PROJECT REPORT ON:

Business Law

Sale and Agreement to sell

w.r.t Sale Vis-a-Vis Hire Purchase
{Sections 4-6}

Submitted

to:

Submitted by:
Ms,

Sugandha

Anubha Jindal
Assistant

Professor,

Roll no.: 128/13

UILS, PU, Chandigarh
LLB (Sec- C]

B.Com

Sale and Agreement to sell

Acknowledgment

I extend my sincere gratitude to God who gave me strength to complete my project work well in
time. Then, I would like to thank my parents who got me admitted to this prestigious institution
and be a part of that.
Then, I would like to thank my subject teacher, Ms.Sugandhandha, for taking up this subject in
such a vivid and enthusiastic way and for taking up the topics in the class in a very systematic
and detailed approach. So much as to the fact that when it came to the project work of same, the
idea was already preconceived in mind as to how to go about the topic.
I also like to thank the UILS Library and staff for providing the various reference books that
came as a great source of research.
Thank you.
Anubha Jindal
128/13

Sale and Agreement to sell

Contents
SN
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

Particulars
Table of Cases
Introduction
Definition of Contract of Sale
Essentials of Sale
Difference between Sale and Agreement to Sale
Formalities of Contract of Sale
Existing and Future Goods
Hire and Purchase
Contract of Sale and Hire Purchase Agreement
Sale and Bailment
Contract of Sale and Contract of Agency
Sale of Goods and Work and Labour
Bibliography

Page
3
4
5
6
11
13
14
15
17
20
21
22
25

Sale and Agreement to sell

Sr. No.

Case

1.
2.
3.

Graff V. Evans (1882) 8 QBD 373

Vishnu Agencies V. Commercial Tax Officer (1978) 42 SCC 31
UP Cooperative Cane Unions Federation vs. West UP Sugar Mills Assn [AIR

4.
5.

2004 SC 3697]
H. Anraj vs. Government of Tamil Nadu [AIR 1986 SC 63]
Commissioner of Sales Tax vs. Madhya Pradesh Electricity Board[AIR 1970 SC

6.
7.
8.
9.
10.
11.

732]
Helby V. Matthew [1895] AC 471
K L Johar & Co. V. Deputy Commercial Tax Officer AIR 1965 SC 1082
Lee V. Butler [1893] 2 QB 398
Robinson vs. Graves [1935 1 KB 579]
Lee vs. Griffin [1861 30 LJ QB 252]
Asstt. Sales Tax Officer vs. B C Kame [AIR 1977 SC 1642]

Table of Cases

Sale and Agreement to sell

Introduction
History of Legislation
Originally, the transactions related to sale and purchase of goods was regulated by Chapter VII
(Sections 76 to 123) of Indian Contract Act, 1872 which was broadly based on English
common law. A need was felt to overhaul the law due to rapid growth of mercantile transactions
and various progressive English judgments being passed to meet the needs of the community.
Thus, the provisions of Chapter VII were repealed, suitably amended keeping in mind the
English Sales of Goods, 1893 and recent judicial decisions of the time. A separate act, the Sale of
Goods Act came into force on 1st July 1930.
It extends to the whole of India except the State of Jammu and Kashmir. It does not affect rights,
interests, obligations and titles acquired before the commencement of the Act. The Act deals with
sale but not with mortgage or pledge of the goods.
This Act lays down special provisions governing the contract of sale of goods but it does not
altogether render the general law of contract inapplicable. The provisions of the Contract Act, in
so far as they are consistent with the express provisions of Sales of Goods Act, shall apply to
contracts for the sale of goods, e.g., provisions regarding the capacity of parties, legality of
contract, etc. The Sale of Goods Act, 1930 deals with the 'sale' but not with 'mortgage' or
'pledge', which comes within the purview of the Transfer of Property Act, 1882 and the Indian
Contract Act, 1872 respectively.1
Secondly, the Act deals with 'goods' but not with all movable property, e.g., actionable claims
and money. Provisions relating to sale of immovable property and the transfer of actionable
claims are contained in the Transfer of Property Act, 1882.2

