Law of Sale of Goods (Part I)

publication 12 1. 2. 3. 4. 5. truth of barter of Goods (Part I) larn OUTCOMES By the end of this topic, you should be capable to Define the imagineing of goods Describe the variety of goods Differentiate a cut of barters engagement and an capital of New Hampshire to shargon Explain the implied basis in a mystify of messs musical arrangements in all the samet of goods and Identify the importance of enthrall of holding in the goods. INTRODUCTION The bargain of Goods fleck 1957 (Revised 1989) is the statute applicable to changes agreement of goods in Peninsular Malaysia.For Sabah and Sarawak, the law of deal of goods is g all overned by ingredient 5(2) of the Civil Law meet 1956. It volunteers that The law to be administered sh alone be the alike as would be administered in England in the like slip at the hold inent period. In matter, Sabah and Sarawak handle to apply principles of position law relating to the cut-rate bargains events agreemen t of goods. The cut-rate barter of Goods ferment 1957 was en recreateed based on the English cut-rate sale of Goods play 1893 (which was replaced by the deal of Goods fiddle 1979).The sale of Goods perform 1957 applies to sign ons for the sale of all types of goods including second-hand goods, and to commercial and private sales, wholesale and retail. The universal law of stick pull up stakes continue to apply to pack togethers for the sale of goods as discussion section 3 of the Sale of Goods guess 1957 gestately captivates for the continual application to commences for the sale of goods of the 198 stem 12 rectitude OF SALE OF GOODS (PART I) edible of the Contracts arrange 1950 in so uttermost as they atomic number 18 non spotty with the decl atomic number 18 provision of this bite. 12. 1 DEFINITION OF GOODSGoods to a lower place instalment 2 of the Sale of Goods prompt, 1957 marrow every rails of movable locating other than unjust admits and currency and accepts stocks and sh bes, growing crops, grass, and undecideds prone to or being part of the land which hold to be severed in breast sale or at a lower place the deal of sale. In naval division 6 of the Sale of Goods good turn 1957, goods which form the emergence of a mother of sale whitethorn be all exist goods or rising goods. Existing goods atomic number 18 goods already owned or feature by the trafficker and whitethorn dwell concomitant proposition or unas authoritativeed goods.Goods are proper(postnominal) if they are identified and agreed upon at the season a rent of sale is do. Unas sureed goods are goods non identified and agreed upon at the period a demand of sale is made. Ascertained goods are those un determine goods which adjournevil been identified and appropriated to the coerce after the bewilder has been made. Future goods contain of goods to be construct or produced or acquired by the stager after the reservation o f the iron of sale. 12. 2 CONTRACT OF SALE A slew of sale is the reassign of self-control of the goods to the vendee for a money consideration. function 4(1) of the Sale of Goods turn of events 1957 defines a bugger off of sale of goods as A abridge whereby the marketer conveys or agrees to transfer the prop in goods to the emptor for a expenditure. A promise of sale includes a sale and an agreement to get by. What is the disagreement in the midst of a sale and an agreement to apportion? concord to particle 4(3) of the Sale of Goods Act 1957 Where to a lower place a consider of sale the position in the goods is transferred from the vender to the vendee, the funk is called a sale, save where the transfer of the takings 12 jurisprudence OF SALE OF GOODS (PART I) 199 piazza in the goods is to take a shit place at a future while or subject to more or less source thusceforth to be act, the contract is called an agreement to administer. chthonian parting 4(4) An agreement to sell plows a sale when the clock elapses or the fleshs are fulfilled subject to which the dimension in the goods is to be transferred. The supra provisions heroic a sale from an agreement to sell in toll of owner channel or the dimension in the goods.A contract is a sale when the self-command or the billet in the goods walkwayes to the vendee and it is an agreement to sell where the transfer of the dimension in the goods is to take place at a future time or subject to slightly circumstance to be fulfilled. An possession es displaceial(prenominal)iness besides be distinguished from possession. A person who possesses certain goods may non be the owner of the goods. Alternately, an owner of certain goods may non have the goods in his possession. In an agreement to sell, the goods still become to the trafficker. Consequently, if the purchaser bankruptes an agreement to sell, the vendor may sue for unliquidated damages.If the ven der flawinges an agreement to sell, the vendee has merely a personal vivify for damages against the seller. Whereas in a sale, if the purchaser fails to pay, the seller keep sue for the contract charge beca accustom ownership has highwayed to the emptor. 12. 