Seeing that a claimunder s51 arises where the seller has wrongfully neglected or refuses todeliver the goods to the buyer, it follows that where the seller delivers goodsthat are not in accordance with the contract, he has not delivered ‘the goods’demanded under the contract. Regarding this case, the paint Harvey specifiedand requested was not what he received as it could not withstand all weatherconditions and started to peel 5 days later after experiencing heavy rain. As aconsequence, where the buyer lawfully rejects such goods, a claim for damagesfor non-delivery under s51 can arise. This is in addition to reclaiming theprice paid.1 With the remedyof Late delivery, Harvey accepted the deliveries as he had a deadline to meet. Nospecific 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, inthe 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 voluntarilychooses to accept the late tender or is obligated to do so. The measure ofdamages for late delivery will be similar to that which is applicable forbreach of warranty, and these will be determined under ordinary contractualprinciples by applying the rule used in Hadley v Baxendale.2 Where the buyer acceptsthe 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 ofresale. – Harvey bought the bricks for his own use for his building company.
Goods boughtfor the buyers own use: Where the buyerpurchases 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 deadlineto meet for a client, if he does not meet this deadline he risks being paidpartially 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 forany losses sustained as a result of him being deprived of the goods during theperiod of delay. He is of course, under a duty to mitigate his loss, and thismight require him, where reasonably practicable, to hire similar goods untilthe arrival of the delayed goods. If he does hire goods he should be able torecover the reasonable cost of the hire.
Specificperformance: The usualremedy for the breach of a contract of sale is rejection of the contract goodsand / or an award of damages. There are, however occasions where a monetaryaward will not provide the buyer with an adequate remedy. This gap is filled byan order of specific performance, which is provided for in s 52 of the SGA. In any action forbreach of contract to deliver specific or ascertained goods the court may, ifit thinks fit, on the claimant’s application, by its judgement or decree directthat the contract shall be performed specifically, without giving the defendantthe option of retaining the goods on payment of damages. 2) theclaimants application may be made at any time before judgement or decree 3) Thejudgement or decree may be unconditional, or on such terms and conditions as todamages payment of the price and otherwise as seem just to the court. Whereappropriate the court will make an order that the contract is to bespecifically performed.
As this entails the seller actually delivering thegoods to the buyer, he will therefore not have the option of retaining the goodsand instead paying damages to the buyer. Specific performance compels theseller to complete his obligations under the contract. A typical case wheresuch an order may be made is where substitute performance is unavailable, forexample, where the subject matter of a contract is unique. E.g valuablepainting, antique or family heirloom. Damages forbreach of Warranty: Where there isa 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 isnot, by reason only of such breach of warranty, entitled to reject the goods.’A buyer in such circumstances may instead either: set up againstthe seller the breach of warranty in diminution or extinction of the price,’ orMaintain anaction against the seller for damages for the breach of warranty.
Subject to theprovisions contained in s 35A in relation to partial rejection, where thecontract is not severable and the buyer has accepted the goods in whole or inpart, the breach of condition can only be treated as a breach of warranty, andnot as a ground for rejecting the goods and treating the contract asrepudiated, unless there is an express or implied term of the contract to thateffect.’ The buyers rightto reject the goods: The buyer hasthe right to reject the goods under several circumstances, one of these iswhere due to a specific event, the contract of sale specifically gives thebuyer the right to reject the goods. Only on the occurrence of that event willthe buyer then be able to carry on to reject the goods. Harvey is not aware ofthis clause because he was never provided with a copy of the terms andconditions. He believed he received a copy so he may be under the impression ofanother set of terms.1 EricBaskind, Greg Osborne and Lee Roach, Commercial Law (2nd edn, 2016)2 Hadleyv Baxendale 1854 EWHC Exch J70