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Fiji Legislation |
LAWS OF FIJI
CHAPTER 230
Revised Ed.
1985]
SALE OF GOODS
TABLE OF PROVISIONS
PART I-PRELIMINARY
SECTION
1. Short title
2. Interpretation
PART II-SALE OF GOODS
Division I-Contract of Sale
3. Sale and agreement to sell
4. Capacity to buy and sell - sale of necessaries to persons incompetent to contract
5. Contract of sale, how made
6. Sale and agreement to sell goods on credit in course of retail trade to be accompanied by invoice
Division 2-Subject Matter of Contract
7. Existing or future goods
8. Sale of perished goods
9. Goods perished after agreement to sell
Division 3-The Price
10. Ascertainment of price
11. Agreement to sell at valuation
Division 4-Conditions and Warranties
12. Stipulations as to time
13. When condition to be treated as warranty
14. Implied undertakings as to title, etc.
15. Conditions implied by description
16. Implied undertakings as to quality or fitness
Division 5-Sale by Sample
17. Sale by sample
Division 6-Effects of the Contract
18. Property in unascertained goods
19. Property in specific or ascertained goods passes when intended to pass
20. Rules for ascertaining intention as to time when property passes
21. Reservation by seller of right of disposal
22. Risk prima facie passes with property
Division 7-Transfer of Title
23. Sale by person not the owner
24. Sales under voidable title
25. Revesting of property in stolen goods on conviction of offender
26. Re-sale by seller or his agent in possession after sale
27. Effect of writs of execution
Division 8-Performance of the Contract
28. Duties of seller and, buyer
29. Payment and delivery prima facie concurrent conditions
30. Rules as to delivery
31. Delivery of wrong quantity or description
32. Delivery by instalments
33. Delivery to carrier as buyer's agent
34. Risk where goods are delivered elsewhere than at place of sale
35. Buyer's right of examining the goods
36. Acceptance
37. Buyer is not bound to return rejected goods
38. Liability of buyer for neglecting or refusing delivery of goods
Division 9-Rights of Unpaid Seller Against the Goods
39. Unpaid seller defined
40. Rights of unpaid seller
Division 10-Unpaid Seller's Lien
41. Seller's lien
42. Lien after part delivery
43. Termination of lien
Division 11-Stoppage in Transitu
44. Right of stoppage in transitu
45. Duration of transit
46. Mode of stopping in transitu
Division 12-Re-Sale by Buyer or Seller
47. Effect of subsale or pledge by buyer
48. Effect on sale of exercise of lien or stoppage in transitu
Division
13-Actions for Breach of the
Contract
Subdivision
A-Remedies of the Seller
49. Action for price
50. Action for non-acceptance
Subdivision B-Remedies of the Buyer
51. Action for non-delivery
52. Right to specific performance
53. Remedy for breach of warranty
54. Interest and damages
Division 14-Exclusion of Implied Terms
55. Exclusion of implied terms and conditions
56. Conflict of laws
57. Reasonable time
58. Rights, etc., enforceable by action
59. Auction sales
60. Savings
PART III-SUPPLY OF GOODS AND SERVICES
61. Implied terms in relation to supply of goods
62. Implied terms in relation to supply of services
PART IV-LAYBY SALES
63. Interpretation;
64. "Layby sale" defined
65. Risk not to pass until goods delivered
66. Buyer to be entitled to a statement of his present position
67. Right of buyer to cancel layby sale
68. Rights of seller and buyer on cancellation of layby sale
69. Completion on winding up, bankruptcy, or receivership of seller
70. Preference on winding, bankruptcy or receivership of seller
71. Service of notices
72. Buyer's rights protected
PART V-UNSOLICITED GOODS AND SERVICES
73. Unsolicited goods
74. Unsolicited services
PART VI-MISREPRESENTATION
75. Removal of certain bars to rescission for innocent misrepresentation
76. Damages for misrepresentation
77. Avoidance of certain provisions excluding liability for misrepresentation
78. Representations
PART VII-SUPPLEMENTAL
79. Regulations
80. Repeal of Chapter 206
-----------------------------------------------
Act No. 14 of 1979
TO RE-ENACT AND AMEND THE LAW RELATING TO THE SALE OF GOODS AND SERVICES, LAYBY SALES, UNSOLICITED GOODS AND MISREPRESENTATION
[1 January 1980]
PART I-PRELIMINARY
Short title
1. This Act may be cited
as the Sale of Goods Act.
Interpretation
2.-(1) In this Act, unless
the context otherwise requires-
"action" includes counter-claim and set-off;
"business" includes a profession and the activities of a government department, local authority or statutory undertaking;
"buyer" means a person who buys or agrees to buy goods;
"contract of sale" includes an agreement to sell as well as a sale;
"contravention", in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
"delivery" means the voluntary transfer of possession from 1 person to another;
"document of title to goods" includes any bill of lading, dock warrant, warehouse-keeper's certificate and warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise either by endorsement or by delivery the possession of the document to transfer or receive the goods thereby represented;
"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 chattels personal which are the subject of trade or commerce and component parts of any such chattels. The term 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 land which are agreed to be severed before sale or under the contract of sale or things annexed to the land which in contemplation of law do not become part of the land;
"plaintiff" includes a defendant counter-claiming:
"property" means the general property in goods and not merely a special property;
"quality of goods" includes their state or condition;
"quantity" includes weight, length, width, height, area, volume, capacity and number;
"sale" includes a bargain and sale as well as sale and delivery;
"seller" means a person who sells goods or agrees to sell goods;
"service" or "services" includes (without limiting the generality of that expression) the rights or benefits that are to be supplied under a contract for-
(a) the performance of work (including work of a professional nature but not including work under a contract of service), whether with or without the supply of goods;
(b) the provision of, or of the use or enjoyment of facilities for accommodation, amusement, entertainment, recreation or instruction; or
(c) the conferring of rights or privileges for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction;
"specific goods" means goods identified and agreed upon at the time a contract of sale is made;
"supply", when used as a verb, includes-
(a) in relation to goods - the supply by way of sale, exchange, lease, hire or hire purchase; and
(b) in relation to services - provide, render, grant or confer and when used as a noun has a corresponding meaning, and
"supplied" and "supplier" shall have corresponding meanings;
"trade" includes any transaction for the transferring or rendering of money or money's worth in consideration of money or money's worth;
"unsolicited" means, in relation to goods sent or services rendered to any person, that they are sent or rendered without any prior request made by him or on his behalf;
"warranty" 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)
Goods (of any kind) are of merchantable quality 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 and all other relevant
circumstances.