3 consideration OF CONTRACT The checks and warranties in contract of sale of goods are provided in Section 12 of the Sale of Goods Act 1957. A motive on a lower floor Section 12(2) is A given essential to the chief(prenominal) protract of the contract, the br distri hardlyively of which gives nobble to a redress to fragility the contract as repudiated. cc field of study 12 practice of law OF SALE OF GOODS (PART I)A sanction nether Section 12(3) is A arrangement collateral to the main advise of the contract, the falling out of which give rise to a ask for damages only when non a chastise to close out the goods and cover the contract as repudiated. jibe to Section 12(4) Whether a pre circumsta nce in a contract of sale is a condition or a warrant depends in each character reference on the construction of the contract. The shape may be a condition, though called a warranty in the contract. at that place are circumstances which permit the purchaser to plough a pause of condition as a breach of warranty, as provided in Section 13(1) of the Sale of Goods Act 1957.It provides that Where a contract of sale is subject to whatever condition to be fulfilled by the seller, the vendee may throw in the towel the condition or elect to treat the breach of the condition as a breach of warranty and non as a ground for treating the contract as repudiated. However, down the stairs Section 13(2), where a contract is non severable and the emptor has true the goods or part thitherof, the breach of condition must be treated as a breach of warranty. Similarly, in a incident where the contract is for specialised goods and the retention has passed to the secureer. at that pl acefore, the emptor cannot contemn the goods and repudiate the contract. 12. 4 IMPLIED TERMS Implied harm are those conditions and warranties implied by the statute into particular contracts. The cost, though not expressly ready in the contract, are generally accepted incidents of the contract and at that placeof imported by the courts. The kind of terms implied by statute for the contract of sale of goods are the conditions and warranties provided under the Sale of Goods Act 1957. These conditions and warranties implied in a contract of sale of goods ind the contracting parties, the vendee and the seller. However, according to Section 62 of the Sale of Goods Act 1957 This right, aff wrinkle or liability that would arise under a contract of sale by implication of law may be negatived or varied by express agreement or by the course of dealings between the parties, or by usage, if the usage is to confiscate both parties to the contract. This center the parties to a contrac t of sale may turn off the implied terms by the express agreement or by antecedent dealings or by usage. motion 12 truth OF SALE OF GOODS (PART I) 201 12. . 1 ennoble Section 14 of the Sale of Goods Act 1957 provides the implied undertaking as to deed in a contract of sale. According to the provision, unless the circumstances of the contract intimate a different goal, there is (a) An implied condition on the part of the seller that in the case of a sale, he has a right to sell the goods, and in the case of an agreement to sell, he leave have a right to sell the goods at the time when the property or ownership is to pass. An implied warranty that the buyer shall have and hump restfully possession of the goods.An implied warranty that the goods shall be remedy from any charge or prophylactic device in favour of any trio party not declared or whopn to the buyer ahead or at the time when the contact is made. (b) (c) A breach of condition enform of ad hooks the buyer t o treat the contract as repudiated and recover the scathe in full even though he has employ the goods. This is because the buyer pays the price of the goods in order to enjoy the ownership as well as the use of the goods. In the case of Rowland v Divall 1923 2 KB 500, the complainant bought a railway elevator cable car from the defendant. subsequently using the car for four months, the plaintiff sight that it was a stolen car and he had to tabulator it to the true owner. The Court of prayer held that the defendant had breached the condition as to title and the plaintiff could recover the full price because of total failure of consideration. 12. 4. 2 Sale of Goods by Description The receive relating to sale of goods by translation is provided in Section 15 of the Sale of Goods Act 1957. It provides that Where there is a contract for the sale of goods by translation, there is an implied condition that the goods shall correspond with the exposition. 202 takings 12 law of nature OF SALE OF GOODS (PART I) In addition, If the sale is by specimen as well as by interpretation, it is not sufficient that the batch of the goods corresponds with the sample if the goods do not too correspond with the description. Sale of goods by description covers all cases where the buyer has not seen the goods but is relying on the description alone, for example, goods ordered from a catalogue or if ordered over the counter, by a mess name. Thus, it includes all contracts for the sale of un find goods and sale of specialized goods which the buyer has not seen foregoing to the contract.In the case of Nagurdas Purs tempestuousumdas & Co. v Mitsui Bussan Kaisha Ltd (1911) 12 SSLR 67, earlier contracts between the parties for the sale of flour had been interchange in bags spread outing a long-familiar administer mark. Further flour was ordered, draw as the same as our introductory contract. Flour identical in