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Book Review: Law of Sale of Goods by Akhileshwar Pathak, 1 st Edition.

3.1 Law of Contract- II

Submitted By – Shivam Shantanu UID No. UG17- 94 Academic Year 2018-19 Semester- III

Submitted To – Dr. Manish Yadav, Assistant Professor of Law

Semester- III Submitted To – Dr. Manish Yadav, Assistant Professor of Law MAHARASHTRA NATIONAL LAW UNIVERRSITY,

MAHARASHTRA NATIONAL LAW UNIVERRSITY, NAGPUR

Contents

Introduction

3

About the Book and its Author

4

General Analysis

5

Chapter Wise Analysis

6

Chapter I – Nature and Formation of Contract of Sale

6

Chapter II – Transfer of Ownership: Specific Goods

7

Chapter III – Transfer of Ownership: Unascertained Goods

7

Chapter IV – Transfer of Property: Review of Cases

8

Chapter V – Transfer of Title

8

Chapter VII – Performance of Contract

9

Chapter VIII – Carriage and Delivery

10

Chapter IX – Remedies for the Seller

10

Chapter X – Remedies for the Buyer

11

Chapter XI – Rights of the Unpaid Seller

11

Chapter XII – Other Provisions

11

Chapter XIII – Emerging Themes: Taxation and Internet Sale

12

Comparative Analysis

13

Conclusions and Suggestions

14

Bibliography

15

2

Introduction

Studying Law as a discipline doesn’t end with mugging up provisions and understanding them with few illustrations but it needs to be dealt in a more holistic manner. Cases are the most important source for learners of law, whether they are practitioners, students or any layman. Cases helps in understanding different situations which can arise from a given situation and how one can deal with it. Anyone can become a theoretical master of the subject by reading the provisions given under various sections, acts and statutes. The real knowledge can be said to exist when the said person knows how to apply such sections, acts or statutes in real-life examples. To have the practical command over the provisions of law, studying and understanding of cases is not only expected but also needed. Books with explanation of case laws helps in this and thus, are the sought after.

What is presented herein is the review of ‘Law of Sale of Goods’ by Akhileshwar Pathak, the First Edition, published by Oxford University Press. The review given by the reviewer has been termed ‘An Analytical Review’. The reviewer has divided the review into three parts. Firstly, he has analyzed the book on its face and gave a generalized analysis of the same. Secondly, he has done a chapter wise of the book. Lastly, the reviewer has done a comparative analysis of the book with ‘Pollock & Mulla- The Sales of Goods Act, 10 th Edition’. The review is called an analytical one because the reviewer has provided the reader with the chapter wise analysis of the book and how it is different from any other books on this subject matter.

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About the Book and its Author

The book reviewed below is titled ‘Law of Sale of Goods’ published by Oxford University Press (herein after referred as ‘The Book’). It aims at explaining the provisions and sections of the said acts through a judicial approach, that is with the help of case laws and precedents. Also, the book aims at providing relevant secondary materials on the discussed sections and provisions of these acts. The book spreads across 250 pages. It is the first edition, which was published in 2013.

The book is divided into 13 chapters which are based on the concept specific study through case laws and not provision specific. The chapters given are as follows:

Chapter I – Nature and Formation of Contract of Sale Chapter II – Transfer of Ownership: Specific Goods Chapter III – Transfer of Ownership: Unascertained Goods Chapter IV – Review of Cases Chapter V – Transfer of Title Chapter VI – Quality of Goods Chapter VII – Performance of Contract Chapter VIII – Carriage and Delivery: CIF and FOB Contracts Chapter IX – Remedies for the Seller Chapter X – Remedies for the Buyer Chapter XI – Rights of the Unpaid Seller Chapter XII – Other Provisions Chapter XIII – Emerging Themes: Taxation and Internet Sale

The author, Akhileshwar Pathak, holds a doctorate in law from University of Edinburgh, United Kingdom and a LLB from University of Delhi. He is a Professor in the Business Law area at the Indian Institute of Management, Ahmedabad. He has authored a plethora of books. Most of his books are related to Business laws and on different legal aspects in business.