(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 be done
negligently or
not.
(4) A person is deemed to be
insolvent, within the meaning of this Act, who either has ceased to pay his
debts in the ordinary course
of business or cannot pay his debts as they become
due, whether he has committed an act of bankruptcy 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.
PART II-SALE OF GOODS
Division 1-Contract of Sale
Sale and agreement to sell
3.-(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 money consideration called the price. There
may be a contract of sale between 1 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 is 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.
Capacity to buy and sell-sale of necessaries to persons incompetent to contract
4. Capacity to buy and
sell is regulated by the general law concerning capacity contract and to
transfer and acquire
property:
Provided that, where
necessaries are sold and delivered to an infant or minor or to a person who by
reason of mental incapacity or
drunkenness is incompetent to contract, he must
pay a reasonable price
therefor.
"Necessaries", in this
section, means goods suitable to the condition in life of such infant or minor
or other person and to his actual
requirements at the time of the sale and
delivery.
Contract of sale, how made
5. Subject to the
provisions of this Act and of any Act in that behalf, 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.
Provided that nothing in
this section shall affect the law relating to corporations.
Sale and agreement to sell goods on credit in course of retail trade to be accompanied by invoice
6.-(1) A sale of goods on
creditor an agreement to sell goods on credit in the course of trade shall not
be enforceable by action
at the suit of the seller, unless-
(a) at the time of the sale or agreement to sell, an invoice or docket, serially numbered, be made in writing in duplicate, both original and duplicate containing-
(i) the serial number;
(ii) the date of the transaction;
(iii) the name of the buyer;
(iv) the nature and, except in the case of goods exempted from this provision by order of the Minister, the quantity of the goods, in the English language and in figures; and
(v) the price in English words or figures; and
(b) at the time of delivery of the goods, the original or duplicate of the invoice or docket be delivered to the buyer or to some person to whom the goods may properly be delivered on his behalf:
Provided
that the provisions of this section shall not apply to an agreement to sell,
over a period of time, goods of nature such
as are commonly delivered at regular
intervals, such as newspapers, bread or milk, or to any sale in pursuance of
such agreement,
where a written order signed by the buyer or his agent in that
behalf is given to the seller at the time of the agreement to
sell.
(2) In this
section-
"docket" includes a packing note, delivery note or other printed form customarily used for recording the particulars of a sale;
"sale or agreement to sell in the course of trade" means a sale or an agreement to sell to a person by or on behalf of a person who carries on the business of selling goods.
Division 2-Subject Matter of Contract
Existing or future goods
7.-(1) The goods which
form the subject of a contract of sale may be either existing goods 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.
Sale of perished goods
8. Where there is a
contract for the sale of specific goods and the goods, without the knowledge of
the seller, have perished at the
time when the contract is made, the contract is
void.
Goods perished after agreement to sell
9. Where there is an
agreement to sell specific goods and subsequently the goods, without any fault
on the part of the seller or buyer,
perish before the risk passes to the buyer,
the agreement is hereby avoided.
Division 3-The Price
Ascertainment of price
10.-(1) The price in a
contract of sale may be fixed by the contract or may be left to be fixed in
manner thereby agreed or may be
determined by the course of dealing between the
parties.
(2) Where the price is
not determined in accordance with the foregoing provisions, the buyer must pay a
reasonable price. What is
a reasonable price is a question of fact dependent on
the circumstances of each particular case.
Agreement to sell at valuation
11.-(1) Where there is an
agreement, to sell goods on the terms that the price is to be fixed by the
valuation of a third party and
such third party cannot or does not make such
valuation, the agreement is
avoided:
Provided that, if the
goods or any part thereof have been delivered to and appropriated by the buyer,
he must pay a reasonable price
therefor.
(2) Where such third
party is prevented from making the valuation by the fault of the seller or
buyer, the party not in fault may
maintain an action for damages against the
party in fault.
Division 4-Conditions and Warranties
Stipulations as to time
12.-(1) Unless a different
intention appears from the terms of the contract, stipulations as to time of
payment are not deemed to
be of the essence of a contract of sale. Whether any
other stipulation as to time is of the essence of the contract or not depends
on
the terms of the contract.
(2) In
a contract of sale, "month" means, prima facie, calendar
month.
When conditions to be
treated as warranty
13.-(1) Where
a contract of sale is subject to any condition to be fulfilled by the seller,
the buyer may waive the condition or may
elect to treat the breach of such
condition as a breach of warranty and not as a ground for treating the contract
as repudiated.
(2) Whether a
stipulation in a contract of sale is a condition, or a warranty the breach of
which may give rise to a claim for damages
but not to a right to reject the
goods and treat the contract as repudiated, depends in each case on the
construction of the contract.
A stipulation may be a condition though called a
warranty in the contract.
(3)
Where a contract of sale is not severable and the buyer has accepted the goods
or part thereof, the breach of any condition to
be fulfilled by the seller can
only be treated as a breach of warranty and not as a ground for rejecting the
goods and treating the
contract as repudiated, unless there be a term of the
contract express or implied to that
effect.
