Terms of a Contract for the Sale of Goods

Terms of a Contract for the Sale of Goods
SIRHOLY

Topics Covered Classification of contractual terms
Duties of the seller Duties of the buyer Transfer of property and risk Seller’s remedies Buyer’s remedies

Classification of Contractual Terms
When parties enter into a contract they discuss a whole lot of issues. The parties make a number of statements in the course of the negotiation. Some of the statements that they make are so important that they become part of the contract.

Contractual Terms These terms are known as contractual terms. Others will not be considered as contractual terms because they are less important or are not important at all. The law has for so many years grouped contractual terms into two. These are conditions and warranties. Conditions and warranties are the two basic types of express terms.

Conditions A condition is a very important term in a contract. It is so vital a term that it goes to the root of the contract. A condition is the fundamental obligation that a party to a contract has to perform. If a party is not able to perform that obligation, - that condition -, it means the party has breached the condition.

Conditions Since the condition is a vital term that goes to the root of the contract, if it is breached the innocent party will normally be entitled to treat the contract as at an end. That is the party, who because of the breach of the condition by the other party, can consider the contract as at an end. In other words the innocent party will repudiate the contract and also claim damages against the party who breached the condition.

Warranties A warranty is a term in a contract which is less important. A warranty is subsidiary to the main purpose of the contract. The breach of a warranty enables the injured party to claim damages but not to terminate the contract. Because a warranty is a less vital term, if it is broken the injured party would still have to go on with the contract. He may be compensated for that breach by an award of damages.

Warranties The Sale of Goods Act defined warranty as a term collateral to the main purpose of a contract of sale a breach of which give rise to a claim for damages, but not to a right to reject the goods and treated the contract as repudiated.

Innominate/Intermediate Term
If the parties state that a term in a contract is a condition and the breach of that condition will cause only a small and unimportant (if any) loss, then the courts may hold that such a breach will not justify rescission even though the term is called a “condition” in the contract.

Innominate Term Thus, would the breach affect the party to the extent that he would lose something of a great significance when the term is described as a warranty? If the breach goes to the root of the contract depriving the plaintiff of the major benefits of the contract, the term will be classified as a condition and the courts will allow a rescission.

Innominate Term In Cehave MV v. Bremer (1975) the Court of Appeal held that there was a breach of the term that the goods must be “shipped in good condition” but this term was neither a condition nor a warranty, but an ‘intermediate term’ since the breach does not go to the root of the contract.

Merchantable Quality In the case of Cehave MV the courts ruled that the goods were of a merchantable quality. Merchantable quality means that the goods must be saleable commercially under the description by which they were sold. The goods must be fit for the purpose for which goods of that description are normally used and regard must be given to the price paid.

Duties of the Seller Section 1 (1) of the Sale of Goods Act, 1962, Act 137 posits that a contract for the sale of goods is a “contract whereby the seller agrees to transfer the property in the goods to the goods to the buyer for a consideration called the price, consisting wholly or partly of money. What are the obligations of the seller in this type of contract?

Fundamental Obligations of the Seller
s.8(1) posits that in a sale of specific goods the fundamental obligation of the seller is to deliver those goods to the buyer. The word fundamental means no more than that if the seller delivers goods different from the one that the parties have identified and agreed upon. Duties of the Seller

s.8(2) postulates that in a sale of unascertained goods, the fundamental obligation of the seller is to deliver to the buyer goods substantially corresponding to the description or sample by which they were sold. Duties of the Seller

s.8(3) provides that any provision in a contract of sale which is inconsistent with or repugnant to the fundamental obligation of the seller, is void to the extent of the inconsistency or repugnancy. This means that the seller cannot be made to sell any other thing apart from that contracted or negotiated for. Duties of the Seller

Existence of the Goods s.9 of the Sale of Goods Act provides that in a contract for the sale of specific goods, there is an implied condition that the goods are in existence at the time when the contract is made. If the goods do not exist at the time the contract is made, the contract is void. A void contract is a contract which does not exist. Duties of the Seller

Title to the Goods s.10(1) of Act 137 provides that in a contract of sale there is an implied warranty on the part of the seller that s/he will have the right to sell the goods at the time when the property is to pass. If the seller had no title to the goods, s/he is liable in damages to the buyer. Duties of the Seller

