Performance of Contract — Delivery and Acceptance

Sections 31 to 44 of the Sale of Goods Act, 1930 govern the performance of every contract of sale. The architecture of the chapter is reciprocal. Section 31 fixes the duties of both parties in one line — the seller is bound to deliver the goods, the buyer is bound to accept and pay for them — and the surrounding sections then unpack what each of those duties involves. Delivery is described in Section 2(2) and worked out through Sections 33 to 40; acceptance is treated through Sections 41 to 44. Read together, the chapter is the operating manual that converts a concluded contract into a closed transaction.

The drafting strategy mirrors that of the Indian Contract Act. The parties are free to agree on time, place, manner and instalments of delivery; the Act steps in only when the contract is silent. The default rules in Sections 32 to 40 are therefore residuary — they apply unless otherwise agreed. The same is true of Section 38(1) on instalment deliveries, Section 39(1) on delivery to a carrier, and Section 41(2) on the buyer's right of examination. The discipline imposed on the student is to remember that almost every rule in this chapter operates as a default rule, and that the expression "unless otherwise agreed" carries enormous weight.

The chapter sits late in the statutory sequence. By the time performance is in issue, the parties will have framed the agreement under the rules on the contract of sale and the distinction from an agreement to sell, identified the subject-matter under the categories of existing, future, specific and ascertained goods, and worked out when property passes under Sections 18 to 25. Performance closes the loop. Whether risk has passed before delivery is governed by the rule that risk prima facie passes with property under Section 26, so that loss in transit may already be on the buyer's account when the goods are tendered.

Statutory anchor — Section 31

Section 31 contains the basic duties of seller and buyer:

The provision yokes three obligations together — delivery by the seller, acceptance by the buyer, and payment by the buyer — and points the reader to the contract for their content. The Act then supplies the statutory default where the contract is silent. Section 31 is not a free-standing rule; it is the hinge that connects the formation chapters to the performance chapters, and is read alongside Section 32 on the concurrence of delivery and payment.

The duty to deliver is the seller's duty whether or not he is the owner of the goods at the time of the contract, and whether or not he then has them in his possession. A seller who has agreed to sell unascertained or future goods must, when the time for performance arrives, procure goods of the contract description and tender them to the buyer. The duty to accept and pay is reciprocal — the buyer cannot blame the seller for non-delivery without showing that he himself was ready and willing to take and pay for the goods. The two strands are kept on the same plane by Section 32.

Concurrent conditions — Section 32

Section 32 reads:

The provision is one of the most heavily tested in the chapter. Three points of substance attach to it. First, the obligations are reciprocal — neither party can call upon the other to perform unless he himself is ready and willing to perform: Sujanmal v. Radhey Shyam AIR 1976 Raj 98. Second, readiness and willingness do not require either party to have the means of performance at a moment's call; it is enough that the buyer has made arrangements to pay without undue delay and that the seller has arranged to procure the goods. Third, mental preparedness is not enough — there must be a capacity to perform. An insolvent buyer is not ready and willing to pay; a seller whose subject-matter has been destroyed is not ready and willing to deliver.

The Patna decision in Vishnu Sugar Mills Ltd. v. Food Corporation of India AIR 1987 Pat 22 is the leading illustration. The corporation purchased levy sugar from the petitioner under a statute requiring compulsory sale at notified rates. After paying against deliveries for some time, the corporation unilaterally altered the procedure so that payment would follow delivery by a considerable interval. The court held that, where there is a compulsory sale of the article under statute and no agreement on payment timing, Section 32 imposes concurrent tender — the new payment-after-delivery procedure was bad in law. The case is a useful answer to a stock examination question on what "concurrent conditions" require in a regulated transaction.

Modes of delivery — Section 33

Section 33 lays down what the law treats as a delivery:

Three modes of delivery emerge. Actual delivery is a manual handing over of the goods themselves; if the actual control of the goods does not change from one person to another, there is no delivery. Symbolic delivery is the transfer of a symbol that represents the goods — the key of the warehouse, the bill of lading, the railway receipt — so that the buyer is able to take control of the goods. Constructive delivery (also called fictitious delivery, or delivery by attornment or acknowledgement) involves no change in actual custody but a change in the legal character in which the holder retains the goods. The seller in possession may agree to hold them on behalf of the buyer; he was an owner, he is now a bailee. Equally, where the goods are with a third party at the time of the contract, Section 36(3) prescribes that there is no delivery until that third party acknowledges to the buyer that he holds the goods on the buyer's behalf — the consent of all three persons is necessary: Godts v. Rose (1855) 17 CB 229.