(4) Nothing in this
section shall affect the case of any condition or warranty fulfilment of which
is excused by law by reason of
impossibility or otherwise.
Implied Undertakings as to sale, etc.
14.-(1) In every contract
of sale, other than one to which subsection (2) applies, 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 a right to sell the goods at the time when the property is to pass; and
(b) an implied warranty that the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made and that the buyer will enjoy quiet possession of the goods, except so far as it may be, disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known.
(2)
In a contract of sale, in the case of which there appears from the contract or
is to be inferred from the circumstances of the
contract an intention that the
seller should transfer only such title as he or a third person may have, there
is-
(a) an implied warranty that all charges or encumbrances known to the seller and not known to the buyer have been disclosed to the buyer before the contract is made; and
(b) an implied warranty that neither-
(i) the seller; nor
(ii) in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person; nor
(iii)
anyone claiming through or under the seller or that third person otherwise than
under a charge or encumbrance disclosed or known
to the buyer before the
contract is made, will disturb the buyer's quiet possession of the
goods.
Conditions implied by description
15.-(1) Where there is a
contract for the sale of goods by description, there is an implied condition
that the goods shall correspond
with the description; and, if the sale be by
sample as well as by description, it is not sufficient that the bulk of the
goods corresponds
with the sample if the goods do not also correspond with the
description.
(2) A sale of goods
shall not be prevented from being a sale by description by reason only that,
being exposed for sale or hire, they
are selected by the buyer.
Implied undertakings as to quality or fitness
16.-(1) Subject to the
provisions of this or any other section of this or any other Act, there is no
implied condition or warranty
as to 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 as to quality or fitness for a particular purpose may be annexed to
a contract of sale by usage.
(5)
The foregoing 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) In the application of
subsection (3) 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 shall
include a reference to the person by whom any antecedent negotiations are
conducted.
Division 5-Sale by Sample
Sale by sample
17.-(1) A contract of sale
is a contract for sale by sample where there is a term in the contract express
or implied to that effect.
(2) In
the case of a contract for sale by sample, there is-
(a) an implied condition that the bulk shall correspond with the sample in quality;
(b) an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;
(c) an implied condition that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample.
Division 6-Effects of the Contract
Property in unascertained goods
18. Where there is a
contract for the sale of unascertained goods, no property in the goods is
transferred to the buyer unless and
until the goods are
ascertained.
Property in specific or ascertained goods passes when intended to pass
19.-(1) Where there is a
contract for the sale of specific or ascertained goods, the property in them is
transferred to the buyer
at such time as the parties to the contract intend it
to be transferred.
(2) For the
purpose of ascertaining the intention of the parties, regard shall be had to the
terms of the contract, the conduct of
the parties and the circumstances of the
case.
Rules for ascertaining intention as to time when property passes
20. Unless a different
intention appears, the following are rules for ascertaining the intention of the
parties as to the time at
which the property in the goods is to pass to the
buyer:-
Rule I - Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment or the time of delivery or both be postponed.
Rule II - Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done and the buyer has notice thereof.
Rule III - Where there is a contract for the sale of specific goods in a deliverable state but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done and the buyer has notice thereof.
Rule IV - When goods are delivered to the buyer on approval or on "sale or return" or other similar terms, the property therein passes to the buyer-
(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time or, if no time has been fixed, on the expiration of a reasonable time.
Rule V-Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied and may be given either before or after the appropriation is made.
(2)
Where in pursuance of the contract, the seller delivers the goods to the buyer
or to a carrier or other bailee or custodier (whether
named by the buyer or not)
for the purpose of transmission to the buyer and does not reserve the right of
disposal, he is deemed
to have unconditionally appropriated the goods to the
contract.
Reservation by seller of right of disposal
21.-(1) Where there is a
contract for the sale of specific goods or where goods are subsequently
appropriated to the contract, the
seller may, by the terms of the contract or
appropriation, reserve the right of disposal of the goods until certain
conditions are
fulfilled. In such case, notwithstanding the delivery of the
goods to a buyer or to a carrier or other bailee or custodier for the
purpose of
transmission to the buyer, the property in the goods does not pass to the buyer
until the conditions imposed by the seller
are
fulfilled.
(2) Where goods are
shipped and by the bill of lading the goods are deliverable to the order of the
seller or his agent, the seller
is,
prima
facie,
deemed to reserve the right of
disposal.
(3) Where the seller of
goods draws on the buyer for the price and transmits the bill of exchange and
bill of lading to the buyer
together to secure acceptance or payment of the bill
of exchange, the buyer is bound to return the bill of lading if he does not
honour the bill of exchange, and, if he wrongfully retains the bill of lading,
the property in the goods does not pass to him.
Risk prima facie passes with property
22. Unless otherwise
agreed, the goods remain at the seller's risk until the property therein is
transferred to the buyer, but, when
the property therein is transferred to the
buyer, the goods are at the buyer's risk whether delivery has been made or
not:
Provided that-
(a) where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault;
(b) nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party.
Sale by person not the owner
23-(1) Subject to the
provisions of this Act, where goods are sold by a person who is not the owner
thereof and who does not sell
them under the authority or with the consent of
the owner, the buyer acquires no better title to the goods than the seller had,
unless
the owner of the goods is, by his conduct, precluded from denying the
seller's authority to
sell:
Provided that nothing in
this Act shall affect-
(a) the provisions of any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof;
(b) the validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction.
Sales under voidable title
24. When the seller of
goods has a voidable title thereto but his title has not been avoided at the
time of the sale, the buyer acquires
a good title to the goods, provided he buys
them in good faith and without notice of the seller's defect of
title.
Revesting of property in stolen goods on conviction of offender
25.-(1) Where goods have
been stolen and the offender is prosecuted to conviction, the property in the
goods so stolen revests in
the person who was the owner of the goods or his
personal representative, notwithstanding any intermediate dealing with them
whether
by sale or otherwise.
