Dissertation/Thesis Sample by Pro Assignment Writing

Parties to a sale of goods contract are protected from breach by the other party through various laws. The laws provides remedies to any breach depending on the terms and conditions of the contract and other factors. In particular, the buyer is protected from breach by the seller when the latter may not perform his obligations. The English sales law has provided several remedies that may cure the breach that occurs due to non-performance of the seller’s obligations. These remedies are provided under the Sales of Goods Act of 1979, the Consumer Rights Act of 2015, common law and decisions by the courts. On the other hand, the Convention on Contracts for the International Sale of Goods (CISG) formed in 1980 came into force to mostly provide a uniform law that could be used by nations while dealing with sale of goods contract involving parties from different jurisdictions. The two legal systems provide for remedies such as price reduction, specific performance, damages and avoidance or termination. These remedies have evolved over time due to the changes that are happening in the different industries in the world. Further, it is clear that, the remedies provided under these two legal systems have similarities and differences. The English law differs with certain issues such as what constitutes breach of fundamental terms or warranties, the primary remedy and the circumstances that may lead to price reduction. In particular, the CISG regards specific performance to be a primary remedy which becomes automatic when the seller breaches a contract. On the contrary, damages are the primary remedies in English law. Also, there is the issue of court discretion. Whereas English law allows the court to use its discretion while awarding the remedies like specific performance, this is not the case with CISG that does not provide discretion in any circumstance. Although the UK has not adopted the CISG and continues to use its domestic laws for international sale of goods, it cannot be denied that the English lawyers have come across the provision in the CISG. Also, there has been a call by the legal fraternity and the scholars for UK to embrace the principles provided by the CISG to help in dealing with international legal issues on sale of goods. However, there has also been opposition to such action as some of the scholars and commentaries see English law as unique and provides a better platform to solve the issues that may arise from the international sale of goods agreements. In this regards, the purpose thesis of this research, is to find whether the English sales law is better or more effective than the CISG in dealing with remedies to the buyer in cases where the seller fails to perform his obligations as per the contract. This is to move away from the comparative analysis studies that have been carried out justify why the CISG is more effective the UK laws and thus recommending the adoption of the CISG by UK why dealing with international sale of goods contracts.

Keywords: damages, specific performance, price reduction, Sale of Goods Act of 1979, Consumer Rights Act of 2015, Vienna Convention on Contracts in International Sale of Goods, contracts, common law, courts, remedies, English sales law, buyer and seller.

Chapter One: Introduction

English law protects parties through agreements of contract laws, supplemented by consumer protection regulations as well as other international laws. In protection of the rights of buyers in international sale of goods, UK has adopted international provisions and local laws^[1]. This practice has helped in easing the trading activities cross-border. The English law has been extensively used to govern international sale of goods transaction. Most countries especially commonwealth nations have adopted the use of English law during transactions on the international arena^[2]. In particular, foreign parties have chosen the English courts to solve any disputes in regards to international sale of goods disputes. Nonetheless, there has been development in international commercial law that has displaced the English law use in international contractual disputes. In 1980, the Vienna Convention on Contracts of International Sale of Goods was enacted by the international community that involve members to UNCITRAL to regulate international sale of goods activities.^[3] The CISG has therefore, played a positive role in the regulation and removal of legal obstacles that had encompassed the international sales. However, the law has come to cross-head with domestic policies that has prevented its effective implementation^[4]. For example, a country such as the United Kingdom has refused an advancement in the use of CISG in its domestic and international sale of goods activities. Furthermore, parties in international law have found the CISG to be complicated as it produces many uncertainties which makes it hard to be applied in the transactions.^[5] In respect to both laws, it is important to look at the remedial provisions to the buyer and their effects on the contractual law. Specifically, the study will look at the remedial provisions such as specific performance, reduction of price, right of termination and the right to cure under both regimes.

Therefore, it will be argued that although the English law has not adopted the use of CISG as a governing law in international trade, it has effectively addressed the remedial provisions as the Vienna Convention on Contracts for International Sale of Goods. Hence, the discussion will focus on the remedies under the Sale of Goods Act of 1979, the Consumer Protection Act of 2015 and compare them to the provisions of the CISG of 1980. The analysis will help in understanding the reasons the UK has remained adamant in ratifying the CISG. Particularly, UK contends that ratification of CISG is not part of the legislation priority and thus, it will take long to enact a legislation to help in ratifying the law^[6]. Further, the UK has not ratified CISG due to lack of support from the business, opposition from anumber of large and influential organizations, a risk of losing international arbitration and litigation edge by London and lack of public service resources to be used in the ratification^[7]. Lastly, there is the fear of having greater number of disputes if CISG is implemented. In addition to these reasons, the legislatures have found that the current law has been effectively used in resolving disputes that involve international trade^[8]. The remedies available under the SGA and CRA have adequately covered the disputes that have risen involved UK members and parties from other nations^[9].