Rowland v. Divall R bought a motor-car from D and used it for four months. D had no title to the car, and consequently R had to surrender it to the true owner. R sued to recover the total purchase price. The courts held that he was entitled to recover it in full Duties of the Seller

Sale by Description If before a sale takes place the seller describes the goods, after the buyer has bought it, there is a sale by description. When there is a sale by description, there is an implied condition that the goods shall correspond to the description. Goods are sold by description when the buyer contracts in reliance on the description though s/he does not see the goods. Duties of the Seller

Grant v. Austin Mills Ltd.
The plaintiff bought an undergarment from a retailer. It was contaminated with chemicals that caused him dermatitis. The Courts of Appeal held that there was a breach of the implied term of fitness for purpose in the contract. It was held that this was a sale by description. Duties of the Seller

Implication of a sale by description
If the seller does not state that the goods correspond exactly to the description the law imply that the goods must correspond exactly to the description. If the goods do not correspond to the description the seller is in breach of the contract and the buyer can terminate the contract and claim damages. Duties of the Seller

Sale by Sample Often goods are purchased by a buyer after s/she has been shown a sample of the goods and the bulk of the goods will arrive at a later time. Conditions that are implied include: The bulk will correspond with the sample The buyer will have a reasonable opportunity of comparing the bulk with the sample The goods shall be free of any defect making their quality unsatisfactory, which would not be apparent on reasonable examination of the sample. Duties of the Seller

Godley v. Perry The court held that G could recover from P because:
The catapult was not fit for its purpose and It was not of merchantable quality and further more The defect of the goods could not be discovered by reasonable examination of the sample. Duties of the Seller

Quality and Fitness s.13(1) (i) provides: That there is an implied condition that the goods are free from defects which are not declared or known to the buyer before or at the time when the contract is made – provided that the buyer has examined the goods in respect of defects which should have been revealed by the examination. Duties of the Seller

Quality and Fitness s.13(1) (ii) provides: That in the case of sale by sample, in respect of defects which could have been discovered by reasonable examination of the sample and s.13(1) (iii) provides: Where the goods are not sold by the seller in the ordinary course of his business in respect of defects of which the seller was not and could not reasonably have been aware. Duties of the Seller

What is quality in a contract for the sale of goods?
Quality, means goods must be saleable commercially under the description by which they were sold. The goods must be fit for the purpose for which goods of that description are normally used. And price paid for the goods and other factors also affect the quality. Duties of the Seller

Quality There is an implied condition that the goods shall be reasonably fit for the purposes where the buyer buys the goods in reliance upon the sellers skills or judgement after making known to the seller the particular purpose for which the goods are required. Duties of the Seller

Caveat Emptor Rule s. 13(1) provides for the ‘Caveat Emptor’ rule which simply means ‘let the buyer be aware’. This is subject to so many exceptions but not completely abolished. The buyer must critically examined what s/he wants and tell the seller exactly what s/she is looking for. Duties of the Seller

Quantity of Goods A buyer will usually request the quantity of goods s/she wants but there is no guarantee that they will receive exactly what they ordered. The buyer may receive: Less goods than contracted for More goods than contracted for Goods they ordered mixed with other goods Duties of the Seller

Quantity of Goods s.14(1) provides that where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them but if he accepts the goods so delivered he must pay for them at the contract rate. Duties of the Seller

Quantity of Goods s.14(2) provides that where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may not reject all the goods delivered by the person by reason only of the excess in quantity but he may accept all the goods so delivered, paying for the extra goods at the contract rate or may accept the goods which should have been delivered and reject the remainder. The buyer can recover damages from the seller for the cost of separating the goods. Duties of the Seller

Quantity of Goods -Mixed
s.14(4)(a) provides that the buyer may accept all the goods so delivered, paying a reasonable price for the extra goods; s.14(4)(b) provides that if the goods which the seller contracted to sell and has delivered less than the quantity specified in the contract, the buyer may reject the whole. Duties of the Seller

Quantity of Goods - Mixed
s.14(3)(c) posits that the buyer may accept the goods included in the contract and reject the remainder. In this event, the buyer may recover damages from the seller for any cost involved in separating the goods and in respect of any deficiency on the goods so delivered. Duties of the Seller