(2)
Notwithstanding any enactment to the contrary, where goods have been obtained by
fraud or other wrongful means not amounting to
theft, the property in such goods
shall not revest in the person who was the owner of the goods or his personal
representative by
reason only of the conviction of the offender.
Re-sale by seller or his agent in possession after sale
26.-(1) Where a person
having sold goods continues or is in possession of the goods or of the documents
of title to the goods. the
delivery or transfer by that person or by a
mercantile agent acting for him of the goods or documents of title under any
sale, pledge
or other disposition thereof to any person receiving the same in
good faith and without notice of the previous sale shall have the
same effect as
if the person making the delivery or transfer were expressly authorised by the
owner of the goods to make the
same.
(2) Where a person, having
bought or agreed to buy goods, obtains, with the consent of the seller,
possession of the goods or the
documents of title to the goods, the delivery or
transfer by that person or by a mercantile agent acting for him of the goods or
documents of title under any sale, pledge or other disposition thereof to any
person receiving the same in good faith and without
notice of any lien or other
right of the original seller in respect of the goods shall have the same effect
as if the person making
the delivery or transfer were a mercantile agent in
possession of the goods or documents of title with the consent of the
owner.
(3) In this section, the
term "mercantile agent" means a mercantile agent having, in the customary course
of his business as such
agent, authority either to sell goods or to consign
goods for the purpose of sale or to buy goods or to
raise
money on the security of
goods.
Effect of writs of execution
27.-(1) A writ of
fieri
facias or other writ of execution against
goods shall bind the property in the goods of the execution debtor as from the
time when the writ
is delivered to the sheriff to be executed, and, for the
better manifestation of such time, it shall be the duty of the sheriff,
without
fee, upon the receipt of any such writ, to endorse upon the back thereof the
hour, day, month and year when he received the
same:
Provided that no such writ
shall prejudice the title to such goods acquired by any person in good faith and
for valuable consideration.
unless such person had,
at
the time when he acquired his title,
notice that such writ or any other writ, by virtue of which the goods of the
execution debtor
might be seized or attached, had been delivered to and remained
unexecuted in the hands of the
sheriff.
(2) In this section, the
term "sheriff" includes any officer charged with the enforcement of a writ of
execution.
Division 8-Performance of the Contract
Duties of seller and buyer
28. It is the duty of the
seller to deliver the goods and of the buyer to accept and pay for them in
accordance with the terms of
the contract of sale.
Payment and delivery prima facie concurrent conditions
29. Unless otherwise
agreed, delivery of the goods and payment of the price are concurrent
conditions, that is to say, the seller
must be ready and willing to give
possession of the goods to the buyer in exchange for the price and the buyer
must be ready and
willing to pay the price in exchange for possession of the
goods.
Rules as to delivery
30.-(1) Whether it is for
the buyer to take possession of the goods or for the seller to send them to the
buyer is a question depending
in each case on the contract express or implied
between the parties. Apart from any such contract express or implied, the place
of
delivery is the seller's place of business if he has one, and if not, his
residence:
Provided that, if the
contract be for the sale of specific goods which to the knowledge of the parties
when the contract is made are
in some other place, then that place is the place
of delivery.
(2) Where, under the
contract of sale, the seller is bound to send the goods to the buyer but no time
for sending them is fixed, the
seller is bound to send them within a reasonable
time.
(3) Where the goods, at the
time of sale, are in the possession of a third person, there is no delivery by
seller to buyer unless
and until such third person acknowledges to the buyer
that he holds the goods on his
behalf:
Provided that nothing in
this section shall affect the operation or the issue or transfer of any document
of title to goods.
(4) Demand or
tender of delivery may be treated as ineffectual unless made at a reasonable
hour. What is a reasonable hour is a question
of
fact.
(5) Unless otherwise agreed,
the expenses of and incidental to putting the goods into a deliverable state
must be borne by the seller.
Delivery of wrong quantity or description
31.-(1) Where the seller
delivers to the buyer a quantity of goods less than he contracted to sell, the
buyer may reject them but,
if the buyer accepts the goods so delivered, he must
pay for them at the contract
rate.
(2) Where the seller
delivers to the buyer a quantity of goods larger than he contracted to sell, the
buyer may accept the goods included
in the contract and reject the rest or he
may reject the whole. If the buyer accepts the whole of the goods so delivered,
he must
pay for them at the contract
rate.
(3) Where the seller
delivers to the buyer the goods he contracted to sell mixed with goods of a
different description not included
in the contract, the buyer may accept the
goods which are in accordance with the contract and reject the rest or he may
reject the
whole.
(4) The
provisions of this section are subject to any usage of trade, special agreement
or course of dealing between the parties.
Delivery by instalments
32.-(1) Unless otherwise
agreed, the buyer of goods is not bound to accept delivery thereof by
instalments.
(2) Where there is a
contract for the sale of goods to be delivered by stated instalments which are
to be separately paid for and
the seller makes defective deliveries in respect
of 1 or more instalments or the buyer neglects or refuses to take delivery of or
pay for 1 or more instalments, it is a question in each case, depending on the
terms of the contract and the circumstances of the
case, whether the breach of
contract is a repudiation of the whole contract or whether it is a severable
breach giving rise to a
claim for compensation but not to a right to treat the
whole contract as repudiated.
Delivery to carrier as buyer's agent
33.-(1) Where, in
pursuance of a contract of sale, the seller is authorised or required to send
the goods to the buyer, delivery of
the goods to the carrier, whether named by
the buyer or not, for the purpose of transmission to the buyer is,
prima
facie, deemed to be a delivery of the
goods to the buyer.