Sale of Goods Act 1979

The Sale of Goods Act of 1979 regulates the contract of selling and buying goods within UK and cross borders. The Act has remained as an essential and primary law in the transactions. The law applied on contracts of goods also known as chattels. It defined the elements of forming a contract, the effects of such contract, the rights of the parties when a breach has occurred and other essential issues. The Act provides for remedies that apply when a breach occurs.^[10] In particular a buyer is remedied if the goods sold do not meet the prescribed quality and purpose. In that, the Act requires the goods to have a description to show it meets the satisfactory quality and fit for its purpose^[11]. Fit for purpose in this case means the goods are for the intended everyday purpose and the agreed purpose.^[12] For example, the specific purpose of a printer for your computer should meet that need. If the printer cannot be connected to a computer to perform its functions, it cannot be used to be fit for the purpose. Further, the Act requires the goods sold by sample should match the described sample.^[13] A buyer may not be allowed to contend lack of the described quality if, he had an opportunity to notice it and did not take any steps to inform the buyer or the quality was brought into his knowledge before buying them^[14]. Therefore, being a primary law in the UK, the Act will be significant in this study as it will be used to analyze the remedies applicable for the buyer in international sale of goods.

Consumer Rights Act of 2015

The Consumer Rights Act of 2015 was enacted to regulate and protect the rights of consumers. The Act came into force to simplify, strengthen and close the gap that had been created by modernization or the current practices such as technology^[15]. Therefore, its establishment was to consolidate the fundamental rights of the consumer that are involved in sale of goods and services contracts, digital content and regulations on unfair terms in consumer agreements. It can therefore be said, the Act was to cure the complexity that was the UK consumer law and other issues such as uncertainty and fragmentation. Also, the Act was to meet the new demands of consumers that derived from the international community as well as the European directives. In particular, the bringing of Consumer Sales Directives 99/44/EC (CSD) brought changes in the sale of goods which were difficult to integrate into the UK law.^[16] For example, the CSD introduced several consumer-friendly remedies that did not have a good reception due to the confusion it brought to the consumers.^[17] This is because there was an overlap with the UK law remedies. Hence the implementation of the Act was to remedy the difficulties that were faced during the adoption of the EU directives.

The Vienna Convention on Contracts for International Sale of Goods

The Vienna Convention on Sale of Goods was enacted in 1980 and it has been adopted by most countries including commonwealth nations, European countries, the United States, china and other nations. The law was enacted to govern international sale of goods between parties and solve the issues on fragmentation due to different laws established by states. Regardless of its imperfections, the law has been effective in providing remedies to the aggrieved party of a contract. The law presents few challenges such as insecurity, ambiguity on issues affecting the formation of contract and performance. For example, the CISG has created problems on what constitutes fundamental breach and avoidance and how that is done. Nevertheless, through the comparison with the English law, the CISG will help in understanding the remedial provisions for the buyer in international sale of goods when a seller has breached the contract.

Conclusion

Through the analysis of the two regimes, it is clear that, there are remedies available to the buyer in international sale of goods contract. The buyer has a right to rescind the contract, request for specific performance, and reduce the price of the goods and others. Further, the UK law on sale of goods has been applied by parties in international transactions in solving issues when parties choose it as the law to govern the contract. Therefore, both the CISG and English laws are important in protecting the rights of the parties especially the buyer in international sale of goods agreements.

Problem Statement

The international sale of goods contract or agreements faces challenges of defaulting that most countries and the international community have established laws to protect the parties concerned. The UK has its laws that ensure there are remedies to protect the parties in the international sale of goods contract. Additionally, the drafters of Vienna Convention on Sale of Goods envisioned a law that could help solve this problems and make it easier for p-arties to trade cross borders easily. Consequently, the study looks at whether the UK law is more effective than the CISG in protection of the rights of the buyer in international sale of goods contracts through analysis of the remedies available in both regimes.

Purpose of the Study

This study is purposed to analyze at the UK policies on the remedies application in the international sale of goods contract as well as compare them to The Vienna Convention CISG. Through the analysis of these legal regimes, the reader will be able to understand the remedial provisions for a buyer who is aggrieved by the breach of the sale of goods contract in international contracts. Through the critical analysis of the two regimes of law, this study is focused at showing that the use of UK sales law is more effective than CISG as it provides more options and better approaches of using the remedies to meet the needs of the buyer as well as not causing undue hardship to the seller.

