Goods perishing before sale but after agreement to sell 4
Division 4 — The price
Ascertainment of price 4
Agreement to sell at valuation 5
Division 5 — Conditions and warranties
Stipulations as to time 5
When condition to be treated as warranty 5
Implied undertakings as to title etc. 6
Sale by description 6
Implied conditions as to quality or fitness 7
Division 6 — Sale by sample
Sale by sample 8
Part II — Effects of the contract
Division 1 — Transfer of property as between seller and buyer
Goods must be ascertained 9
Property passes when intended to pass 9
Rules for ascertaining intention 9
Reservation of right of disposal 11
Risk, prima facie, passes with property 11
Division 2 — Transfer of title
Sale by person not the owner 12
Market overt 12
Sale under voidable title 12
Revesting of property in stolen goods on conviction of offender 12
Seller or buyer in possession after sale 13
Part III — Performance of the contract
Duties of seller and buyer 15
Payment and delivery are concurrent conditions 15
Rules as to delivery 15
Delivery of wrong quantity 16
Instalment deliveries 16
Delivery to carrier 17
Risk where goods are delivered at distant place 17
Buyer’s right of examining the goods 18
Acceptance 18
Buyer not bound to return rejected goods 18
Liability of buyer for neglecting or refusing delivery of goods 18
Part IV — Rights of unpaid seller against the goods
Division 1 — General
Unpaid seller defined 19
Unpaid seller’s rights 19
Division 2 — Unpaid seller’s lien
Seller’s lien 20
Exercise of lien where part delivery 20
Termination of lien 20
Division 3 — Stoppage in transitu
Right of stoppage in transitu 21
Duration of transit 21
How stoppage in transitu is effected 22
Division 4 — Re-sale by buyer or seller
Effect of sub‑sale or pledge by buyer 23
Sale not generally rescinded by lien or stoppage in transitu 23
Part V — Actions for breach of the contract
Division 1 — Remedies of the seller
Action for price 25
Damages for non‑acceptance 25
Division 2 — Remedies of the buyer
Damages for non‑delivery 26
Specific performance 26
Remedy for breach of warranty 26
Interest and special damages 27
Part VI — Supplementary
Exclusion of implied terms and conditions 28
Reasonable time a question of fact 28
Rights etc. enforceable by action 28
Auction sales 28
Repeals 29
Savings 29
Terms used in this Act 30
Commencement 31
Short title 31
Schedule — Imperial Acts that cease to apply
Notes
Compilation table 33
Defined terms
Western Australia
Sale of Goods Act 1895
An Act for codifying the law relating to the sale of goods.
Part I — Formation of the contract
Division 1 — Contract of sale
[Heading inserted: No. 19 of 2010 s. 44(2).]
1. Sale and agreement to sell
(1) A contract of sale of goods is a contract whereby the seller transfers, or agrees to transfer, the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another.
(2) A contract of sale may be absolute or conditional.
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
2. Capacity to buy and sell
(1) Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property: Provided that where necessaries are sold and delivered to an infant or minor, or to a person who by reason of mental incapacity or drunkenness in incompetent to contract, he must pay a reasonable price therefor.
(2) In this section —
necessaries means in this section mean goods suitable to the condition in life of such infant or minor or other person, and to his actual requirements at the time of the sale and delivery.
[Section 2 amended: No. 19 of 2010 s. 51.]
Division 2 — Formalities of the contract
[Heading inserted: No. 19 of 2010 s. 44(2).]
3. Contract of sale, how made
Subject to the provisions of this Act, and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties: Provided that nothing in this section shall affect the law relating to corporations.
4. Contract for sale of $20 and upwards
(1) A contract for the sale of any goods of the value of $20 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.
(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.
(3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre‑existing contract of sale whether there be an acceptance in performance of the contract or not.
[Section 4 amended: No. 113 of 1965 s. 8(1).]
Division 3 — Subject matter of contract
[Heading inserted: No. 19 of 2010 s. 44(2).]
5. Existing or future goods
(1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller, after the making of the contract of sale, in this Act called future goods.
(2) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen.
(3) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.
6. Goods perishing before contract is made
Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.
7. Goods perishing before sale but after agreement to sell
Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided.
Division 4 — The price
[Heading inserted: No. 19 of 2010 s. 44(2).]
8. Ascertainment of price
(1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.
(2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.
9. Agreement to sell at valuation
(1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided: Provided that if the goods, or any part thereof, have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.
(2) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.
Division 5 — Conditions and warranties
[Heading inserted: No. 19 of 2010 s. 44(2).]
10. Stipulations as to time
(1) Unless a different intention appears from the terms of the contract, stipulations as to the time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.