Seller's duty as to contract with carrier
(2) Unless otherwise
authorised by the buyer, the seller must make such contract with the carrier on
behalf of the buyer as may be
reasonable, having regard to the nature of the
goods and the other circumstances of the case. If the seller omits so to do and
the
goods are lost or damaged in course of transit, the buyer may decline to
treat the delivery to the carrier as a delivery to himself
or may hold the
seller responsible in damages.
Insurance on sea transit
(3) Unless otherwise
agreed, where goods are sent by the seller to the buyer by a route involving sea
transit under circumstances
in which it is usual to insure, the seller must give
such notice to the buyer as may enable him to insure them during their sea
transit
and, if the seller fails to do so, the goods shall be deemed to be at
his risk during such sea transit.
Risk where goods are delivered elsewhere than at place of sale
34. Where the seller of
goods agrees to deliver them at his own risk at a place other than that where
they are when sold, the buyer
must nevertheless, unless otherwise agreed, take
any risk of deterioration in the goods, necessarily incident to the course of
transit.
Buyer's right of examining the goods
35.-(1) Where goods are
delivered to the buyer which he has not previously examined, he is not deemed to
have accepted them, unless
and until he has had a reasonable opportunity of
examining them for the purpose of ascertaining whether they are in conformity
with
the contract.
(2) Unless
otherwise agreed, when the seller tenders delivery of goods to the buyer, he is
bound, on request, to afford the buyer
a reasonable opportunity of examining the
goods for the purpose of ascertaining whether they are in conformity with the
contract.
Acceptance
36. The buyer is deemed to
have accepted the goods when he intimates to the seller that he has accepted
them or, subject to the provisions
of section 35, when the goods have been
delivered to him and he does any act in relation to them which is inconsistent
with the ownership
of the seller or when, after the lapse of a reasonable time,
he retains the goods without intimating to the seller that he has rejected
them.
Buyer is not bound to return rejected goods
37. 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 intimates to the seller that he refuses to accept
them.
Liability of buyer for neglecting or refusing delivery of goods
38. 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 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.
Division 9-Rights of Unpaid Seller Against the Goods
Unpaid seller defined
39.-(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;
(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 relation to the provisions of section 39 to 48, 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.
Rights of unpaid seller
40.-(1) Subject to the
provisions of this Act and of any other Act 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 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 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.
Division 10-Unpaid Seller's Lien
Seller's Lien
41.-(1) Subject to the
provision 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;
(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 right of lien, notwithstanding that he is in
possession of the goods as agent or bailee or custodier
for the
buyer.
Lien after part delivery
42. Where an unpaid seller
has made part delivery of the goods, he may exercise his right of lien or
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.
Termination of Lien
43.-(1) The unpaid seller
of goods loses his lien or right of retention thereon-
(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 thereof.
(2)
The unpaid seller of goods having a lien or right of retention thereon 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.
Division 11 - Stoppage in Transitu
Right of stoppage in transitu
44. 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.
Duration of transit
45.-(1) Goods are deemed
to be in course of transit from the time when they are delivered to a carrier by
land, air or water 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 such 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 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 the 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 of 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 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.
Mode of stopping in transitu
46.-(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 or
custodier 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 or custodier 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.
Division 12-Re-sale by Buyer or Seller
Effect of sub-sale or pledge by buyer
47. Subject to the
provisions of this Act, the unpaid seller's right of lien or retention or
stoppage in transitu
is not affected by any sale 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 retention 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 retention or stoppage
in
transitu
can only be exercised subject to the
rights of the transferee.
Effect on sale of exercise of lien or stoppage in transitu
48.-(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 retention or stoppage
in
transitu.
(2)
Where an unpaid seller who has exercised
his
right of lien or retention or stoppage
in transitu
re-sells the goods, the buyer acquires a
good title thereto as against the original buyer.
Re-sale of perishable goods or on notice
(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.
Re-sale under right expressly reserved by 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.
Division 13-Actions for Breach of the Contract
Subdivision A-Remedies of the Seller
Action for price
49.-(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.
Action for non-acceptance
50.-(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.
Measure of damages
(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, then at the time of the
refusal to accept.
Subdivision B-Remedies of the Buyer
Action for non-delivery
51.-(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.
Measure of damages
(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, then at the time of the refusal to deliver.
Right to specific performance
52. In any action for
breach of contract to deliver specific or ascertained goods, the court may, if
it thinks fit, on the application
of the plaintiff, 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. The judgment
or decree may be unconditional or upon such terms and conditions
as to damages,
payment of the price and otherwise as to the court may seem just, and the
application by the plaintiff may be made
at any time before judgement or
decree.
Remedy for breach of warranty
53.-(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.
Measure of damages
(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
answered to 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.
Interest and damages
54. 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 payment of it
has failed.
Division 14-Exclusion of Implied Terms
Exclusion of implied terms and conditions
55.-(1) Where any 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 usage if the usage is such as to bind both
parties to the contract, but the foregoing provision shall have effect subject
to the following provisions of this
section.
(2) Any express condition
or warranty does not negative a condition or warranty implied by this Act unless
inconsistent therewith.
(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 14 shall be
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 15, 16 or 17 shall be void in the case
of a consumer sale and shall, in any other case, not be 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), 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 source 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 15, 16, or 17 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) shall 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 15, 16 or 17 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 shall lie
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.
Conflict of laws
56. 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 Fiji,
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 14 to 17 and
55, those sections shall,
notwithstanding that term, apply to the contract.
Reasonable time
57. Where, by this Act,
any reference is made to a reasonable time, the question what is a reasonable
time is a question of fact.
Rights, etc., enforceable by action
58. Where any right, duty
or liability is declared by this Act, it may, unless otherwise by this Act
provided, be enforced by action.
Auction sales
59. In the case of sale by
auction-
(a) 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;
(b) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made, any bidder may retract his bid;
(c) where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer;
(d) a sale by auction may be notified to be subject to a reserved or upset price and a right to bid may also be reserved expressly by or on behalf of the seller.