Scope of the Study

The study is a comparative analysis between the English law remedies and CISG remedies available to the buyer when a seller or trader breaches a sale of goods contract. The study focuses on breach of contract when the seller intentionally does not meet their obligations in the contract. Therefore, the study will not cover issues such as frustration under the UK law or beyond the control of the trader as provided under Article 49 of the CISG.

In particular, the research will look at the remedies available to the buyer in equity as well as in law in the Sale of Goods Act 1979, the Consumer Rights Act of 2015 and Common Law. On the other, the study will cover the remedies including the damages that are available to the buyer under Article 45 to 52 in the CISG. The covering of these provisions will help in analyzing the remedies deeply and assist the reader have an understanding on the similarities and differences of the two legal regimes.

Research Questions

Why the UK adopt the Vienna Convention?
Why are the remedies different in the Vienna Convention?
What are the policy issues underlying English sales law choice on remedies for the buyer?
Do the parties in the international sale of goods contract protected in the UK sale of goods laws?
What are the remedies in the international law on sale of goods contract?
Are the remedies in the UK laws similar or different from CISG in the international sale of goods contract?

Research Methodology

The research methodology for this thesis will use secondary and primary sources. It will use a comparative approach in analyzing the buyer’s remedy in the English Sales Law and the Vienna Convention on Sale of Goods in international sale of goods. Comparative law or comparative method is an approach that has been employed in the study and research in the department of law to analyze particular problem in law. Therefore, comparative law is the “intellectual activity with law as its object and comparison as its process.”^[18] Further, comparative method can be stated to be “juxtaposing, contrasting and comparing of legal systems or parts thereof with the aim of finding similarities and differences.”^[19] In this case, the purpose of this thesis is to compare the law on remedies of a buyer in international law in the two legal regimes and which one of them is effective in dealing with issues affecting international sale of goods. According to Zweigert and Kotz, the use of comparative law as a methodology in law is an example of moving away from the complacency and the relation of fixed dogma.^[20] In this respect, Kahn-Freund states that “one of the virtues of legal comparison is that it allows a scholar to replace himself outside the labyrinth of minutiae in which legal thinking is easily loses its way and to see the great contours of the law and its dominant characteristics.”^[21]

Additionally, the use of comparative law or comparative method will be effectively used through the use of scholarly materials, legal frameworks, books and websites to provide the information. Therefore, the comparative analysis of the English Sale of Goods remedies to buyer to the CISG will be of great importance in understanding how the two legal systems differ and are similar in the international sale of goods contract. In this context, legal system involves rules and institutions of law in a particular country or organizations. It also can involve the juristic philosophy and techniques that guide the functioning of legal institutions.

The focus in the comparative analysis for the English sales law will be based on the domestic laws such as the Consumer Rights Act of 2015, the Sale of Goods Act of 1979 and the remedies of equity. For example, the textbooks of Benjamin’s Sale of Goods and Chitty on Contracts will be used to analyze the position of the English law on the remedies.^[22] On the other hand, the thesis will use the provisions on the CISG to analyze its position on the various remedies applicable to the buyer when the seller breaches the contract. Furthermore, there is also the use of case laws that provides precedents on the remedies and the factors used to determine the orders by the courts both internationally and domestic courts in UK. For example, the thesis will use the UNICITRAL Digest on CISG case law and case of the CISG reported in various databases.^[23]

Chapter Arrangement

The dissertation will cover six main chapters. The first chapter will be the introduction that analyzes the position of the English sale law when it comes to the remedies available to the buyer in international sale of goods. Further, it provides a brief summary of the laws that will be used in the paper. The chapter will also cover the problem statement of the thesis. This will be followed by the purpose and scope of the studies, the research questions and methodology. Chapter two will cover the historical background on the Sale of Goods Law in UK, and the CISG. Further, chapter three will cover the literature review. The literature review will be used to provide the previous studies on the subject. Chapter four covers the seller’s default to perform the obligations and the remedies available to the buyer. This chapter will cover the right of the buyer to specific performance, the right to require reduction of price, damages and avoidance or termination of the contract. Chapter five examines the CISG provisions on the remedies and then a comparison between the two legal systems. The last chapter covers the conclusion which summarizes the English law on remedies of a buyer in international sale of goods. Further, the conclusion will be used to show whether, the English sale law is more effective than the CISG 1980.

