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Sale of Goods Act
Revised Statutes of New Brunswick 1973
Chapter S-1
R.S.N.B. 1973, c. S-1
N.B. This Act is consolidated to March 31, 1997.
Reproduced under licence from Her Majesty the Queen in right of the Province of New Brunswick as represented by the Queen's Printer for the Province, under the terms set out below.
Chapter Outline
action
buyer
contract of sale
delivery
document of title to goods
fault
future goods
goods
plaintiff
property
quality of goods
sale
seller
specific goods
warranty
in good faith 1(2)
insolvent 1(3)
deliverable state 1(4)
PART I
FORMATION OF THE CONTRACT
CONTRACT OF SALE
Contract of sale of goods 2(1)
Contract may be absolute or conditional 2(2)
Sale distinguished from agreement to sell 2(3)
When agreement to sell becomes sale 2(4)
Capacity respecting purchase and sale 3(1)
Necessaries defined 3(2)
FORMALITIES OF THE CONTRACT
How contract made 4
Repealed 5
Existing or future goods 6(1)
Contract based upon contingencies 6(2)
Sale of future goods deemed agreement to sell 6(3)
Perishing of specific goods 7, 8
Determination of price 9
Evaluation by third party 10
CONDITIONS AND WARRANTIES
Time 11, 53
When condition treated as warranty 12(1), (4), (5)
Ascertainment of condition 12(2), (5)
Effect of naming stipulation condition 12(3), (5)
When condition becomes warranty 12(4), (5)
Implied condition or warranty as to title, quiet possession and encumbrances 13
Implied condition respecting description 14
Implied condition respecting quality or fitness 15
Implied condition respecting sale by sample 16
PART II
EFFECTS OF THE CONTRACT
TRANSFER OF PROPERTY AS BETWEEN SELLER AND BUYER
Transfer of property in unascertained goods 17
Transfer of property in specific or ascertained goods 18
Rules respecting ascertainment of time of transfer 19
Reservation of right of disposal by seller 20(1), (2)
Bill of exchange sent with bill of lading 20(3)
Transfer of risk 21
TRANSFER OF TITLE
Transfer of title by person other than owner 22(1)
Application of Act 22(2)
Purchase of voidable title by B.F.P. 23
Validity of sale by other than owner 24(1), (2)
Mercantile agent defined 24(3)
Subsections 24(1) and (2) not applicable to transactions within the scope of the Personal Property Security Act 24(4), (5)
Repealed 24(6)
PART III
PERFORMANCE OF THE CONTRACT
Duties of buyer and seller 25
Delivery and payment concurrent conditions 26
Ascertainment of intention respecting delivery 27(1)
Place of delivery 27(2)
Time for delivery 27(3)
Delivery where goods in possession of third party 27(4)
Reasonable hour of delivery 27(5)
Expenses of delivery 27(6)
Delivery of quantity smaller than contracted for 28(1), (4)
Delivery of quantity larger than contracted for 28(2), (4)
Delivery of mixed quantity 28(3), (4)
Instalment delivery 29
Effect of delivery to carrier 30(1)
Contract with carrier on behalf of buyer 30(2)
Delivery by sea transit 30(3)
Delivery to place other than where goods sold 31
Right of examination by buyer 32
Acceptance 33
Rejected goods 34
Refusal or neglect to take delivery 35
PART IV
RIGHTS OF UNPAID SELLER AGAINST THE GOODS
Unpaid seller defined 36
Rights of unpaid seller 37(1)
Right of retention 37(2)
UNPAID SELLER'S LIEN
Availability of lien 38
Lien respecting part delivery 39
Termination of lien 40
STOPPAGE IN TRANSITU
Availability of stoppage in transitu 41
When goods deemed in transit 42
Effecting of stoppage in transitu 43(1)
Notice of stoppage in transitu 43(1), (2)
RE-SALE BY BUYER OR SELLER
Effect of sub-sale or pledge by buyer 44
Re-sale by unpaid seller 45
PART V
ACTIONS FOR BREACH OF CONTRACT
REMEDIES OF THE SELLER
Action respecting price of goods 46
Action respecting non-acceptance of goods 47
REMEDIES OF THE BUYER
Action respecting non-delivery 48
Order for specific performance 49
Action respecting breach of warranty 50(1)
Measure of damages respecting breach of warranty 50(2), (3)
Action respecting further damages 50(4)
Interest, special damages or recovery of money paid 51
PART VI
SUPPLEMENTARY
Rebuttal of implication of law by contract or trade usage 52
Reasonable time 53, 11
Enforcement of remedies by action 54
Sale by auction 55
Application of Act 56
"action" includes counterclaim 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 and Agents Act;
"fault" means wrongful act or default;
"future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale;
"goods" includes all chattels personal other than things in action or money and also includes emblements, industrial growing crops, and things attached to or forming part of the land that 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" means goods identified and agreed upon at the time a contract of sale is made;
"warranty" means an agreement with reference to goods that 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;
1(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.
1(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.
1(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.
R.S., c.199, s.1.