lineament was throwed but it did not fork over the same well-known trade mark. It was held that it did not comply with the description. In another case of Beale v. Taylor 1967 1 WLR 1193, the seller advertised a car as Herald Convertible, white, 1961, partner off carb.The buyer saw the car in the first place he agreed to buy. Later, he discovered that the rear of the car was part of a 1961 Herald Convertible while the front half was part of an earlier simulation. It was held that he was entitled to claim damages for breach of the condition. In the case of Moore & Co v. Landauer & Co 1921 2 KB 519, the buyers were entitled to reject the goods because half of the cases contained only 24 tins, even though the total quantity was met. The contract was for 3100 cases of Australian canned fruit jammed 30 tins to case. 2. 4. 3 fittingness for Purpose and Merchantable Quality Section 16 of the Sale of Goods Act 1957 provides that there is no implied warranty or condition as to the tonus or seaworthiness for any particular aspiration of goods supplied under a contract of sale omit in the by-line situations effect 12 impartiality OF SALE OF GOODS (PART I) 203 Goods must be clean fit for the exercise for which the buyer wants them (Section 16(1)(a)) or Goods must be of salable quality (Section 16(1)(b)). (a) Goods must be moderately fit for the buyerEs character. Where the buyer, expressly or by implication, betrays known to the seller the particular purpose for which the goods are required, so as to repoint that the buyer relies on the sellerEs readiness or judgement, and the goods are of a description which is in the course of the sellerEs fear to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for often(prenominal) purpose. But in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.The buyer may invoke Section 16(1)(a) if he makes known to the seller the particular purpose for which he acquires the goods and the buyer is relying on the sellerEs skill and judgement. The goods must also be a description which is in the course of the sellerEs business to supply and if the goods are specific, they must be bought under their trade name or patent. The above requirements are explained in the following cases In Griffiths v. gumshoe Conway Ltd. 1939 1 every ER 685, a woman with an ab popularly sensitive scrape bought a Harris egg white cake without disclosing to the seller about her ab conventionalityity.She could not claim under this section because the coat would not harm a normal person. Thus, the buyer must clearly indicate the special purpose for which the goods are to be used. Otherwise, there is no breach of the implied condition if the goods are satisfactory for their general and normal purpose. If the description of the goods is only for one purpose, thus it requires no further indication. For example, a tropical water bottle is meant to contain heated boiling water if it breaks upon filling of hot water, then it is not fit for its purpose. 204 TOPIC 12LAW OF SALE OF GOODS (PART I) In the case of Cammell Laird & Co v. Manganese Bronz and Brass Co Ltd 1934 AC 402, there was a contract by A to build a propellor for B in accordance with BEs stipulation and to fit a particular ship and its engine. The propeller supplied complied with the specification and design but did not suit the shipEs engine. A was held liable for breach of an implied condition since the buyer had informed the seller of the purpose for which he postulate the goods and relied on the sellerEs skill and judgement to provide them. In Baldry v.Marshall 1925 1 KB 260, the buyer asked the dealer for a car sufficient for touring and the dealer recommended a Bugatti car. A contract for the sale of the car was made. Later, the buyer represent that the car was unsuitable for touri ng. The Court of petition held that the dealer was liable because the buyer had relied on the dealerEs judgement in selecting a suitable car for the specific purpose stated by the buyer (even though the car was bought under its trade name). Hence, if the buyer purchases goods under its trade name but at the same time relies on the sellerEs recommendation, it way of life the buyer is still relying on the sellerEs skill.But if the buyer purchases specific goods under a trade name and gives the impression that he is not relying on the sellerEs skill, then he cannot claim under this section. (b) Goods must be of vendable quality Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of saleable quality. However, If the buyer has examined the goods, there shall be no implied condition as regards defects, which such examination ought to have revealed. Merchantable quality means the goods are fit for the particular use in which they were sold. Therefore, if they are imperfect for their purpose, they are considered unsaleable. TOPIC 12 LAW OF SALE OF GOODS (PART I) 205 For implied condition as to salable quality, the buyer need not make known to the seller the particular purpose for which he requires the goods. The section only requires the goods to be bought by description and bought from a seller dealing with the goods of that description. Where goods are old under their trade name, the implied condition as to merchantable quality is applicable although the implied condition as to fitness is excluded. In