Where
a right to bid is expressly reserved, but not otherwise, the seller or any 1
person on his behalf may bid at the auction.
Savings
60.-(1) The rules in
bankruptcy relating to contracts of sale shall continue to apply thereto
notwithstanding anything in this Act
contained.
(2) The rules of the
common law, including the law merchant, save in so far as they are inconsistent
with the express provisions of
this Act, 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, shall continue to apply
to contracts for the sale of
goods.
(3) Nothing in this Act
shall affect the enactments relating to bills of sale or any other enactment
relating to the sale of goods.
(4)
The provisions of this Act relating to contracts of sale do not apply to any
transaction in the form of a contract of sale which
is intended to operate by
way of mortgage, pledge, charge or other security.
PART III-SUPPLY OF GOODS AND SERVICES
Implied term in relation to supply of goods
61. In a contract for the
supply, in the course of business, of goods, not being a contract of sale, the
provisions of section 14,
15, 16, 17 and 55 shall apply,
mutatis
mutandis, in relation to the goods
supplied.
Implied terms in relation, to supply of services
62.-(1) In every contract
for the supply, in the course of a business, of services, there is an implied
warranty on the part of the
supplier that the services will be rendered with due
care and skill and that any materials supplied in connection with those services
will
be reasonably fit for the purpose for
which they are supplied.
(2) Where
services are supplied in the course of a business and the person to whom the
services are supplied, expressly or by implication,
makes known to the supplier
any particular purpose for which the services are required or the result that he
desires the services
to achieve, there is an implied warranty on the part of the
supplier that the services supplied and any materials supplied in connection
with those services will be reasonably fit for that purpose or are of such a
nature and quality that they might reasonably be expected
to achieve that
result.
PART IV-LAYBY SALES
Interpretation
63. In this Part, unless
the context otherwise requires-
"buyer" means a person who buys or agrees to buy goods by a layby sale, and, if the rights of that person are assigned or are transferred by operation of law, include the person for the time being entitled to those rights;
"cancel", in relation to a layby sale, means cancel, rescind, or terminate by any means whatsoever, except by performance, and "cancellation" has a corresponding meaning;
"purchase price" means the total sum of money required to be paid by the buyer under a layby sale, plus the value of any other consideration provided or required to be provided by the buyer to purchase the goods to which the sale relates;
"seller" means a person who sells or agrees to sell goods by a layby sale, and, if the rights of that person are assigned or are transferred by operation of law, includes the person for the time being entitled to those rights.
"Layby sale" defined
64.-(1) For the purpose of
this Act, a layby sale is a contract of sale of goods by retail under terms,
express or implied, which
provide that-
(a) the goods are not to be delivered to the buyer until the purchase price or a specified part or proportion thereon is paid, whether or not any charge is expressed to be payable for storage or delivery of the goods; and
(b) the whole or part of the purchase price-
(i) is to be paid by instalments (whether the number of instalments or the amounts of all or any of them is fixed by the contract or left at the option of the buyer) payable over a fixed or ascertainable period; or
(ii) is to be paid at the expiration of a fixed or ascertainable period with the option, express or implied, for the buyer to make payments in respect of the purchase price during that period, but a contract of sale of goods to be delivered by instalments, where the whole of the purchase price of each instalment is payable at the time that instalment is delivered, is not a layby sale.
(2)
Where, by virtue of 2 or more agreements, none of which by itself constitutes a
layby sale, there is a transaction which is, in
substance or effect, a layby
sale, the agreements shall be treated, for the purposes of this Act, as a layby
sale made at the time
when the last of those agreements was made.
Risk not to pass until goods delivered
65. Notwithstanding the
provisions of section 22, goods that are the subject of a layby sale remain at
the seller's risk until the
property therein is transferred to the buyer and the
goods are delivered to
him:
Provided that, where delivery
has been delayed through the fault of the buyer, the goods are at the risk of
the buyer as regards any
loss which might not have occurred but for such
fault.
Buyer to be entitled to a statement of his present position
66.-(1) The seller shall,
within 7 days after he has received a request in writing from the buyer and the
buyer has tendered to the
seller the sum of 25 cents for expenses, give to the
buyer a statement in writing signed by the seller or his agent
showing-
(a) the purchase price; and
(b) the total amount of the money paid and the value of any other consideration provided by the buyer in respect of the layby sale; and
(c) the amount which the seller estimates to be the retail value of the goods at the time of the notice or of the cancellation of the layby sale, whichever is the sooner, indicating whether or not such value is the same as at the date of sale; and
(d) the amount which the seller estimates is sufficient to recoup him for selling costs in respect of the layby sale, and
(e) the balance estimated to be due to the seller or the buyer, as the case may be; and
(f) if there is a balance due to the seller, particulars of the time and manner within which that balance is required to be paid.
(2)
The seller need not comply with a request under subsection (1)
if-
(a) the layby sale has been completed by performance; or
(b) he has given the buyer a statement complying with that subsection within the 30 days immediately preceding the receipt of the request; or
(c) the layby sale has been cancelled by the buyer and more than 30 days have elapsed since the date of cancellation.
(3)
Where the seller cancels a layby sale, he shall, upon request, give to the
buyer, free of charge, a statement complying with subsection
(1) within 7 days
after the date of
cancellation.
(4) Every seller who
makes default in complying with subsection (1) or subsection (3) commits an
offence and is liable, on conviction,
to a fine not exceeding
$20.
Right of buyer to cancel layby sale
67.-(1) The buyer may, at
any time before the purchase price has been paid, cancel the layby sale by
giving to the seller oral or
written notice of his desire to cancel the
sale.
(2) Where a layby sale is
cancelled under subsection (1), the date of cancellation shall be the date on
which the notice is given.
(3)
Nothing in this section shall prejudice any right of the buyer to cancel a layby
sale otherwise than by virtue of this
section.