(2) In a contract of sale “month” means prima facie calendar month.
11. When condition to be treated as warranty
(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated.
(2) Whether a stipulation in a contract of sale is a condition the breach of which may give rise to a right to treat the contract as repudiated, or a warranty the breach of which may give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract.
(3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or 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 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 be a term of the contract express or implied to that effect.
(4) Nothing in this section shall affect the case of any condition of warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.
12. Implied undertakings as to title etc.
In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is —
(a) 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 is to pass;
(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods;
(c) an implied warranty that the goods shall be free from any charged or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.
[Section 12 amended: No. 19 of 2010 s. 51.]
13. Sale by description
Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
14. Implied conditions as to quality or fitness
(1) Subject to the provisions of this Act, and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as provided in subsections (2) and (5).
(2) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.
(3) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed.
(4) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
(5) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
[Section 14 amended: No. 19 of 2010 s. 51.]
Division 6 — Sale by sample
[Heading inserted: No. 19 of 2010 s. 44(2).]
15. Sale by sample
(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.
(2) In the case of a contract for sale by sample —
(a) there is an implied condition that the bulk shall correspond with the sample in quality;
(b) there is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;
(c) there is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.
Part II — Effects of the contract
Division 1 — Transfer of property as between seller and buyer
[Heading inserted: No. 19 of 2010 s. 44(2).]
16. Goods must be ascertained
Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.
17. Property passes when intended to pass
(1) Where there is a contract for the sale of specified or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
(2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.
18. Rules for ascertaining intention
Unless a different intention appears, the rules in the Table apply for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.
Table
Rule 1. Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.
Rule 2. Where there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof.
Rule 3. Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price the property does not pass until such act or thing be done, and the buyer has notice thereof.
Rule 4. When goods are delivered to the buyer on approval or on “sale or return”, or other similar terms, the property therein passes to the buyer —
(a) when he signifies his approval or acceptance to the seller, or does any other act adopting the transaction;
(b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.
Rule 5. (1) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.
(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.
[Section 18 correction to reprint: Gazette 12 Mar 2002 p. 1032; amended: Act No. 19 of 2010 s. 51.]
19. Reservation of right of disposal
(1) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of the disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.
(2) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is, prima facie, deemed to reserve the right of disposal.
(3) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.
20. Risk, prima facie, passes with property
Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer’s risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liability of either seller or buyer as a bailee or custodier of the goods of the other party.
Division 2 — Transfer of title
[Heading inserted: No. 19 of 2010 s. 44(2).]
21. Sale by person not the owner
(1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.
(2) Provided also that nothing in this Act shall affect —
(a) the provisions of The Factors Acts 1823 to 1878 2, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof;
(b) the validity of any contract of sale under any special common law, or statutory power of sale, or under the order of a court of competent jurisdiction.
22. Market overt
Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith, and without notice of any defect or want of title on the part of the seller.
23. Sale under voidable title
When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect of title.
24. Revesting of property in stolen goods on conviction of offender
(1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.
(2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to stealing, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.
[Section 24 amended: No. 57 of 1997 s. 109.]
25. Seller or buyer in possession after sale
(1) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.
(2) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.
(3) In this section the term mercantile agent shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods.
[26. Deleted: No. 59 of 2004 s. 141.]
Part III — Performance of the contract
27. Duties of seller and buyer
It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.
28. Payment and delivery are concurrent conditions
Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.
29. Rules as to delivery
(1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending, in each case, on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller’s place of business, if he have one, and if not, his residence: Provided that if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.
(2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.
(3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf: Provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.
(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.
(5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.
30. Delivery of wrong quantity
(1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts the goods so delivered he must pay for them at the contract rate.
(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract, and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.
(3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract, and reject the rest, or he may reject the whole.
(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.
31. Instalment deliveries
(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments.
(2) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated.
32. Delivery to carrier
(1) Where, in pursuant of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is, prima facie, deemed to be a delivery of the goods to the buyer.
(2) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages.
(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit.
33. Risk where goods are delivered at distant place
Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.
[Section 33 amended: No. 73 of 1994 s. 4.]
34. Buyer’s right of examining the goods
(1) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.
35. Acceptance
The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
36. Buyer not bound to return rejected goods
Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.
37. Liability of buyer for neglecting or refusing delivery of goods
When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods: Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
Part IV — Rights of unpaid seller against the goods
[Heading inserted: No. 19 of 2010 s. 44(2).]
Division 1 — General
[Heading inserted: No. 19 of 2010 s. 44(2).]
