DELIVERY | HOW IS DELIVERY MADE | RULES WITH REGARD TO DELIVERY
What is Delivery? “Delivery means voluntary transfer of possession from one person to another”. The delivery may be actual or consecutive. Actual delivery means physically handing over the goods to the buyer and the delivery is constructive when goods themselves are not delivered but means of obtaining possession are delivered, e.g., by delivering the key of locked up garage where the sold car is kept.
HOW IS DELIVERY MADE?
Delivery of goods sold may be made by doing anything which the parties agree shall treat as delivery or which has the effect of putting the goods in possession of the buyer or of any person authorized to hold them on his behalf See. 33.
Delivery is made by doing some thing with goods which changes the possession of the goods from the seller to the buyer, or to any other person who is authorized by the buyer to lake possession of the goods.
Illustration: A hands over the goods to B according to the contract of sale in between A and B. When goods are transferred from A to B, it means a good has been delivered.
RULES WITH REGARD TO DELIVERY
According to section 36, the following are the rules with regard to delivery of the goods;
1. MODE OF DELIVERY
Where 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. In the absence of any such contract, delivery is to take place with the usage of trade. Sec. 36(1).
Illustration: A enters into a contract to sell 100 units of his product to B. It is also decided that B will get possession of goods from As factory. Now it depends on B to get possession of the goods and A is not bound to send the delivery.
2. PLACE OF DELIVERY
A part from the express or implied contract, the goods should be delivered at the place of the sale or at the place where the agreement to sell is made or at the place where the goods are produced.
Illustration: X enters into a contract with Y to sell him 10000 units of X’s product. Nothing is mentioned about the place of delivery. It is tradition that every buyer gets delivery for X’s store. Now Y will also get delivery of goods from X’s store.
3. TIME OF DELIVERY
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 10 send them with in a reasonable time. Sec. 36(2).
4. POSSESSION OF THIRD PERSON
Where the goods at the time of sale are in the possession of third person, there is no delivery, by seller 10 the buyer, unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.
5. HOUR OF DELIVERY
When delivery is demanded by the buyer or tendered by the seller, such demand or tender must be made within a reasonable hour. What is reasonable hour is a question of fact which depends on the circumstances of each particular case.
6. EXPENSES OF DELIVERY
Unless otherwise agreed, the expenses of and incidental for pulling the goods in a deliverable state shall be borne by the seller. Sec. 36(5).
7. APPLICATION FOR DELIVERY
A part from any express contract, the seller of the goods is not bound to deliver them until the buyer applies for delivery Sec. 36.
8. INSTALLMENT DELIVERY
Unless otherwise agreed the buyer of goods is not bound accept delivery there of by installments.
BUYER’S RIGHTS AND LIABILITIES IN CASE OF INCORRECT DELIVERY
The Buyer means a person who buys or agrees to buy goods and his rights and liabilities in case of incorrect delivery are as follows;
1. SHORT DELIVERY
Where the seller of the goods delivers to the buyer a quantity of goods less than lie contracted to sell the buyer may reject them but if the buyer accepts of the goods so delivered, he shall pay for them at the contract rate. Rec. 37(1).
Illustration: A enters into a contract with B to deliver him 1000 units of his product within 10 days. A delivers only 500 units within 10 days. Now it is B’s right to accept or reject this quantity. If B accepts these 500 units then he will have to pay at a contract rate.
2. EXCESS DELIVERY
Where .the seller delivers 10 the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included into the contract and reject the rest, or he may reject the whole: l? the buyer accepts the whole of the goods so delivered he shall pay for them at the contract rate Sec. 17(2).
Illustration: A agrees to send 100 units of his product to B but he sends 200 units to B. Now it depends on B to accept 100 units and return the others or accept 200 units or return the whole quantity.
3. MIXED DELIVERY
Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of 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 may reject the whole. Sec. 37(3).
Illustration: A orders to B to send 100 pairs of ladies shoes. But B sends 150 pairs mixed as ladies and gents shoes. Now it depends on B to accept ladies shoes and reject the others or he may, reject the whole 150 pairs.
4. DELIVERY OF INFERIOR QUALITY
Where the seller delivers to [he buyer the goods which are not in accordance with contracted goods but are of inferior quality, now it depends on buyer whether he accepts or rejects the whole00f the goods.
Illustration: A orders B to send 100 units of his low quality goods. But B sends No. 2 quality goods, Now it depends on A to accept Or reject the goods.
SELLERS DUTIES (BUYER’S RIGHTS)
The main and sole duty of the seller is to deliver the goods to the buyer in- accordance with the terms and conditions of the contract of sale If it is necessary to do some thing with the goods to put it into a deliverable state, he must do such thing to put it into a deliverable state. If the time for delivery is not fixed the seller must deliver the goods to the buyer when the buyer applies for delivery. If the seller does not deliver the goad after the for delivery is made by the buyer, ‘the sewage will be guilty of breach of contract.
DUTIES OF THE BUYER (SELLER’S RIGHT)
The main duties of the buyer for the performance of the contract are as under;
1. ACCEPTANCE OF THE GOODS
The buyer is bound to accept the goods delivered to him in accordance with the terms of the contract and make payment of the price. The goods are deemed to be accepted, when the buyer informs the seller about the acceptance of the goods or he docs such act with goods which shows the ownership of the buyer.
2. TO INFORM REFUSAL
When the buyer lawfully rejects the goods, delivered to him, it is his duty that he must inform the seller about such refusal.
3. UNLAWFUL REFUSAL
If the buyer unlawfully refuses to take delivery of the goods, the buyer will be responsible for the breach of the contract. The seller can sue against buyer for the loss borne by him due to such neglect or refusal to take delivery of goods and also for the expenses of look after.
4. PAYMENT OF PRICE
Unless there is an express contract for the payment of the price, the buyer is bound to make payment of the price at the time of delivery. If the buyer fails to do so, the seller can sue for the price.