(4) The right of
cancellation conferred on the buyer by subsection (1) may be exercised
notwithstanding the winding up or bankruptcy
of the seller or the appointment of
any person to act as the receiver or manager of the property of the
seller.
Rights of seller and buyer on cancellation of layby sale
68.-(1) Where a layby sale
is cancelled by the buyer under section 67 or, is cancelled by the seller, the
following provisions shall
apply:-
(a) if the total amount of money paid plus the value of any other consideration provided by the buyer in respect of layby sale, together with the retail value of the goods at the time when the layby sale is cancelled, exceeds the purchase price and an amount sufficient to recoup the seller for his selling costs in respect of the layby sale, the buyer shall be entitled, subject to subsection (2), to recover the excess from the seller as a debt due and payable by him to the buyer;
(b) if the purchase price and an amount sufficient to recoup the seller for his selling costs in respect of the layby sale exceeds the total amount of money paid plus the value of any other consideration provided by the buyer in respect of the layby sale, together with the retail value of the goods at the time when the sale is cancelled, the seller shall be entitled, subject to subsection (3), to recover the excess from the buyer as a debt due and payable by him to the seller, but shall not be entitled to recover any additional sum, whether as penalty or compensation or otherwise in consequence of the cancellation of the layby sale.
(2)
Where a layby sale is cancelled by the buyer, other than by reason of a breach
by the seller, which entitles the buyer to cancel
the sale, the buyer shall not
in any case be entitled to a refund exceeding the total amount of money paid
plus the value of any
other consideration provided by
him.
(3) Where a layby sale is
cancelled by the seller, other than by reason of a breach by the buyer which
entitles the seller to cancel
the sale, the buyer shall be entitled to a refund
not less than the total amount of money paid plus the value of any other
consideration
provided by him.
(4)
Where the buyer under a layby sale has paid an initial deposit but has made no
other payments at the time when the sale is cancelled,
the amount that the
seller shall be entitled to recover under paragraph (b) of subsection (1) shall
not exceed the amount of the
deposit.
(5) Where a layby sale of
specific goods is cancelled within 1 month after the date of the sale or where
any layby sale (not being
a sale of specific goods) is cancelled at any time,
the retail value of the goods at the time of cancellation shall, for the
purposes
of this Act, unless the contrary is proved, be deemed to be the retail
value of the goods at the time when the layby sale was made;
and any loss of
value of such goods, whether due to deterioration of the goods or otherwise,
shall be disregarded.
Completion on winding up, bankruptcy, or receivership of seller
69.-(1) If, on the winding
up or bankruptcy of the seller or on the appointment of any person to act as the
receiver or manager of
the property of any seller that is a company, the assets
of the seller include the goods, or goods of the kind, which the seller
has
agreed to sell to the buyer, whether those goods have been appropriated to the
sale or not, the buyer shall be entitled, on payment
of the balance (if any) of
the purchase price in the manner and at the times prescribed by the contract, to
complete the, purchase
and obtain the property in, and delivery, of the
goods.
(2) If there are not enough
goods to satisfy all buyers, priority shall be governed by the date of the sale,
so that goods shall be
available to earlier buyers in preference to later
buyers. Where 2 or more buyers agreed to purchase on the same day, priority
between
them shall be determined by
lot.
(3) No buyer shall be
entitled to exercise the right conferred by subsection (1) if-
(a) in breach of his agreement with the seller, he has made no payment to the seller on account of the purchase price during the 3 months immediately preceding the filing of the petition on which the seller is adjudged bankrupt, the commencement of the winding up, or the appointment; or
(b) he is an officer or employee of the seller or the spouse of such an officer or employee.
(4)
If any buyer makes any payment on account of the purchase price after the
commencement of the bankruptcy or winding up or the
appointment, he shall be
entitled to have that payment refunded in full, unless the purchase is completed
in accordance with subsection
(1).
Preference on winding up, bankruptcy or receivership of seller
70.-(1) If, on the winding
up or bankruptcy of any seller or on the appointment of any person to act as the
receiver or manager of
the property of any seller that is a company, there are
no goods or not enough goods to enable the layby sale to be completed, or
if any
buyer is or becomes entitled under section 68 to recover any sum of money, then
the buyer shall be a creditor in the liquidation,
bankruptcy, or receivership to
the extent of the payments that he has made to the seller on account of the
purchase price of the
goods or to the extent of the sum that he is entitled to
recover, as the case may require, with priority, subject to subsection (2),
over
all other unsecured creditors and over creditors secured by a floating
charge.
(2) The rights conferred
by subsection (1) shall not be available to any buyer of the kind described in
paragraph (a) or paragraph
(b) of subsection (3) of section 69.
Service of notices
71.-(1) Any written notice
or other document required or authorised by this Part to be given to any person
shall be sufficiently given
if it is delivered to that person, or if it is left
at his usual or last known place of abode or business or at an address specified
for the purposes of the layby sale, or if it is posted in a letter addressed to
him by name at that place of abode or business or
address.
(2) If the person is
absent from Fiji, the notice or other document may be given to his agent in
Fiji. If the person is deceased,
it may be given to his personal
representatives.
(3) If the person
is not known, or is absent from Fiji and has no known agent in Fiji, or is
deceased and has no personal representatives,
the notice or other document shall
be given in such manner as may be directed by an order of a magistrate's
court.
(4) If any such notice or
other document is sent to any person by registered letter, it shall be deemed to
have been delivered to
him on the fourth day after the day on which it was
posted and, in proving the delivery, it shall be sufficient to prove that the
letter was properly addressed and
posted.
(5) Notwithstanding
anything in the foregoing provisions of this section, a magistrate's court may,
in any case, make an order directing
the manner in which any notice or other
document is to be served or given, or dispensing with the service or giving
thereof.
