Australian Capital Territory

sale of goods act 1954
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Reprinted as at 10 April 1995
TABLE OF PROVISIONS

Part I—Preliminary
	1.	Short title
	2.	Commencement
	4.	Certain laws to cease to be in force
	5.	Interpretation
Part II—Formation of the Contract
Division 1—Contract of Sale
	6.	Sale and agreement to sell
	7.	Capacity to buy and sell
Division 2—Formalities of the Contract
	8.	Manners of making contracts of sale
Division 3—Subject Matter of the Contract
	10.	Existing or future goods
	11.	Goods which have perished
	12.	Goods perishing before sale but after agreement to sell
Division 4—The Price
	13.	Ascertainment of price
	14.	Agreement to sell at valuation
Division 5—Conditions and Warranties
	15.	Stipulations as to time
	16.	When condition to be treated as warranty
	17.	Implied undertaking as to title
	18.	Sale by description
	19.	Implied conditions as to quality and fitness
Division 6—Sale by Sample
	20.	Sale by sample
PART III—EFFECTS OF THE CONTRACT
Division 1—Transfer of Property as between Seller and Buyer
	21.	Goods must be ascertained
	22.	Property passes where intended to pass
	23.	Rules for ascertaining intention
	24.	Reservation of right of disposal
	25.	Risk prima facie passes with property
Division 2—Transfer of Title
	26.	Sale by person not the owner
	27.	Re-sale under voidable title
	28.	Revesting of property in stolen goods on conviction of offender
	29.	Seller or buyer in possession after sale
	30.	Effects of writs of execution
Part IV—Performance of the Contract
	31.	Duties of seller and buyer
	32.	Payment and delivery are concurrent conditions
	33.	Rules as to delivery
	34.	Delivery of wrong quantity
	35.	Instalment deliveries
	36.	Delivery to carrier
	37.	Risk where goods are delivered at a distant place
	38.	Buyer’s right of examining the goods
	39.	Acceptance
	40.	Buyer not bound to return rejected goods
	41.	Liability of buyer for neglecting or refusing delivery of goods
Part V—Rights of Unpaid Seller against the Goods
Division 1—General
	42.	Unpaid seller defined
	43.	Unpaid seller’s rights
Division 2—Unpaid Seller’s Lien
	44.	Seller’s lien
	45.	Part delivery
	46.	Termination of lien
Division 3—Stoppage in transitu
	47.	Right of stoppage in transitu
	48.	Duration of transit
	49.	Method of effecting stoppage in transitu
Division 4—Re-sale by Buyer or Seller
	50.	Effect of sub-sale or pledge by buyer
	51.	Sale not generally rescinded by lien or stoppage in transitu
Part VI—Actions for Breach of the Contract
Division 1—Remedies of the Seller
	52.	Action for price
	53.	Damages for non-acceptance
Division 2—Remedies of the Buyer
	54.	Damages for non-delivery
	55.	Specific performance
	56.	Remedy for breach of warranty
	57.	Interest and special damages
Part VII—Miscellaneous
	58.	Exclusion of implied terms and conditions
	59.	Rights etc. enforceable by action
	60.	Auction sales
	61.	Draft allowance on wool
	62.	Savings