Two cautions follow from Section 33. Merely giving a delivery order to the buyer, without more, is not a delivery of the goods themselves. By contrast, transfer of a document of title — a bill of lading, for example — is treated as a symbolic delivery, and no further acknowledgement by the carrier is needed. The full unfolding of Section 33 in conjunction with Section 36 is worked out in the dedicated chapter on the rules as to delivery under Section 33 and Section 36; for present purposes the modes-of-delivery taxonomy is what matters.

Effect of part delivery — Section 34

Section 34 distinguishes between part delivery in progress of the delivery of the whole, and part delivery with a view to severance. The first counts as a delivery of the whole for the purpose of passing the property; the second does not. The Act gives the rule statutory form so that the parties are not left to argue about intention every time a portion of the consignment is taken up.

The leading early authority is Hammond v. Anderson (1803) 1 B&P NR 69 — the buyer, intending to take delivery, got the whole of the goods weighed but, because of his transport arrangements, took away only a part; the delivery of the part operated as a delivery of the whole, with the result that the buyer would have to bear the loss if the undelivered remainder were destroyed. The reverse is illustrated by Bunnery v. Poyntz (1833) 4 B&Ad 568 — on the sale of a stock of hay, the buyer was permitted to cut and remove a part; the permission related only to a part, and there was no delivery of the whole. Mitchell Reid & Co. v. Buldeo Das ILR (1887) 15 Cal 1 supplies the same point on bales of goods to be paid for on delivery — the buyer received one bale and paid for it but refused to receive the others on a quality complaint; the delivery of the one bale did not amount to delivery of all four, and the seller's remedy was for breach of contract rather than for the price. The dividing line is intention to sever, and the burden of proving intention is on the party asserting that part delivery was severance.

Application by the buyer — Section 35

Section 35 places the first move on the buyer:

The buyer cannot blame the seller for non-delivery unless he made a demand and the seller failed to respond. The duty to apply is, however, subject to the express terms of the contract. Where the contract requires the seller to despatch the goods as soon as they are ready, the buyer is not required to make a separate application. Section 35 is therefore part default-rule, part allocation-of-initiative, and works hand in hand with Section 32 — the buyer's readiness and willingness to take and pay is communicated, in the silent contract, by his application for delivery.

Rules as to delivery — Section 36

Section 36 collects five default rules on the manner in which delivery is to be effected. The five are: place of delivery, time for delivery where the seller has to send the goods, delivery by attornment where the goods are with a third party, time for tender of delivery, and expenses of putting the goods into a deliverable state.

1. Place of delivery. Where the contract is silent, the place of delivery in a sale is the place where the goods are at the time of sale; in an agreement to sell, the place where the goods are at the time of the agreement; in the case of future goods which are yet to be manufactured, the place at which they are manufactured or produced. Where the goods are to be delivered at the buyer's place, the seller is discharged by delivery to a respectable-looking person at that place even if it should turn out that the person was not authorised: Galbraith & Grant Ltd. v. Block (1922) 2 KB 475.
2. Time for delivery. Where the seller is bound to send the goods to the buyer but no time for sending them is fixed, he is bound to send them within a reasonable time. Failure to do so is a breach even if subsequent supervening events — war, government order — would have prevented delivery. Where the contract states that the goods will be delivered "as and when required", a request is a condition precedent to the seller's obligation to deliver; the buyer cannot, however, wait indefinitely, and on lapse of a reasonable time the seller may rescind on notice.
3. Delivery by attornment. Where the goods are with a third party at the time of contract, the third party must acknowledge to the buyer that he holds the goods on the buyer's behalf — the rule of Section 36(3) discussed under Section 33.
4. Time for tender of delivery. Tender by the seller and demand by the buyer must each be at a reasonable hour; what is reasonable is a question of fact in each case.
5. Expenses of delivery. Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state are to be borne by the seller. The contract may shift the burden, but the default puts those costs on the seller because they are the obverse of his duty to deliver.

Delivery of wrong quantity — Section 37

The seller's duty under Section 31 is to deliver the goods of the contract description in the contract quantity. Where the seller delivers a smaller or larger quantity, or mixes the contract goods with goods of a different description, the delivery amounts to a proposal for a new contract. Section 37 lays down the buyer's options. The rules are subject to any usage of trade, special agreement, or course of dealing.