Delivery of Goods Delivery is the voluntary transfer of possession from one person to another. Delivery of goods may be: Actual delivery or Constructive delivery Duties of the Seller

Constructive Delivery
In a constructive delivery the goods themselves are not delivered, but the means of obtaining possession of the goods is delivered e.g. by delivering the key of a lock-up garage where the sold car is kept or the bill of lading which will entitle the holder to receive the goods. Duties of the Seller

Delivery of Goods Act 137 provides that it is the duty of the seller to deliver the goods. The buyer also has the obligation arising from the contract to accept the goods and pay for them (s.15(1)). Duties of the Seller

Time of Delivery Where the seller is bound to deliver the goods, but no time is fixed, then the seller is bound to send them within a reasonable time. s.16(1) states that if no time is fixed for the delivery of the goods, they must be delivered within a reasonable time. Duties of the Seller

Time of Delivery s.16(2) stipulates that unless a contrary intention appears, stipulations as to the time of delivery are conditions of a contract of sale. s.16(3) provides that the parties can vary the time of delivery of the goods in their contract. Duties of the Seller

Expenses on Delivery s.17 provides that unless otherwise agreed, the expenses of ensuring the goods are in a deliverable state must be carried by the seller. Where the buyer refuses to accept delivery within a reasonable time he will be liable to the seller for: Any loss occasioned by his neglect or refusal to accept delivery A reasonable charge for the care and custody of the goods Duties of the Seller

Means of Delivery of Goods
s.18(1) provides that unless otherwise agreed, the seller may deliver the goods to the buyer by: Transferring to the buyer the actual physical control over the goods Transferring to the buyer the means of obtaining actual physical control over the goods Transferring to the buyer the documents of title to the goods Duties of the Seller

s.18(2) provides that unless a contrary intention is apparent, delivery of the goods to the buyer’s agent or to the buyer’s order is a delivery to the buyer. Duties of the Seller

s.18(3) posits that unless a contrary intention is apparent, delivery of the goods to a carrier, pursuant to, or consequent on a contract of sale, for transmission to the buyer is a delivery to the buyer. Duties of the Seller

s.18(4) stipulates that where the goods are in the possession of a third party, they are delivery to the buyer when the third party acknowledges to the buyer that the third party holds the goods on behalf of the buyer. Duties of the Seller

Place of Delivery s.19(1) provides that unless a contrary intention is apparent, the place of delivery is the seller’s place of business, if the seller has one, and if not, the residence of the seller. s.19(2) stipulates that in a contract for the sale of specific goods which to the knowledge of the parties when the contract is made are in some other place, then subject to a contrary intention that place is the place of delivery. Duties of the Seller

Arrangement with Carrier
In s.20(1) where in pursuant of a contract of sale the seller is authorized or required to send the goods to the buyer by a carrier, their is an implied condition that the seller shall make the contract with the carrier on behalf of the buyer which is reasonably having regard to the circumstances of the case. Duties of the Seller

Arrangement with Carrier
s.20(2) provides that in situations where the goods are sent by air or sea to the buyer, it is the duty of the seller to inform the buyer that the goods should be insured. If the seller fails to inform the buyer any damaged caused to the goods would be at the risk of the seller. Duties of the Seller

Duties of the buyer Section 1 (1) of the Sale of Goods Act, 1962, Act 137 posits that a contract for the sale of goods is a “contract whereby the seller agrees to transfer the property in the goods to the goods to the buyer for a consideration called the price, consisting wholly or partly of money. What are the obligations of the buyer in this type of contract? Duties of the buyer

Fundamental Obligations of the Buyer
s.21 provides that the fundamental obligations of the buyer in a contract of sale are to pay the price and accept delivery of the goods. If the buyer refuses to pay for the goods and accept delivery of the goods, he is in breach of the contract of sale and the seller can terminate the contract and claim damages. Duties of the buyer

Concurrent Payment s.22 provides that unless otherwise agreed upon, the buyer shall be willing and ready to pay the price in exchange for the delivery of the goods. Payment should therefore be concurrent with delivery Duties of the buyer