PART I
FORMATION OF THE CONTRACT
CONTRACT OF SALE
2(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 and there may be a contract of sale between one part-owner and another.
2(2) A contract of sale may be absolute or conditional.
2(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.
2(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.
R.S., c.199, s.2.
3(1) Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property; but where necessaries are sold and delivered to a minor, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.
3(2) "Necessaries" in this section means goods suitable to the condition in life of the infant or minor or other person, and to his actual requirements at the time of the sale and delivery.
R.S., c.199, s.3; 1986, c.4, s.48.
FORMALITIES OF THE CONTRACT
4 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 orally, or partly in writing and partly orally, or may be implied from the conduct of the parties; but nothing in this section affects the law relating to corporations.
R.S., c.199, s.4.
5 Repealed: 1987, c.54, s.1.
R.S., c.199, s.5; 1987, c.54, s.1.
6(1) The goods that 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".
6(2) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency that may or may not happen.
6(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.
R.S., c.199, s.6.
7 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.
R.S., c.199, s.7.
8 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.
R.S., c.199, s.8.
9(1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner thereby agreed, or may be determined by the course of dealing between the parties.
9(2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price, and what is a reasonable price is a question of fact dependent on the circumstances of each particular case.
R.S., c.199, s.9.
10(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 the third party cannot or does not make the valuation, the agreement is avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.
10(2) Where the 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.
R.S., c.199, s.10.
CONDITIONS AND WARRANTIES
11(1) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale.
11(2) Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.
11(3) In a contract of sale "month" means prima facie calendar month.
R.S., c.199, s.11.
12(1) Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition or may elect to treat the breach of the condition as a breach of warranty, and not as a ground for treating the contract as repudiated.
12(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.
12(3) A stipulation may be a condition, though called a warranty in the contract.
12(4) 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 a 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 is a term of the contract, express or implied, to that effect.
12(5) Nothing in this section affects the case of a condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.
R.S., c.199, s.12.
13 In a contract of sale unless the circumstances of the contract 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 passes;
(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 charge or incumbrance in favour of a third party, not declared or known to the buyer before or at the time when the contract is made.
R.S., c.199, s.13; 1982, c.3, s.71.
14 Where there is a contract for the sale of goods by description, there is an implied condition that the goods correspond with the description, and if the sale is 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.
R.S., c.199, s.14.
15 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 follows:
(a) 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 that it is in the course of the seller's business to supply, whether he is the manufacturer or not, there is an implied condition that the goods are reasonably fit for the purpose, but 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;
(b) where goods are bought by description from a seller who deals in goods of that description, whether he is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed;
(c) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;
(d) an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
R.S., c.199, s.15.
16(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.
16(2) In the case of a contract for sale by sample,
(a) there is an implied condition that the bulk corresponds 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 are free from any defect, rendering them unmerchantable, that would not be apparent on reasonable examination of the sample.
R.S., c.199, s.16.
PART II
EFFECTS OF THE CONTRACT
TRANSFER OF PROPERTY AS BETWEEN SELLER AND BUYER
17 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.
R.S., c.199, s.17.
18(1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at the time that the parties to the contract intend it to be transferred.
18(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.
R.S., c.199, s.18.
19 Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods passes to the buyer:
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 that thing is 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 that act or thing is done, and the buyer has notice thereof.
Rule 4. Where 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, or
(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.
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, and the assent may be express or implied, and may be given either before or after the appropriation is made.
Rule 5. (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.
R.S., c.199, s.19.
20(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 disposal of the goods until certain conditions are fulfilled, and 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.
20(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.
20(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 honor the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.
R.S., c.199, s.20.
21(1) 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, except 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 that might not have occurred but for such fault.
21(2) Nothing in this section affects the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party.
R.S., c.199, s.21.
TRANSFER OF TITLE
22(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.
22(2) Nothing in this Act affects
(a) the provisions of the Factors and Agents Act 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.
R.S., c.199, s.22.
23 Where 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, if he buys them in good faith and without notice of the seller's defect of title.
R.S., c.199, s.23.
24(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, has the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.
24(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, has 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.
24(3) In this section the term "mercantile agent" has the same meaning as in the Factors and Agents Act.
24(4) Subsection (1) does not apply to a sale, pledge or other disposition of goods or documents of title to goods by a person who continues or is in possession of the goods pursuant to a sale of goods without a change of possession within the meaning of the Personal Property Security Act.
24(5) Subsection (2) does not apply to a sale, pledge or other disposition of goods or documents of title to goods by a person who obtains possession of the goods pursuant to a security agreement entered into with the seller under which the seller has a security interest in the goods within the meaning of the Personal Property Security Act.
24(6) Repealed: 1993, c.36, s.12.
R.S., c.199, s.24; 1978, c.49, s.1; 1993, c.36, s.12.
PART III
PERFORMANCE OF THE CONTRACT
25 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.
R.S., c.199, s.25.
26 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.
R.S., c.199, s.26.
27(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.