Chapter Two: Historical Background

2.1 Introduction

The historical background on this topic covers issues such as the origin of the international sale of goods contract in the UK, the changes in the international sale of goods contract in the UK, the application of international sale of goods contract in English law and the international legal regimes that resulted to the CISG. This discussion is important in order to determine how the buyer’s remedies have evolved over time and their impact on the current legal regimes in the English law and CISG.

2.2 Origin of the International Sale of Goods Contract in the UK

The origin of sale of goods contract can be traced to the history of contract law. Sale of goods is a special part of the general contract law. Its foundation is based on the development of the general law and its case law. Nevertheless, the sale of goods contract stands on its own as it involves the transfer of property or ownership in goods or chattels. Therefore, the seller must have ownership in the goods before transferring them to the buyer. This involves the principle of nemo dat quod non habet that indicates the seller cannot sell what he does not own. This rule was established in the case of Boshopsgate Motor Finance Corporation Limited v. Transport Brakes Limited where Lord Justice Denning stated, “One can give a better title than he himself possesses.”^[24] Therefore, this rule signifies the importance of autonomy in the sale of goods contract. In the same regard, Lord Justice Denning indicated that due to this principle the commercial transactions were protected due to the rights of the buyer who buys in good faith. Therefore, his holdings in this case was as follows;

“In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title. The first principle has held sway for a long time, but it has been modified by the common law itself and by statute so as to meet the needs of our own times.”^[25]

The sale of goods contract has its own legislations that involves the 2015 Consumer Rights Act and Sale of Goods Act of 1979. The Sale of Goods Act of 1979 originated from the Sale of Goods Act of 1889^[26]. Additionally the law on sale of goods developed from the developments of the nineteenth century case laws. In particular, the sale of goods elements such as passing of ownership and risk, implied terms of description of goods, fit for the purpose, remedies of contract and merchantable quality can all be traced from the decisions in the 19^th century. The formation of the Sale of Goods Act 1979, helped to give clarity to the definition of implied terms, merchantable quality, exceptions to the rule of nemo dat quod non habet and the relationship between the rights of the buyer to examine the goods and reject them as defective. Later on, parliament passed the Sale of goods 1994 Amendment to remove the rule of market overt during the transfer of title of goods. Another amendment was passed in 1995 to allow the prepayment of buyers to acquire an undivided interest in bulk goods^[27].

In relation to sale of goods in international transactions, the UK has never taken steps to ratify the CISG in dealing with international sale of goods. The international community has taken steps to unify the international sales law. This process started in the 1930s when there was a proposal of sale of goods under the Institute for Unification of Private Law. After World War II, the process continued and the Dutch government sponsored two conventions which never attracted attention from other nations. Later on, the United Nations Commission on International Trade Law took up the matter and came up with the Convention on International Sale of Goods that was ratified in 1980. Although the convention does not draw or interpret any of its provisions from a particular legal system, more than 85 countries have ratified it and this has helped many local courts to produce persuasive decisions. Nevertheless, the UK courts are not persuaded to use any interpretation of the convention due to the lack of ratification. However, the English courts are called upon in rare occasions to use the convention as the proper law of contract. Therefore, the UK courts continue to use the domestic legislations such as the 2015 Consumer Rights Act and Sale of Goods Act of 1979 to solve any international sale of goods matter.

Further, the Sale of Goods Act can be related to the Common Law. Most of the principles in Sale of Goods Act are derived from common law and case laws. The Act provides that, the general law of contract can be used when it is silent in particular issues. For example, the common law rules regarding the principal and agent, the effects of fraud, misrepresentation, law of merchant and duress and other provisions can be used in contracts of sale of goods (historical background of sale of goods). Therefore, the sale of goods complements the general law by applying the rules of common law.

Chapter Three: Literature Review

There have been several studies and comparative analysis of the English sales law on remedies of buyer and other laws such as CISG. Most of the studies have focused on why the English sales should adopt the CISG in dealing with international sale of goods. In this case, most studies have concluded that CISG presents a better approach of dealing with breach and remedies in international law. However, few studies have explained why English sale law should maintain its approach in providing remedies when a breach occurs in international sale of goods. In this respect, the thesis supports the idea of maintaining the English sale law in international sale of goods transactions opposed to many scholars.