1. Short delivery. Where the seller supplies less than he contracted to sell, the buyer may reject; if he accepts the short delivery, he must pay at the contract rate, but does not lose his right to sue for damages for short delivery. The right to reject for short delivery is, however, subject to the maxim de minimis non curat lex — slight deficiency must be overlooked: Dhudhia Forest Coop. Ltd. v. Mohd. Saiyed (1980) 21 Guj LR 272. The rejection right operates only where the misdelivery goes to the root of the contract.
2. Excess delivery. Where the seller delivers a quantity larger than contracted for, the buyer may accept the contract quantity and reject the rest, or reject the whole, or accept the whole. If the buyer accepts the whole he must pay for the whole at the contract rate. The right is to reject the goods, not to cancel the contract — the seller may again supply the contract quantity within time: Vilas Udyog Ltd. v. Prag Vanaspati Products AIR 1975 Guj 112. As with short delivery, the rule is read with de minimis, so that a negligible excess for which the seller does not bill the buyer cannot be made the basis of a rejection.
3. Mixed delivery. Where the seller delivers the goods mixed with goods of a different description not included in the contract, the buyer may accept the contract goods and reject the rest, or reject the whole. The strict rule is illustrated by Moore & Co. v. Landauer & Co. (1921) 2 KB 519 — the contract was for 3,000 tins of canned fruit packed in cases each containing 30 tins; about half the cases tendered contained 24 tins each. The buyer was held entitled to reject the whole, even though the total number of tins was correct. Description includes packing where packing forms part of the identification of the article.

The architecture of Section 37 should be read with the implied conditions in Section 15 on sale by description. Both sets of rules ultimately turn on the proposition that the buyer is entitled to receive what he bargained for and to reject anything short of it. The classification of the broken term as a condition rather than a warranty is supplied by the Section 12 distinction between conditions and warranties; the remedies on rejection of price-paid goods are set out in the chapter on suits for breach of contract.

Instalment deliveries — Section 38

Section 38(1) lays down a default that is heavily examined:

Instalment deliveries can be made or demanded only if the contract so provides. Where the contract provides for separately paid instalment deliveries, Section 38(2) supplies the framework for assessing breach. Whether breach in respect of one instalment is a repudiation of the whole contract or a severable breach giving rise only to a claim for compensation is a question of fact in each case, depending on the terms of the contract and the circumstances. Two factors determine the answer: the quantitative proportion the breach bears to the whole contract, and the degree of probability that the breach will be repeated.

The leading English statement is in Mersey Steel and Iron Co. v. Naylor & Co. (1884) 9 AC 434, which is repeated in Indian decisions. Maple Flock Co. Ltd. v. Universal Furniture Products Ltd. (1934) 1 KB 148 is the cleanest illustration of the test in operation. There was a contract to supply 100 tons of flock by instalments; 15 instalments conformed to the contract; the 16th instalment did not; the next four were again satisfactory. The buyers sought to rescind on the strength of the 16th. The court held that 1.5 tons defective out of 100, with only one of 21 instalments unsatisfactory and a negligible chance of recurrence, did not entitle the buyers to repudiate. The companion case in Motilal v. The Netha Coop. Spinning Mills Ltd. AIR 1975 AP 169 went the other way — a contract for 500 bales of cotton in which the second instalment of 50 bales was found adulterated with waste cotton, and the buyer's repudiation was held justified.

The Patna decision in Vishnu Sugar Mills v. Rameshwar Jute Mills AIR 1970 Pat 323 supplies the home-grown statement of the test. A contract for the sale of 60,000 jute bags was entered into; the first consignment of 20,000 bags was taken delivery of by the buyer who then disputed quality and refused to take the balance. The contract contained a term that each month's delivery was to be considered as a distinct and separate contract. The court observed that the main tests for determining whether a breach is vital are the quantitative ratio of the faulty instalments to the whole contract and the degree of probability of repetition; on the facts, the alleged defect was not substantial, the express term made each month a separate contract, and the buyer's refusal was a breach of contract on his own part. The case is a useful counterpoint to Motilal, and is set squarely on the Section 38(2) factors.