(6) This section does not
apply to notices or other documents served in any proceedings in any
court.
Buyer's rights protected
72.-(1) The provisions of
this Part shall have effect in favour of the buyer, notwithstanding any
provision to the contrary in any
agreement relating to any layby
sale.
(2) Nothing in this Act
shall prevent any layby sale from having effect according to its tenor in so far
as the terms of that sale
are more favourable to the buyer than the terms that
the buyer would enjoy by virtue of the provisions of this
Act.
(3) Section 55 shall be read
subject to the provisions of this section.
PART V-UNSOLICITED GOODS AND SERVICES
Unsolicited goods
73.-(1) In the
circumstances specified in subsection (2), a person who, after 1 January 1980,
receives unsolicited goods may, as between
himself and the sender, use, deal
with or dispose of them as if they were an unconditional gift to him, and any
right of the sender
to the goods shall be
extinguished.
(2) The
circumstances referred to in subsection (1) are that the goods were sent to the
recipient with a view to his acquiring them,
that the recipient has no
reasonable cause to believe that they were sent with a view to their being
acquired for the purposes of
a trade or business and has neither agreed to
acquire nor agreed to return them, and either-
(a) that, during the period of 6 months beginning with the day on which the recipient received the goods, the sender did not take possession of them and the recipient did not unreasonably refuse to permit the sender to do so; or
(b) that, not less than 30 days before the expiration of the period aforesaid, the recipient gave notice to the sender in accordance with subsection (3) and that, during the period of 30 days beginning with the day on which the notice was given, the sender did not take possession of the goods and the recipient did not unreasonably refuse to permit the sender to do so.
(3)
A notice in pursuance of subsection (2) shall be in writing and
shall-
(a) state the recipient's name and address and, if possession of the goods in question may not be taken by the sender at that address, the address at which it may be so taken;
(b) contain a statement, however expressed, that the goods are unsolicited, and may be sent by post.
(4)
In this section-
"acquire" includes hire;
"send" includes deliver, and "sender" shall be construed accordingly;
"sender", in relation to any goods, includes any person on whose behalf or with whose consent the goods are sent and any other person claiming through or under the sender or any such person.
Unsolicited services
74.-(1) The Minister may,
by regulation, prescribe a service to be a service to which this section shall
apply.
(2) A person is not liable to make any payment and is entitled to recover a payment made by him in full or part satisfaction of a charge or fee under a contract or agreement for the supply of a prescribed service, unless there has been signed by that person, or a person authorised by him in that behalf, a note complying with this section and that first-mentioned person has been supplied with a copy of the note as signed by him or on his behalf.
(3) In order to comply with this section, a note referred to in subsection (2) shall, in relation to a contract or agreement for the supply of a prescribed service, specify-
(a) the particulars of the service supplied or proposed to be supplied; and
(b) the amount of the charge of fee or the basis on which the charge or fee is to be calculated.
PART VI-MISREPRESENTATION
Removal of certain bars to rescission for innocent misrepresentation
75. Where a person has entered into a contract after a misrepresentation has been made to him, and-
(a) the misrepresentation has become a term of the contract, or
(b) the contract has been performed,
or
both, then, if otherwise he would be entitled to rescind the contract without
alleging fraud, he shall be so entitled, subject
to the provisions of this Act,
notwithstanding the matters mentioned in paragraphs (a) and (b).
Damages for misrepresentation
76.-(1) Where a person has
entered into a contract after a misrepresentation has been made to him by
another party thereto and as
a result thereof he has suffered loss, then, if the
person making the misrepresentation would be liable to damages in respect
thereof
had the misrepresentation been made fraudulently, that person shall be
so liable notwithstanding that the misrepresentation was not
made fraudulently,
unless he proves that he had reasonable ground to believe and did believe up to
the time the contract was made
that facts represented were
true.
(2) Where a person has
entered into a contract after a misrepresentation has been made to him otherwise
than fraudulently, and he
would be entitled, by reason of the misrepresentation,
to rescind the contract, then, if it is claimed in any proceedings arising
out
of the contract, that the contract ought to be or has been rescinded, the court
or arbitrator may declare the contract subsisting
and award damages in lieu of
recision, if of the opinion that it would be equitable to do so, having regard
to the nature of the
misrepresentation and the loss that would be caused by it
if the contract were upheld, as well as to the loss that rescission would
cause
to the other party.
(3) Damages
may be awarded against a person under subsection (2), whether or not he is
liable to damages under subsection (1), but,
where he is so liable, any award
under the said subsection (2) shall be taken into account in assessing his
liability under the said
subsection (1).
Avoidance of certain provisions excluding liability for misrepresentation
77. If any agreement
(whether made before or after 1 January 1980) contains a provision which would
exclude or restrict-
(a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or
(b) any remedy available to another party to the contract by reason of such a misrepresentation,
that
provision shall be of no effect, except to the extent (if any) that, in any
proceedings arising out of the contract, the court
or arbitrator may allow
reliance on it as being fair and reasonable in the circumstances of the
case.
Representations
78. Any statement or
representation made in relation to goods and services by an employee or a person
acting on behalf of a supplier
shall be deemed to be a statement or
representation made by the supplier.
PART VII-SUPPLEMENTAL
Regulations
79. The Minister may make
regulations for any of the following purposes:-
(a) prescribing or approving standard forms of agreements or contracts for the supply of prescribed goods or services;
(b) securing that agreements, contracts, forms, notices, invoices, dockets and other documents supplied pursuant to this Act are easily legible and comprehensible;
(c) prescribing offences in respect of the contravention of or non-compliance with any regulations made under this Act.
Repeal
80. The Sale of Goods Act*
is hereby repealed.
Controlled by Ministry of Economic Development, Planning and Tourism
_______________________________________________________________________________________
*
Chapter 206, 1967 Edition (Ordinance No. 35 of 1932).
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