Section

Australian Capital Territory

SALE OF GOODS act 1954
An Act relating to the Sale of Goods
Part I—Preliminary
Short title
1.  This Act may be cited as the Sale of Goods Act 1954.1
Commencement
2.  This Act shall come into operation on the first day of October, One thousand nine hundred and fifty-four.
Certain laws to cease to be in force
4.  The following laws shall cease to be in force in the Territory:
The Imperial Act 29 Charles II., chapter 3, entitled an Act for the prevention of Frauds and Perjuries (commonly known as the Statute of Frauds) sections 15 and 16 (commonly cited as sections 16 and 17); and the Usury, Bills of Lading, and Written Memoranda Act, 1902 of the State of New South Wales, section 11.
Interpretation
5.  (1)  In this Act, unless the contrary intention appears—
“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”, in relation to goods, includes—
	(a)	bill of lading, dock warrant, warehouse keeper’s certificate, wharfinger’s certificate and warrant or order for the delivery of the goods; and
	(b)	any other document used in the ordinary course of business as proof of the possession or control of the goods or authorizing or purporting to authorize, either by endorsement or delivery, the possessor of the document to transfer or receive the goods which it represents;
“fault” means wrongful act or default;
“future goods” means goods which are 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 and money and also includes emblements, industrial growing crops, and things attached to or forming part of the land, which are to be severed before sale or under the contract of sale;
“mercantile agent” means a mercantile agent having in the customary course of his business as a mercantile agent authority either to sell goods or to consign goods for the purpose of sale, or to buy goods or to raise money on the security;
“plaintiff” includes a defendant counterclaiming;
“property” means the general property in goods and not merely a special property;
“quality”, in relation to goods, includes a state or condition of the goods;
“sale” includes a bargain and sale as well as a sale and delivery;
“seller” means a person who sells or agrees to sell goods;
“sheriff” includes any officer charged with the enforcement of a writ of execution;
“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 which are the subject of a contract of sale, but collateral to the main purpose of the contract, 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.
(2)  For the purposes of this Act—
	(a)	a thing is done in good faith when it is in fact done honestly, whether it is done negligently or not;
	(b)	what is a reasonable time, a reasonable hour or a reasonable price is a question of fact;
	(c)	a person is insolvent who 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 and whether he has become a bankrupt or not; and
	(d)	goods are in a deliverable state when they are in such a state that the buyer would, under the contract, be bound to take delivery of them.
PART II—FORMATION OF THE CONTRACT
Division 1—Contract of Sale
Sale and agreement to sell
6.  (1)  A contract of sale of goods is a contract by which the seller transfers or agrees to transfer property in goods to the buyer for a money consideration, called the price.
(2)  There may be a contract of sale between one part owner and another.
(3)  A contract of sale may be absolute or conditional.
(4)  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.  Where the transfer of the property in the goods is to take place at a future time or subject to a condition to be fulfilled after the transfer of the property in the goods, the contract is called an agreement to sell.
(5)  An agreement to sell becomes a sale when the time elapses at which, or the conditions are fulfilled subject to which, the property in the goods is to be transferred.
Capacity to buy and sell
7.  (1)  Capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property.
(2)  Where necessaries are sold to an infant or to a person who, by reason of mental incapacity or drunkenness, is incompetent to contract, he must pay a reasonable price for the goods.
(3)  In this section, “necessaries” means goods suitable to the condition and life of the infant or other person and to his actual requirements at the time of the sale and delivery.
Division 2—Formalities of the Contract
Manners of making contracts of sale
8.  (1)  Subject to this Act and to any other law, a contract of sale may be made—
	(a)	in writing, either with or without seal;
	(b)	by word of mouth; or
	(c)	partly in writing and partly by word of mouth,
or may be implied from the conduct of the parties.
(2)  This section does not affect the law relating to corporations.
Division 3—Subject Matter of the Contract
Existing or future goods
10.  (1)  The goods which form the subject of a contract of sale may be either existing goods which are owned or possessed by the seller or 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 the contract of sale, the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.
Goods which have perished
11.  Where there is a contract for the sale of specific goods and the goods have, without the knowledge of the seller, perished at the time when the contract was made, the contract is void.
Goods perishing before sale but after agreement to sell
12.  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 avoided.