Buyer’s remedies are available to the party in both legal frameworks. The CISG provides ways that a buyer can be remedied for a breach of contract. On the other hand, the English sale law provided for remedies to the buyer under the Sale of Goods Act which has since been replaced by the Consumer Rights Act of 2015. However, a person who was in sale of goods agreement before the inception of the new Act can still use the Sale of Goods Act 1979 to claim remedies. Further, both laws take into consideration of common law and precedents. Further, both legal systems provide remedies to the buyer, including avoidance and termination, specific performance, price reduction and damages. However, both of they differ in certain aspects of the remedies provided. The goal of this literature review is to analyze and compare three comparative studies of the English law with other legal systems and their effectiveness in advancing the remedies of buyers in international sale of goods contracts.

3.1 Damages and Price Reduction

In 2016, a study done by Ali Zareshahi presented a paper on the on a study on the damages and price reduction claim by the buyer due to breach of the sale agreement under the CISG, English and Iranian Laws. From the study, the author states that, the English law has stood out in international sales law as it has a detailed framework of rules to guide in providing remedies to the buyer.

In determining the approaches used in English law with Iranian law, the author observes that, the UK law has detailed approach on how to award damages when there is a breach of contract. The rules under the English law on damages help the court to determine the extent of compensation. On the contrary, Iran has not strictly provided damages as a remedy for breach of contract. Accordingly, the writer posits that, “Iranian law, receiving punitive damage for breach of contractual obligations has not foreseen, but when the damage was significantly more than the losses that were expected to be achieved from breach of contract, the compensatory aspect of ‘Penalty clause.’^[28] The CISG is also compared to the Iranian law and it is clear that the two laws are different based on the adoption of the remedies. Nevertheless, the Iranian law provides for three rules and include; giving property to the buyer instead of money, compensation for loss of legitimate business involved to the buyer, and compensation for delayed payment to the buyer. Although, this study does not cover the Iranian law, the research however is important as it provides materials and information on the English law and the CISG. The research as looked at the differences between the CISG and the English law and this is significant for the current study.

3.2 Specific Performance

Kourosh Majdzadeh Khandani (2012) looked at the emphasis given by the CISG for specific performance rather than on the seller’s breach. According to the author, CISG provides the remedy of specific performance as the primary remedy. This is not the case with the English sales law that does not give priority to specific performance. Further, the author looks at specific performance and its relationship to the right to cure using a new approach. In particular, the author brings in the aspect of Article 62 that provides that the seller is given a right to cure. This is inspect by the seller requiring the buyer to make payment of the price of goods or perform the obligations under the contract. However, this I not practical especially considering that the buyer has a right for specific performance. As a right for the buyer, he might decide to reject delivery of goods or require the seller to perform their obligations. Specific performance under Article 46 of CISG involves failure to perform the obligations such as delivering goods to a wrong destination, delivering goods on the wrong date and or refusing to deliver or tender the proper documents. Therefore, Article 46 requires the seller to deliver goods that comply with the terms and conditions of the agreement and this supports the right of the buyer to specific performance. In analyzing the remedy, the author points out that, the CISG has limitations. For example, the court that considers to provide the remedy of specific performance must ensure that its jurisdictional law provides for it. In such circumstances, it prevents the buyer from seeking such a remedy if the jurisdiction does not provide for it. In comparing the remedy of specific performance and the right of the seller to cure, the author observes that, the CISG gives more emphasize on the latter than the former. This is a different case when it comes to the English sales law. In particular, the author states that, “unlike English law the Convention clearly allows the seller to cure any non-conformity in his performance related to the documents and goods^[29].” This right is provided to reduce the undue burden that the seller may experience in cases where the buyer decides to terminate the contract based on fundamental breach.^[30]

The assessment of the remedy of specific performance and the right to cure by the author, looks at whether CISG overemphasizes on specific performance than the English law. From the study, it is clear that specific performance is recognized under English law as a discretionary remedy. In that, the courts have the discretion to award the remedy depending certain circumstances. However, CISG does not use the discretionary approach and rather looks at particular rules to provide the remedy. The author concludes by observing that the English law presents a better approach in giving the remedy of specific performance than the Convention due to the measures put before the award. For example, the measures like availability of the product in the market, adequacy of damages and the uniqueness of goods give the parties better option while selecting the right to specific performance. On the other hand, the CISG in this study observes it as ambiguous and uncertain when it comes to specific performance. The provision does not provide enough restrictions while providing the remedy and thus not providing a fair opportunity to the seller due to the non-performance. Therefore, the writer concludes that although CISG provides a better provisions in regards to remedies at first sight, it has several imperfections that then makes ineffective compared to the English law.

