(1) If the buyer—
(a) has the right to reject the goods by reason of a breach on the part of the seller that affects some or all of them, but
(b) accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods,
he does not by accepting them lose his right to reject the rest.
(2) In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
(3) For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
(4) This section applies unless a contrary intention appears in, or is to be implied from, the contract.
(5) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 21 of that Act).
(1) Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.
(2) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 20 of that Act).
37 Buyer’s liability for not taking delivery of goods.
(1) 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.
(2) Nothing in this section affects the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
(1) The seller of goods is an unpaid seller within the meaning of this Act—
(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 of this Act “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 indorsed, or a consignor or agent who has himself paid (or is directly responsible for) the price.
(1) Subject to this and any other Act, 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 or right to retain them for the price while he is in possession of them;
(b) 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;
(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 or retention and stoppage in transit where the property has passed to the buyer.
(1) Subject to 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:—
(a) where the goods have been sold without any stipulation as to credit;
(b) 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 lien or right of retention notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer.
Where an unpaid seller has made part delivery of the goods, he may exercise his lien or right of retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.
(1) The unpaid seller of goods loses his lien or right of retention in respect of them—
(a) when he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods;
(b) when the buyer or his agent lawfully obtains possession of the goods;
(c) by waiver of the lien or right of retention.
(2) An unpaid seller of goods who has a lien or right of retention in respect of them does not lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods.
Subject to 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 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.
(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier or other bailee or custodier for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from the carrier or other bailee or custodier.
(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 an end.
(3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee or custodier 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 or custodier 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 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 or custodier 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 transit, 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.
(1) The 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 or custodier in whose possession the goods are.
(2) The notice may be given either to the person in actual possession of the goods or to his principal.
(3) If given to the principal, the notice is ineffective unless 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.
(4) When notice of stoppage in transit is given by the seller to the carrier or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller; and the expenses of the re-delivery must be borne by the seller.
(1) Subject to this Act, the unpaid seller’s right of lien or retention or stoppage in transit is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented to it.
(2) 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 take it in good faith and for valuable consideration, then—
(a) if the last-mentioned transfer was by way of sale the unpaid seller’s right of lien or retention or stoppage in transit is defeated; and
(b) if the last-mentioned transfer was made by way of pledge or other disposition for value, the unpaid seller’s right of lien or retention or stoppage in transit can only be exercised subject to the rights of the transferee.
(1) Subject to this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transit.
(2) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transit re-sells the goods, the buyer acquires a good title to them 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 the 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 rescinded but without prejudice to any claim the seller may have for damages.
(1) Where, under a contract of sale, the property in the goods has passed to the buyer and he 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.
(3) Nothing in this section prejudices the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be.
(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 prima 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) at the time of the refusal to accept.
(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 prima 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) at the time of the refusal to deliver.
(4) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).
(1) In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the plaintiff’s application, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.
(2) The plaintiff’s application may be made at any time before judgment or decree.
(3) The judgment or decree may be unconditional, or on such terms and conditions as to damages, payment of the price and otherwise as seem just to the court.
(4) The provisions of this section shall be deemed to be supplementary to, and not in derogation of, the right of specific implement in Scotland.
(5) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).
(1) Where there is a breach of warranty by the seller, or where the buyer elects (or is compelled) to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may—
(a) set up against the seller the breach of warranty in diminution or extinction of the price, or
(b) maintain an action against the seller for damages for the breach of warranty.
(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
(3) 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 fulfilled the warranty.
(4) 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.
(4A) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).
(5) This section does not apply to Scotland.
(1) The measure of damages for the seller’s breach of contract is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach.
(2) Where the seller’s breach consists of the delivery of goods which are not of the quality required by the contract and the buyer retains the goods, such loss as aforesaid 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 fulfilled the contract.
(2A) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).
(3) This section applies to Scotland only.
(1) Nothing in this Act affects 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.
(2) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 19 of that Act).
(1) Where a right, duty or liability would arise under a contract of sale of goods by implication of law, it may (subject to the Unfair Contract Terms Act 1977) be negatived or varied by express agreement, or by the course of dealing between the parties, or by such usage as binds both parties to the contract.
