Chapter 11: Seller's remedies
| Library | Commercial Law 2012–2013 |
| Pages | 115-121 |
| Author | Jonathan Fitchen |
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The seller is ‘unpaid’ unless the whole of the price has been paid or tendered.
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Payment by a cheque or other negotiable instrument is normally a conditional payment only. Thus, if the cheque is dishonoured, the seller is then ‘unpaid’ (s 38 of the
Sale of Goods Act 1979 ). -
Payment by credit or charge card, however, is an absolute and not a conditional payment. So, if the card issuing bank fails to pay the seller, the seller will have no claim against the buyer who paid by the card (
Re Charge Card Services Ltd [1988] ).
So you wish to know if the seller is entitled to sue for the price: 
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It may be that the parties have agreed that the payment will be paid not on a particular date, but upon the occurrence of some event (for example, the seller completes, or reaches a certain stage in, making the goods). If so, that event will be treated as a ‘day certain’ (
Workman Clerk v Lloyd Brazileno [1908] ). -
It may be that the parties have agreed that payment will be made in instalments on particular dates (or upon particular events occurring). If so, when
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the date is reached (or the event occurs) for any one instalment, the seller is entitled to that instalment of the price. The instalment is to be paid on a ‘day certain’.
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A seller who sues for the price is suing in debt. The
Late Payment of Commercial Debts (Interest) Act 1998 now allows any business to claim interest, calculated at a statutory rate, if a debt is not paid within 30 days of its becoming due. -
Unless otherwise agreed, payment and delivery are concurrent conditions. Therefore, in the absence of contrary agreement, the seller is not entitled to maintain an action for the price unless the seller is ready and willing to deliver.
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If the payment was not due to be made on a ‘day certain’ and property has not passed, the unpaid seller will not be able to maintain an action for the price.
A contract to construct a steamship for £89,000 required payments in five stages at different points of completion. Once the first stage occurred the builders asked for payment. As none was forthcoming, the builders sued, arguing that the completion of the first stage was equivalent to the occurrence of a ‘Day Certain’. The builders were allowed to bring their claim in debt for the price.
The completion of the first...
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