Division 4—The Price
Ascertainment of price
13.  (1)  The price in a contract of sale—
	(a)	may be fixed by the contract;
	(b)	may be left to be fixed in a manner agreed by the contract; or
	(c)	may be determined by the course of dealing between the parties.
(2)  Where the price is not determined in accordance with the last preceding subsection, the buyer must pay a reasonable price.
Agreement to sell at valuation
14.  (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 that third party cannot or does not make the valuation, the agreement is avoided, but, if the goods, or a part of them, have been delivered to and appropriated by the buyer, he must pay a reasonable price for them.
(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.
Division 5—Conditions and Warranties
Stipulations as to time
15.  (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.
(2)  Whether any other stipulation as to time is of the essence of the contract depends on the terms of the contract.
(3)  In a contract of sale, unless a different intention appears from the terms of the contract, “month” means calendar month.
When condition to be treated as warranty
16.  (1)  Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat a breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.
(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.
(3)  A stipulation may be a condition although it is called a warranty in the contract.
(4)  Where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can be treated only 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.
(5)  This section does not apply to a condition or warranty the fulfilment of which is excused by law by reason of impossibility or otherwise.
Implied undertaking as to title
17.  In a contract of sale, unless the circumstances of the contract are such as to show a different intention—
	(a)	there is an implied condition on the part of the seller—
	(i)	in the case of a sale—that he has a right to sell the goods; and
	(ii)	in the case of an agreement to sell—that he will have the right to sell the goods at the time when the property is to pass;
	(b)	there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods; and
	(c)	there is an implied warranty that the goods shall be free from any charge or encumbrance in favour of a third party who is not declared or known to the buyer before or at the time when the contract is made.
Sale by description
18.  (1)  Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
(2)  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.
Implied conditions as to quality and fitness
19.  (1)  Except as provided by this section, and subject to this Act and to any other law, there is no implied warranty or condition as to the quality or fitness for a particular purpose of goods supplied under contract of sale.
(2)  Subject to the next succeeding subsection, 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 is a manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose.
(3)  In the case of a contract for the sale of a specified article under a trade name, there is no implied condition as to its fitness for a particular purpose.
(4)  Where goods are bought by description from a seller who deals in goods of that description (whether he is a manufacturer or not), there is an implied condition that the goods shall be of merchantable quality but if the buyer has examined the goods there is no implied condition as to defects which the examination ought to have revealed.
(5)  An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
(6)  An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it.
Division 6—Sale by Sample
Sale by sample
20.  (1)  A contract of sale is a contract for sale by sample where there is a term of the contract express or implied to that effect.
(2)  In the case of a contract for sale by sample, there is an implied condition—
	(a)	that the bulk shall correspond with the sample in quality;
	(b)	that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and
	(c)	that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample.
PART III—EFFECTS OF THE CONTRACT
Division 1—Transfer of Property as between Seller and Buyer
Goods must be ascertained
21.  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.
Property passes where intended to pass
22.  (1)  Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
(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.
Rules for ascertaining intention
23.  (1)  Unless a different intention appears from the terms of the contract, the intention of the parties as to the time at which the property in the goods is to pass to the buyer is ascertained in accordance with the succeeding provisions of this section.
(2)  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 that the time of payment or the time of delivery, or both, are postponed.
(3)  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 in a deliverable state, the property does not pass until the thing is done and the buyer has notice of its having been done.