1 http://www.morldtechgossips.com/2012/09/law-of-sale-of-goods-act-1930.html
2 http://www.icaiknowledgegateway.org/littledms/folder1/chapter2-10.pdf
4

Sale and Agreement to sell

Definition of Contract of Sale

Section 4 of the Sales of Goods Act, 1930 defines a contract of sale whereby the seller transfers
or agrees to transfer the property in goods to the buyer for price. The term contract of sale
includes both a sale and an agreement to sell.
Sale and agreement to sell.- (1) A contract of sale of goods is a contract whereby the seller
transfers or agrees to transfer the property in goods to the buyer for a price. There may be a
contract of sale between one part-owner and another.
(2) A contract of sale may be absolute or conditional
(3) Where under a contract of sale the property in the goods in transferred from the seller to the
buyer, the contract is called a sale, but where the transfer of the property in the goods is to take
place at a future time or subject to some condition thereafter to be fulfilled, the contract is called
an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled
subject to which the property in the goods is to be transferred.
The definition as above reveals important elements of transfer of a ownership for a price. Here
there are two parties to the contract who are willing to exchange their goods to gain a mutual
benefit called price.
A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such
offer by the other party. The contract may be oral or in writing. A contract of sale may be
absolute or conditional.

Sale and Agreement to sell

Essentials of Sale
1) Bilateral Contract: A sale has to be bilateral because the goods have to pass from one person
to another. There must be a buyer a person who buys or agrees to buy the goods [Section 2(1)]
and a seller a person who sells or agrees to sell goods [Section 2(13)]. The seller and the buyer
must be different persons. A part owner can sell to another part owner. A partner may, therefore,
sell to his firm or a firm may sell to a partner. But if joint owners distribute property among
themselves as per mutual agreement, it is not sale. A person cannot be the seller of his own
goods as well as the buyers of them.
However, when a bankrupt persons goods are sold under an execution of decree, the person may
buy back his own goods from his trustee.
In Graff V. Evans3, the accused was the manager of a club. The club was not licensed for the sale
of intoxicating liquors, but these were supplied by the manager to the members at fixed prices.
This was held to be not a sale within the meaning of licensing Acts. It was merely a distribution
of the liquors among the members, they being the joint owners of the club. But if the club were
an incorporated body, the result would perhaps have been different.

3 (1882) 8 QBD 373

6

Sale and Agreement to sell

Contracts under Statutory Compulsion

Sometimes a contract may not be entered into by the normal process of negotiation, but under a
statutory compulsion. When the goods are supplied under a statutory compulsion whether that
results in sale or not.
In Vishnu Agencies V. Commercial Tax Officer 4, it was held that the transaction of supply of
cement by a distributor to a permit-holder, in terms of the provisions of West Bengal Cement
Control Act and control Order, amounts to 'sale' and thus eligible to sales tax. The appellant
contended that no volition or free will or bargaining power was left to it, and since there was no
element of mutual consent or agreement between it and the allottees, the transactions were not
sales within the meaning of Sales Tax Act.
The court observed that the offer and acceptance need not always be in an elementary form, nor
indeed does the Law of Contract or The Sale of goods require that the consent to a contract must
be express, it maybe implied and can be spelt out from the conduct of the parties. In the first
place, it is not obligatory on a trader to deal in cement nor on anyone to acquire it. The decision
of trader to deal in an essential commodity is volitional. Such volition carries with it the
willingness to trade in the commodity strictly on the terms of Control Order. The consumer too,
who is under no legal compulsion to acquire or possess cement, decided as a matter of his
volition to obtain it on the terms of permit or the order of allotment issued in his favour. Thus,
though both parties are bound to comply with the legal requirements governing the transaction
they agree as between themselves to enter into transaction on agreeing to supply on statutory
terms and other agreeing to accept it on the very terms. Thus, transaction between them, is
consensual' or with their 'free consent.
2.) Subject matter to be goods
Goods as defined in Section 2(7) is
Goods means every kind of movable property other than actionable claims and money, and
includes the following:

Stock and share

4 (1978) 42 SCC 31
7

Sale and Agreement to sell

Growing crops, grass and thing attached to or forming part of the land which are agreed
to be served before sale or under the Contract of sale.