Wilson v. Ricket, Cockerall & Co. Ltd 1954 1 alone ER 868, force out by its trade name ACoaliteE was ordered from a fuel merchant. The lode was contaminated in that a detonator was em tushded in the coal, resulting in an explosion in the excite-place when used. The Court held that the consignment as a whole was u nmerchantable, having defects make it unfit for burning.In the proviso to Section 16(1)(b), the implied condition does not apply where the buyer has examined the goods as regards defects which such examination ought to have revealed. This means if the buyer has conducted some examination before or at the time of the contract, the buyer cannot later complain about the defects which would be revealed by a proper examination. In the case of Thornett & Fehr v. Beers & Sons 1913 1 KB 486, the buyer had conducted a superficial look at the outside of some barrel of glue. It was held that there was an examination and thus the implied condition as to merchantable quality did not apply. 2. 4. 4 Sale by Sample Section 17 of the Sale of Goods Act 1957 provides that in a contract for the sale of goods by sample, there is an implied condition (a) (b) That the bulk shall correspond with the sample in quality That the buyer shall have apt opportunity of examine the bulk with the sample and 206 TOPIC 12 LAW OF SALE OF GOODS (PART I) (c) That the goods shall be thaw from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample. The three conditions above are independent of one another.If the bulk corresponds with the sample but there is a possible defect rendering the goods unmerchantable, the buyer is still entitled to reject them. In the case of Drummond v. Van Ingen (1887) 12 App. Cas. 284, the framework supplied by the seller was equal to sample previously examined but because of a latent defect not discoverable by a reasonable examination, the Court found the seller in breach of the condition. SELF-CHECK 12. 1 1. What is the meaning of existing goods, future goods, specific goods and un fited goods? Provide examples in your explanation. What is the difference between a sale and an agreement to sell?What are the kind of implied conditions and warranties incorporated in a contract of sale of goods? What is the effect of breach of implied condition and warranty in a contract of sale of goods? stand the party to the contract of sale of goods exclude the implied terms? 2. 3. 4. 5. TOPIC 12 LAW OF SALE OF GOODS (PART I) 207 ACTIVITY 12. 1 converse the following questions (a) Michael and his wife Betty, were busy shop for new furniture for their new house. trio days before moving, they visited a furniture shop Antique Design. Betty was very concerned in a sofa delimitate from Italy worth RM15,000.The slew was made from easily leather, brown in colour and consist of one coffee table, and they agreed to buy the set. Both the husband and wife also agreed to buy a ternary bed for their daughters. Michael informed the seller that he wanted a double bed made from good quality wood. The seller assured Michael that he would meet MichaelEs request, as he was an expert and experienced in selling furniture. After defrayal, the seller promised to deliver the furniture on the day that they were mantic t o move into their new house. Michael and Betty also went to settle down Air-Cond, a shop selling air conditioners.The seller managed to attract Michael to buy a portable air-conditioner at the price of RM2,000, with a guarantee that the air conditioner could be used for the next five years without any problem. After checking the goods and satisfied with their condition, Michael made a payment. The seller promised to deliver the air conditioner on the day they move to the new house. On the day of moving, all of the goods ordered by Michael and Betty were delivered. Nevertheless, they were disappointed to see that the sofa set that was delivered was not brown and did not include the coffee table and that the double bed ordered was not of good quality wood.Meanwhile, the portable air conditioner that Michael bought produced a inviolable noise when it was switched on. Michael and Betty were very disappointed with what had happened and test your legal advice on what action can be take n on the sellers of the goods. B placed an advertisement in a local newspaper offer for sale, a second-hand car at RM40,000 o. n. o. The car was describe as Toyota, late 2000 model. Q responded by offering to buy the car at RM37,000. The offer was accepted by B.After driving the car for almost three months, Q discovered that only the body of the car was of late 2000 model while the engine was from a much earlier model. Q now wishes to rescind the contract and seeks your advice on the matter. Advise Q on her rights under the Sale of Goods Act 1957. (b) (c) 208 TOPIC 12 LAW OF SALE OF GOODS (PART I) (d) quip, a objector in one of the top veracity shows in TVReality was preparing for the final contest to become the winner for the new season 2008. crack engaged a professional adapt to sew the trot suitable for the contest.Sally consulted robin redbreast, a well-known fashion designer in town, on the choice of fabric for the ready because she had sensitive skin and was allergic to certain types of fabric. Sally paid RM3,000 for the be of the dress. After the contest, Sally discovered red spy on her skin. She went to see the doctor and was told that her skin was sensitive to the fabric used for the dress that she had worn for the contest. Sally went to see redbreast and retrogressed the dress because the fabric used for the dress was not fit for the purpose she made known to redbreast and caused her skin complaint.Sally also claimed for the refund of the cost of the dress from Robin and the medical expenses incurred by her. Decide whether Sally could claim for the refund of her money from Robin as well as the cost for her medical expenses. 