(4)  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 the act or thing is done and the buyer has notice of its having been done.
(5)  Where goods are delivered to the buyer “on approval”, “on sale or return” or on other similar terms, the property in the goods passes to the buyer—
	(a)	when he signifies his approval or acceptance to the seller or does some 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—
	(i)	if a time has been fixed for the return of the goods—on the expiration of that time; and
	(ii)	if no time has been fixed—on the expiration of a reasonable time.
(6)  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.
(7)  The assent referred to in the last preceding subsection may be express or implied and may be given either before or after the appropriation is made.
(8)  For the purposes of subsection (6) of this section, where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (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.
Reservation of right of disposal
24.  (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 the disposal of the goods until certain conditions are fulfilled.
(2)  In such a case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee, 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.
(3)  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.
(4)  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 honour the bill of exchange and, if he wrongfully retains the bill of lading, the property in the goods does not pass to him.
Risk prima facie passes with property
25.  (1)  Subject to the next succeeding subsection, unless a different intention appears from the terms of the contract, the goods remain at the seller’s risk until the property in the goods is transferred to the buyer but when the property in the goods is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not.
(2)  Where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault so far as any loss which might not have occurred but for that fault is concerned.
(3)  This section does not affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party.
Division 2—Transfer of Title
Sale by person not the owner
26.  (1)  Subject to this Act, where goods are sold by a person who is not the owner of them and does not sell them under the authority or with the consent of the owner, the buyer does not acquire a 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.
(2)  Nothing in this Act affects—
	(a)	the provisions of the Mercantile Law Act 1962 or the Registration of Interests in Goods Act 1990; or
	(b)	the validity of a contract of sale under a special common law or statutory power of sale or under the order of a court of competent jurisdiction.
Re-sale under voidable title
27.  Where the seller of goods has a voidable title to them but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith and without the notice of the seller’s defect of title.
Revesting of property in stolen goods on conviction of offender
28.  (1)  Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods revests in the person who was the owner of the goods, or in his personal representative, notwithstanding any intermediate dealing with them.
(2)  Notwithstanding any other law to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in the goods does not revest in the person who was the owner of the goods or in his personal representative by reason only of the conviction of the offender.
Seller or buyer in possession after sale
29.  (1)  Where a person who has 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 a sale, pledge or other disposition to a person receiving the goods or documents of title in good faith and without notice of the previous sale has the same effect as if the person making delivery or transfer were expressly authorized by the owner of the goods to make the delivery or transfer.
(2)  Where a person who has bought, or agreed to buy, goods obtains, with the consent of the seller, 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 a sale, pledge or other disposition of the goods or documents of title to a person receiving the goods or documents 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.
Effects of writs of execution
30.  (1)  Subject to the next succeeding subsection, a writ of execution against goods binds the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed.
(2)  It is the duty of the sheriff, without fee, on the receipt of any such writ, to endorse upon the back of the writ the hour, day, month and year when he receives it.
(3)  A writ of execution against goods does not prejudice the title to the goods acquired by a person in good faith and for valuable consideration unless that person had, at the time when he acquired his title, notice that the writ, or any other writ by virtue of which the goods of the execution debtor might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff.
Part IV—Performance of the Contract
Duties of seller and buyer
31.  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.
Payment and delivery are concurrent conditions
32.  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.