Two further authorities round out the principle. Aryavart Overseas Pvt. Ltd. v. Kay Aar Biscuits AIR 1983 NOC 14 (Del) — a delayed payment of Rs. 55,000 against a balance of Rs. 1.5 crores in goods to be supplied was quantitatively small with no probability of repetition, and could not be treated as a repudiation. Withers v. Reynolds (1831) 2 B&Ad 882 — the buyer fell into arrears in paying for several instalments and asked for credit; the seller was entitled to treat the contract as repudiated and refuse further deliveries. Freeth v. Burr (1874) LR 9 CP 208 — withholding of payment for a single instalment under an erroneous belief in a set-off did not discharge the seller. The cluster of authorities makes the test workable but fact-sensitive.

Delivery to a carrier or wharfinger — Section 39

Section 39(1) provides that where the seller is authorised or required to send the goods to the buyer, delivery to a carrier or wharfinger is prima facie a delivery to the buyer. The provision is the bridge between the seller's possession and the buyer's possession in distance contracts; it is also the trigger that ends the seller's lien and starts the right of stoppage in transit, on which the chapter on the rights of the unpaid seller is built. Where the carrier is the agent or servant of the seller himself, delivery to such a carrier may not amount to delivery to the buyer.

Section 39(2) imposes a duty on the seller to make a contract with the carrier that is reasonable having regard to the nature of the goods and the circumstances of the case. If the seller fails to do so and the goods are lost or damaged in transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or hold the seller in damages. The point is illustrated by Young v. Hobson (1949) 65 TLR 365 — sellers contracted to despatch electric engines by rail; instead of sending them at railway risk they sent them at owner's risk; the engines were damaged in transit; the contract of carriage was not reasonable, and the buyers were entitled to reject. Section 39(3) requires the seller to give the buyer such notice as will enable him to insure where the goods are sent by sea transit and insurance is usual; failing notice, the goods are at the seller's risk during sea transit.

Deterioration during transit — Section 40

Section 40 supplies a closing rule. Where the seller agrees to deliver the goods at his own risk at a place other than that where they are when sold, the buyer must, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. The seller's risk-bearing is not stretched to cover ordinary wear and tear in transit. Bull v. Robinson (1854) 10 Ex 342 — hoop iron sent from Staffordshire to Liverpool, clean and bright at despatch but rusted on arrival; the seller was not liable. "Unusual risk", however, is not necessarily incident to transit and falls on the seller; a manufacturer who contracts to deliver a manufactured article at a distant place stands the risk of any extraordinary deterioration. In the case of perishable goods consigned to a distance, the rule is that the goods must not only be merchantable when despatched but must remain merchantable during transit and for a reasonable time thereafter — Beer v. Walker (1877) 46 LJQB 677, where rabbits sound on despatch from London were unfit for human food on arrival at Brighton; rejection allowed.

Buyer's right of examination — Section 41

Acceptance is treated separately because it is the act that strips the buyer of his right of rejection. The framework starts with examination. Section 41(1) provides that, where goods are delivered to the buyer who has not previously examined them, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they conform to the contract. Section 41(2) imposes a corresponding duty on the seller — unless otherwise agreed, the seller is bound to afford the buyer such opportunity on request.

Two consequences flow from Section 41. First, mere taking of delivery is not acceptance — the buyer who takes delivery and examines the goods within reasonable time, and finds non-conformity, may still reject. Second, the right is one of inspection, not of trial use; the buyer may examine to ascertain conformity but he may not consume the goods or treat them as his own. The interaction with the implied condition of merchantable quality and the proviso to Section 16(2) is direct — where the seller affords a full opportunity to examine and the buyer chooses not to take it, the proviso to Section 16(2) bites for patent defects: Thornett & Fehr v. Beers & Sons (1919) 1 KB 486. The line is well drawn and is laid out in the chapter on implied conditions of title, description, sample, merchantable quality and fitness.

Acceptance — Section 42

Section 42 lays down three statutory triggers of acceptance:

Three modes of acceptance therefore exist: intimation, an inconsistent act (such as resale, pledge, consumption or use), and retention beyond a reasonable time without rejection. Section 42 is not subject to the provisions of Section 41, and so even if the buyer did not have a reasonable opportunity to examine the goods, he may be deemed to have accepted them if he does any act inconsistent with the seller's ownership.