27(2) Apart from any contract, express or implied, the place of delivery is the seller's place of business, if he has one, and if not, his residence; but if the contract is for the sale of specific goods, that to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.
27(3) 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.
27(4) 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 the third person acknowledges to the buyer that he holds the goods on his behalf; but nothing in this section affects the operation of the issue or transfer of any document of title to goods.
27(5) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour, and what is a reasonable hour is a question of fact.
27(6) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.
R.S., c.199, s.27.
28(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.
28(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; but if the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.
28(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 that are in accordance with the contract and reject the rest, or he may reject the whole.
28(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.
R.S., c.199, s.28.
29(1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments.
29(2) Where there is a contract for the sale of goods to be delivered by stated instalments that 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.
R.S., c.199, s.29.
30(1) Where, in pursuance of a contract of sale, the seller is authorized 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.
30(2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as is reasonable, having regard to the nature of the goods and the other circumstances of the case, and if the seller omits 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.
30(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 are deemed to be at his risk during the sea transit.
R.S., c.199, s.30.
31 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.
R.S., c.199, s.31.
32(1) Where goods are delivered to the buyer, that 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.
32(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.
R.S., c.199, s.32.
33 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 that 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.
R.S., c.199, s.33.
34 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.
R.S., c.199, s.34.
35 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 the 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; but nothing in this section affects the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
R.S., c.199, s.35.
PART IV
RIGHTS OF UNPAID SELLER AGAINST THE GOODS
36(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, or
(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.
36(2) In this Part "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 indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.
R.S., c.199, s.36.
37(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 resale as limited by this Act.
37(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.
R.S., c.199, s.37.
UNPAID SELLER'S LIEN
38(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.
38(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.
R.S., c.199, s.38; 1982, c.3, s.71.
39 Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless the part delivery has been made under circumstances that show an agreement to waive the lien or right of retention.
R.S., c.199, s.39.
40(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.
40(2) The unpaid seller of goods, having a lien or right of retention thereon, does not lose his lien or right of retention by reason only that he has obtained judgment for the price of the goods.
R.S., c.199, s.40; 1986, c.4, s.48.
STOPPAGE IN TRANSITU
41 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.
R.S., c.199, s.41.
42(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.
42(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.
42(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 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.
42(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.
42(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.
42(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.
42(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 the part delivery has been made under circumstances that show an agreement to give up possession of the whole of the goods.
R.S., c.199, s.42.
43(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, which notice may be given either to the person in actual possession of the goods or to his principal, but 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.
43(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, the latter must re-deliver the goods to, or according to the directions of, the seller, but the expenses of the re-delivery must be borne by the seller.
R.S., c.199, s.43.
RE-SALE BY BUYER OR SELLER
44 Subject to the provisions of this Act, the unpaid seller's right of lien or retention or stoppage in transitu is not affected by any sale, or other disposition of the goods that the buyer may have made, unless the seller assented thereto; but 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 the 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 the 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.
R.S., c.199, s.44.
45(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.
45(2) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer.
45(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.
45(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.
R.S., c.199, s.45.
PART V
ACTIONS FOR BREACH OF THE CONTRACT
REMEDIES OF THE SELLER
46(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.
46(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 the 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.
R.S., c.199, s.46.
47(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.
47(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.
47(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.
R.S., c.199, s.47.
REMEDIES OF THE BUYER
48(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.
48(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.
48(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.
R.S., c.199, s.48.
49(1) 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 direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods in payment of damages.
49(2) The judgment may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the court seems just, and the application by the plaintiff may be made at any time before judgment.
R.S., c.199, s.49; 1986, c.4, s.48.
50(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 the 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.
50(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.
50(3) In the case of breach of warranty of quality the 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.
50(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 damages.
R.S., c.199, s.50.
51 Nothing in this Act affects 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.
R.S., c.199, s.51.
PART VI
SUPPLEMENTARY
52 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 is such as to bind both parties to the contract.
R.S., c.199, s.52.
53 Where, by this Act, any reference is made to a reasonable time the question what is a reasonable time is a question of fact.
R.S., c.199, s.53.
54 Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action.
R.S., c.199, s.54.
55 In the case of a sale by auction:
(a) where goods are put up for sale in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;
(b) a sale is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner, and until such announcement is made any bidder may retract his bid;
(c) where a sale is not notified to be subject to a right to bid on behalf of the seller, it is not lawful for the seller to bid himself or to employ any person to bid at the sale, or for the auctioneer knowingly to take any bid from the seller or any such person and any sale contravening this rule may be treated as fraudulent by the buyer;
(d) a sale 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, and 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.
R.S., c.199, s.55.
56(1) 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, continue to apply to contracts for the sale of goods.
56(2) Nothing in this Act affects any enactment relating to personal property security or any enactment relating to the sale of goods that is not expressly repealed by this Act.
56(3) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale to the extent that the transaction is intended to operate as an agreement that creates or provides for an interest in goods to secure payment or performance of an obligation.
R.S., c.199, s.56; 1993, c.36, s.12.
N.B. This Act is consolidated to March 31, 1997.