Rules as to delivery
33.  (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.
(2)  Apart from any such contract, the place of delivery is the seller’s place of business, if he has one, or, if not, his residence, but if the contract is for the sale of specific goods which, to the knowledge of the parties when the contract is made, are in some other place, then that place is the place of delivery.
(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.
(4)  Where the goods at the time of sale are in the possession of a third person, there is no delivery by the seller to the buyer unless and until the third person acknowledges to the buyer that he holds the goods on behalf of the buyer.
(5)  Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.
(6)  Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.
(7)  This section does not affect the operation of the issue or transfer of a document of title to goods.
Delivery of wrong quantity
34.  (1)  Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them.  If the buyer accepts the goods so delivered he must pay for them at the contract rate.
(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.  If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.
(3)  Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description or quality not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest or he may reject the whole.
(4)  The provisions of this section are subject to any usuage of trade, special agreement or course of dealing between the parties.

Instalment deliveries
35.  (1)  Unless otherwise agreed, the buyer of goods is not bound to accept delivery of them by instalments.
(2)  Where there is a contract for the sale of goods to be delivered by stated instalments which 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 is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated.
Delivery to carrier
36.  (1)  Where, in pursuance of the contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether known 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.
(2)  Unless otherwise authorized by the buyer, the seller must make such a 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.  If the seller omits to do so 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. 
(3)  Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, the seller must give such notice to the buyer as will enable him to insure the goods during their sea transit and, if the seller fails to do so, the goods shall be deemed to be at his risk during the sea transit.
Risk where goods are delivered at a distant place
37.  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.
Buyer’s right of examining the goods
38.  (1)  Where goods which the buyer has not previously examined are delivered to him, 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.
(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.
Acceptance
39.  Subject to section 38, the buyer is deemed to have accepted the goods when—
	(a)	he intimates to the seller that he has accepted them;
	(b)	the goods have been delivered to him and he does an act in relation to them which is inconsistent with the ownership of the seller; or
	(c)	after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
Buyer not bound to return rejected goods
40.  Unless otherwise agreed, where goods are delivered to the buyer and, having the right to refuse to accept them, he refuses to accept them, he is not bound to return the goods to the seller and it is sufficient if he intimates to the seller that he refuses to accept the goods.
Liability of buyer for neglecting or refusing delivery of goods
41.  (1)  Where 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, the buyer 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.
(2)  This section does not affect the rights of the seller where neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
PART V—RIGHTS OF UNPAID SELLER AGAINST THE GOODS
Division 1—General
Unpaid seller defined
42.  (1)  The seller of goods is deemed to be an unpaid seller within the meaning of this Part—
	(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.
(2)  In this Part, the expression “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 himself paid, or is directly responsible for, the price.
Unpaid seller’s rights
43.  (1)  Subject to this Act and to any other law, the unpaid seller of goods, as such, has by implication of law—
	(a)	a lien on the goods 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; and
	(c)	a right of re-sale as provided by this Act.
(2)  The last preceding subsection has effect notwithstanding that the property in the goods may have passed to the buyer.
(3)  Where the property in the 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.
Division 2—Unpaid Seller’s Lien
Seller’s lien
44.  (1)  Subject to this Act, where—
	(a)	goods have been sold without any stipulation as to credit;
	(b)	goods have been sold on credit but the term has expired; and
	(c)	the buyer of goods becomes insolvent,
the unpaid seller of the goods, if he is in possession of them, is entitled to retain possession of them until payment or tender of the price.
(2)  The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer.
Part delivery
45.  Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder unless part delivery has been made under such circumstances as to show an agreement to waive the lien.
Termination of lien
46.  (1)  The unpaid seller of goods loses his lien on the goods—
	(a)	when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving a right of disposal of the goods;
	(b)	when the buyer or his agent lawfully obtains possession of the goods; or
	(c)	by waiver of the lien.
(2)  The unpaid seller of goods who has a lien on the goods does not lose his lien by reason only that he has obtained judgment for the price of the goods.
Division 3—Stoppage in transitu
Right of stoppage in transitu
47.  Subject to 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 so long as they are in course of transit and may retain them until payment or tender of the price.
Duration of transit
48.  (1)  Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land, water or air, or other bailee, for the purpose of transmission to the buyer until the buyer, or his agent in that behalf, takes delivery of them from the carrier or other bailee.
(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.
(3)  If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee 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.
(4)  If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive the goods back.
(5)  When the goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of a particular case whether they are in possession of the master as a carrier or as agent of the buyer.
(6)  Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end.
(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 was made under such circumstances as to show an agreement to give up possession of the whole of the goods.
Method of effecting stoppage in transitu
49.  (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 in whose possession the goods are.
(2)  The notice may be given either to the person in actual possession of the goods or to his principal.
(3)  Where the notice is given to the principal, the notice is not effectual unless it is 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.
(4)  Where notice of stoppage in transitu is given by the seller to the carrier or other bailee in possession of the goods, the carrier or other bailee must re-deliver the goods to, or according to the directions of, the seller.
(5)  The expenses of the re-delivery must be borne by the seller.
Division 4—Re-sale by Buyer or Seller
Effect of sub-sale or pledge by buyer
50.  (1)  Subject to this Act, an unpaid seller’s right of lien or stoppage in transitu is not affected by a sale or other disposition of the goods which the buyer may have made unless the seller has assented to it.
(2)  Where a document of title to goods has been lawfully transferred to a 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, if the last-mentioned transfer—
	(a)	was by way of sale—the unpaid seller’s right of lien or stoppage in transitu is defeated; or
	(b)	was by way of pledge or other disposition for value—the unpaid seller’s right of lien or stoppage in transitu can only be exercised subject to the rights of the transferee.
Sale not generally rescinded by lien or stoppage in transitu
51.  (1)  Subject to this section, a contract of sale is not rescinded by a mere exercise by an unpaid seller of his right of lien or stoppage in transitu.
(2)  Where an unpaid seller who has exercised his right of lien or stoppage in transitu re-sells the goods, the buyer acquires a good title to them as against the original buyer.
(3)  Where the goods are of a perishable nature or 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 and recover from the original buyer damages for any loss occasioned by his breach of contract.
(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.
Part VI—Actions for Breach of the Contract
Division 1—Remedies of the Seller
Action for price
52.  (1)  Where, under a contract of sale, the property in the goods has passed to the buyer and the buyer wrongfully 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.
(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.
Damages for non-acceptance
53.  (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.
(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.
(3)  Where there is an 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 or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, at the time of the refusal to accept.