(1A) Subsection (1) does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 31 of that Act).
(2) An express term does not negative a term implied by this Act unless inconsistent with it.
(3) Paragraph 11 of Schedule 1 below applies in relation to a contract made on or after 18 May 1973 and before 1 February 1978, and paragraph 12 in relation to one made before 18 May 1973.
Paragraph 13 of Schedule 1 below applies in relation to a contract made on or after 18 May 1973 and before 1 February 1978, so as to make provision about conflict of laws in relation to such a contract.
(1) Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale.
(2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner; and until the announcement is made any bidder may retract his bid.
(3) A sale by auction may be notified to be subject to a reserve or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.
(4) Where a sale by auction is not notified to be subject to a right to bid by or on behalf of the seller, it is not lawful for the seller to bid himself or to employ any person to bid at the sale, or for the auctioneer knowingly to take any bid from the seller or any such person.
(5) A sale contravening subsection (4) above may be treated as fraudulent by the buyer.
(6) Where, in respect of a sale by auction, a right to bid is expressly reserved (but not otherwise) the seller or any one person on his behalf may bid at the auction.
(1) In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the seller for the price, be required, in the discretion of the court before which the action depends, to consign or pay into court the price of the goods, or part of the price, or to give other reasonable security for its due payment.
(2) This section does not apply to a contract to which Chapter 2 of Part 1 of the Consumer Rights Act 2015 applies (but see the provision made about such contracts in section 27 of that Act).
(1) In this Act, unless the context or subject matter otherwise requires,—
“action” includes counterclaim and set-off, and in Scotland condescendence and claim and compensation;
“bulk” means a mass or collection of goods of the same kind which—
is contained in a defined space or area; and
is such that any goods in the bulk are interchangeable with any other goods therein of the same number or quantity;
“business” includes a profession and the activities of any government department (including a Northern Ireland department) or local or public authority;
“buyer” means a person who buys or agrees to buy goods;
...
“contract of sale” includes an agreement to sell as well as a sale;
“credit-broker” means a person acting in the course of a business of credit brokerage carried on by him, that is a business of effecting introductions of individuals desiring to obtain credit—
to persons carrying on any business so far as it relates to the provision of credit, or
to other persons engaged in credit brokerage;
“defendant” includes in Scotland defender, respondent, and claimant in a multiplepoinding;
“delivery” means voluntary transfer of possession from one person to another ; except that in relation to sections 20A and 20B above it includes such appropriation of goods to the contract as results in property in the goods being transferred to the buyer;
“document of title to goods” has the same meaning as it has in the Factors Acts;
“Factors Acts” means the Factors Act 1889, the Factors (Scotland) 1890, and any enactment amending or substituted for the same;
“fault” means wrongful act or default;
“future goods” means goods to be manufactured or acquired by the seller after the making of the contract of sale;
“goods” includes all personal chattels other than things in action and money, and in Scotland all corporeal moveables except money; and in particular “goods” includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale; and includes an undivided share in goods;
“plaintiff” includes pursuer, complainer, claimant in a multiplepoinding and defendant or defender counter-claiming;
...
“property” means the general property in goods, and not merely a special property;
...
...
“sale” includes a bargain and sale as well as a sale and delivery;
“seller” means a person who sells or agrees to sell goods;
“specific goods” means goods identified and agreed on at the time a contract of sale is made and includes an undivided share, specified as a fraction or percentage, of goods identified and agreed on as aforesaid;
“warranty” (as regards England and Wales and Northern Ireland) means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it is done negligently or not.
(4) A person is deemed to be insolvent within the meaning of this Act if he has either ceased to pay his debts in the ordinary course of business or he cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he has become a notour bankrupt or not.
(5) 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.
(5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) As regards the definition of “business” in subsection (1) above, paragraph 14 of Schedule 1 below applies in relation to a contract made on or after 18 May 1973 and before 1 February 1978, and paragraph 15 in relation to one made before 18 May 1973.
(1) The rules in bankruptcy relating to contracts of sale apply to those contracts, notwithstanding anything in this Act.