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General Analysis

The book under review is based on laws and concept based on Sale of Goods. This book is not written by the old school method of writing law books. It is written in an unconventional way which most of the authors don’t follow. It is not divided according to sections but by concepts related to them. It deals mostly with the previous case laws and unlike other books which prefer to summarize the case laws in just few lines, it has given the utmost preference to case laws and describing them in detail which makes the concept easier to understand. The author at first hand gives detailed information about the concept and provides sections of the act in between them to make the concept more clearly and before discussing any sort of case law, the author provides with some illustrations and then going to the discussion of concept through case laws. An author writing a book based on these acts is expected to give his personal opinions and interpretations of the sections. There is nothing right or wrong in the world of law. Such opinions and interpretations are open to critical appraisals but they give both the author and the reader a better understanding of the sections and thus the laws. These are the things a reader actually looks forward to while reading such a book as he will get to know about another perspective to these sections and laws and as a result give him another angle to deliberate upon. The book has meticulously covered most of the different cases and also explained the concept in a good detail but one needs to keep a bare act handy while studying this book as it doesn’t provide sections in a sequential manner while discussing the concept related to them. It makes a reader’s task difficult while studying when he is not getting all things at one place. Providing provisions with the concept makes reader to learn comfortably otherwise he needs to turn the pages of bare acts while reading the book. The heart of this book is case laws. It has covered almost all the important cases. It has given many foreign case laws too. The way author has explained the case laws is different from any other law books which generally provide the facts and judgement and leaves to the reader to interpret by themselves. In this book the author has given explanations related to the judgement and shows how a particular concept is applicable to a certain situation. This makes understanding of the concept an easy task.

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Chapter Wise Analysis

Chapter I – Nature and Formation of Contract of Sale

This chapter starts with discussing the basics of a Contract of Sale. It provides with the concept regarding a contract of sale through some illustrations and then goes on to discussing the nature of contract of sale. It also provides with the provisional interpretation of some sections like section 4 and section 5 of the Sale of Goods Act,1930. It has covered all the important sections related to nature and formation of contract of sale. It provides each concept related to contract of sale with two or three famous case laws. While discussing formation of a contract of sale, the author has discussed Kirkness v. John Hudson and Co. Ltd 1 and Vishnu Agencies (Pvt.) Ltd, M/s v. Commercial Tax Officer 2 . The author also discusses why a contract of sale is different from any other contract and has covered a variety of concepts like Sale and Exchange, Sale and Hire Purchase, Sale and Bailment, Sale, Work, And Service Contract. The author has also elaborated on these topics through case laws specific to them like for Sale and Hire Purchase, he has provided with two case laws that are Helby v. Matthews 3 and K.L. Johar and Co., M/s v. Deputy Commercial Tax Officer, Coimbatore III 4 . Like this only author has made these concepts easier to understand for the readers. But the author has not dealt these concepts by linking them to different provisions which he has left to the reader to link it by themselves only. The author has also explained about the Scope of Goods and given few cases related to it in a very explanatory manner i.e. Marshall v. Green 5 . One can clearly see that the author has covered almost all the concepts but he has not made the reader to delve into them. The author has completely relied on the case laws which he thinks that are the most important source to understand any law and a reader can understand all the nuances related to a provision and a concept by studying a case.

1 (1955) AC 696.

2 AIR (1978) SC 449.

3 (1895) AC 471.

4 AIR (1965) SC 1082.

5 (1875 – 76) LR 1 CPD 35.

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Chapter II – Transfer of Ownership: Specific Goods

The chapter shows that a sale is a special form of contract where the consideration for the buyer is transfer of ownership in goods, and for the seller, the price in cash. Taking this as the basic principle, the author has tried to examine the passing of the ownership to the buyer in different contracts of sale related to transfer of ownership of specific goods. In this chapter the author has explained section 19 of the Sale of Goods Act, 1930 where he has discussed the ownership transfer as intended by the parties with case laws such as Re Anchor Line (Henderson Brothers) Ltd 6 and Vasantha Vishwanathan v. V.K. Elayalwar 7 . The author has also discussed section 21 – 24 of the Sale of Goods Act,1930 to explain about rules for ascertaining the intention of the parties as to the time at which the property in goods is to pass to the buyer. The author also provided case laws in relation to these sections like Underwood Limited v. Burgh Castle Brick 8 and Cement Syndicate and Turley v. Bates 9 . The author has also further explained about the Unconditional Contract through section 20 of the Sale of Goods Act,1930 and certain case laws like Dennant v. Skinner 10 and Consolidated Coffee Ltd v. Coffee Board, Bangalore 11 . The author has although explained the concept very meticulously but the sections are provided in haphazard manner.