Money cannot be sold because money means legal tender and not the old coins which can be
sold and purchased as goods. Actionable claims are things that a person cannot make use of, but
which can be claimed by him by means of legal action such as a debt. Even the Fixed Deposit
Receipts (FDR) are considered as goods under Section 176 of the Indian Contract Act read with
Section 2(7) of the Sales of Goods Act.
Sale of immovable property is not covered under this Act. As per Section 3 of the Transfer of
Property Act, 1882, immovable property does not include standing timber, growing crops or
grass. They are considered movable property and thus goods. Standing timber is taken as
movable property while trees are immovable property.
Things like goodwill, copyright, trademark, patents, water, gas, electricity are all goods. In the
case of Commissioner of Sales Tax vs. Madhya Pradesh Electricity Board5 , the Supreme Court
observed electricity can be transmitted, transferred, delivered, stored, possessed, etc., in the
same way as any other movable property. If there can be sale and purchase of electric energy like
any other movable object, we see no difficulty in holding that electric energy was intended to be
covered by the definition of goods.
In the case of H. Anraj vs. Government of Tamil Nadu6 , it was held that lottery tickets are goods
and not actionable claims. Thus, sale of lottery tickets is sale of goods. Sugarcane supplied to a
sugar factory is goods within the meaning of Section 2(7) of the Act as held in the case of UP
Cooperative Cane Unions Federation vs. West UP Sugar Mills Assn7.
Types of Goods
1. Existing Goods
5 [AIR 1970 SC 732]
6 [AIR 1986 SC 63]
7 [AIR 2004 SC 3697]
8

Sale and Agreement to sell

Existing goods mean the goods which are either owned or possessed by the seller or owned or
possessed by the seller at the time of contract of sale. The existing goods may be specific or
ascertained or unascertained as follows:
a) Specific Goods [Section 2(14)]
These are the goods which are identified and agreed upon at the time when a contract of sale is
made-For example specified TV, Car, Ring.

b) Ascertained Goods
Goods are said to be ascertained when out of a mass of unascertained goods, the quantity
extracted for is identified and set aside for a given contract. Thus, when part of the goods lying in
bulk are identified and earmarked for sale, such goods are termed as ascertained goods.
c) Unsanctioned Goods: These are the goods which are not identified and agreed upon at the
time when a contract of sale is made e.g. goods in stock or lying in lots.
2. Future Goods [Section 2(6)]
Future goods mean goods to be manufactured or produced or acquired by the seller after the
making of the contract of sale. There can be an agreement to sell only. There can be no sale in
respect of future goods because one cannot sell what he does not possess. Thus, under the Act, a
contract of sale of future goods, e.g., 1,000 quintals of potatoes to be grown on A's field, is not
illegal, though the actual sale of future goods is not possible. This is an example of agreement to
sell.
3. Contingent Goods [Section 6(2)]

Sale and Agreement to sell

These are the goods the acquisition of which by the seller depends upon a contingency which
may or may not happen.
3) Transfer of ownership of Goods: There must be transfer of ownership or an agreement to
transfer the ownership of goods from the seller to the buyer not the transfer of mere possession
or limited interest as in the case of pledge, lease or hire purchase agreement. If goods remain in
possession of seller after sale transaction is over, but ownership is with buyer, the Act uses the
term general property implying that sale involves total ownership and not a specific right
limited by conditions.
Delivery of goods refers to a voluntary transfer of possession of goods from one person to
another. Delivery may be constructive or actual depending upon the circumstances of each case.
A contract may provide for the immediate delivery of the goods or immediate payment of the
price or both. Alternatively, the delivery or payment may be made by instalments or be
postponed.
4) Consideration is Price: The consideration in a contract of sale has to be price i.e., money. If
goods are offered as the consideration for goods, it will not amount to sale. It will be barter. If
there is no consideration, it will be called gift. But where the goods are sold for definite sum and
the price is paid partly in kind and partly in cash, the transaction is a sale.
Consideration is an essential for a valid contract as per the Indian Contract Act, 1872. It is the
duty of a buyer who has received and appropriated the goods to pay a reasonable price.
According to Section 2(10) price means the money consideration for the sale of goods. If the
price is not fixed, the contract is void ab initio.
Section 9 lays down how the price may be fixed in a contract of sale:
1.

