Explain delivery and its various types

by • 24/06/2013 • GeneralComments (0)338

Q.8      Explain delivery and its various types.

Ans:     DELIVERY

Delivery means the voluntary transfer of possession from one person to another.

MODE OF DEU¥ERV [SECTION 33]

Delivery of goods may be made

(a)        By doing anything which the parties agree shall be treated as delivery, or

(b)        By doing anything, which has the effect of putting the goods into the buyer’s or his, authorized agent’s possession.

 

TYPES OF DELIVERY

The delivery of goods may be of the following three types. 

a.         ACTUAL DELIVERY

Delivery is said to be actual where the goods are physically handed over to the buyer or his authorized agent.

EXAMPLE

X sells to Y 100 bags of wheat lying in Z’s warehouse. X orders Z to deliver the wheat to Y. Z delivers to Y. In this case there is an actual delivery of goods.

b.         SYMBOLIC DELIVERY

Delivery is said to be symbolic where some symbol of the real possession or control over the goods is handed over to buyer.

EXAMPLE

X sells to y bags of wheat lying in Z’s warehouse and hands over the key of Z’s warehouse to y. In this case, there is symbolic delivery of goods.

 

c.         CONSTRUCTIVE DELIVERY

Delivery is said to be constructive where a person who is in possession of the goods, acknowledges holding the goods on behalf of the buyer.

EXAMPLE

X sells to y 100 bags of wheat lying in Z’s warehouse, y order Z to deliver the wheat to Y, Z agree to hold the 100 bags of wheat on behalf of y and makes the necessary entry in his books. In this case there is constructive delivery of goods.

 

1.         RULES AS DELIVERY [SECTION 32 TO 39]

(a)        PAYMENT AND DELIVER TO BE CONCURRENT [SECTION 32]

Unless otherwise agreed, delivery of the goods and payment of the price are concurrent condition that is to say, the seller must be ready and willing to give possession of the goods to the buyer and the buyer must be ready and willing to pay the price.

 

(b)        MODE OF DELIVERY [SECTION 33]

Delivery must have the effect of putting the goods into the buyer’s or his authorized agent possession

 

(c)        EFFECT OF PART DELIVERY [SECTION 34]

A delivery of part of goods with an intention of giving the delivery of the whole amounts to the delivery of the whole for the purpose of transfer of ownership of goods, but a delivery of part of goods with an intention of separating it from the whole lot does not amount to the delivery of the whole of the goods.

 

(d)        BUYER TO APPLY FOR DELIVERY [SECTION 35]

Unless otherwise agreed, the seller of the goods is not bound to deliver them until the buyer applies for delivery.

(e)        PLACE OF DELIVERY [SECTION 36(1)]

The various rules as to the place of delivery are summarized as under.

Case

Place at which goods are to be delivered

1.

Where there is a contract as to the place of delivery At the agreed place

2.

Where there is no contract as to the place of delivery.  

(a) In case of sale At the place at which the goods are at the time of sale

(b) In case of an agreement to sell

(i) In respect of existing goods

 

At the place at while the goods are at the time of agreement to sell.

(ii) In respect of future goods At the place at which the goods are manufactured or produced.

 

(f)         TIME OF DELIVERY [SECTION 36(2)]

The various rules as to the time of delivery are summarized as under.

Case

Time within goods are to be delivered

1.

Where there is a contract as to the time of delivery. Within the time agreed.

2.

Where there is no contract as to the time of delivery. Within the reasonable time.

Note: What is a reasonable time is a question of fact depending upon the facts and Circumstances of each case.

 

(g)        DELIVERY WITH, THE GOODS ARE JN POSSESSION OF A THIRD PARTY [SECTION 36(3)]

Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller unless and until such third person acknowledges to the buyer that he hold the goods on his behalf. However, this provision shall not affect the operation of the issue or transfer of any document of title to goods.

 

(h)        DEMAND OP DELIVERY TO BE TREATED AS INEFFECTUAL [SECTION 36(4)]

Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact,

 

(i)         EXPENSES OF DELIVERY [SECTION 36(5)]

Unless otherwise agreed, the expenses of putting the goods into a deliverable state shall be borne by the seller.

 

(j)         DELIVERY OF WRONG QUANTITY [SECTION 37]

Subject to any usage of trade, special agreement of course of dealing between the parties, the rules as to the delivery of wrong quantity are summarized as under.

Case

Rights available to the buyer

I.

Short delivery i.e. where the seller delivery a quantity of goods less then contracted for. (a)        The buyer may accept the goods so delivery, or

(b)        The buyer may reject the goods.

II.

Excess delivery, i.e. where the seller delivery a quantity of goods large than contracted for. (a)        The buyer may accept the goods so delivered,

(b)        The buyer may reject the whole, or

(c)        The buyer may accept the contracted quantity and reject the excess.

III.

Mixed delivery i.e. where the seller delivers the goods contracted for mixed with goods of different description. (a)        The buyer may reject the whole, or

(b)        The buyer may accept the goods, which are in accordance with the contract and reject the rest.

 

Note: The mixing of goods with inferior quality does not amount to mixing of goods of different description

 

Notes:

(i)         The buyer may not be allowed to reject the goods in case of negligible short or excess delivery.

(ii)        In case of short or excess delivery if the buyer rejects the whole quantity the contract is not treated as cancelled. The seller still has the right to tender again in the quantity of goods as per contract and the buyer is bound to accept the same.

 

(k)       DELIVERY BY INSTALLMENTS CHECK [SECTION 38]

Unless otherwise agreed, the buyer of goods is not bound to accept delivery by installments.

The question whether the aggrieved party can repudiate the whole contract or not depends upon the terms of the contract and the circumstances of each case where.

(i)         The goods are to be delivered in installment;

(ii)        The installment are to be separately paid for;

(iii)       The seller makes no deliver or defective in respect of one or more installments or the buyer neglects or refuses to take delivery of or pay for one or more installment.

 

(l)         DELIVERY YO CARRIER [SECTION 39]

Where the seller is authorized or required to send the goods to the buyer delivery of the goods to carrier (whether named by the buyer, or not) for the purpose of transmission to the buyer, or delivery of the goods to carrier custody, is prima of facie deemed to be a delivery of the goods to the buyer [Section 39(1)]. The seller is further required to perform the following two duties also.

 

(a)        TO MAKE A REASONABLE CONTRACT WITH THE CARRIER

Unless otherwise authorized by the buyer, the seller shall make a reasonable contract with the carrier on behalf of the buyer. If the seller omits to do, and the goods are lost or damages in course of transit or whilst in the custody of the carrier, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller irresponsible for damages [Section 39(2)1

 

(b)        TO GIVE NOTICE TO THE BUYER TO ENABLE HIM TO INSURE THE GOODS

Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, in circumstances in which it is usual to insure, the seller must inform the buyer to epable him to insure them during their sea transit, and if the seller fails to do so, the goods shall be deemed to be at his risk during such transit [Section 39(3)]

Tableau you may turn http://www.homework-writer.com to that one in adam bede, and see how.
Pin It

Related Posts

Leave a Reply