Chapter III – Transfer of Ownership: Unascertained Goods

In this chapter the author discusses about Ascertainment and Transfer of Ownership through section 18 of the Sale of Goods Act,1930 and different cases like Wait v. Baker 12 (This principle was explained before codification in this case) and In Re Wait 13 . The author has also discussed about sections 23 and 25 in relation to this topic and has provided with many cases to make the concept clear. Around 10 cases related to this topic has been discussed by the author. Some of them are Mucklow v. Mangles 14 , Aldridge v. Patrick Johnson 15 , and few more cases.

6 (1936) 2 All ER 941.

7 AIR (2001) SC 3367.

8 (1922) 1 KB 123.

9 (1863) 2 H & C 200.

10 (1948) 2 KB 164.

11 AIR (1980) SC 1468.

12 (1848) 2 Exch 1.

13 (1927) 1 Ch. 606.

14 (1808) 1 Taunton 318.

15 (1857) 7 E & B 88.

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Chapter IV – Transfer of Property: Review of Cases

The author in this chapter is totally concerned with the case laws. In the previous chapters the author’s goal was to explain the principles on transfer of ownership of goods in a sale of contract by taking up illustrations and landmark cases on those themes. The author in this chapter believes that reviewing the significant cases will help the learners in three ways. One, it will strengthen the concepts learnt. Two, it will make readers familiar with the application of the principles in different contexts. Three, as law persons, learners should know the case laws. Case laws in this chapter is mostly related to Ascertained and Unascertained Goods, Separation from Bulk, Transfer of Ownership and Risk, Sale and Agreement to Sell. Sections related to these concepts are also provided in this chapter.

Chapter V – Transfer of Title

In this chapter author discusses about who can transfer ownership to the buyer by examining cases where a third party – often fraudulently – sells the goods of another to a buyer in a good faith. In this chapter the author also examines the passing of ownership by persons other than the owner or a person authorized by him. There is no case law on the subject from the Indian courts so the author has provided British cases. The author has discussed section 27 of the Sale of Goods Act, 1930 while explaining Ownership and Sale with the help of some case laws like Farquharson Brothers & Co. V. C. King & Co. 16 and Central Newbury Car Auctions Ltd v. Unity Finance Ltd. 17 The author has also covered the topics like Estoppel by Negligence (Moorgate Mercantile Co. Ltd v. Twitchings 18 ), Mercantile Agent (Lowther v. Harris 19 ), Sale under a Voidable Contract (Car and Universal Finance Co., Ltd v. Caldwell 20 ), Seller in Possession (Worcester Works Finance Ltd. v. Cooden Engineering Co. Ltd 21 ), Buyer remaining in Possession. Sections 27 – 30 of the Sale of Goods Act has been discussed over here in this chapter. Many British cases are given here in this chapter by the author to make a clear understanding on the concepts.

16 (1902) AC 325.

17 (1957) 1 QB 371.

18 (1977) AC 890.

19 (1927) 1 KB 393.

20 (1965) 1 QB 525.

21 (1972) 1 QB 210.

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Chapter VI – Quality of Goods

In this chapter the author discusses about the concept of quality of goods in contract of sale of goods. The author introduces the chapter with discussion of principle of Caveat Emptor and discusses about its history and importance under the contract of sale of goods. In this chapter first concept which is dealt by the author is Sale by Description and he tries to explain this with the section 12 of the Sale of Goods Act, 1930 and case laws related to this concept like Varley v. Whipp 22 and Beale v. Taylor 23 . He goes on further describing about the scope of description through cases like Re Moore & Co, Ltd v. Landauer & Co 24 and Arcos, Limited v. E.A. Ronaasen and Son 25 . The author in this chapter has covered many important concepts and sections like ‘Buyer Beware’ and Exceptions, Reliance on the Skill and Judgement of the Seller, Merchantable Quality, Merchantability and Examination of Goods, Merchantability and Price, Sale by Sample, Ousting of Implied Terms, Right to Sell. All these topics have been covered meticulously through case laws and sections related to them.