38. Unpaid seller defined
(1) The seller of goods is deemed to be an unpaid seller within the meaning of this Act —
(a) when the whole of the price has not been paid or tendered;
(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.
(2) In this part of this Act the term seller includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.
39. Unpaid seller’s rights
(1) Subject to the provisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law —
(a) a lien on the goods or right to retain them for the price while he is in possession of them;
(b) in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them;
(c) a right of re‑sale as limited by this Act.
(2) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co‑extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer.
Division 2 — Unpaid seller’s lien
[Heading inserted: No. 19 of 2010 s. 44(2).]
40. Seller’s lien
(1) Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely —
(a) where the goods have been sold without any stipulation as to credit;
(b) where the goods have been sold on credit, but the term of credit has expired;
(c) where the buyer becomes insolvent.
(2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer.
41. Exercise of lien where part delivery
Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.
42. Termination of lien
(1) The unpaid seller of goods loses his lien or right of retention thereon —
(a) when he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods;
(b) when the buyer or his agent lawfully obtains possession of the goods;
(c) by waiver thereof.
(2) The unpaid seller of goods, having a lien or right of retention thereon, does no lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods.
Division 3 — Stoppage in transitu
[Heading inserted: No. 19 of 2010 s. 44(2).]
43. Right of stoppage in transitu
Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price.
44. Duration of transit
(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier.
(2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end.
(3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in the possession of them as bailee or custodier for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.
(4) If the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.
(5) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier or as agent to the buyer.
(6) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end.
(7) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods.
45. How stoppage in transitu is effected
(1) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.
(2) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must re‑deliver the goods to, or according to the directions of, the seller. The expenses of such re‑delivery must be borne by the seller.
Division 4 — Re-sale by buyer or seller
[Heading inserted: No. 19 of 2010 s. 44(2).]
46. Effect of sub‑sale or pledge by buyer
Subject to the provisions of this Act, the unpaid seller’s right of lien or detention or stoppage in transitu is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented thereto: Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last‑mentioned transfer was by way of sale, the unpaid seller’s right of lien or retention or stoppage in transitu is defeated, and if such last‑mentioned transfer was by way of pledge or other disposition for value, the unpaid seller’s right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee.
47. Sale not generally rescinded by lien or stoppage in transitu
(1) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu.
(2) Where an unpaid seller who has exercised his rights of lien or retention or stoppage in transitu re‑sells the goods the buyer acquires a good title thereto as against the original buyer.
(3) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re‑sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re‑sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.
(4) Where the seller expressly reserves a right of re‑sale in case the buyer should make default, and on the buyer making default, re‑sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages.
Part V — Actions for breach of the contract
Division 1 — Remedies of the seller
[Heading inserted: No. 19 of 2010 s. 44(2).]
48. Action for price
(1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.
(2) Where, under a contract of sale, the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.
49. Damages for non‑acceptance
(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non‑acceptance.
(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract.
(3) Where there is an available market for the goods in question the measure of damages is, prima facie, to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.
Division 2 — Remedies of the buyer
[Heading inserted: No. 19 of 2010 s. 44(2).]
50. Damages for non‑delivery
(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non‑delivery.
(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.
(3) Where there is an available market for the goods in question, the measure of damages is, prima facie, to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.
51. Specific performance
In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise as to the court may seem just, and the application by the plaintiff may be made at any time before judgment or decree.
52. Remedy for breach of warranty
(1) Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may —
(a) set up against the seller the breach of warranty in diminution or extinction of the price; or
(b) maintain an action against the seller for damages for the breach of warranty.
(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
(3) In the case of breach of warranty of quality such loss is, prima facie, the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.
(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage.
53. Interest and special damages
Nothing in this Act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.
Part VI — Supplementary
54. Exclusion of implied terms and conditions
Where any right, duty, or liability would arise under a contract of sale, by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage be such as to bind both parties to the contract.
55. Reasonable time a question of fact
Where by this Act any reference is made to a reasonable time the question what is a reasonable time is a question of fact.
56. Rights etc. enforceable by action
Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action.
57. Auction sales
In the case of a sale by auction:
(1) Where goods are put up for sale by auction in lots, each lot is, prima facie, deemed to be the subject of a separate contract of sale.
(2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid.
(3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer.
(4) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.
Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.
58. Repeals
The enactments mentioned in the schedule to this Act shall have no force or effect within the Colony of Western Australia as from the commencement of this Act to the extent in that schedule mentioned: Provided that nothing herein contained shall affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest.
59. Savings
(1) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this Act contained.
(2) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress, or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods.
(3) Nothing in this Act, or in any repeal effected thereby, shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act.
(4) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security or under which a pawnbroker receives goods and the seller has a right to buy back the goods.
