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Duties of the buyer and the seller 197

Time of delivery

If the contract fixes a time for delivery then delivery must be made at this time. If no time
for delivery is fixed, then delivery must be made within a reasonable time. The amount of
time which is reasonable will depend upon all the circumstances of the case.
In Chapter 3 it was seen that a breach of warranty entitles the injured party to damages,
but not to terminate the contract. It was also seen that a breach of condition allows the
injured party to claim damages and/or to terminate the contract. Section 10(2) of the SGA
1979 states that whether late delivery is a breach of condition or a breach of warranty
depends upon all the circumstances of the case. In commercial contracts any time fixing
delivery is likely to be regarded as a condition.

Delivery of the wrong quantity

If the seller delivers to the buyer a lesser quantity of goods than the contract required, s. 30
of the SGA 1979 gives the buyer a choice: the buyer may either reject the goods (and sue the
seller for damages for non-delivery); or accept the goods, pay for them at the contract rate,
and sue the seller for damages for non-delivery of the shortfall.

Example

Sid agrees to sell 100 tonnes of wheat to Bert for £1,500. Sid delivers only 90 tonnes of

wheat. Bert can reject the 90 tonnes and sue Sid for non-delivery. Alternatively, Bert can

accept the 90 tonnes, pay Sid £1,350 and sue Sid for damages for non-delivery of the

10 tonnes which were not delivered.

If the seller delivers a quantity of goods which is greater than the contract called for, s. 30
gives the buyer three options. First, the buyer may reject all of the goods and sue the seller
for damages for non-delivery; second, the buyer can accept the quantity of goods which
should have been delivered and pay the contract price; third, the buyer may accept the
whole quantity of goods delivered and pay for them at the contract rate.

Example

Susan agreed to sell Ben 100 tonnes of wheat for £1,500. Susan delivers 110 tonnes of wheat.

Ben can either: reject the delivery and sue Susan for damages for non-delivery; accept

100 tonnes and pay the contract price of £1,500; accept all 110 tonnes and pay £1,650.

Bowes vShand (1877) (House of Lords)

A cargo of rice was sold. The contract stated that the rice was to be put on board a certain

ship during March or April 1874. Eighty-seven per cent of the rice was put on board the

correct ship in February 1874. The remainder of the rice was put on board in March.

HeldThe buyers could reject the whole cargo of rice and terminate the contract, even

though the value of the rice was unaffected by the early shipment. A condition of the

contract had been breached.