Chapter VII – Performance of Contract

This chapter deals with how a contract of sale of goods is performed. The author unravels how parties go about performing an agreement once the parties have got into it. The author also shows the situations in which the parties are discharged from the contract and are freed from the obligation of performance. The topics author has dealt in this chapter are Void, Voidability, Frustration , Delivery and Payment (Sujanmal v. Radhey Shyam) 26 , Time and Place of Delivery (Hartley v. Hymans) 27 , Delivery of Wrong Quantity (Shipton, Anderson & Co. v. Weil Brothers & Co.) 28 , Duties of the Buyer (Mohanlal Manilal v. Firm Dhirubhai Bavajibhai) 29 , Instalment Contract (Maple Flock Company, Limited v. Universal Furniture Products (Wembley), Limited) 30 . All these topics are covered with required sections and suitable case laws.

22 (1900) 1 QB 513.

23 (1967) 3 All ER 253.

24 (1921) 2 KB 519.

25 (1933) AC 470.

26 AIR (1976) Rajasthan 98.

27 (1920) 3 KB 475.

28 (1912) 1 KB 574.

29 AIR (1962) Gujarat 56.

30 (1934) 1 KB 148.

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Chapter VIII – Carriage and Delivery

This chapter deals with the involvement of a third party between Buyer and Seller. The author describes all the aspects related to the involvement of a Carrier in a contract of sale of goods. The author firstly provides a basic ground about the importance of a carrier and what are the nuances of carriage and delivery. The author has covered concepts like Free on Board Contracts, Cost Insurance Freight Contracts, with reference to section 35 of the Sale of Goods Act, 1930 and through cases like Shree Bajrang Jute Mills, Ltd, M/s Guntur v. State of AP 31 and Manbre Saccharine Co., Ltd v. Corn Products Co. Ltd 32 and many more such cases covered under both type of contracts whether Free on Board or Cost Insurance Freight. The author has also helped the learners by providing them with definitions of different International Commercial Terms.

Chapter IX – Remedies for the Seller

The author in this chapter tries to examine the remedies available to seller on a breach by the buyer. It also examines in what ways things can go wrong for the seller and what are the applications related to the principles of contract law and law on sale of goods. Author covers a number of concepts and their relation with contract law and cases related to that. Author has covered topics like Action for Price 33 (Colley v. Overseas Exporters) 34 , Damages for Non- Acceptance (Ruxley Electronics and Construction Ltd v. Forsyth) 35 , Remoteness of Damage 36 (Hadley v. Baxendale) 37 , Measure of Damages 38 (Muralidhar Chiranjilal v. Harishchandra Dwarkadas) 39 , Mitigation of Damages (Payzu, Limited v. Saunders) 40 .

31 AIR (1966) SC 376.

32 (1918-19) All ER Rep 980.

33 Section 55 of the Sale of Goods Act, 1930.

34 (1921) 3 KB 302.

35 (1996) AC 344.

36 Section 73 of the Indian Contract Act, 1872.

37 (1854) 9 Exch 341.

38 Ibid.

39 AIR (1962) SC 366.

40 (1919) 2 KB 581.

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Chapter X – Remedies for the Buyer

The author in this chapter explains what are things which can go wrong with the buyer. The author in this chapter begins with the application of all the terms implied by the Sale of Goods Act, 1930. The author also examines whether the remedies provided to the buyer is parallel to that of the seller. The authors in this chapter deals with the topics such as Rejection of Goods (Kwei Tek Chao v. British Traders and Shippers Limited) 41 , Damages for Non-Delivery 42 , Damages for Late Delivery (Koufos v. C Czarnikow Ltd The Heron II) 43 , Specific Performance 44 , Remedy for Breach of Warranty 45 , Interest on Unpaid Price 46 .

Chapter XI – Rights of the Unpaid Seller

This chapter deals with rights of the seller when he is unpaid although the ownership has been transferred to the buyer. The author tries to explain the additional remedies which the seller gets when he remains unpaid. The remedies provided to the unpaid seller is provided under the sections 47 to 54 under the Sale of Goods Act, 1930. The author tries to explain all these section through case laws concerning to different topics like Lien over Goods 47 , Seller’s Right to Stop Goods in Transit 48 , Resale by the Seller 49 .

Chapter XII – Other Provisions

In this chapter the author reviews the miscellaneous provisions of the Sale of Goods Act, 1930. The author has described about the section 62 of the Sale of Goods Act, 1930 50 . He has also explained about Auction Sale 51 and Sale and Taxation 52 . Author has also provided few cases related to them to give a good understanding.

41 (1954) 2 QB 459.

42 Section 57 of the Sale of Goods Act, 1930.

43 (1969) 1 AC 350 HL.