(2) The rules of the common law, including the law merchant, except in so far as they are inconsistent with the provisions of legislation including this Act and the Consumer Rights Act 2015, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, apply to contracts for the sale of goods.
(3) Nothing in this Act or the Sale of Goods 1893 affects the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed or amended by this Act or that.
(4) The provisions of this Act about contracts of sale do not apply to a transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security.
(5) Nothing in this Act prejudices or affects the landlord’s right of hypothec . . . in Scotland.
(1) Without prejudice to section 17 of the Interpretation Act 1978 (repeal and re-enactment), the enactments mentioned in Schedule 2 below have effect subject to the amendments there specified (being amendments consequential on this Act).
(2) The enactments mentioned in Schedule 3 below are repealed to the extent specified in column 3, but subject to the savings in Schedule 4 below.
(3) The savings in Schedule 4 below have effect.
SCHEDULE 1 Modification of Act for Certain Contracts
Section 1.
Preliminary
1 (1) This Schedule modifies this Act as it applies to contracts of sale of goods made on certain dates.
(2) In this Schedule references to sections are to those of this Act and references to contracts are to contracts of sale of goods.
(3) Nothing in this Schedule affects a contract made before 1 January 1894.
Section 11: condition treated as warranty
2 In relation to a contract made before 22 April 1967 or (in the application of this Act to Northern Ireland) 28 July 1967, in section 11(4) after “or part of them,” insert “ or where the contract is for specific goods, the property in which has passed to the buyer, ”.
Section 12: implied terms about title etc.
3 In relation to a contract made before 18 May 1973 substitute the following for section 12:—
Implied terms about title, etc.
12 In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is—
(a) an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass;
(b) an implied warranty that the buyer will have and enjoy quiet possession of the goods;
(c) an implied warranty that the goods will be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.
Section 13: sale by description
4 In relation to a contract made before 18 May 1973, omit section 13(3).
Section 14: quality or fitness (i)
5 In relation to a contract made on or after 18 May 1973 and before the appointed day, substitute the following for section 14:—
Implied terms about quality or fitness.
14 (1) Except as provided by this section and section 15 below and subject to any other enactment, there is no implied condition or warranty about the quality or fitness for any particular purpose of goods supplied under a contract of sale.
(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition—
(a) as regards defects specifically drawn to the buyer’s attention before the contract is made; or
(b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
(3) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgment.
(4) An implied condition or warranty about quality or fitness for a particular purpose may be annexed to a contract of sale by usage.
(5) The preceding provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made.
(6) Goods of any kind are of merchantable quality within the meaning of subsection (2) above if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances.
(7) In the application of subsection (3) above to an agreement for the sale of goods under which the purchase price or part of it is payable by instalments any reference to the seller includes a reference to the person by whom any antecedent negotiations are conducted; and section 58(3) and (5) of the Hire-Purchase Act 1965, section 54(3) and (5) of the Hire-Purchase (Scotland) Act 1965 and section 65(3) and (5) of the Hire-Purchase Act (Northern Ireland) 1966 (meaning of antecedent negotiations and related expressions) apply in relation to this subsection as in relation to each of those Acts, but as if a reference to any such agreement were included in the references in subsection (3) of each of those sections to the agreements there mentioned.
Section 14: quality or fitness (ii)
6 In relation to a contract made before 18 May 1973 substitute the following for section 14:—
Implied terms about quality or fitness.
14 (1) Subject to this and any other Act, there is no implied condition or warranty about the quality or fitness for any particular purpose of goods supplied under a contract of sale.
(2) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, except that in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.
(3) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality; but if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed.
(4) An implied condition or warranty about quality or fitness for a particular purpose may be annexed by the usage of trade.
(5) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent with it.
Section 15: sale by sample
7 In relation to a contract made before 18 May 1973, omit section 15(3).
Section 22: market overt
8 In relation to a contract under which goods were sold before 1 January 1968 or (in the application of this Act to Northern Ireland) 29 August 1967, add the following paragraph at the end of section 22(1):—
Nothing in this subsection affects the law relating to the sale of horses.