It can be fixed by the contract itself; or

2. It can be fixed in a manner provided by the contract, such as appointment of a valuer; or

3.

It can be determined by the course of dealings between the parties; or

4. If the price is not capable of being fixed in any of the ways mentioned ways, the buyer is
bound to pay reasonable price. What is a reasonable price is a question of fact dependent
10

Sale and Agreement to sell

on the circumstances of each particular case. It is not necessary that reasonable price
should be equal to the market price.
Section 10 makes it clear that if the third party appointed under the agreement to fix the price
cannot or does not make such valuation, then the agreement to sell goods will become void. If
the third party is prevented in his valuation due to the buyer or the seller, the party not at fault
can file a suit for damages against the party in fault.
5) Essential elements of a valid contract
All the essentials of a valid contract must be present. viz., competent parties, free consent, legal
object and so on. The transfer of possession and ownership under the Act has to be voluntary and
not be tainted with fraud or duress.
Time: Any stipulation with respect to time is not deemed to be of essence to a contract of sale
unless a different intention appears from the terms of the contract.

11

Sale and Agreement to sell

Difference between Sale and Agreement to Sale

12

Sale and Agreement to sell

13

Sale and Agreement to sell

Formalities of Contract of Sale

Section 5. Contract of Sale how made -. (1) A contract of sale is made by an offer to buy or sell
goods for a price and the acceptance of such offer. The contract may provide for the immediate
delivery of the goods or immediate payment of the price or both, or for the delivery or payment
by instalments, or that the delivery or payment or both shall be postponed.
(2) Subject to the provisions of any law for the time being in force, a contract of sale may be
made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be
implied from the conduct of the parties.
Section 5 of the Act specifically provides for the following three steps or formalities in a contract
of sale:
1) Offer and Acceptance: A contract of sale is made by an offer to buy or sell the goods for a
price and acceptance of such offer.
2) Delivery and Payment: It is not necessary that the payment for the goods to the seller and
delivery of goods to the buyer must be simultaneous. They can be made at different times or in
instalments as per the contract.
3) Express or Implied: The contract can be in writing, oral or implied. It can also be partly oral
and partly written.

14

Sale and Agreement to sell

Existing and Future Goods

Section 6. Existing or future goods.- (1) The goods which form the subject of a contract of sale
may be either existing goods, owned or possessed by the seller, or future goods.
(2) There may be a contract for the sale of goods the acquisition of which by the seller depends
upon a contingency which may or may not happen.
(3) Where by a contract of sale the seller purports to effect a present sale of future goods, the
contract operates as an agreement to sell the goods.

Formation. The contract of sale may provide for any of the following methods.
Immediate delivery of goods.
Immediate payment of price but delivery at some future date.
Immediate payment of price and immediate delivery of goods.
Delivery or payment or both made in installments.
Delivery or payment or both will be made at future date.

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Sale and Agreement to sell

Hire and Purchase

There is no provision in the Act regulating a transaction of hire-purchase, which is also a method
of selling goods. It is a transaction of hire at the inception with an option to purchase.
English Law
In the English Sale of Goods Act of 1893, there was no provision for such a transaction. Hence,
provision was made by a separate Act, namely, the Hire-Purchase Act of 1938 with a view to
affording protection to the buyer of the goods on hire-purchase, or on similar terms, against
certain abuses which had become apparent in the practice of hire-purchase trading. This Act has
been supplemented by the Hire-Purchase Act, 1954.8
Meaning
A hire-purchase agreement partakes of the nature of a contract of bailment with an element of
sale added to it. A hirer may not be bound to purchase the thing hired but where there is an
obligation or an option to buy on the terms that the hirer on payment of a premium as also the
number of installments, shall enjoy the goods which ultimately may become his property, the
transaction amounts to one of hire-purchase, though the title to the goods would remain with the
owner till all the installments are paid or the hirer has exercised his option to finalise the
purchase on payment of a sum nominal or otherwise.
Under a hiring agreement the hirer has a right to return the goods at any time, and thereby relieve
himself from any thither obligation. An agreement to sell and a sale have to be distinguished
from a contract of hire purchase. They can be distinguished on the basis, firstly a hire purchase
agreement entitles the hirer only to possession of the goods. He cannot pass a good title to any
buyer from him. But a person who receives possession under an agreement to buy is able to pass
a good title to a bona fide purchaser from him. Secondly, a hirer cannot claim the benefit of
implied conditions and warranties created by the Act unless it becomes a sale. Thirdly, the Hire
Purchase Act is applicable only to hire purchase contracts. Lastly, sales tax is not leviable on a
hire purchase until it becomes sale.
8 http://lawcommissionofindia.nic.in/1-50/report8.pdf
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Sale and Agreement to sell