Time of Payment s.23 posits that unless otherwise agreed, stipulations as to the time of payment or as to the time for accepting delivery are not conditions of a contract of sale. It may very well be that since interest is chargeable on the amount due and since warehouse costs can be charges, there is no reason for the seller to abrogate the contract merely because there has been a delay in payment or delay in accepting delivery of the goods. Duties of the buyer

Instalment Deliveries
s.24 posits that unless otherwise agreed the buyer is not bound to accept delivery of goods by instalments. The seller cannot compel the buyer to accept delivery by instalments. There can, however, be contract where delivery may be by instalment and each instalment paid for separately. Duties of the buyer

Test to apply if delivery is by Instalment
The test were laid down in the case of Maple Flock v. Universal Furniture Products (1934): The ratio quantitatively which the breach bears on the contract The degree of probability or improbability that such a breach will be repeated If instalments are to be separately paid for the contract is more likely to be construed as severable. Duties of the buyer

Transfer of Property and Risk
A person who buys goods is interested in acquiring the property in the goods and possession of the goods. If the property in the goods is acquired by the buyer, it allows him to own and deal with the goods. When does property pass? How does it happen? And what are the legal implications?

What is the Transfer of Property?
Transfer of property in goods from one person to another occurs when their is a change in ownership. For a contract to be classified as the one for the sale of goods, property or ownership must pass to the buyer. There are times when property pass to the buyer but the seller retains possession of the goods.

Property and Possession
Property relates to the ownership of or title to goods. Possession refers to the custody or control of goods. One may have possession of goods but not be the owner or have title to it. Another person may have the ownership in the goods.

When does Property pass?
s.25 posits that where there is a contract for the sale of unascertained goods, the property in the goods is not transferred to the buyer unless the goods are ascertained. s.26(1) stipulates that the property in the goods passes under the contract of sale when the parties intend it to pass.

It means that for specific or ascertained goods, property passes at the time the parties intend it to pass. When the parties state that property will pass when the buyer pays the price, then property or ownership will pass after the payment of the price.

s.26(2) postulates that unless a different intention is apparent, the property in the goods passes under a contract of sale when they are delivered to the buyer. This is the general rule that as soon as goods are delivered to the buyer, transfer of property occurs.

The Primary Rule on Transfer of Property
The primary rule is that transfer of property occurs according to the intention of the parties. In Aluminium Industries BV v. Romalpa (1976), it was provided that ownership of the materials to be delivered by AIV will only be transferred to the purchaser when he has met all that is owing to AIV no matter on what grounds.

The Primary Rule on Transfer of Property
Sometimes the agreement may be that the goods could be returned to the seller. If this proviso is absent in the agreement, then property in the goods passes to the buyer on delivery (s.26(3)). In Ghana Rubber Products Ltd. v. Criterion Co. Ltd. (1985), the court of Appeal held that the property in the chemicals’ passes to GRP on delivery.

Transfer of Risk s.27(1) provides that the risk in the goods in a contract of sale is transferred to the buyer when the parties intend it to be transferred. The intention of the parties is important here. If the parties provide that the risk will pass upon the happening of an event, say on shipping, risk passes as soon as the goods are shipped to transported.

Transfer of Risk s.27(2) provides that unless a different intention is apparent, the goods are at the seller’s risk until the property in them passes to the buyer, after which the goods are at the risk of the buyer.

Transfer of Risk s.27(3) stipulates that where delivery of the goods is delayed through the fault of the buyer or seller, the goods are at the risk of the party in fault as regards the loss, damage or deterioration which might not have occurred but for the delay. The person who causes the delay is responsible for the damage.

Transfer of Property by Non-owner
s.28(1) posits that subject to Act 137 and any other enactment where goods are sold by a person who is not the owner of the goods and who does not sell them under the authority or with the consent of the owner, the buyer does not acquire a better title than the seller had.

This has become the general rule that a person who is not, or has not the authority of the owner gives no title to the buyer. This is found in the maxim ‘nemo dat quod non habet’ or the ‘nemo dat rule’. The seller cannot transfer a better title to the buyer than he has.

The ‘nemo dat rule’ means that no one gives who possesses not. This basic rule is to protect the rights of property owners. This rule might make commerce difficult in the sense that if goods are stolen and the buyer is not aware he might not get them and will loss the amount. There are some exception to this doctrine.