Section 25: buyer in possession
9 In relation to a contract under which a person buys or agrees to buy goods and which is made before the appointed day, omit section 25(2).
Section 35: acceptance
10 In relation to a contract made before 22 April 1967 or (in the application of this Act to Northern Ireland) 28 July 1967, in section 35(1) omit “(except where section 34 above otherwise provides)”.
Section 55: exclusion of implied terms (i)
11 In relation to a contract made on or after 18 May 1973 and before 1 February 1978 substitute the following for section 55:—
Exclusion of implied terms.
55 (1) Where a right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by such usage as binds both parties to the contract, but the preceding provision has effect subject to the following provisions of this section.
(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent with it.
(3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 above is void.
(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13, 14 or 15 above is void in the case of a consumer sale and is, in any other case, not enforceable to the extent that it is shown that it would not be fair or reasonable to allow reliance on the term.
(5) In determining for the purposes of subsection (4) above whether or not reliance on any such term would be fair or reasonable regard shall be had to all the circumstances of the case and in particular to the following matters—
(a) the strength of the bargaining positions of the seller and buyer relative to each other, taking into account, among other things, the availability of suitable alternative products and sources of supply;
(b) whether the buyer received an inducement to agree to the term or in accepting it had an opportunity of buying the goods or suitable alternatives without it from any source of supply;
(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term exempts from all or any of the provisions of section 13, 14 or 15 above if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed, or adapted to the special order of the buyer.
(6) Subsection (5) above does not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13, 14 or 15 above is not a term of the contract.
(7) In this section “consumer sale” means a sale of goods (other than a sale by auction or by competitive tender) by a seller in the course of a business where the goods—
(a) are of a type ordinarily bought for private use or consumption; and
(b) are sold to a person who does not buy or hold himself out as buying them in the course of a business.
(8) The onus of proving that a sale falls to be treated for the purposes of this section as not being a consumer sale lies on the party so contending.
(9) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
(10) It is hereby declared that any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract.
(11) Nothing in this section prevents the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 above.
(12) In subsection (11) above “contract for the international sale of goods” means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States (the Channel Islands and the Isle of Man being treated for this purpose as different States from the United Kingdom) and in the case of which one of the following conditions is satisfied:—
(a) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; or
(b) the acts constituting the offer and acceptance have been effected in the territories of different States; or
(c) delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.
Section 55: exclusion of implied terms (ii)
12 In relation to a contract made before 18 May 1973 substitute the following for section 55:—
Exclusion of implied terms.
55 Where a right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by such usage as binds both parties to the contract.
Section 56: conflict of laws
13 (1) In relation to a contract made on or after 18 May 1973 and before 1 February 1978 substitute for section 56 the section set out in sub-paragraph (3) below.
(2) In relation to a contract made otherwise than as mentioned in sub-paragraph (1) above, ignore section 56 and this paragraph.
(3) The section mentioned in sub-paragraph (1) above is as follows:—
Conflict of laws.
56 (1) Where the proper law of a contract for the sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of any part of the United Kingdom, or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 12 to 15 and 55 above, those sections shall, notwithstanding that term but subject to subsection (2) below, apply to the contract.
(2) Nothing in subsection (1) above prevents the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 above.
(3) In subsection (2) above “contract for the international sale of goods” means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States (the Channel Islands and the Isle of Man being treated for this purpose as different States from the United Kingdom) and in the case of which one of the following conditions is satisfied:—
(a) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; or
(b) the acts constituting the offer and acceptance have been effected in the territories of different States; or
(c) delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.
Section 61(1): definition of “business” (i)
14 In relation to a contract made on or after 18 May 1973 and before 1 February 1978, in the definition of “business” in section 61(1) for “or local or public authority” substitute “ , local authority or statutory undertaker ”.
Section 61(1): definition of “business” (ii)
15 In relation to a contract made before 18 May 1973 omit the definition of “business” in section 61(1).
Section 63.
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Law Reform (Frustrated Contracts) Act 1943 (6 & 7 Geo. 6 c. 40)
2 In section 2(5)(c) of the Law Reform (Frustrated Contracts) Act 1943 for “section seven of the Sale of Goods Act 1893” substitute “ section 7 of the Sale of Goods Act 1979 ”.
