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Published on: 13/05/2022
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Questions + Answers key
Take MCQ Commerce Test1.
Discuss in detail the rights of an unpaid seller against the goods.
2.
Distinguish between Conditions and Warranty.
3.
Classify goods under the Sale of Goods Act.
4.
Distinguish between sale and agreement to sell.
5.
Explain in detail the elements of Contract of sale.
1.
Rights of an Unpaid Seller against the Goods
(1) Right of Lien:
An unpaid seller has a right to retain the goods till he receives the price. But to exercise this lien
(i) He must be in possession of goods
(ii) The goods must have been sold without any stipulation as to credit or where goods have been sold on credit, the terms of credit must have expired.
(iii) It must be remembered that the right of lien depends on actual possession of goods
Where the Property in the Goods has Passed to the Buyer.
(2) Right of Stoppage in Transit:
Where the seller has delivered the goods to a carrier or other bailee for the purpose of transmission to the buyer, but the buyer has not acquired them, then the seller can stop the goods and regain the possession.
(3) Right of Resale:
The unpaid seller can resell the goods
(i) Where they are of a perishable nature or
(ii) After exercising his right of lien or stoppage in transit, even though he has given intimation to the buyer of his intention to resell, buyer has not tendered the price within a reasonable time.
(iii) Where the seller has expressly reserved the right of resale in the contract itself.
2.
| SI.No | Basis of Difference | Conditions | Warranty |
|---|---|---|---|
| 1. | Meaning | It is a stipulation which is essential to the main purpose of the contract of sale. | It is a stipulation which is collateral to the main purpose of contract. |
| 2. | Significance | Condition is so essential to the contract that the breaking of which cancels out the contract. | It is of subsidiary or inferior character. The violation of warranty will not revoke the contract. |
| 3. | Transfer of ownership | Ownership on goods cannot be transferred without fulfilling the conditions. | Ownership on goods can be transferred on the buyer without fulfilling the warranty. |
| 4. | Remedy | In case of breach of contract, the affected party can cancel the contract and claim damages. | In the case of breach of warranty, the affected party cannot cancel the contract but can claim damages only. |
| 5. | Treatment | Breach of condition may be treated as breach of warranty. | Breach of warranty cannot be treated as breach of condition. |
3.
(1) Existing Goods
(i) Specific Goods - Specific goods denote goods identified and agreed upon at the time of contract of sale.
(ii) Ascertained Goods - (a) The term ascertained goods is also used as similar in meaning to specific goods.
(b) But this term may even refer to goods which become ascertained subsequent to the formation of the contract.
(iii) Unascertained or Generic Goods - These are goods which are not identified and agreed upon at the time of contract of sale.
(2) Future Goods
These are goods which a seller does not possess at the time of contract of sale but which will be manufactured or produced or acquired by him after entering into the contract of sale agreement
(3) Contingent Goods
Contingent goods are the goods, the acquisition of which by the seller depends upon a contingency (an event which may or may not happen). Contingent goods are a part of future goods.
4.
| SI. No | Particulars | Sale | Agreement to Sell |
|---|---|---|---|
| 1. | Ownership Transference | The property(ownership or title) in the goods passes from the seller to the buyer immediately so that seller is no more owner. | The property(ownership or title) in the goods has to pass at a future time or after the fulfilment of certain conditions specified in the contract. |
| 2. | Risk of Loss | Where the goods sold under the contract of sale are destroyed, the loss falls squarely on the buyer as the ownership in the goods has already passed on to the latter. Even though the goods are in the possession of seller. | Where the goods under the agreement to sell are destroyed, the loss falls squarely on the seller as the ownership is still vested with the seller even though the possession of the goods is with the buyer. |
| 3. | Consequences of violating the contract | Where the buyer fails to pay the price, the seller cannot seize the goods. The seller can only file a case against the buyer for violating the contract. | Where the buyer. violates, the contract, the seller can repossess the goods from the former. He can sue for damages for violation of the contract. |
| 4. | Nature of contract | It is an executed contract i.e. completed contract. | It is an executory contract, i.e. contract ye to be performed by the party to the contract. |
5.
Following essential elements are necessary for a contract of sale
(i) Two Parties :
(1) A contract of sale involves two parties - the seller and the buyer.
(2) The buyer and the seller should be two different persons. If a person buys his own goods, there is no sale.
(ii) Transfer of Property :
(1) To constitute sale, the seller must transfer or agree to transfer the ownership in the good to the buyer.
(2) A mere transfer of possession does not amount to sale.
(iii) Goods :
(1) The subject matter of contract of sale must be goods. It excludes money, actionable claims and immovable property.
(2) The term 'goods' includes every kind of movable property, stocks and shares, growing crops etc.
(3) Goodwill, trademarks, copy rights, patent rights etc., are all also regarded as goods.
(iv) Price :
(1) The monetary consideration for the goods sold is called price.
(2) If goods are exchanged for goods, it is only barter and not a sale.
(3) But if goodsare sold partly for goods and partly for money, the contract is one of sale.
(v) Includes both 'Sale' and 'Agreement to Sell' :
(1) The term contract of sale includes both sale and agreement to sell.
(2) If the property in goods is transferred immediately to the buyer it is called a sale.
(3) On the other hand, if the transfer of property takes place at a future date or on fulfillment of certain conditions, it is called 'an agreement to sell'.
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