Exceptions to the Nemo-dat rule
The exceptions are meant to protect buyers and to facilitate commerce. The exceptions are: Estoppel Agency Sale by a buyer or seller still in possession Sale by a person having a voidable title Notice of ownership Greenwood v. Bennet (1973)

Sale by Estoppel If the true and actual owner of goods stands by and allows an innocent party to pay over money to a third party, who professes to have the right to sell an article, in the believe that he is becoming the owner, the true owner will be estopped from denying the third party’s right to sell. Estoppel means a person is prevent from denying a statement he has made.

Sale by Estoppel s.28(2) provides that nothing in this section affects the operations of the doctrine of estoppel, or any power of sale which may be conferred by or under any enactment or by a contract of pledge or otherwise.

Sale under Voidable Title
s.29 provides that where a person has a voidable title to goods, a sale, pledge or any other disposition for value made by that person before the title to the goods has been avoided shall be as effective as if that person’s title were not voidable, if the person receiving the disposition acts in good faith and without notice of the defect in title of the person making the disposition.

Sale by a Mercantile Agent
This is an agent having the customary course of his business authority to sell goods, or raise money on the security of goods. This includes an auctioneer or broker, but not a clerk or warehouseperson. As an agent any disposition is as valid as if it was done by the principal owner.

Notice of Ownership s.33(1) provides that for the purpose of the provision of this Part relating to dispositions of goods to persons receiving the goods in good faith and without notice of defects in title, where a motor vehicle is licensed by a licensing authority under the Road Traffic Act, 2004, a person has notice of the ownership or interest of the person in whose name the motor vehicle is licensed.

Notice of Ownership In Alhassan v. Social Security Bank (1989/90) it was held that on the facts, the plaintiff was a bona fide purchaser of the vehicle without notice of any adverse title vested in the defendant. The registration of the vehicle in the police licensing office in the name of F gave actual notice to every person that F was the owner by virtue of the Sale of Goods Act, 1962.

Sale by Seller or Buyer still in Possession
s.32(1) posits that where a buyer of goods obtains the possession of the goods or of the documents of title to the goods with the consent of the seller before the property passes to the buyer, the delivery or transfer by the buyer, of the goods or documents of title under a sale, pledge or any other disposition for value of the goods to a person receiving the goods in good faith and without notice of the buyer’s lack of title, has the same effect as if the buyer were expressly authorized by the seller to make the delivery or the transfer.

Seller’s Remedies The seller of goods is expected to receive payment for the goods. There are situations when the seller may not receive payment for the goods or has receive some part payment. What remedies are available for this unpaid seller for the goods sold?

Who is Unpaid Seller? s.34(1) states that the seller of goods is an unpaid seller within the meaning of this Part: When the whole of the price has not been paid or tendered When a bill of lading or any 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.

Who is Unpaid Seller? s.34(2) states that the term ‘seller’ includes a 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 personally paid or directly responsible for the price.

Rights of the Unpaid Seller against the Goods
Right to a lien A lien is the right to retain possession of an item pending payment of a liability. An unpaid seller has a lien over the goods that are the subject of contract until the price is paid or tendered. When the seller parts with possession, the lien is lost s.36.

Right of stoppage in transit This remedy is only available if the seller has parted with possession of the goods and the goods are in transit. The goods must not yet have reached the buyer and are in possession of the carrier. If the buyer has become insolvent, the seller in accordance with s.38 can stop the goods in transit.

Duration of Transit s.39(1) states that goods are in course of transit from the time when the goods are delivered to a carrier or any other bailee until the buyer takes delivery of the goods from the carrier or bailee. s.39(1) states that if the buyer obtains delivery of the goods before their arrival at the appointed destination the transit is at an end.

How stoppage in Transit is effected
s.40(1) provides that an unpaid seller may exercise the right of stoppage in transit by taking actual possession of the goods, or by giving notice of the claim to the carrier or the other bailee in whose possession the goods are. s.40(2) states that notice may be given to the person in actual possession or the principal of that person.

Right to re-possession s.44 states that unpaid seller may recover possession of the goods from the buyer after they have been delivered to the buyer after: The property has not passed to the buyer or The property has passed to the buyer but the contract nevertheless expressly confers a right on the seller to recover possession, and the buyer fails to pay the price in accordance with the terms of the contract, but not otherwise.