This study will be used in supporting the thesis of the current research that, the English sales law is more effective than the Convention. For example, the current study will use the information provided by this literature to show that, the Convention has not sufficiently provided measures and approaches while awarding the remedies to the buyer. For example, a buyer can receive the remedy of specific performance in addition to the damages as provided under Article 47 of the CISG. In such circumstance regardless of the limitations it creates an unfair situation and thus, making the seller to incur unreasonable costs or put in hardship while performing the obligations. Consequently, the author supports the current study’s thesis by the author observing that, “the CISG provisions overemphasize an approach towards compelling the defaulting seller to perform his contractual duties.”^[31]

3.4 Buyer’s Remedies under the Convention and English Sales Law

The previous two studies focuses on particular remedies. However, this literature review has focused on the major remedies provided to the buyer under the Convention and the English Sales Law. Nevi Agapiou (2015) carried out a comparative research on the remedies under the CISG and English Sales law. The purpose of the study carried by Agapiou was to observe whether there is a major and practical consequences to the seller in a contract when the UK law accedes the provisions under the Convention by looking at the differences between the two legal systems. Further, the author is for the idea that the CISG is more intelligible and digestible to the lawyers of the English law regardless of the fact that UK has not yet adopted the Convention. While answering the questions of the research, the author identifies the various remedies such as specific performance, reduction of price, damages, termination and many more under the two legal systems to find the differences. For instance, the author examines Article 46 and Article 28 of the CISG and English sales law provisions to understand the remedy of specific performance. Therefore, this study will be used to identify the effectiveness of the English sales law and why it should be used in providing the remedies to the buyer instead of the seller in the international sale of goods contracts. In particular, the differences discussed in this paper will be used in analyzing the remedies under the CISG and UK law in this current study. In conclusion, the writer adopts the argument of Roy Goode that, “the time has long passed when domestic legislation shaped for international trade can provide sensible solutions to the problems of international commerce.”^[32]

Chapter Four: The Buyer’s remedies under the English Sales Law

This section is dedicated in discussing when a breach of contract arises on the part of the seller and the remedies available to the buyer. Particularly, it is important to note that, the English law remedies are available to the buyer in international sale of goods as long as all the legal requirements are met under the SGA or the Consumer Rights Act as long as it is the chosen law to govern the contract^[33]. Before discussing a default seller, it is necessary to understand the formation of sale of goods under the SGA and the Consumer Rights Act of 2015. This will involve answering the following questions;

When is a sale of goods agreement created?
Who are the parties in a sale of goods contract?
What are the elements of a sale of goods agreement?

4.1 Formation of Sale of Goods Contract

An international sale of goods contract has the similar elements like a domestic sale of goods agreement. The only difference between the two are the geographical and legal jurisdiction differences. In that, it involves parties across border that have different legal framework that protect them. A sale of goods contract as defined under section 2 of the Sale of Goods Act 1979, is an agreement;

“The seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”^[34]

Further, the contract can either be “absolute or conditional.” The section further states that a contract that involves a sale is whereby the seller agrees to transfer the property in goods to the buyer without a condition. However, when there is a condition to be fulfilled before the transfer of property occurs, it is called an agreement to sell. Consequently, there are two types of sale of goods agreement that include; sale or agreement to sell.^[35]

Sale of goods agreement involves two or more parties that must have capacity. The capacity of the parties to sell and buy is governed by the general law of contract.^[36] Nevertheless, minors are allowed to enter into sale of goods contract only if the goods are for necessities (Act). In addition, there are other terms and conditions that must be met for the agreement as outlined in the Sale of Goods Act 1979. Further, other conditions such as offer, acceptance, consideration, legal intention to enter into the agreement and capacity.

4.2 Breach of Contract the Seller

A seller or trader as defined under section 2 (2) of the Consumer Rights Act 2015 as

“A person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf .”^[37]

In the Consumer Rights Act uses the term “trader” instead of “seller” that was used in the Sale of Goods Act 1979. These term is suitable because it meets the international trading. For example, the use of the term “trade” brings harmonization EU Directive (CRD). Further, section 2 (3) defines the time “consumer” as an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.”^[38] Before this definition, consumer had included a company as was held by the Court of Appeal in the case of Customs Brokers Co. Ltd. V. United Dominions Trust Ltd^[39]. In this case, both consumer and trader must be included in the agreement for it to be valid.^[40]

It is the responsibility of both parties in sale of goods agreement like it is for any contract to comply with their obligations. Nevertheless, any party may breach the contract by not meeting their part of obligations. The seller may not be able to comply with their obligations and end up breaching the contract in many ways. For example, the seller may fail to deliver the goods as specified in the contract such as the mode of delivery, time and the place of delivering. Further, the seller may deliver goods that do not meet the specifications or descriptions as set out in the agreement. Such issues happen both internationally and domestically. In particular, default of seller in international sale of goods occurs in instances whereby the quality of goods delivered do not match with the description, wrong place of delivery, failing to deliver goods on the specified time and mode of transportation. In the contemporary world, this issue is promoted by the use of technology whereby transactions are done online.