The principle is laid out in Hardy & Co. v. Hillerns & Fowler (1923) 2 KB 490. A quantity of wheat arrived on c.i.f. terms; the buyers, without making a proper inspection, resold parcels to sub-buyers; three days later they discovered that the wheat was not of contract quality and sought to reject. The Court of Appeal held that they had lost the right of rejection. Atkin L.J. observed that an intimation of acceptance may be made before reasonable opportunity of examination has expired, and the section then operates without more; equally, when the buyer does an act in relation to the goods inconsistent with the seller's ownership, the section comes into operation notwithstanding that the reasonable opportunity has not expired.

The qualification is important. Dealing with documents of title is not, by itself, acceptance of the goods. Chao v. British Traders & Shippers Ltd. (1954) 1 All ER 779 — the buyer pledged the bill of lading with a bank, then discovered a wrongful date and sought to reject the goods; the seller's argument that pledging the bill amounted to acceptance was rejected. The buyer is not deemed to have accepted the goods merely by accepting the documents of title. The contrasting case is In re A Debtor (1939) 1 Ch 225 — goods delivered to an employee of the buyer and remaining on his premises for upwards of three weeks without any rejection were taken to have been accepted by retention beyond a reasonable time.

Buyer's right not to return rejected goods — Section 43

Section 43 supplies a small but useful rule. Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right to do so, he is not bound to return them to the seller; it is sufficient that he intimates to the seller that he refuses to accept them. The provision saves the buyer from a circuitous duty of redelivery and places the burden of recovery on the seller. The right of rejection that triggers Section 43 must, of course, be a real one — it must rest on a breach of condition, a breach of the implied terms in Sections 14 to 17, or a non-conformity entitling the buyer under Section 37.

Buyer's neglect or refusal to take delivery — Section 44

Section 44 closes the chapter:

The provision is the buyer-side counterpart of the seller's duties under Section 39 — the seller having tendered, the buyer who delays taking delivery is liable for the seller's storage, care and consequential loss. The proviso saves the seller's right to treat the contract as repudiated where the neglect or refusal is a repudiation of the whole. Conversely, where the seller is in delay and the buyer accepts delivery notwithstanding, the seller is liable for any loss occasioned by the delay.

Distinction — performance and the unpaid seller's rights

Performance closes the contract; default opens the unpaid seller's rights against the goods. The architecture is sequential. Sections 31 to 44 govern how the contract is to be performed; if the buyer pays, the contract is closed. If the buyer defaults, Sections 45 to 54 give the unpaid seller a lien while in possession (Sections 47 to 49), a right of stoppage in transit if the buyer becomes insolvent (Sections 50 to 52) and a right of resale under Section 54. Each of those rights is keyed to a stage in the performance sequence — possession lost to the carrier ends the lien but starts the stoppage right; delivery to the buyer ends both. The two clusters thus interlock and must be read together. The unpaid seller's regime is laid out in the chapter on the right of lien under Sections 47 to 49.

Performance and the underlying contract

The Sale of Goods Act does not displace the general law of contract. Performance under Section 31 must satisfy the rules of the Indian Contract Act, 1872 on reciprocal promises and tender, and the doctrine of frustration applies if performance becomes impossible by destruction of specific goods under Sections 7 and 8. Where the seller has no good title to convey, the buyer's remedy under Section 14(a) is reinforced by the nemo dat exceptions — see the chapter on transfer of title by a non-owner under Sections 27 to 30. The contract may also fix a time for performance; whether time is of the essence is a question of fact, but in commercial contracts the courts lean to treating delivery date as essential. The familiar rule is that, where time is of the essence, late delivery is a breach of condition entitling the buyer to reject; where it is not, late delivery is a breach of warranty entitling the buyer to damages. The Section 32 concurrence rule and the Section 35 application rule between them allocate the procedural moves in the silent contract.

Exam-angle distinctions

Three working distinctions repay study. Delivery and acceptance — delivery is the seller's act of putting the goods into the buyer's possession (Section 33); acceptance is the buyer's act of intimation, inconsistent dealing, or retention (Section 42). The two acts may coincide in time but are conceptually separate; the right of rejection survives delivery and dies with acceptance. Receipt and acceptance — taking delivery is not the same as accepting; the buyer who has taken delivery may still reject if he has not had a reasonable opportunity of examination, and his examination must be a real one. Section 37 rejection and Section 38 repudiation — Section 37 lets the buyer reject the wrong-quantity tender; Section 38(2) lets the buyer (or seller) repudiate the whole contract where breach in respect of an instalment goes to its root. Both rules ultimately rest on the same principle: the buyer is entitled to what he bargained for, and a sufficiently grave departure from the bargain entitles him to walk away.