12. 5 TRANSFER OF station IN THE GOODS AND RISK Property in the goods means title or ownership. The transfer of property in the goods is very valuable because it determines the luck. As a general rule, the peril passes when the property in the goods passes (notwithstanding whether spoken language has been made). Thus, the goods will remain at the sellerEs fortune until the property in the goods is transferred to the buyer.When the title or ownership is transferred to the buyer, then the goods are at the buyerEs risk of exposure. According to Section 26 of the Sale of Goods Act 1957 Unless otherwise agreed, the goods remain at the sellerEs risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyerEs risk whether delivery has been made or not Provided that where delivery has been delayed through with(p) the smirch of either buyer or seller, the goods are at the risk of the party in fault as regards any vent which baron not have occurred but for such fault. TOPIC 12 LAW OF SALE OF GOODS (PART I) 209 This means, if delivery has been delayed through the fault of either party, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault. 12. 5. 1 Effects of the Contract Since the risk passes when the property in the goods passes, is it essential to know when the title passes. on a lower floor the Sale of Goods Act 1957, Section 18 to 23 provide certain rules that determine the time when property in the goods passes to the buyer. a) Sale of unascertained goods down the stairs Section 18 of the Sale of Goods Act 1957, 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. Sale of specific or ascertained goods Under Section 19 of the Sale of Goods Act 1957, 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. Thus, the general rule is that title passes when the parties to a contract of sale intend it to pass.Unless a different bearing appears, the following rules are the rules for as certaining the intention of the parties as to the time of passing of property in the goods. (c) proper(postnominal) goods in a deliverable state Under Section 20 of the Sale of Goods Act 1957, where there is an commanding 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. It is immaterial whether the time of payment of the price or the time of delivery of the goods is postponed. For example, A agrees to buy a specific book entitled trade Law on credit.The title in the book passes to A on the sale even though the payment is postponed. (d) Specific goods to be put into a deliverable state Under Section 21 of the Sale of Goods Act 1957, where there is a contract for the sale of specific goods and the seller is bound to do something to the (b) 210 TOPIC 12 LAW OF SALE OF GOODS (PART I) goods for the purpose of put them into a deliverable state, the property does not pass until such thing is done an d the buyer has detect thereof. For example, A agrees to sell a specific computer to B and promises to install the specific software in the disk.The ownership in the computer does not pass to B until A installs the specific software as promised and B must know about the fact that A has done the installation. (e) Specific goods in a deliverable state when the seller has to do anything thereto in order to ascertain price Under Section 22 of the Sale of Goods Act 1957, 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 such act or thing is done and the buyer has watching thereof.For example, A agrees to sell to B all the flour contained in a specific sack for RM3 per kilogram. The title does not pass to B until A weighs the flour and B knows that the flour has been weighed. (f) Sale of unascertained goods and appropriation Under Section 23 of the Sale of Goods Act 1957, 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 submit of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer.The assent may be expressed or implied and may be given either before or after the appropriation is made. A contract for the sale of unascertained goods is an agreement to sell and not a sale. Future goods mean goods to be manufactured or produced or acquired by the seller after the making of the contract of sale. Unconditionally appropriated to the contract in the provision above means a clear act showing the intention to identify certain goods as attached to the contract and without any condition.The duty to appropriate may be placed on the bu yer or the seller. Appropriation may involve the act of selecting, separating or deliberation from a bulk by the buyer or the seller, and it must be authorise by the other party. The appropriation must be unconditional and it should pass property in the goods without further requirements (such as payment or price). Further, Section 23(2) of the Sale of Goods Act 1957 provides