In a hire-purchase agreement the hirer has two options:

(i) hirer has an option to buy, but no obligation to buy; and
(ii) right to terminate the agreement as such.
The basis of distinction between the two was explained by House of Lords in Helby V.
Matthews9. Helby let a piano on hire on the following terms:
(i) Hirer should pay a certain amount per month;
(ii) should he punctually pay 36 monthly installments, the piano should become his property,
until then it should continue to be the property of Helby, and
(iii) Hirer had the right to terminate the hire at any time by returning the instrument to Helbv.
After paying a few installments hirer pledged the instrument with the defendant, who acted in
good faith. Helby sued defendant to recover the instrument. It was held that he could do so. Hirer
was not in possession having agreed to buy the piano, but under a hire purchase agreement and
therefore, had no right to pledge.
An agreement to buy imports a legal obligation to buy. If there was no such obligation, there
cannot properly be said to have been an agreement. Hirer might buy, or not, just as he pleased.
He did not agree to pay 36 or any number of monthly payments. All that he undertook was to
make the monthly payment so long as he kept the piano. He had an option no doubt to buy it by
continuing the stipulated payments. If he had exercised that option he would have become the
purchaser. Under these circumstances how hirer can be said either to have bought or agreed to
buy the piano.
The ownership passes to him when he exercises that option. The hirer cannot be compelled to
buy. The Supreme Court of India has cited this statement in K L Johar & Co. V. Deputy
Commercial Tax Officer10. The court said that the essence of sale is that the property is
transferred from the seller to the buyer for a price, whether paid at once or paid later in
9 [1895] AC 471
10 AIR 1965 SC 1082
17

Sale and Agreement to sell

installments. On the other hand, a hire purchase agreement has two aspects. There is first an
aspect of bailment of goods subject to the hire purchase agreement, and there is next, an element
of sale which fructifies when the option to purchase is exercised by the intending purchaser.
Where the hirer does not have the option to return, it will be an agreement to buy and not a hire
purchase, even if the price is payable in installments and the seller has the power to seize the
goods on default this was established in Lee V. Butler11. Here a lady hired certain furniture from
plaintiff, the price to be paid in two installments, and the plaintiff having the right to take back
the furniture if an installment was not paid. Before the last installment was paid. The lady sold
the furniture to the defendant. It was held that the defendant had acquired a good title. The lady
being in possession of the furniture under the agreement to buy. She did not have the option to
return she was compelled to buy. The test whether an agreement is sale or hire purchase is if a
person taking the goods has no option to terminate the agreement, is a contract of sale
irrespective of where the price is paid in instalments.

11 [1893] 2 QB 398
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Sale and Agreement to sell

Contract of Sale and Hire Purchase Agreement

Basis of
Distinction
1. Law
2. Nature
contract
3. Possession
4. Transfer
ownership

5. Buyer

Contract of Sale

Hire Purchase Agreement

A contract of sale is governed byThey are governed by Hire Purchase Act,

the Sale of Goods Act, 1930.
1972
ofIt may be written, oral orIt is an agreement to hire and an agreement
implied.
to sell. It has to be in writing.
Possession may or may not
transfer immediately.
Possession passes immediately
It transferred only when the option to
ofThe ownership of goods ispurchase is exercised and the last payment is
transferred immediately.
made.
The hirer is a bailee, and not the owner until
The buyer becomes the fullhe pays all the instalments of the price in
owner of the goods
full or exercises the option to purchase.

