WANG HAN SERN SALES OF GOODS LAW TUTORIAL 5

A 122278

CLASS: THURSDAY (9-10AM)

QUESTION 2 In this case, at first we need to identify that Badol is actually the plaintiff in order to further determined his rights as a buyer against both of the defendants, Muthu and Tan Ah Tin as the sellers, and what claims that Badol entitled from them. The cause of action which could be brought in this case is the breach of contract of sales of goods by the two sellers, under Sales of Goods Act 1957. The issue arises here is whether there is a non-performance of contract or an insufficient delivery which consists of delivery of wrong quantity or wrong mix of goods on the part of the seller, as section 37 of the Act imposes on the seller a strict duty to deliver the correct quantity of goods and of the type described without contamination of other goods. A failure by the seller to do so amounts to a breach of condition. As agreed between Badol and Muthu, Muthu must deliver 800 tin of pineapple on 1 Ogos as ordered. In fact, Muthu had delivered a mixture of 550 pineapple tins and 250 lychee tins. We submit that there is a breach of section 37 where the goods have been delivered in a quantity less than as contracted, because there is only 550 pineapple tins instead of 800 pineapple tins. For this breach Badol will has 2 options, first is to reject all of the 550 pineapple tins and 250 lychee tins, or accept all of the goods so delivered and pay for them at the contract rate, as according to section 37(1). This is similar with Harland and Wolff Ltd v J Burstall & Co, where there was a contract for 500 loads of timber and it was held that delivery of 470 loads was nonperformance of the contract where the buyer entitled to reject. Besides that there is also a wrong mixed of goods of a different description which is not as contracted, due to there is a mixture with 250 lychee tins which is not ordered by Badol in the contract. For this breach Badol will also has 2 options as according to section 37(3), which is first he may accept only the 550 tins of pineapple, which are in accordance with the contract and

reject the rest 250 lychee tins. The second choice is that he may reject the whole goods which are both the 550 pineapple tins and 250 lychee tins. In the agreement between Badol and Tan Ah Tin, Tan Ah Tin ought to deliver 600 tins of rambutan, where all the tin shall be packed in boxes which consists of 20 tins per boxes, but instead he had delivered at least 1/10 of the boxes consists of 24 tins of rambutan. We submit that there is a breach of section 37, where in this case, the goods have been delivered in a quantity larger than as contracted, in at least 1/10 of all the boxes. Thus, according to section 37(2), Badol may accept only the boxes which consists of 20 tins, and reject the boxes which consist of 24 tins. This will depend on Badols decision, not Tan Ah Tin. He cannot insist that Badol should selects the correct quantity and rejects the rest as according to Cunliffe v Harrison. Badol may choose to reject the whole tins as the second options. if he does not select the first option. Besides, there is also a wrong mixed of goods of a different description which is not as contracted as similar with the first situation between Badol and Muthu. This is because there is a mixture of goods which are in a different description as agreed in the contract, which is different in the aspect of quantity, where at least 1/10 of the boxes are in different description which contains more than 20 tins as agreed. With this, again, Badol will have to options as according to section 37(3), which is first, he may accept only the boxes which consists of 20 tins, which are in accordance with the contract, and reject the boxes which consist of 24 tins. The second choice is that he may reject all the boxes if he doesnt wish to accept only the boxes which are accordance to the contract. I advise that for the first situation, the best way for Badol is to reject all the goods from Muthu, instead of accept them, because Badol will suffer loss due to insufficiency of the pineapple tins that he wants, and he would has to pay at the same contract rate too. For the second situation, if the quantity of 20 tins per boxes is an essential term or requirement for Badol, then the best way is to reject all of them. Otherwise, he may choose to accept the goods which are in accordance with contract and reject the rest, either under s37(2) or s37(3). This is de preferred choice as it doesnt cause him any losses in aspect of quantity of the goods, unlike the first situation.