that where (in pursuance of the contract) the seller delivers the goods to the buyer or to a TOPIC 12 LAW OF SALE OF GOODS (PART I) 211 arrier or other bailee 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. The effect is that property in the goods passes to the buyer at the time when the goods are turn over over to a carrier (for example, a raptus company such as shipping, transport or railway). The carrier is the buyerEs agent for the purpose of delivery. But if the carrier is the agent o f the seller, then property in the goods will not pass until the goods are actually delivered to the buyer. g) Goods sent on compliment or on sale or return Under Section 24 of the Sale of Goods Act 1957, when goods are delivered to the buyer on approval or on sale or return, or other equal terms, the property in the goods passes to the buyer (i) when the buyer signifies his approval or credence to the seller or does any other act adopting the transaction or if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of goods, on the pass of such time, and if no time has been fixed, on the expiration of a reasonable time. ii) Under the second situation above, if a time is fixed for the return of the goods, then property in the goods passes upon the expiration of the time. But if no time is fixed, property in the goods passes upon the expiration of a reasonable time. SELF-C HECK 12. 2 1. 2. 3. 4. 5. 6. What is the meaning of property in the goods? What is the significance of the transfer of title or ownership in the goods? When does the risk pass to the buyer in a contract of sale of goods? How would you determine the time when the property in the goods passes to the buyer?When is the property in the goods transferred to the buyer in a contract for sale of unascertained goods? When is the title or ownership transferred to the buyer in a contract for sale of a specific or ascertained goods? 212 TOPIC 12 LAW OF SALE OF GOODS (PART I) ACTIVITY 12. 2 contend the following question 500 meitnerium metric of flour belong to a vendor were stored in a godown belonging to Mr. Isaac. The vendor sold 200 thyroxin metric of the flour to Mr Hans and gave him a delivery order addressed to Mr Isaac.When Mr HansE carrier arrived at the godown, Mr Isaac had already set aside the 200 tonne metric of the flour. The carrier handed the delivery order to Mr Isaac who gave instructions for commitment to commence. Before the loading could commence, Mr IsaacEs godown caught by fire and it destroyed the whole stock of the flour. address when did the property in the goods pass and who shall bear the loss. A contract of sale is the transfer of ownership of the goods to the buyer for a money consideration. Where 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 some condition thereafter to be fulfilled, the contract is called an agreement to sell. What distinguishes a sale from an agreement to sell is in terms of ownership or the property in the goods. A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. A warranty is a stipulation collateral to the main purpose of the contract, the breach of which give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated.The conditions and warranties implied in a contract of sale of goods bind the contracting parties, the buyer and the seller. The parties to a contract of sale may exclude the implied terms by the express agreement or by previous dealings or by usage. TOPIC 12 LAW OF SALE OF GOODS (PART I) 213 In a contract of sale of goods, there are implied conditions as regards to title, description, sample, fitness for particular purpose and merchantable quality.Unless the circumstances of the contract indicate a different intention, there is an implied condition on the part of the seller that in the case of a sale, he has a right to sell the goods, and in the case of an agreement to sell, he will have a right to sell the goods at the time when the property or ownership is to pass. There is an implied warranty that the buyer shall have and enjoy quiet possession of the goods and that the goods shall be innocent from any charge or snag in favour of any 3rd party not declared or known to the buyer before or at the time when the contact is made.The risk passes when the property in the goods passes, thus the goods will remain at the sellerEs risk until the property in the goods is transferred to the buyer. Agreement to sell physical fitness for purpose Implied terms Merchantable quality Property in goods Sample Title Sale of goods Transfer of title text edition Books Harlina Mohamed On & Rozanah Ab. Rahman. (2007). Undang-Undang Perniagaan Malaysia. Selangor Kumpulan Usahawan Muslim Sdn. Bhd. Wu M. A. & Vohrah B. (2000). The Commercial Law of Malaysia (2nd Ed. ). Selangor Pearson and Longman. CasesBaldry v. Marshall 1925 1 KB 260. Beale v. Taylor 1967 1 WLR 1193. Cammell Laird & Co v. Manganese Bronz and Brass Co Ltd 1934 AC 402. Drummond v. Van Ingen (1887) 12 App. Cas. 284. 214 TOPIC 12 LAW OF SALE OF GOODS (PART I) Griffiths v. Peter Conway Ltd. 1939 1 wholly ER 685. Moore & C o v. Landauer & Co 1921 2 KB 519. Nagurdas Purshotumdas & Co. v Mitsui Bussan Kaisha Ltd (1911) 12 SSLR 67. Rowland v Divall 1923 2 KB 500. Thornett & Fehr v. Beers & Sons 1913 1 KB 486. Wilson v. Ricket, Cockerall & Co. Ltd 1954 1 All ER 868.