Thu, 27 Oct 2005 12:58:09 +0100
Re-tender of goods - Scots get it right?
recent Scottish decision may be of interest for sale of goods buffs.
Can a seller who tenders bum goods then retender conforming goods
& insist that the buyer accept them? Yes, according to the Court
of Session -- at least sometimes.
& H Ritchie Ltd v. Lloyd Ltd  ScotCS CSIH_3 a farmer
bought a seed drill that didn't work. The sellers agreed to look
at it, meanwhile lending him another. They then put the original
machine into tiptop condition and redelivered it. The ungrateful
farmer turned round, said he didn't want it and asked for his money
back. By a majority the Inner House (equivalent to the English CA)
held for the sellers. The tender of non-conforming goods didn't
prevent a later corrected tender. Only if the farmer had originally
rejected the machine on first tender (which he hadn't) would he
have been entitled to succeed.
seems right to me, and in accordance with general contract law.
Provided I tender due performance which the other party would ordinarily
be bound to accept, I can't see why the fact that I previously tendered
bad performance should affect the matter. Indeed, but for the unfortunate
drafting of our sale of goods law (which says that tender of bad
goods gives the buyer the right to reject and cancel the contract)
I'd even go further and allow the seller to retender - provided
he does so on time - even over an initial rejection by the buyer.
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England
01392-263189 / +44-392-263189 (outside UK)
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
Fax: 01392-263196 / +44-392-263196 (outside UK)
School of Law,
University of Exeter,
Exeter EX4 4RJ
Law School homepage: http://www.law.ex.ac.uk
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml
n. One skilled in circumvention of the law (Ambrose Bierce, 1906).
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