Frustrated Contracts Act (Northern Ireland) 1947 (c. 2)
3 In section 2(5)(c) of the Frustrated Contracts Act (Northern Ireland) 1947 for “section seven of the Sale of Goods Act 1893” substitute “ section 7 of the Sale of Goods Act 1979 ”.
Hire-Purchase Act 1964 (c. 53)
4 In section 27(5) of the Hire-Purchase Act 1964 (as originally enacted and as substituted by Schedule 4 to the Consumer Credit Act 1974)—
(a) in paragraph (a) for “section 21 of the Sale of Goods Act 1893” substitute “ section 21 of the Sale of Goods Act 1979 ”;
(b) in paragraph (b) for “section 62(1) of the said Act 0f 1893” substitute “ section 61(1) of the said Act of 1979 ”.
Hire-Purchase Act 1965 (c. 66)
5 In section 20 of the Hire-Purchase Act 1965—
(a) in subsection (1) for “Section 11(1)(c) of the Sale of Goods Act 1893” substitute “ Section 11(4) of the Sale of Goods Act 1979 ”;
(b) in subsection (3) for “sections 12 to 15 of the Sale of Goods Act 1893” substitute “ sections 12 to 15 of the Sale of Goods Act 1979 ”
6 In section 54 of the Hire-Purchase At 1965 for “section 25(2) of the Sale of Goods Act 1893” substitute “ section 25(1) of the Sale of Goods Act 1979 ”.
7 In section 58(1) of the Hire-Purchase Act 1965 for “the Sale of Goods Act 1893” substitute “ the Sale of Goods Act 1979 ”.
Hire-Purchase (Scotland) Act 1965 (c. 67)
8 In section 20 of the Hire-Purchase (Scotland) Act 1965 for “1893” substitute “ 1979 ”.
9 In section 50 of the Hire-Purchase (Scotland) Act 1965 for “section 25(2) of the Sale of Goods Act 1893” substitute “ section 25(1) of the Sale of Goods Act 1979 ”.
10 In section 54(1) of the Hire-Purchase (Scotland) Act 1965 for “the Sale of Goods Act 1893” substitute “ the Sale of Goods Act 1979 ”.
Hire-Purchase Act (Northern Ireland) 1966 (c. 42)
11 In section 20 of the Hire-Purchase Act (Northern Ireland) 1966—
(a) in subsection (1) for “Section 11(1)(c) of the Sale of Goods Act 1893” substitute “ Section 11(4) of the Sale of Goods Act 1979 ”;
(b) in subsection (3) for “1893” substitute “ 1979 ”.
12 In section 54 of the Hire-Purchase Act (Northern Ireland) 1966 for “section 25(2) of the Sale of Goods Act 1893” substitute “ section 25(1) of the Sale of Goods Act 1979 ”.
13 In section 62(5) of the Hire-Purchase Act (Northern Ireland) 1966 (as originally enacted and as substituted by Schedule 4 to the Consumer Credit Act 1974)—
(a) in paragraph (a) for “1893” substitute “ 1979 ”;
(b) in paragraph (b) for “section 62(1) of the said Act of 1893” substitute “ section 61(1) of the said Act of 1979 ”.
14 In section 65(1) of the Hire-Purchase Act (Northern Ireland) 1966 for “the Sale of Goods Act 1893” substitute “ the Sale of Goods Act 1979 ”.
Uniform Laws on International Sales Act 1967 (c. 45)
15 For section 1(4) of the Uniform Laws on International Sales Act 1967 substitute the following:—
(4) In determining the extent of the application of the Uniform Law on Sales by virtue of Artticle 4 thereof (choice of parties)—
(a) in relation to a contract made before 18 May 1973, no provision of the law of any part of the United Kingdom shall be regarded as a mandatory provision within the meaning of that Article;
(b) in relation to a contract made on or after 18 May 1973 and before 1 February 1978, no provision of that law shall be so regarded except sections 12 to 15, 55 and 56 of the Sale of Goods Act 1979;
(c) in relation to a contract made on or after 1 February 1978, no provision of that law shall be so regarded except sections 12 to 15 of the Sale of Goods Act 1979
.