The buyer can transfer a good

title to third parties becauseThe hirer cannot transfer a good title to a
6. Transfer to thirdownership of goods has beenthird party as ownership has not been
parties
transferred.
transferred.
7. Right
repossess

toThe seller can sue for price butThe hire vendor has a right to repossess the
he cannot repossess the goods. goods if the hirer defaults in the payments.

8. Right
terminate

toIn a sale, there is no option to theThe hirer can terminate the agreement
buyer to return the goods bought.before the ownership is transferred.

9. Sales Tax

In case of sale of taxable goods,Even if taxable goods are hired, sales tax is
sales tax is levied.
not levied.

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Sale and Agreement to sell

Contract of Sale and Bailment

A 'bailment' is the delivery of goods for some specific purpose under a contract on the condition
that the same goods are to be returned to the bailor or are to be disposed of according to the
directions of the bailor. The difference between bailment and sale may be clearly understood by
studying the following:12
Sale
1. The property in goods is transferred from the seller to the buyer.
2. The return of goods in contract of sale is not possible.
3. The consideration is the price in terms of money.
Bailment
1. There is only transfer of possession of goods from the bailor to the bailee for any of the
reasons like safe custody, carriage etc.
2. The bailee must return the goods to the bailor on the accomplishment of the purpose for which
the bailment was made.
3. The consideration may be gratuitous or non-gratuitous.

12 http://www.icaiknowledgegateway.org/littledms/folder1/chapter2-10.pdf
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Sale and Agreement to sell

Contract of Sale and Contract of Agency

A contract of agency, differs essentially from a Contract of Sale in as much as an agent after
taking delivery of the property does not sell it as his own property but sells the same as the
property as the property of the principal and under his directions and instructions. Furthermore,
since the agent not the owner of the goods, if any loss is suffered by the agent he is to be
indemnified by the principal. This is yet another dominant factor which distinguishes an agent
from a buyer- pure and simple.
Whether a particular agreement is an agency agreement or an agreement of sale depends upon
the terms of the agreement. For deciding that question, the terms of the agreement have got to be
examined. The true nature of the transaction evidenced by a written agreement has to be
ascertained from the covenants and not merely from what the parties choose to call it. The terms
of the agreement must be carefully scrutinized in the light of the surrounding circumstances.

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Sale and Agreement to sell

Sale of Goods and Work and Labour

A contract of sale of goods is one in which some goods are sold or are to be sold for a price. It
requires the delivery of goods. But there are transactions where there is a contract of exercise of
skill and labour, and the delivery of goods is subsidiary. These are the contracts for work or
labour or the contracts for service. It is the intention of the parties that creates the difference
whether only delivery of goods is intended or exercise of skill and labour with regard to the
goods has to be delivered.
Example: A commissions B to paint his portrait and supplies him with the material to paint. It is
a contract for work and labour and not a contract of sale because the substance of the contract is
the artists skill and not the delivery of the material.
In a similar case of Robinson vs. Graves13 , A, a painter was orally commissioned by B to paint
portrait of a lady. Later, B repudiated the contract before its completion. It was held that the
contract was of work and labour because the substance of the contract was the skill and
experience of the artist in producing the picture.
Example: A bought a portrait painted by B, a famous artist. It is a contract of sale and not a
contract for work and labour because the substance of the work is the delivery of the portrait.
In Lee vs. Griffin14 , a lady engaged a dentist to make two sets of false teeth "to be fitted into her
mouth". Before the work could be completed the lady died. In the doctor's action to recover his
charges the contract was held to be one of sale. The court emphasized that we should see the end
of the transaction. If the result of a transaction is the passing of an article for a price it is a sale.
Where gold is given to a goldsmith for preparing ornament, it is a contract of work and labour.
When a photographer takes a photograph, develops the negative and does other photographic

