s17 (1): Where there is a
contract for the sale of specific
or ascertained goods the pty is
trfed at time parties intend.
(2): For 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.
s18
Rule 1 - Where there is an unconditional
K for sale of goods...the pty in the goods
passes to buyer when K is made, and it
is immaterial whether the time of
payment/delivery is postponed
Unconditional K
Varley v Whipp - sale of a reaping
machine was not an unconditional
sale despite fact that it was clearly
not subj to any conditions
precedent, but no reason given.
Specific goods
s61: goods identified and
agreed upon at the time a
contract of sale is made
Howell v Coupland - a crop to be grown
on certain field treated as specific good
Kursell v Timber
Operators - timber
not specified
Deliverable state
s61(5): ... when they are in such
a state that the buyer would
under the contract be bound
to take delivery of them.
physical moveability of the goods:
Underwood Ltd v Burgh Castle Brick &
Cement Syndicate - engine not in
deliverable state as it had to be dismantled
after being detached from floor.
Kursell v Timber Operators -
since timber had to be cut
prior to delivery, and for 15
years into the future, not of
deliverable state
Factors indicating contrary intention
Lacis v Cashmarts -
implied intention
that pty should not
pass until gds are
properly paid for.
despite s18 r1, not difficult to persuade court of
contrary intention that pty doesn't pass till delivery
relevant factors to consider: 1. where seller advises buyer
to insure, 2. seller may retain some interest in gds through
lien or charge; 3. if its land, passes only on conveyance
Rule 2 - Where seller is bound
to do something to the goods...
pty does not pass until thing is
done, and buyer has notice of it
Rule 3 - where seller is
bound to weigh, measure,
test, or do some other
act...for purpose of
ascertaining px, pty does
not pass until it is done,
and buyer has notice
Nanka-Bruce v Commonwealth
Trust - held, weighing did not
make contract conditional and pty
passed from A to B before px was
ascertained to B's purchaser
Rule 4 - Where gds are delivered
to buyer on approval or on sale or
return, pty passes when buyer
adopts transaction, or through an
expiration of a reasonable time.
Weiner v Harris - 'buyer'
was mere agent for seller,
next buyer had good
title and was protected
from jeweller.
Re Neville - goods delivered to Neville with px list
tt he was not payable for them until sold. Neville
free to sell at any px, only account to seller.
Kirkham v Attenborough - buyer of goods on sale
or return pawned goods for loan. held, pawnbroker
aquired goods because he adopted the transaction.
any act which shows he's a purchaser is sufficient.
Poole v Smith - car supplied by one
motor dealer to another on sale or
return & car was returned in damaged
condition. held, buyers had adopted
transaction for using car for own
purposes rather than selling it off.
Factors Act 1889 can protect bona fide
3rd party because mercantile agent can
bind his principal in relation to any
transaction that he enters into in
relation to goods that he possesses.
Atari Corporation v
Electronics Boutique Stores -
CA held in absence of specific
provision, any intimation to
seller that buyer does not
wish to exercise option to
purchase suffices.
Unascertained goods
1. Goods to be manufactured or grown by
the seller; 2. generic goods; 3. unidentified
portion of a specified bulk or whole
s16: for sale of unascertained gds, no pty
in gds is trfed until gds are ascertained.
Re Wait - if goods have not
been separated out of
larger bulk, no pty can pass
Re Goldcorp Exchange - buyers
were merely unsecured creditors
in goldcorp's liquidation
s18
"unconditional appropriation"
Rule 5 - some ascertained and identified
goods must be irrevocably attached or
ear-marked for particular contract
Healy v Howlett & Sons - D's boxes
were not earmarked in time before
fish had deteriorated. held, pty in fish
had not passed to buyer because
there were no identified goods
Laurie & Morewood v John Dudin &
Son = w/o severance, no pty could have
passed because goods not identified.
Carlos Federspiel & Co SA v Charles
Twigg & Co Ltd - refer to quote on sheet.