Head 11: Transfer of corporeal moveables

Question 1

First question that must be asked in relation to transfer of corporeal moveables?

Answer 1

What is the reason for the transfer?: is it sale or something else?

Question 2

If the reason for the transfer is sale then…

Answer 2

SOGA 1979 applies

Question 3

If the reason for the transfer is NOT sale then…

Answer 3

The common law rules apply

Question 4

What are the two main types of non sale transfers?

Answer 4

Donation and exchange

Question 5

2 requirements for non-sale transfer:

Answer 5

1. Delivery (traditio)

2. Mutual intention

Question 6

For non sale transfer, the form delivery must take depends on…

Answer 6

Who is in possession of the goods.

Question 7

For non sale transfer - if transferor is in natural possession then he must…

Answer 7

Hand over the goods to the transferee (actual delivery)

Question 8

For non sale transfer - if transferor is in civil possession then…

Answer 8

Either the detentor makes actual delivery to B or the detentor is instructed by A to now hold for the benefit of B.

Question 9

For non sale transfer - if the goods are in transit by a ship…

Answer 9

A can transfer to B by handing over the bill of lading (symbolical delivery)

Question 10

Sale is regulated by…

Answer 10

SOGA 1979

Question 11

(Sale) Goods are…

Answer 11

“All corporeal moveables except money…” s 61(1)

This includes things like trees which are heritable but they will be severed before the sale.

Question 12

(Sale) Specific goods are…

Answer 12

“goods ascertained and agreed upon at the time the contract is made, including an individual share, specified as a fraction or percentage, of goods identified and agreed on” - s 61(1)

Question 13

(Sale) Unascertained goods are…

Answer 13

Goods not identified and agreed upon at the time the contract is made (no statutory definition)

Question 14

(Sale) Transfer rules are contained in ss…

Answer 14

16-18

Question 15

(Sale) The general rule of transfer is that ownership of goods cannot be transferred until…

Answer 15

The goods are ASCERTAINED (s 16) - this is the specificity principle.

So where there is a contract for the sale of unascertained goods, there cannot be any transfer until the goods have been ascertained.

Question 16

(Sale) specific, or ascertained goods are transferred…

Answer 16

At such time as the parties intend (s 17)

So only mutual intention is required (no delivery is necessary)

Question 17

(Sale) How do you know what the parties intend in relation to sale of specific / ascertained goods?

Answer 17

If intention cannot be determined, then s 18 is used which sets out 5 rules to determine intention.

Question 18

(Sale) For rule 5, what is the most common example of unconditional appropriation?

Answer 18

Delivery of the goods (Rule 5(2))

Question 19

Does the nemo plus rule apply to sale?

Answer 19

Yes - and it is specifically enacted in SOGA 1979 s 21(1)

Question 20

What are the limited exceptions to nemo plus under SOGA?

Answer 20

1. Money
2. Accretion
3. Positive prescription
4. Personal bar
5. Statutory provisions relating to the sale of goods

MAPPS

Question 21

When does personal bar operate under SOGA?

Answer 21

S 21(1)

Operates (1) where owner (Tom) allows another (Alan) to appear as owner (or as agent with a power of sale) and (2) a third party (Betty) purchases from that person in reliance on his apparent ownership/power. Betty obtains Tom’s title.

VERY UNCOMMON

Question 22

S 25?

Answer 22

(Buyer in possession)

Where the seller (Alan) is in the process of buying the goods from the owner (Tom), and has possession but not ownership, he can pass Tom’s title to a bona fide third party (Betty).

Question 23

S 24?

Answer 23

(Seller in possession)

Where the seller (Alan) has sold the goods to the someone else (Tom) and has retained possession but not ownership, he can pass a good title to a bona fide third party (Betty).

Question 24

Where a person selling a car is in the process of buying the car under a hire-purchase agreement…

Answer 24

A PRIVATE PURCHASER in good faith can receive a valid title in terms of the Hire Purchase Act 1964 Part III

Question 25

What is the position of money in relation to the SOGA?

Answer 25

SOGA does not apply to money - there is an unqualified goods faith acquisition rule with money

Question 26

Does accretion apply to corporeal moveables?

Answer 26

Probably...similar to s 25 of the SOGA.

Question 27

Does positive prescription apply to corporeal moveables?

Answer 27

Probably not.

Question 28

What happens if Alan's title to corporeal moveables is voidable but he transfers to Betty?

Answer 28

If Betty is: 1) a purchaser 2) in good faith then she receives an unchallengeable title - s 23 If these conditions are not met then Betty's title is voidable too.

Question 29

What two rules (met in the land part of the course) equally apply in relation to moveables?

Answer 29

1. First in time, first in right | 2. Offside goals rule

Question 30

What provision provides for the transfer of risk in moveables?

Answer 30

s 20

Question 31

When does risk transfer with moveables?

Answer 31

Where the buyer is a consumer, risk passes with delivery. Where the buyer is NOT a consumer, risk passes with ownership.

Question 32

What two warranties are implied into the contract of sale?

Answer 32

1. s 12: guarantee of (1) valid title, (2) unencumbered title 2. s 14: guarantee of satisfactory quality for sales in the course of business

Question 33

What are the remedies in relation to SOGA?

Answer 33

s 53A ``` Rescission + damages (for material breach) or Damages alone (typically for diminution in value) ```