44 Section 58 of the Sale of Goods Act, 1930.

45 Section 59 of the Sale of Goods Act, 1930.

46 Section 61 of the Sale of Goods Act, 1930.

47 Section 47 and 48 of the Sale of Goods Act, 1930.

48 Section 50 of the Sale of Goods Act, 1930.

49 Section 54 of the Sale of Goods Act, 1930.

50 Section 62 of the Sale of Goods Act, 1930 – Exclusion of the implied terms and conditions.

51 Section 64 of the Sale of Goods Act, 1930.

52 Section 64A of the Sale of Goods Act, 1930.

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Chapter XIII – Emerging Themes: Taxation and Internet Sale

In this chapter the author illuminates the character of law. It shows that law is an ever evolving subject. He also emphasise on the fact that any other subject develop by building on existing knowledge but law is open to interpretations and use of a term will be always subject to newer interpretations. In this chapter he has dealt with topics such as Sale and Sales Tax (State of Madras v. M/s Gannon Dunkerley and Co. (Madras) Ltd) 53 , Expanding Scope of Goods (K.E.S. Corporation v. J.C.T. Officer) 54 , Sale, Goods, and Intellectual Property (Associated Cement Companies Ltd, M/s v. Commissioner of Customs) 55 , Internet Sale 56 .

53 AIR (1958) SC 560.

54 AIR (1964) Madras 477.

55 AIR (2001) SC 862.

56 Section 10A and 13 of the Sale of Goods Act, 1930.

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Comparative Analysis

For a comparison, the reviewer has chosen ‘Pollock & Mulla- The Sale of Goods Act, 10 th Edition’ (herein referred as Pollock & Mulla). This book on the law of sale of goods is arguably the most trusted, referred and used one when it comes to understanding, interpreting and learning the acts it deals with. Pollock & Mulla provides section-wise commentary on The Sale of Goods Act, 1930. It incorporates discussion on legislative developments in UK such as the enactment of Consumer Rights Act 2015. It also provides comparative analysis with the UK Sale of Goods Act on which the Indian Act is based. It has important precedents dating back to the 1800s that have been retained to explain the historical background and development of the Act. It also covers important international conventions on Sale of Goods

The book, ‘Law of Sale of Goods’ by Akhileshwar Pathak can be said to be a reproduction of the text or material that is already available. This book only has two aspects- concepts dealing with the provisions of the Sale of Goods Act, 1930 and the biggest asset of the book i.e. the case laws. It has provided case laws not as a reference or in a brief but gives all the explanation required to a judgement. Whereas, Pollock &Mulla explains all the sections and refers to a plethora of case laws pertaining to that particular section. But doesn’t give a deep insight into the case laws as the former one gives.

The thing which makes this book different from Pollock and Mulla or any such book on the Law relating to Sale of Goods is that it is written in an unconventional way. There is no sequence if anyone studies section wise but Pollock and Mulla has a great advantage here, it provides all the necessary things related to a section at a particular place. This book follows the sequence in form of concepts required but latter follows it in form of sections. This book certainly can’t replace Pollock and Mulla but the way it deals with the subject none of the books can make you understand the subject better than this.

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Conclusion and Suggestions

The reviewer has deduced that this book can be called as a concept and case law driven book rather than statute or provision driven. This book has all the necessary information required to a learner but misses out providing sections of the act in a sequential manner which creates difficulty for a learner to easily understand the subject. As given in the introduction of the book that it is written in an unconventional way is completely true as it has its own way of making understand the concepts.

The suggestions reviewer could see for the book is that the haphazard manner of providing sections should not be there. The book should be sequenced in the basis of the sections and then linked to the various concepts which makes life easier of the learner. The reviewer suggests the author to revise this edition and come up with a new one. The revised edition is expected to cover more principles and concepts of the act and its sections. It will get more emerging themes if it gets revised which can help readers in application of the act in contemporary scenario.

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Bibliography

Books

Law of Sale of Goods, 1 st Edition, 2013, by Akhileshwar Pathak

Pollock and Mulla The Sale of Goods Act, 10 th edition, 2017, revised by

Akshay Sapre

Articles

Communications Law in India, By Dr. Manish Yadav, Book Review of

Communications Law in India (Legal Aspects of Telecom, Broadcasting and

Cable Services) Author(s): Vikram Raghavan Year: 2007.

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