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or when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.

XXXVIII. Buyer not bound to return rejected goods.—Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he gives notice to the seller that he refuses to accept them.

XXXIX. Liubility of buyer for neglecting or refusing delivery of goods.When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

PART IV. Rights OF UNPAID SELLER AGAINST THE Goods. XL. Unpaid seller defined.-(1.) The seller of goods is deemed to be an 'unpaid seller' within the meaning of this Act

(a.) When the whole of the price has not been paid or tendered ; (6.) 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 of this Act 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.

XLI. Unpaid seller's rights.-(1.) Subject to the provisions of this Act, and of any Statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law

(a.) A lien on the goods for the price while he is in possession of

them;

(6.) In case of the insolvency of the buyer, a right of stopping the

goods in transitu after he has parted with the possession of

them;

(c.) A right of re-sale as limited by this Act.

(2.) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer.

Unpaid Seller's Lien. XLII. Seller's lien.—(1.) Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain

possession of them until payment or tender of the price in the following cases, namely (a.) Where the goods have been sold without any stipulation as to

credit; (6.) Where the goods have been sold on credit, but the term of credit

has expired; (c.) Where the buyer becomes insolvent.

(2.) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer.

XLIII. Part delivery.-(1.) Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.

XLIV. Termination of lien.—(1.) The unpaid seller of goods loses his lien thereon(a.) When he delivers the goods to a carrier or other person for the

purpose of transmission to the buyer without reserving the

right of disposal of the goods; (6.) When the buyer or his agent lawfully obtains possession of the

goods; (c.) By waiver thereof.

(2.) The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment for the price of the goods,

Stoppage in transitu. XLV. Right of stoppage in transitu.--Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, 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.

XLVI. Duration of transit.—(1.) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee.

(2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at

(3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee for the buyer, or his agent, 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 has refused to receive them back.

(5.) When goods are delivered to a ship chartered by the buyer, it

an end.

is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer.

(6.) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end.

(7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods.

XLVII. How stoppage in transitu is effected.-(1.) The unpaid seller may exercise his right of stoppage in transitu 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.

(2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee in possession of the goods, he must re-deliver the goods to, or according to the directions of the seller. The expenses of such re-delivery must be borne by the seller.

Re-sale by Buyer or Seller. XLVIII. Effect of sub-sale or pledge by buyer.—Subject to the provisions of this Act, the unpaid seller's right of lien or stoppage in transitu is not effected by any sale, pledge, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto.

Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale, the unpaid seller's right of lien or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or stoppage in transitu can only be exercised subject to the rights of the transferee.

XLIX. Sale not generally rescinded by lien or stoppage in transitu. — (1.) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or stoppage in transitu.

(2.) Where an unpaid seller who has exercised his right of lien or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer.

(3.) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid

seller

may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.

(4.) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages.

PART V.

ACTIONS FOR BREACH OF THE CONTRACT.

Remedies of the Seller. L. Action for price.-(1.) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses 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, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.

LI. Damages for non-acceptance. - (1.) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance.

(2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.

(3.) Where there is an available market for the goods in question, the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.

Remedies of the Buyer. LII. Damages for non-delivery. - (1.) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery.

(2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.

(3.) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.

LIII. Specific performance may be decreed.-In any action for breach of contract to deliver specific goods for a price in money, on application of the plaintiff, and by leave of the judge, before whom the action is

tried, the jury shall, if they find the plaintiff entitled to recover, find by their verdict (or if there be no jury, then the judge shall find) what are the goods in respect of the non-delivery of which the plaintiff is entitled to recover, and which remain undelivered ; what, if any, is the sum which the plaintiff would have been liable to pay for the delivery thereof; what damages, if any, the plaintiff would have sustained if the goods should be delivered under execution as hereinafter mentioned ; and what damages if not so delivered ; and thereupon if judgment shall be given for the plaintiff, the judge in his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum, if any, as shall have been found to be payable by the plaintiff as aforesaid, of the said goods without giving the defendant the option of retaining the same upon paying the damages assessed. 1

For the purposes of this section plaintiff' includes a defendant who counterclaims for delivery of the goods.

LIV. Breach of warranty of quality, fitness, or condition.—(1.) Where, under a contract of sale, there is an undertaking as to the quality or fitness of the goods, and the goods do not fulfil the undertaking, the buyer may reject the goods unless he has accepted them, or unless the contract was for the sale of specific goods, and the property in the goods has passed to the buyer.

(2.) Where the buyer has accepted the goods, or where the contract was for the sale of specific goods and the property therein has passed to the buyer, the buyer is not entitled to reject the goods unless there was a condition in the contract to that effect; but he may(a.) Set up against the seller the breach of warranty in diminution or

extinction of the price; or (6.) Maintain an action against the seller for damages for the breach of

warranty. (3.) The measure of damages for breach of warranty of quality or fitness is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(4.) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(5.) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.

LV. Interest and special daniages.—Nothing in this Act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

119 & 20 Vict. c. 97, s. 2.

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