Division 2—Remedies of the Buyer
Damages for non-delivery
54.  (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.
(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.
(3)  Where there is an 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 or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, at the time of the refusal to deliver.
Specific performance
55.  (1)  In an action for breach of contract to deliver specific or ascertained goods, the court may, if it thinks fit, on the application of the plaintiff, direct, by its judgment, that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.
(2)  The judgment may be unconditional or upon such terms and conditions as to damages, payment of the price or otherwise as the court thinks just.
(3)  The application by the plaintiff may be made at any time before judgment.
Remedy for breach of warranty
56.  (1)  Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat a breach of a condition on the part of the seller as a breach of warranty, the buyer is not, by reason only of that breach, entitled to reject the goods but 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.
(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.
(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.
(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 damage.
Interest and special damages
57.  This Act does not affect the right of the buyer or of the seller to recover interest or special damages in any case where by law interest or special damages are recoverable or to recover money paid where the consideration for the payment has failed.
Part VII—Miscellaneous
Exclusion of implied terms and conditions
58.  Where a right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied—
	(a)	by express agreement;
	(b)	by the course of dealing between the parties; or
	(c)	by usage, if the usage is such as to bind both parties to the contract.
Rights etc. enforceable by action
59.  Rights, duties and liabilities declared by this Act may, unless otherwise provided by this Act, be enforced by action.
Auction sales
60.  (1)  This section applies in respect of sales by auction.
(2)  Where goods are put up for sale in lots, each lot is prima facie to be the subject of a separate contract of sale.
(3)  The sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner.
(4)  Until the announcement is made any bidder may retract his bid.
(5)  A right to bid may be reserved expressly by or on behalf of the seller.
(6)  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.
(7)  Where a sale is not notified to be subject to a right to bid on behalf of the seller, it is not lawful—
	(a)	for the seller to bid himself;
	(b)	for the seller to employ a person to bid; or
	(c)	for the auctioneer knowingly to take a bid from the seller or any such person.
(8)  The buyer may treat as fraudulent a sale which contravenes the provisions of the last preceding subsection.
(9)  A sale may be notified to be subject to a reserved or upset price.
Draft allowance on wool
61.  Any term, express or implied, in a contract of sale of wool providing that, in computing the price of the wool, a deduction of the kind commonly known as a draft allowance is to be made from the weight of the wool is void.
Savings
62.  (1)  The rules of the common law, including the law merchant, except insofar as they are inconsistent with this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress, coercion, mistake or other invalidating cause continue to apply to contracts for the sale of goods.
(1A)  Nothing in this Act affects, or shall be deemed at any time to have affected, any remedy in equity of the buyer or the seller in respect of a misrepresentation.
(2)  This Act does not affect the law relating to bills of sale.
(3)  The provisions of this Act relating to contracts of sale do not apply to a transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security.

NOTE
1.	The Sale of Goods Act 1954 as shown in this reprint comprises Act No. 15, 1954 amended as indicated in the Tables below.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989  (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also clarifies references in those laws to Commonwealth Acts.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Sale of Goods Ordinance 1954	15, 1954	12 Aug 1954	1 Oct 1954		
Sale of Goods Ordinance 1967	25, 1967	27 July 1967	1 Aug 1967	—	
Sale of Goods Ordinance 1975	39, 1975	31 Oct 1975	31 Oct 1975	—	
Ordinances Revision Ordinance 1977
	65, 1977	22 Dec 1977
	22 Dec 1977	—	
Self-Government day 11 May 1989
Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Registration of Interests in Goods (Consequential Amendments) Act 1990	20, 1990	21 June 1990
	30 June 1990 (see s. 2)	—	
Magistrates Court (Enforcement of Judgments) Act 1994	61, 1994	11 Oct 1994	Ss. 1 and 2:  11 Oct 1994
Remainder:  10 Apr 1995 (see Gazette 1995, No. S75)
	—	
Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

S. 3	rep. No. 65, 1977
S. 5	am. Act No. 61, 1994
S. 9	am. No. 25, 1967
	rep. No. 39, 1975
S. 16	am. No. 39, 1975
S. 26	am. Act No. 20, 1990
S. 30	am. Act No. 61, 1994
S. 39	am. No. 39, 1975
S. 62	am. No. 39, 1975