[Section 59 amended: No. 88 of 1994 s. 100.]
60. Terms used in this Act
(1) In this Act, unless the context or subject matter otherwise requires —
action includes counter‑claim and set‑off;
buyer means a person who buys or agrees to buy goods;
contract of sale includes an agreement to sell as well as a sale;
delivery means voluntary transfer of possession from one person to another;
document of title to goods has the same meaning as it has in The Factors Acts 1823 to 1878 2, or any Act amending or substituted for the same;
fault means wrongful act or default;
future goods mean goods to be manufactured or acquired by the seller after the making of the contract of sale;
goods include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;
plaintiff includes defendant counterclaiming;
property means the general property in goods, and not merely a special property;
quality of goods includes their state or condition;
sale includes a bargain and sale as well as a sale and delivery;
seller means a person who sells or agrees to sell goods;
specific goods mean goods identified and agreed upon at the time a contract of sale is made;
warranty means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.
(2) A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not.
(3) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he has become bankrupt or not.
(4) Goods are in a deliverable state within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.
[Section 60 amended: No. 46 of 2009 s. 17.]
61. Commencement
This Act shall come into operation on 1 January 1896.
62. Short title
This Act may be cited as the Sale of Goods Act 1895 1.
[Section 62 inserted: No. 74 of 2003 s. 150(1).]
Schedule — Imperial Acts that cease to apply
[s. 58]
[Heading inserted: No. 19 of 2010 s. 34(2).]
This Schedule is to be read as referring to the revised edition of the Statutes prepared under the direction of the Statute Law Committee of the Imperial Parliament.
[Heading deleted: No. 19 of 2010 s. 34(3).]
Session and Chapter
Title of Act
Extent of Repeal
1 Jac. 1, c.21
An Act against Brokers.
The whole Act.
29 Cha. 2, c.3
An Act for the prevention of Frauds and Perjuries.
In part; that is to say, Sections 15 and 16.*
9 Geo. 4, c.14
An Act for rendering a Written Memorandum necessary to the validity of certain Promises and Engagements.
In part; that is to say, Section 7.
19 & 20 Vict. c.97 (Imperial) adopted by the 31 Vict. No. 8
The Mercantile Law Amendment Act 1856.
In part; that is to say, Sections 1 and 2.
Commonly cited as Sections 16 and 17.
Notes
1 This is a compilation of the Sale of Goods Act 1895 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.
Compilation table
Short title
Number and year
Assent
Commencement
The Sale of Goods Act 1895 3
41 of 1895 (59 Vict. No. 41)
12 Oct 1895
1 Jan 1896 (see s. 61)
Reprint of The Sale of Goods Act 1895 authorised 8 May 1956 (not in a Volume)
Reprint of The Sale of Goods Act 1895 authorised 15 Apr 1965 (not in a Volume)
Decimal Currency Act 1965
113 of 1965
21 Dec 1965
Act other than s. 4-9: 21 Dec 1965 (see s. 2(1)); s. 4-9: 14 Feb 1966 (see s. 2(2))
Reprint of The Sale of Goods Act 1895 authorised 6 Oct 1981 (includes amendments listed above)
Statutes (Repeals and Minor Amendments) Act 1994 s. 4
73 of 1994
9 Dec 1994
9 Dec 1994 (see s. 2)
Pawnbrokers and Second‑hand Dealers Act 1994 s. 100
88 of 1994
5 Jan 1995
1 Apr 1996 (see s. 2 and Gazette 29 Mar 1996 p. 1495)
Statutes (Repeals and Minor Amendments) Act 1997 s. 109
57 of 1997
15 Dec 1997
15 Dec 1997 (see s. 2(1))
Reprint of The Sale of Goods Act 1895 as at 7 Jul 2000 (includes amendments listed above) (correction in Gazette 12 Mar 2002 p. 1032)
Statutes (Repeals and Minor Amendments) Act 2003 s. 150(1)
74 of 2003
15 Dec 2003
15 Dec 2003 (see s. 2)
Courts Legislation Amendment and Repeal Act 2004 s. 141
59 of 2004
23 Nov 2004
1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Reprint 5: The Sale of Goods Act 1895 as at 26 Jan 2007 (includes amendments listed above)
Statutes (Repeals and Minor Amendments) Act 2009 s. 17
46 of 2009
3 Dec 2009
4 Dec 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 33, 44(2) and 51
19 of 2010
28 Jun 2010
11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
2 For details of The Factors Acts 1823 to 1878 , see the Factors Acts Amendment Act 1878 s. 1.
3 Now known as the Sale of Goods Act 1895; short title changed (see note under s. 62).
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]