no more right over the goods.
a. If the seller seized the goods from the buyer’s possession, it will amount to a breach of s.
12(2)b) SOGA 1979 (Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584) and
constitutes the tort of conversion.
The seller can make the delivery of the goods to the buyer while not passing the property in the
goods.
a. By the use of retention of title clauses.
1. Such intention has to be made expressly.
2. Difficult to imply such intention of the seller to retain property in goods after delivery.
3. Effect: the seller has the right to reclaim the goods e.g. upon the buyer’s insolvency.
In a sale of specific goods, the property has passed but the goods have not yet been delivered.
o Concerns the situations where the goods are still in possession of the seller and where the goods
have been dispatched but not yet reached the buyer.
o Subject to certain conditions, the seller has two rights/power.
A power to resell the goods and pass a good title to a third party – s. 24 SOGA & s. 8 Factors Act.
a. The third party may receive a good title but the seller may be in breach of a contract with
the first buyer because he has no such right to do so.
b. Purpose to protect third party purchaser.
A right to resell and pass a good title. (note the difference between right and power)
a. The scope of application is more restricted than the above power.
b. Purpose to protect the seller from liability.
An agreement to sell specific or unascertained goods and no property has passed, but the seller is under a
personal obligation to deliver certain particular goods.
o In relation to unascertained goods, such situation occurs when there has been sufficient
appropriation to place the seller under an obligation to deliver the particular goods, but there has not
been sufficient appropriation to pass the property.
In cif contract when the seller gives notice of appropriation.
In a contract for the manufacture of an article where the personal obligation to deliver the goods
may come into being before the property passes.
o As no property has passed, the seller has the right to resell the goods to a third party.
But may amount a breach of contract.
The law gives the seller in such situation right to do so in certain circumstances.
An agreement to sell unascertained goods, no property has passed and no obligation to deliver any
particular goods.
o No special provision is needed, the seller has full power to exercise the control over the goods and
does not amont to any breach of a contract.
- S. 39 SOGA – remedies for unpaid seller, whether the property has passed to the buyer,
General personal remedies upon default of buyer’s obligation to make payment of the price
- However, the position of seller in such situation is unsatisfactory if his remedy is confined to only his
personal action on the contract.
- The law developed ‘real’ rights or remedies to improve the position of the seller.
Where the seller can still look to the goods as security for payment of the price.
- Four situations in relation to this.
In a sale of specific goods, the property has been passed to the buyer + the goods have been delivered to
the buyer.
o The seller has relinquished all right to look to the goods for his price.
The only remedy lies in his personal right of action against the buyer.
Has no more right over the goods.
a. If the seller seized the goods from the buyer’s possession, it will amount to a breach of s.
12(2)b) SOGA 1979 (Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584) and
constitutes the tort of conversion.
The seller can make the delivery of the goods to the buyer while not passing the property in the
goods.
a. By the use of retention of title clauses.
1. Such intention has to be made expressly.
2. Difficult to imply such intention of the seller to retain property in goods after delivery.
3. Effect: the seller has the right to reclaim the goods e.g. upon the buyer’s insolvency.
In a sale of specific goods, the property has passed but the goods have not yet been delivered.
o Concerns the situations where the goods are still in possession of the seller and where the goods
have been dispatched but not yet reached the buyer.
o Subject to certain conditions, the seller has two rights/power.
A power to resell the goods and pass a good title to a third party – s. 24 SOGA & s. 8 Factors Act.
a. The third party may receive a good title but the seller may be in breach of a contract with
the first buyer because he has no such right to do so.
b. Purpose to protect third party purchaser.
A right to resell and pass a good title. (note the difference between right and power)
a. The scope of application is more restricted than the above power.
b. Purpose to protect the seller from liability.
An agreement to sell specific or unascertained goods and no property has passed, but the seller is under a
personal obligation to deliver certain particular goods.
o In relation to unascertained goods, such situation occurs when there has been sufficient
appropriation to place the seller under an obligation to deliver the particular goods, but there has not
been sufficient appropriation to pass the property.
In cif contract when the seller gives notice of appropriation.
In a contract for the manufacture of an article where the personal obligation to deliver the goods
may come into being before the property passes.
o As no property has passed, the seller has the right to resell the goods to a third party.
But may amount a breach of contract.
The law gives the seller in such situation right to do so in certain circumstances.
An agreement to sell unascertained goods, no property has passed and no obligation to deliver any
particular goods.
o No special provision is needed, the seller has full power to exercise the control over the goods and
does not amont to any breach of a contract.
- S. 39 SOGA – remedies for unpaid seller, whether the property has passed to the buyer,