Further, the breach of the contract if the seller breaches the key rights that include;

Right to supply goods; the trader should have the right to supply the goods and pass the property in them. This follows the nimo dat principle. The supply of goods includes delivery to the right place as specified in the contract. Section 32 (1) of the Sale of Goods Act requires the seller to deliver the goods to the buyer or his carrier as indicated in the agreement. Accordingly the section states that;

“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^[41].”

The goods to be for the particular purpose; the trader needs to supply goods that are fit for the particular purpose that the buyer has directed. The buyer has the right to inspect the goods and expect them to meet the purpose. If this right is violated the buyer has remedies both in equity and law.
The buyer has a right to receive goods that match the sample that was examined.
The buyer has a right to receive goods that meet the satisfactory quality. The buyer need to consider factors such as description, price, durability, fitness for purpose, condition of the goods, appearance and finish, safety and ensure the goods do not have any defects before accepting them. Therefore, such factors are significant especially when the buyer is considering the quality of the goods^[42].

If the seller does not meet the rights above and any other term and condition of the sale of goods agreement, he will be in breach of the contract and thus, liable to the buyer.

4.3 English Law Remedies

The buyer in the English law has several remedies to cure any wrong that is done by the seller. In this context, the Sale of Goods Act of 1979 and the Consumer Rights Act of 2015 and equitable remedies will be examined to understand how UK deals with issues that affect the sale of goods contract^[43]. In particular, the remedies such as damages, specific performance, restitution or avoidance and the right of the buyer to reduce the price will be discussed.

4.2.1 Specific Performance

Specific performance has been a traditional remedy that has been used both in law and equity. The English law has adopted the remedy of specific performance to ensure that the parties do not go to loss when they have performed their part of the contract. Particularly, the Sale of Goods Act of 1979 under section 52, the buyer can be awarded the remedy of specific performance if he has performed his part. The provision further empowers the court to order the party that is in breach of contract to do what he promised to do. The provision provides as follows;

In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the plaintiffs application, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages^[44].
The plaintiff’s application may be made at any time before judgment or decree^[45].
The judgment or decree may be unconditional, or on such terms and conditions as to damages, payment of the price and otherwise as seem just to the court^[46].

Nevertheless, the court is required to look at specific circumstances before awarding the remedy of specific performance. The buyer must prove that the contract involves “specific” or ascertained goods as was held in the case of Re Wait^[47]. In the case of Re Wait, the court provided the elements that need to be followed to determine whether to give orders on specific performance or no as follows;

The goods must be specific or ascertained, and it is not enough that the goods have special characteristics; and
There must be evidence to show that there is a beneficial interest or a lien in favour of the buyer^[48].

The court held:

That the 500 tons [of special wheat] were not specific or ascertained goods in respect of which specific performance of the contract of sale would be ordered as the remedy …under s. 52 of the Sale of Goods Act, 1893; and^[49]
That there never was any such appropriation or identification of, or any such obligation to deliver, a particular 500 tons, as to effect an equitable assignment giving the sub-purchasers a beneficial interest therein or a lien in request.^[50]

Therefore, the court cannot exercise its discretion on giving the decree of specific performance whereby the goods have not been ascertained. Further, the remedy will be issued if the court deems it fit. In that, if the specific performance will not put an unbearable burden or bring undue hardship on the seller then it will be issued. This shows that the plaintiff seeking the remedy will not automatically be given regardless of the goods being ascertained or specific.

As a general rule, specific performance will be awarded where damages are not enough to cure the breach under the English law or where the court deems fit. Courts are always careful in awarding the remedy of specific performance due to issues such as contempt of court that raises criminal offence. If the party does not performance the particular act as issued by the court, he might be punished by imprisonment. Therefore, courts are more inclined to awarding damages than specific performance. In the case of Cooperative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd, Lord Hoffman was for the idea of awarding damages instead of specific performance due to the consequences of non-performance of the order that involve a quasi-criminal procedure^[51]. Also, there are other issues that the court considers before awarding this remedy and they include, the cost of supervision for the judgment debtor to comply with the order and the availability of the goods in the market. For example, if the goods are readily available in the market, the court is always reluctant in giving the order of specific performance. In the case of Societe des Industries Metallurgiques S.A. v. Bronx Engineering Co. Ltd, the court of appeal was not persuaded to issue the remedy of specific performance since the goods were readily obtainable from the market^[52]. This was regardless to the fact that the seller had wrongly breached the agreement to deliver the goods to the buyer within 12 months. This remedy has extensively been covered in the Consumer Rights Act of 2015 under section 19 that provides that a consumer has a right to enforce the terms and conditions of the contract^[53].

