Short title TITLE V. RELATING TO MERCANTILE LAW. THE CHAPTER 39. An Ordinance respecting the Sale of Goods. HE Lieutenant Governor, by and with the advice and consent of the Legislative Assembly of the Territories, enacts as follows: SHORT TITLE. 1. This Ordinance may be cited as "The Sale of Goods Ordinance." C.O., c. 39, s. 1. INTERPRETATION. Interpretation 2. In this Ordinance unless the context or subject matter otherwise requires- (a) "Action" includes counterclaim and set off; (b) "Buyer" means a person who buys or agrees to buy goods; (c) "Contract of sale" includes an agreement to sell as well as the sale; (d) "Delivery" means voluntary transfer of possession from one person to another; (e) "Document of title to goods" has the same meaning as it has in The Factors' Ordinance; (f) "Factors' Ordinance" means The Factors' Ordinance and any enactment amending or substituted for the same; (g) "Fault" means wrongful act or default; (h) "Future goods" means goods to be manufactured or (i) "Goods" includes all chattels personal other than (k) "Quality of goods" include their state or condition; (1) "Sale" includes a bargain and sale as well as a sale (m) "Seller" means a person who sells or agrees to sell (n) "Specific goods" means goods identified and agreed (0) "Warranty" means an agreement with reference to (2) A thing is deemed to be done "in good faith" within the meaning of this Ordinance 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 Ordinance who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become duc. (4) Goods are in a "deliverable state" within the meaning of this Ordinance when they are in such a state that the buyer would under the contract be bound to take delivery of them. C.O., c. 39, s. 2. PART I. FORMATION OF THE CONTRACT. Contract of Sale. agreement 3. A contract of sale of goods is a contract whereby the Sale and seller transfers or agrees to transfer the property in goods to sell 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. C.O., c. 39, s. 3. 4. Capacity to buy and sell is regulated by the general law Capacity to concerning capacity to contract and to transfer and acquire buy and sell property: Proviso Contract of sale, how made Proviso Contract of sale for $50 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 is incompetent to contract he must pay a reasonable price therefor. "Necessaries" in this section means 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. C.O., c. 39, s. 4. Formalities of the Contract. 5. Subject to the provisions of this Ordinance and of any Ordinance 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. C.O., c. 39, s. 5. 6. A contract for the sale of any goods of the value of fifty and upwards dollars 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. Existing or future goods (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 recognize a pre-existing contract of sale whether there be an acceptance in performance of the contract or not. C.O., c. 39, s. 6. Subject matter of Contract. 7. 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 Ordinance 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. have perished 8. Where there is a contract for the sale of specific goods Goods which and the goods without the knowledge of the seller have perished at the time when the contract is made the contract is void. C.O., c. 39, s. 8. 9. Where there is an agreement to sell specific goods subsequently the goods without any fault on the part of seller or buyer perish before the risk passes to the buyer agreement is thereby avoided. C.O., c. 39, s. 9. The Price. of price 10. The price in a contract of sale may be fixed by the con- Ascertainment tract 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. C.O., c. 39, s. 10. to sell 11. Where there is an agreement to sell goods on the terms Agreement that the price is to be fixed by the valuation of a third party at valuation 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. C.O., c. 39, s. 11. Conditions and Warranties. as to time 12. Unless a different intention appears from the terms of Stipulations 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 essence of the contract or not depends on the terms of the contract. (2) In a contract for sale "month" means prima facie calendar month. C.O., c. 39, s. 12. condition to warranty 13. Where a contract or sale is subject to any condition to When be fulfilled by the seller the buyer may waive the condition or be treated as 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. (a) Whether a stipulation in a contract of sale is a con- Implied undertaking 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. (b) 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 expressed or implied to that effect. (2) Nothing in this section shall affect the case of any condition or warranty fulfilment of which is excused by law by reason of impossibility or otherwise. C.O., c. 39, s. 13. 14. In a contract of sale unless the circumstances of the as to title, etc. contract are such as to show a different intention there is Sale by description Implied conditions or fitness 1. 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; 2. An implied warranty that the buyer shall have and enjoy quiet possession of the goods; 3. An implied warranty that the goods shall be free from any charge 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. C.O., c. 39, s. 14. 15. When 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. C.O., c. 39, s. 15. 16. Subject to the provisions of this Ordinance and of any as to quality Ordinance 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 follows: 1. 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: |