The Right To Rescind For Breach Of Condition In A Sale Of Specific Goods Under The Sale Of Goods Act, 1893
| Author | J. C. Smith |
| DOI | http://doi.org/10.1111/j.1468-2230.1951.tb00198.x |
| Published date | 01 April 1951 |
| Date | 01 April 1951 |
THE
RIGHT TO RE,SCIND FOR BREACH
OF
,CONDITION IN
A
SALE
OF
SPECIFIC
GOODS UNDER
THE
SALE
OF
GOODS
ACT,
1898
SECTION
11
(1)
(c)
of
the Sale of
Goods
Act,
1898,
provides that
:-
‘Where the contract is for specific goods, the property in
which has passed to the buyer, the breach of any condition to be
fulfilled by the seller can ody be treated as a breach of warranty,
and not as
a
ground for rejecting the goods and treating the con-
tract as repudiated, unless there be
a
term of the contract, express
or
implied,
to
that effect.’
Section
17
of the Act provides that
:-
‘Where there is a contract for the sale of specific
or
ascer-
tained goods, the property in them is transferred to the buyer
at
such time as the parties to the contract intend
it
to be transferred.’
Section
18,
r.
1
of
the Act provides that ‘unless
a
different
intention appears
’
:-
‘
Where there is an unconditional contract for the sale
0:
specific goods, in
a
deliverable state, the property in the goods
passes to the buyer when the contract
is
made.’
In a contract to which section
18,
r.
1
applies,
it
would appear
then, that the right to rescind never arises
‘
unless there be a term
of
the contract express
or
implied to that effect
’.
The importance
of these provisions is now enhanced by the decision in
Leaf
v.
International Galleries
that when the right to reject
for
breach
of
condition is lost, the right to rescind for innocent misrepresenta-
tion
is
also necessarily forfeit.
The object of this note will be to determine what is ‘an
unconditional contract
’,
and thereby
to
ascertain in what circum-
stances the right to rescind for breach of condition will, owing
to the interaction of section
11
(1)
(c)
and.section
18,
r.
1,
never
arise.
It
is necessary at the outset to observe that several distinct
meanings are attributed to the term
‘
condition
’
in English law,
(i)
It
may mean
‘
an external fact upon which the existence
of
the obligation depends’a which is ‘not part of the obligation
itself
’.
Such are conditions precedent
(or
suspensive conditions)
and conditions subsequent
(or
resolutive conditions). The case
of
Pym
v.
Campbell3
provides an illustration of the former, and
[1950]
1
All
E.R.
693.
2
Cheshire
and
Fifoot,
Law
of
Contract,
2nd
ed.,
98.
J
(1856)
6
E.
&
B.
370.
173
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