THE CONDITION AS TO TITLE IN SALE OF GOODS
| Date | 01 May 1957 |
| Author | A. H. Hudson |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00441.x |
| Published date | 01 May 1957 |
THE
CONDITION
AS
TO
TITLE
IN
SALE
OF
GOODS
THE
object
of
this
article
is
to
endeavour
to
asextam
*
how far the
provisions
of
section
12
(1)
of the Sale
of
Goods
Act,
1898,
can
be
excluded by agreement, express
or
implied, to the contrary effect.
It
will
be
recalled
that
the
relevant provisions
run
thus-
“In
a
contract
of
sale, unless the circumstances of the
contract are such
as
to show a different intention, there
is:
(1)
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
that,
in
the case
of
an
agreement to
sell,
he
will
have
a
right
to
sell the goods at
the
time
when
the
property
This
wording
would
seem
to
leave
no
doubt that
it
is
open
to
a
seller
to
protect himself from any liability likely
to
arise
from
a
breach
of
the
term
contained
in
this subsection by an agreement,
express
OT
impEd, to the
contrary
effect. Neverthelas, there
appeam
to be some reluctanoe amongst certain textbook miters
to
accept
such
a
conclusion.
A
convenient starting-point seems
to
be
the
discussion
of
this
problem
in
Cheshire
and
Fifwt’s
Law
of
Contract,
4th
ed.,
p.
187.
Whilst admitting that,
aceding
to
the
wording
of
Sectiw
12,
it
would appear
to
be
allowed
to
a
seller
to
oantrrect
eut
of
the
condition
demise
implied
by
seh
12
(I),
the
lemned
authors
go
on
to
say-
“
.
.
.
it
is
diEeult
to
believe that
a
seller, who avails himself
of
this
mddgence,
will
escape liability
if
he
delivers
to
the buyer
goods
which
belong
to
a
third
party. He would still
be
caught
by
the
tenns
o€
s&n
1
(1)
of
the
A&,
which
defines
a
con-
tra&
for
the
de
of
goods
as
‘a
coatrasct
whereby the
seller
traders
or
agmm
to
transfer
the
propwty
in
gods
fo
the
buyer
for
a
money
cmderation
eded
the
pie.’
If,
in
purported pursuance
d
his contract, he
delivers
goods
which,
though
he
is
ignorant
d
the fact,
are
owned
by someone else,
he does not and cannot transfer the property
in
them. There
is
a
complete failure of consideration, and
no
excluding words,
however comprehensive,
will
excuse
him.”
To
this contention,
it
is respectfully submitted, three objections
may
be urged. First, the case which appears
It0
be cited
in
its
support,
Ro&-d
v.
DivaZlYa
is
not adequate
authority
since the
question
of
excluding section
12
(1)
by initial agreement to the
1
Sutton
and
Shannon
on
Contracts,
5th
ed.,
pp.
307-308
and
n.
(g),
p.
807,
is
to
pass.”
appears
to
take
the
aame
view.
*
psaq
9
K.B.
sw.
288
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