Right to re-sale s.45 postulates that an unpaid seller who is in possession of the goods is entitled as against the buyer to resell the goods: Where they are of a perishable nature and the buyer does not within a reasonable time pay or tender the price Where the buyer has repudiated the contract and the seller has accepted the repudiation Where the seller gives notice to the buyer of the intention to resell and the buyer does not within a reasonable time pay or tender the price.

Rights of the Unpaid Seller against the Buyer
Action for the price s.46(1) provides that where, under the contract of sale of goods, the property has passed to the buyer, and the buyer wrongfully refuses or neglects to pay for the goods according to the terms of the contract, the seller may maintain an action against the buyer for the price of the goods.

Action for the price s.46(2) provides that where the price of the goods or part thereafter is due for payment on a certain date and the buyer wrongfully neglects or refuses to pay the price or the part which has become due.

Action for the price s.46(3) provides that where the seller has delivered part of the goods and the buyer has accepted the goods. If only part of the goods have been delivered, the buyer is supposed to pay the appropriate price of the goods. If he fails the seller can take action for the price.

Action for Damages for Non-acceptance. Unpaid seller can maintain action for damages in the following circumstances: s.47(1) provides that where the buyer wrongfully neglects or refuses to accept and pay for the goods in accordance with the terms of the contract, the seller may maintain an action against him for damages for non-acceptance.

Action for Damages for Non-acceptance. s.47(2) provides that if the delivery is to be made in instalments and if each instalment is to be paid of separately, the seller can sue separately for each instalment which is not paid provided that where the buyer has by his words or conduct shown an intention to repudiate the contract, then the seller may sue for damages in respect of all the goods, if the seller accepts the repudiation.

Assessment or Measure of Damages
The measure of damages is the loss which could reasonably have been foreseen by the buyer at the time when the contract was made as likely to arise from the breach of contract. Damages are monetary amount that will compensate the seller for a breach of contract.

Assessment or Measure of Damages
s.48(2) postulates that where there is available market for the goods, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market price.

Remedies of the Buyer Rejection of the Goods
s.49(1) provides that the buyer is entitled to reject the goods and refuse to pay, or recover, the price where: The seller is guilty of a breach of a fundamental obligation The seller is guilty of a breach of a condition The buyer has entered into the contract as a result of fraudulent or innocent misrepresentation on the part of the seller.

Effects of Rejection s.50(1) provides that where the goods are delivered to the buyer and the buyer rejects the goods having the right to do so, the buyer is not bound to return them to the seller, but it is sufficient if the buyer intimates to the seller that the buyer rejects the goods.

Effects of Rejection s.50(2) states that after the buyer has intimated to the seller that the buyer has rejected the goods, the seller is entitled to have the goods placed at the buyer’s disposal.

Effects of Rejection s.50(3) provides that where the buyer has paid the price or part of the price, the buyer may retain the possession of the goods until the seller repays or tenders the amounts the seller has received from the buyer.

Remedies of the Buyer Damages for non-delivery
s.53 provides that the buyer may maintain an action against the seller for damages for non-delivery, Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, in accordance with the term of the contract Where the buyer rejects the goods delivered by the seller having the right to do so.

Assessment of Damages for Non-delivery
s.54(2) posits that where there is available market for the goods, the measure of damages is prima facie to be ascertained by the difference between the market price or current price and the contract price.

Damages for Breach of Conditions or Warranties
s.55 provides that where the seller is guilty of the seller’s fundamental obligation or of a condition or warranty of the contract, the buyer May maintain an action against the seller for damages for the breach complained, or May set up a claim to the damages in diminution or extinction of the price.

Part-payment and Deposits
s.57 makes provision for the buyer who has made part-payment or paid for the goods the seller may refuse to deliver the goods. It states that the buyer without prejudice to any other rights, but subject to any counterclaim for damages by the seller to recover from the seller the amounts which he has paid.

Action for Specific Performance
Specific performance is an equitable remedy and as such only available if damages are an inadequate remedy. The courts may order specific performance where there is a failure by the seller to deliver specific or ascertained goods. The goods must be unique or of a special kind in order to obtain this remedy. This action for specific performance can be found in s.58.

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Terms of a Contract for the Sale of Goods

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