References

Agapiou, N. (2015). Buyer’s remedies under the CISG and English sales law: a comparative analysis (Doctoral dissertation, School of Law).

Alhajaj, A. M. A. H. (2015). The concept of fundamental breach and avoidance under CISG (Doctoral dissertation, Brunel University London).

Baskind, E., Osborne, G., & Roach, L. (2016). Commercial Law. New York, NY: Oxford University Press.

Bridge, M. G. (2017). The international sale of goods. Oxford University Press.

Giliker, P. (2017). The Consumer Rights Act 2015–a bastion of European consumer rights?. Legal Studies, 37(1), 78-102.

Kessler, F. (1964). The Protection of the Consumer under Modern Sales Law, Part 1: A Comparative Study. Yale LJ, 74, 262.

Khandani, K. M. (2012). Does the CISG, Compared to English Law, Put Too Much Emphasis on Promoting Performance of the Contract Despite a Breach by the Seller. Manchester Rev. L. Crime & Ethics, 1, 98.

Yan, M. (2011). Remedies under the Convention on Contracts for the International Sale of Goods and the United Kingdom’s Sale of Goods Act: A Comparative Examination. City UHKL Rev., 3, 111.

Zareshahi, A. (2016). A Comparative Study of Damages and Price Reduction Remedy for Breach of Sale Contract under CISG, English and Iranian Laws. J. Pol. & L., 9, 126

[1] Commercial Law (2^nd edn) by Baskin, Osborne & Roach (2015)

[2] Ibid

[3] CISG Preamble.

[4] CISG on international sales transactions and effects on countries and their local laws. For instance, although the United States has adopted the international provisions, it still uses its sales laws in international transactions. Furthermore, the United Kingdom has never adopted the CISG laws and guidelines.

[5] B Nicholas, ‘The Vienna Convention on International Sales Law’ (1989) 105 Law Quarterly Review 201, 202.

[6] Moss (2014) “Why the United Kingdom has not Ratified CISG?” page 484.

[7] Ibid

[8] Ibid

[9] Ibid

[10] SGA 1979

[11] Ibid

[12] Consumer Rights Act of 2015

[13] Ibid

[14] Ibid

[15] Protecting the rights of the Consumer under the CRA

[16] Consumer Sales Directives 99/44/EC (CSD)

[17] Ibid

[18] An introduction to Comparative Law by Konrad Zweigert and Hein Kotz on the “Basic methodological principle of all comparative law is that of functionality.

[19] Ibid

[20] Ibid

[21] Otto Kahn-Freund, “Comparative Law as an Academic Subject” (1966)

[22] Benjamin’s Sale of Goods and Chitty on Contracts

[23] UNICITRAL

[24] The principle of nemo data; Boshopsgate Motor Finance Corporation Limited v. Transport Brakes Limited

[25] Ibid

[26] Sale of Goods Act of 1979

[27] Ibid

[28] Buyers remedies in English law and Iranian law

[29] CISG on specific performance and the right of the seller to cure.

[30] Bridge (n108) para 12.85.

[31] Khandani (2012) page 129

[32] Roy Goode, “Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law” (2001) 50 (4) International and Comparative Law 751, 752.

[33] Ibid

[34] Section 2 definitions in the Sale of Goods Act 1979

[35] Ibid

[36] Ibid

[37] The Consumer Rights Act of 2015

[38] Ibid

[39] Customs Brokers Co. Ltd. V. United Dominions Trust Ltd

[40] Customs Brokers Co. Ltd. V. United Dominions Trust Ltd

[41] Sale of Goods Act 1979

[42] Sale of Goods Act 1979

[43] Baskind, Osborne & Roach on the remedies of the buyer in Commercial Contracts

[44] SGA 1979

[45] Ibid

[46] Sale of Goods Act 1979

[47] Re Wait

[48] Re Wait; 6 [1927]

[49] Ibid

[50] Re Wait; 6 [1927] 1 Ch.

[51] Cooperative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd

[52] Societe des Industries Metallurgiques S.A. v. Bronx Engineering Co. Ltd

[53] Consumer Rights Act of 2015: Specific perfromanc

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