A fourth distinction is worth flagging. Delivery to the buyer (Section 33) and delivery to a carrier (Section 39) — the latter is, prima facie, the former, but the seller must make a reasonable contract of carriage and, where applicable, give notice to enable the buyer to insure. A seller who delivers to a carrier on unreasonable terms has not, on the buyer's election, performed his side of the bargain. The point is the gateway into the unpaid-seller chapter, where parting with possession to the carrier is precisely the act that switches off the lien and switches on stoppage in transit. A fifth point that examiners enjoy is the rule on examination after taking delivery: the proviso to Section 16(2) means that the protection accorded by the doctrine of caveat emptor and its statutory exceptions turns substantially on whether the buyer used the opportunity afforded by Section 41(2).

Putting the chapter together

Sections 31 to 44 of the Act form the operating manual for performance. Section 31 sets the duties; Section 32 puts them on a concurrent footing; Section 33 supplies the modes of delivery; Sections 34 to 40 supply the default rules; Sections 41 to 44 then govern the buyer's side — examination, acceptance, rejection without return, and the consequences of refusing delivery. The cases — Vishnu Sugar Mills, Maple Flock, Hardy v. Hillerns, Moore v. Landauer, Galbraith v. Block — supply the working illustrations, and the architecture is sufficiently tight that examiners can frame an MCQ on almost any clause. The companion chapter on the rules as to delivery drills into Section 33 and Section 36, and the unpaid seller chapter shows what happens when the buyer fails to pay despite a proper tender. Read in sequence, the three chapters cover the entire post-formation life of a contract of sale.

Frequently asked questions

Is taking delivery the same as accepting the goods under the Sale of Goods Act?

No. Section 41(1) makes clear that taking delivery does not amount to acceptance. The buyer is not deemed to have accepted the goods unless and until he has had a reasonable opportunity of examining them under Section 41, or has done one of the three acts listed in Section 42 — intimation of acceptance, an act inconsistent with the seller's ownership, or retention beyond a reasonable time without rejection. The two acts may occur close in time, but they are conceptually distinct, and the right of rejection survives delivery and dies only on acceptance under Section 42.

What is the rule under Section 32 of the Sale of Goods Act on concurrent conditions?

Section 32 provides that, unless otherwise agreed, delivery and payment are concurrent conditions — the seller must be ready and willing to give possession in exchange for the price, and the buyer must be ready and willing to pay in exchange for possession. Neither party can call upon the other to perform unless he himself is ready and willing. Readiness does not require either party to perform at a moment's call, but mental preparedness is not enough — capacity to perform is essential. Vishnu Sugar Mills v. F.C.I. AIR 1987 Pat 22 applied the rule in a compulsory-sale context.

When is breach of an instalment delivery a repudiation of the whole contract?

Section 38(2) makes it a question of fact in each case, depending on the terms of the contract and the circumstances. Two factors govern: the quantitative proportion the breach bears to the whole, and the degree of probability of repetition. Maple Flock Co. v. Universal Furniture Products held that one defective instalment of 1.5 tons out of 100, with twenty satisfactory instalments, was not a repudiation. Vishnu Sugar Mills v. Rameshwar Jute Mills AIR 1970 Pat 323 used the same factors and added the contractual stipulation that each month's delivery was a separate contract.

Can the buyer reject the whole consignment for short delivery?

Section 37 allows the buyer to reject the goods where the seller delivers a smaller quantity than contracted for. The right is, however, subject to the maxim de minimis non curat lex — slight deficiencies must be overlooked, as held in Dhudhia Forest Coop. Ltd. v. Mohd. Saiyed (1980) 21 Guj LR 272. The misdelivery must go to the root of the contract before the buyer can reject. If he chooses to accept the short delivery, he must pay at the contract rate but does not lose the right to sue for damages for the shortfall.

Does delivery of goods to a carrier amount to delivery to the buyer?

Section 39(1) provides that, where the seller is authorised or required to send the goods to the buyer, delivery to a carrier or wharfinger is prima facie deemed to be a delivery to the buyer. The seller must, however, make with the carrier a reasonable contract of carriage having regard to the nature of the goods, failing which the buyer may decline to treat the delivery to the carrier as a delivery to himself. Young v. Hobson (1949) 65 TLR 365 illustrates the rule, where dispatch at owner's risk instead of railway risk was held unreasonable.