Supply of Goods (Implied Terms) Act 1973 (c. 13)
16 In section 14(1) of the Supply of Goods (Implied Terms) Act 1973 (as originally enacted and as substituted by Schedule 4 to the Consumer Credit Act 1974) for “Section 11(1)(c) of the principal Act” substitute “ Section 11(4) of the Sale of Goods Act 1979 ”.
17 For the definition of “consumer sale” in section 15(1) of the Supply of Goods (Implied Terms) Act 1973 substitute—
“consumer sale” has the same meaning as in section 55 of the Sale of Goods Act 1979 (as set out in paragraph 11 of Schedule 1 to that Act).
Consumer Credit Act 1974 (c. 39)
18 In section 189(1) of the Consumer Credit Act 1974, in the definition of “goods”, for “section 62(1) of the Sale of Goods Act 1893” subsitute “ section 61(1) of the Sale of Goods Act 1979 ”.
Unfair Contract Terms Act 1977 (c. 50)
19 In section 6 of the Unfair Contract Terms Act 1977—
(a) in subsection (1)(a) for “section 12 of the Sale of Goods Act 1893” substitute “ section 12 of the Sale of Goods Act 1979 ”;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 In section 14 of the Unfair Contract Terms Act 1977, in the definition of “goods”, for “the Sale of Goods Act 1893” subsitute “ the Sale of Goods Act 1979 ”.
21 In section 20(1)(a) ... of the Unfair Contract Terms Act 1977 for “1893” substitute ... “ 1979 ”.
22 In section 25(1) of the Unfair Contract Terms Act 1977, in the definition of “goods”, for “the Sale of Goods Act 1893” substitute “ the Sale of Goods Act 1979 ”.
Section 63
Chapter | Short title | Extent of repeal
56 & 57 Vict. c. 71. | Sale of Goods Act 1893. | The whole Act except section 26.
1967 c. 7. | Misrepresentation Act 1967. | Section 4.
In section 6(3) the words “except section 4(2),”.
1967 c. 14 (N.I.) | Misrepresentation Act (Northern Ireland) 1967. | Section 4.
1973 c. 13. | Supply of Goods (Implied Terms) Act 1973. | Sections 1 to 7.
Section 18(2).
1974 c. 39. | Consumer Credit Act 1974. | In Schedule 4, paragraphs 3 and 4.
1977 c. 50. | Unfair Contract Terms Act 1977. | In Schedule 3, the entries relating to the Sale of Goods Act 1893.
Section 63.
Preliminary
1 In this Schedule references to the 1893 Act are to the Sale of Goods Act 1893.
Orders
2 An order under section 14(8) or 25(4) above may make provision that it is to have effect only as provided by the order (being provision corresponding to that which could, apart from this Act, have been made by an order under section 192(4) of the Consumer Credit Act 1974 bringing into operation an amendment or repeal making a change corresponding to that made by the order under section 14(8) or 25(4) above).
Offences
3 Where an offence was committed in relation to goods before 1 January 1969 or (in the application of this Act to Northern Ireland) 1 August 1969, the effect of a conviction in respect of the offence is not affected by the repeal by this Act of section 24 of the 1893 Act.
1893 Act, section 26
4 The repeal by this Act of provisions of the 1893 Act does not extend to the following provisions of that Act in so far as they are needed to give effect to or interpret section 26 of that Act, namely, the definitions of “goods” and “property” in section 62(1), section 62(2) and section 63 (which was repealed subject to savings by the Statute Law Revision Act 1908).
Things done before 1 January 1894
5 The repeal by this Act of section 60 of and the Schedule to the 1893 Act (which effected repeals and which were themselves repealed subject to savings by the Statute Law Revision Act 1908) does not affect those savings, and accordingly does not affect things done or acquired before 1 January 1894.
6 In so far as the 1893 Act applied (immediately before the operation of the repeals made by this Act) to contracts made before 1 January 1894 (when the 1893 Act came into operation), the 1893 Act shall continue so to apply notwithstanding this Act.