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Rules regarding delivery of goods

The rules regarding the delivery of goods are contained in Sec. 33 to Sec. 38 of the Sale of Goods Act, which may be grouped as under:

Mode of Delivery of goods (Sec.33)

The delivery of the goods may be made in any of the modes as discussed above. It must have an effect of putting the goods in possession of the buyer or his authorised agent. Thus, the delivery of the goods should be such that it enables the buyer to exercise his control over the goods.

Part delivery of goods (Sec.34)

The analysis of Sec. 34 reveals that in case of part delivery of the goods, the following rules shall apply:
  • Where the part delivery is made in progress of the whole delivery, then it is treated as a delivery of the whole. The ownership of the whole quantity is transferred to the buyer
  • Where the part delivery is made with the intention of separating it from the whole, it is not treated as a delivery of the whole. The ownership of the whole quantity is not transferred to the buyer
Example 1

Amar sold certain goods which were lying in his warehouse to Akbar. Amar ordered his warehouse keeper to deliver those goods to Akbar. Akbar weighed all the goods and took away a part of them. It was held that this amounted to a delivery of the whole of the goods. In this case, Amar’s act of ordering his warehouseman to deliver the goods to the buyer and the buyer’s act of weighing all the goods show that the delivery of the whole of the goods was contemplated by the parties.

 

Example 2

Amar sold 100 quintals of wheat lying in his godown to Akbar. Afterwards, Amar sold 50 quintals of wheat from such 100 bags to Anthony and delivered the same to him. Later Amar delivered 50 bags of wheat to Akbar. In this case, the part delivery of the wheat cannot be treated as the delivery of the whole wheat sold. The intention of separating the wheat is clear from Amar’s act of selling and delivering 50 quintals of wheat to Anthony.

Apply for delivery of goods (Sec.35)

The buyer is bound to claim delivery. Apart from any express contract, a seller is not bound to deliver the goods unless and until requested by the buyer. If the seller fails to deliver the goods on the application of the buyer, the seller is guilty of breach of contract.

Place for the delivery of goods. (Sec.36)

The place for the delivery of goods may be specified in the contract itself. And where the place is so specified, the goods must be delivered at the specified place during the business hours and on a working day.
 
Where there is no specific agreement as to the place of delivery, it shall be determined as per Sec. 36(1) as:
  • Where there is ‘sale’ of goods, the delivery must be at the place where the goods are at the time the sale is made
  • In case of ‘agreement to sell’, the delivery must be at the place where the goods are at the time the agreement to sell is made
  • In case of contract of sale of future goods, the delivery must take place where the goods are manufactured or produced

Time for the delivery of goods. Sec 36(2)

When the time is so specified, the delivery is to be made by the seller within the specified time. When no time is specified in the contract, the delivery of goods must be made within a reasonable time.

Goods in the possession of a third person Sec 36(3)

Sometimes, at the time of sale, the goods are in the possession of a third person. In such cases, the effective delivery takes place only when such a person acknowledges to the buyer, that he holds the goods on his (buyer’s) behalf.

 

Note: When the goods have been sold by the issue of any document of title of goods, the consent of the third party is not necessary.

Expenses for the delivery of goods Sec.36 (5)

Unless otherwise agreed, the expenses incidental to putting the goods into a deliverable state, shall be borne by the seller and the expense of receiving the goods are borne by the buyer.

Delivery of wrong quantity

The rules dealing with the effect of delivery of wrong quantity may be discussed under the following heads:
  • Short delivery Sec 37(1)
     
    Sometimes, the seller delivers a lesser quantity of goods than he contracted to sell. In such cases, the buyer may reject the goods, but if the buyer accepts it, he shall have to pay the contract price for the goods actually delivered to him. However, in such a case, the buyer may claim damages for short delivery of the goods.
  • Excess delivery Sec.37(2)
     
    Sometimes, the seller delivers a larger (i.e., excess) quantity of goods than he contracted to sell. In such cases, the buyer may accept the contracted quantity of goods and reject the rest or accept the whole quantity or reject the whole quantity. If the buyer accepts the whole of the goods delivered, he shall pay for them at the contract price.

Note: If the goods have been rejected for short or excess delivery, the contract is not treated as cancelled. The seller still has a right to make, within the time limit, another delivery in accordance with the terms of the contract and the buyer is bound to accept the same.

  • Mixed delivery Sec. 37(3)
     
    Sometimes, the seller delivers the goods mixed with the goods of a different description not included in the contract. In such cases, the buyer may accept the goods which are in accordance with the contract and reject the rest or reject the whole quantity of goods.

Note: If the deficiency or excess is so small as to be negligible, the buyer cannot reject the goods. This is based on the maxim ‘de minimis non curatlex’ i.e. the law does not take account of trifles.

Delivery of goods by installments (Sec. 38)

As a matter of fact, the delivery of goods by installments is not considered as a proper delivery and the buyer is not bound to accept the goods delivered to him by installments, unless otherwise agreed. The pattern of delivery shall be determined by the contract.

Delivery to a carrier

Sometimes, the sold goods are delivered to a carrier for the purpose of transmission to the buyer. In such cases, the delivery of goods to the carrier is treated as a delivery to the buyer. Sometimes, the seller agrees to deliver the goods, at his own risk, at a place other than that where the goods are lying at the time of contract of sale. In such cases, the seller shall bear the loss of deterioration of goods which is incidental i.e., natural in transit. In such a case, the delivery of goods to a carrier does not amount to a delivery to the buyer.
  • Duty of the seller with regard to the delivery of goods to a carrier
    1. The seller must enter into a reasonable contract with a carrier on behalf of the buyer for the safe transmission of goods. If the seller omits to do so and if the goods are destroyed, the buyer may decline to treat delivery to the carrier as delivery to himself and can hold the seller liable for damages
    2. When the goods are sent by the seller to the buyer by a route involving sea transit, the seller must inform the buyer in time, so as to get the goods insured; otherwise the goods will be at the seller’s risk during the sea transit




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