13 [1935 1 KB 579]
14 [1861 30 LJ QB 252]
22

Sale and Agreement to sell

work and then supplies the prints to his client, the contract is one of skill and labour and not that
of sale of goods as held in the case of Asstt. Sales Tax Officer vs. B C Kame15
Sale and Barter: A sale is always for a price but in case of barter, the transfer of ownership of
goods is in return for other goods there is not price paid.
Sometimes a contract may involve supply of some article which also involves rendering of some
work or service in respect of the same. In such a case, there may be difficulty in deciding
whether it is a contract of sale of goods or a contract for work and labour or a contract of service.
The problem of ascertaining the nature of the contract in such cases generally arises in the
context of the liability for sales tax, which could be levied in case of sale of goods and not when
the contract is one for work and labour. A contract of sale has to be distinguished from a contract
involving the exercise of skill or labour on some material. Apart from the question of liability to
sales tax, the distinction is important because it is only a sale that carries a number of implied
conditions and warranties.
Whether the contract is one of sale or of work and labour depends on the circumstances of each
case. If the object of the contract is to transfer the property in some chattel and the delivery of the
same to the buyer, it is a contract of sale, irrespective of the fact that the cost of the materials
used bear a very small proportion to the price charged. On the other hand, if the object is not to
transfer property in the chattel but to render skill and labour, the contract is one for work and
labour.
The primary difference between a contract for work or service and a contract for sale of goods is
that in the former there is in the person performing work or rendering service no property, in the
things produced as a whole notwithstanding that a part or even the whole of the material used
him may have been his property. In the case of contract of sale, the thing produced as a whole
has individual existence as the sole property, and of the party who produced it, at some time
before delivery, and the property therein passes only under the contract relating thereto in goods
used in the performance of the contract is not sufficient; to constitute a sale there must be an

15 [AIR 1977 SC 1642]

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Sale and Agreement to sell

agreement express or implied relating to the sale of goods and completion of the agreement by
passing of title in the very goods contracted to be sold.
In every case the court will have to find out what was the primary object of the transaction and
the intention of the parties while entering into it Generally a contract to make a chattel and
deliver it, when made, is a contract of sale, but not always. The test would seems to be whether
the thing to be delivered has any individual existence before delivery as the sole property of the
party who is to deliver it.16
For example A' is employed by B' to draw a conveyance on paper and with ink furnished by 'A'.
This is a contract for work and not for the sale of goods.
Some contract involves use of both service and goods. This type of contract is considered as
contract for work and skill.
This kind of contract involves exercise of skill and labour by one party on some goods or
materials supplied by other party or supplied by party who exercise skill and labour for price. It
is immaterial who supply material. Alternatively, it can be said that in this kind of contract, main
purpose is to exercise work and skill. Supply of own goods is only subsidiary. Intension of
parties is to transfer goods only after exercise of some skill and labour.
As it is not falling within categories of contract for Sale no sales tax is payable.
Example: (1) A dentist agreed to supply a set of artificial teeth to a patient. The material was
wholly found by the dentist. Held, it was a contract for the sale of goods.
(2) An artist was asked to paint a portrait. The material was supplied by the party and not by the
painter. It was held to be a contract for work and labour and not of sale.

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Sale and Agreement to sell

Bibliography
Books Referred
1. Pollock and Mulla, The Sale of Goods Act, 7 th ed.

Lexis Nexis

Butterworths.
2. Chakraborty R., Law of Sale of Goods and Partnership, 1 st ed., Orient
Publishing Company, 2006.
3. Singh Avtar, Law of Sale of Goods and Hire Purchase, 6 th ed. Eastern
Book Company, 2005.

Sites Accessed
1. http://mayank-lawnotes.blogspot.in/2007/01/sales-of-goods-act.html
2.https://kanwarn.wordpress.com/2015/06/20/sale-of-goods-act-1930-part-iintroduction/
3. http://lawcommissionofindia.nic.in/1-50/report8.pdf
4.http://www.icaiknowledgegateway.org/littledms/folder1/chapter2-10.pdf
5.http://www.morldtechgossips.com/2012/09/law-of-sale-of-goods-act1930.html

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