Seeing that a claim
under s51 arises where the seller has wrongfully neglected or refuses to
deliver the goods to the buyer, it follows that where the seller delivers goods
that are not in accordance with the contract, he has not delivered ‘the goods’
demanded under the contract. Regarding this case, the paint Harvey specified
and requested was not what he received as it could not withstand all weather
conditions and started to peel 5 days later after experiencing heavy rain. As a
consequence, where the buyer lawfully rejects such goods, a claim for damages
for non-delivery under s51 can arise. This is in addition to reclaiming the
With the remedy
of Late delivery, Harvey accepted the deliveries as he had a deadline to meet. No
specific rules are provided for late delivery of contract goods in The SGA 1979.
In this case, it would be dealt the same way as for non-delivery under s51, in
the event that the buyer has lawfully rejected a late tender of the goods. Therefore,
damages for late delivery can only arise where the buyer either voluntarily
chooses to accept the late tender or is obligated to do so. The measure of
damages for late delivery will be similar to that which is applicable for
breach of warranty, and these will be determined under ordinary contractual
principles by applying the rule used in Hadley v Baxendale.2 Where the buyer accepts
the late tender of the goods, his damages for late delivery will differ,
depending on whether the goods were bought for his own use or for purpose of
resale. – Harvey bought the bricks for his own use for his building company.
for the buyers own use:
Where the buyer
purchases the goods for his own use, the. The measure of damages will be the loss,
if any, he has suffered as a result of the late delivery. – he has a deadline
to meet for a client, if he does not meet this deadline he risks being paid
partially or the client rejecting his services which is a loss to his business.
In addition, the buyer should be able to claim damages to compensate him for
any losses sustained as a result of him being deprived of the goods during the
period of delay. He is of course, under a duty to mitigate his loss, and this
might require him, where reasonably practicable, to hire similar goods until
the arrival of the delayed goods. If he does hire goods he should be able to
recover the reasonable cost of the hire.
remedy for the breach of a contract of sale is rejection of the contract goods
and / or an award of damages. There are, however occasions where a monetary
award will not provide the buyer with an adequate remedy. This gap is filled by
an order of specific performance, which is provided for in s 52 of the SGA.
In any action for
breach of contract to deliver specific or ascertained goods the court may, if
it thinks fit, on the claimant’s application, by its judgement or decree direct
that the contract shall be performed specifically, without giving the defendant
the option of retaining the goods on payment of damages.
claimants application may be made at any time before judgement or decree
judgement or decree may be unconditional, or on such terms and conditions as to
damages payment of the price and otherwise as seem just to the court.
appropriate the court will make an order that the contract is to be
specifically performed. As this entails the seller actually delivering the
goods to the buyer, he will therefore not have the option of retaining the goods
and instead paying damages to the buyer. Specific performance compels the
seller to complete his obligations under the contract. A typical case where
such an order may be made is where substitute performance is unavailable, for
example, where the subject matter of a contract is unique. E.g valuable
painting, antique or family heirloom.
breach of Warranty:
Where there is
a breach of warranty by the seller, or where the buyer elects (or is compelled)
to treat the sellers breach of condition as a breach of warranty, the buyer is
not, by reason only of such breach of warranty, entitled to reject the goods.’
A buyer in such circumstances may instead either:
set up against
the seller the breach of warranty in diminution or extinction of the price,’ or
action against the seller for damages for the breach of warranty.
Subject to the
provisions contained in s 35A in relation to partial rejection, where the
contract is not severable and the buyer has accepted the goods in whole or in
part, the breach of condition 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 is an express or implied term of the contract to that
The buyers right
to reject the goods:
The buyer has
the right to reject the goods under several circumstances, one of these is
where due to a specific event, the contract of sale specifically gives the
buyer the right to reject the goods. Only on the occurrence of that event will
the buyer then be able to carry on to reject the goods. Harvey is not aware of
this clause because he was never provided with a copy of the terms and
conditions. He believed he received a copy so he may be under the impression of
another set of terms.
Baskind, Greg Osborne and Lee Roach, Commercial Law (2nd edn, 2016)
v Baxendale 1854 EWHC Exch J70