2021-B411-11717

SALE OF GOODS COURSE WORK

Introduction

The Sale of Goods Act Cap 82 which now applies in Uganda sets out the legal framework of sale
of goods between a buyer and a seller. The Act merely reproduces the old United Kingdom Sale
of Goods Act 1893 which was received in Uganda by virtue of the reception clause under the
Uganda Order in Council, 1902, which made applicable to Uganda, Statutes of General
application in force in the UK as on 2nd August, 1902. The SOGA came into force on the 1st
January 1932 by virtue of Ordinance No. 28 of 1930 and was codified as Chapter 79 which with
time came to be Chapter 82, as of 2000. Whereas the English Act from which the Ugandan Act
derived its numerous provisions has been amended with the latest amendment being the one in
1994, the Ugandan Act has remained static. This has preempted various stakeholders to propose
an amendment of the Act by proposing The Sale of Goods and Supply of Services Bill, 2015
currently before parliament. The law of sale of goods concerns consensual transactions based on
an agreement to buy and sell goods. This is what we call a contract of sale of goods.

The Sale of Goods and Supply of services Act, 2018 is an act that was repealed the Sale of
Goods Act Cap1 82. This act provides for the formation, effect, obligation and performance of
contracts for the sale of goods and supply of services; provides for remedies of parties under
those contracts; provides for consumer protection; and for related matter.

To a greater extent, the Sale of Goods and supply of Services Act (2018) has cured the
defects in the previous act as noted below.

1. It has provided for the provisions of consumer protection. The sale of goods act provides
various provisions that protect the consumers under sections 13- 21 to wit; protections on
quality, description, fitness for purpose and title of the goods. Section 1 defines a
consumer as a person who purchases goods and services for final use or ownership rather
than for resale or use in production.

Section 13 summaries that an implied term is every transaction of sale of goods that the seller is
deemed to be selling goods that belong to him or her.

1
Section 72 of Sale of Goods and supply of service Act 2018
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This means that a buyer or consumer who buys from a seller that does not have title to the goods
is protected except where it is established that he or she had knowledge of the fact that the seller
had o title to the goods at the time of sale.

This is one of the various ways through which the act protects the consumer against fraud and
other issues associated with contracts of sale of goods.

Section 14 of the act further provides for the consumer protection where the consumer has
described the nature of the goods needed to the seller. The act further provides that a sale of
goods transaction shall not be prevented from being a sale by description merely because the
goods have been selected by the buyer or the consumer.

2. Right to Repair and Replace

The Sale of Goods and Supply of services act provides for the consumers right to repairing and
replacement of goods where it is found that the goods do not conform to the contract of sale or
where the goods are faulty. The seller has a duty to repair or replace the goods in a reasonable
time and their cost.2

In the previous Act, the right to repair and replace wasn’t provided for thus didn’t protect
consumers hence failure to recover damages. In the case of Bartlett v Sidney Marcus Ltd. 3The
facts of the case were that the Plaintiff was informed by the Defendant’s salesman during a trial
run that there was something wrong with the clutch. Subsequently the Defendant and Plaintiff
estimated the costs of repairs. It was suggested to the Plaintiff what kind of repairs would be
done and costs thereof. Having bought the car the Plaintiff used it for four weeks and travelled
300 miles without trouble before the vehicle developed problems. The car was then taken to a
garage for repair, where it was found that the defect in the clutch was far more serious than either
the Plaintiff or the Defendants’ salesman had imagined and it cost more at £45 to put right. In an
action against the Defendants for the cost of repairing the clutch the trial judge found that there
had been a breach of the implied conditions as to fitness and merchantable quality under section
14 of the Sale of Goods Act, 1893 (in pari materia with section 15 of the Ugandan Sale of Goods

2
Section 47 of the Sale of Goods and supply of Services Act 2018
3
[1965] 2 All ER 753
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Act) and awarded £45 damages for breach of warranty. On appeal on a point of law because
there was no appeal on matters of fact Lord Denning MR held at 755:

“I have always understood that the condition under s 14(2) is less stringent than the
condition under s 14(1). ... those two tests do not cover the whole ground. There is a
considerable territory where on the one hand you cannot say that the article is “of no use”
at all, and on the other hand you cannot say that it is entirely “fit for use“. The article may
be of some use though not entirely efficient use for the purpose. It may not be in perfect
condition but yet it is in usable condition. It is then, I think, merchantable. The propeller
in the Cammell Laird case was in usable condition; whereas the underpants in the Grant
case were not. ... It means that, on a sale of a second-hand car, it is merchantable if it is in
usable condition, even though not perfect. This is very similar to the position under s
14(1). A second-hand car is “reasonably fit for the purpose” if it is in a roadworthy
condition, fit to be driven along the road in safety, even though not as perfect as a new
car. Applying those tests here, the car was far from perfect. It required a good deal of
work to be done on it; but so do many second-hand cars. A buyer should realise that,
when he buys a second-hand car, defects may appear sooner or later; and, in the absence
of an express warranty, he has no redress. Even when he buys from a dealer the most that
he can require is that it should be reasonably fit for the purpose of being driven along the
road. This car came up to that requirement. The Plaintiff drove the car away himself. It
seemed to be running smoothly. He drove it for four weeks before he put it into the
garage to have the clutch repaired. Then more work was necessary than he anticipated;
but that does not mean that, at the time of the sale, it was not fit for use as a car. I do not
think that, on the judge’s findings, there was any evidence of a breach of the implied
conditions.”

3. Acceptance of the seller and the Buyer

The Sale of Goods and Supply of Services 2018, amended the Sale of Goods Act Cap 82, by
adding Subsection 2 that states that it is the duty of the supplier of a service to perform the
service and of the buyer to accept and pay for the service in accordance with the terms of the
contract of Supply of services.
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In the case of Bakeine v Yuasa Investment Ltd 4, Counsel for the counterclaimant submitted
that the Plaintiff is liable on the counterclaim in so far as reference is made to section 27 of the
Sale of Goods Act where it is provided that it is the duty of the buyer to accept and pay for the
goods in accordance with the terms of the contract. The Defendant through its notice of
collection dated 5th of March 2013 delivered the goods for which the Plaintiff was supposed to
effect payment being a balance of Uganda shillings 18,000,000/=.

With such holding basing of the previous Act, the Sale of Goods and Supply of Services Act
2018, improved this provision to Section 34, 38 and 46.

4. Provision of the Remedies of the Buyer.

The Sale of Goods and Supply of Services Act 2018 emendated some of the sections of the
previous Act. Section 65 was added to the remedies of the buyer

Section 65 states that incidental damages resulting from the buyer’s breach include;
commercially reasonable charges, expenses. Furthermore, incidental Damages from the seller’s
breach include expenses reasonably incurred in inspection, receipt etc

In the case of Philip versus Ward 5it is noted that in cases of breach of contract, where the
buyer refuses to accept the goods, the normal measure of damages is the difference between the
contract price and the market price. The measure of damages applicable here is that envisaged by
section 50 (2) of the Sale of Goods Act cap 82, which is the estimated loss directly and naturally
resulting in the ordinary course of events from the buyer’s breach of contract.

To a smaller extent, the Sale of Goods and Supply of Services Act 2018 has failed to fulfill
its purposes and has gaps that need covered as noted below

Failure to distinguish between a buyer and a consumer

The Sale of goods Supply of Service Act 2018 seems to refer more to the buyer and not the
consumer while laying down the rights of parties in sale of goods transactions. It does not clearly
define what rights apply to the consumer and those that apply to the buyer. The term buyer does
not only refer to the consumer, it also refers to person who may buy goods for purposes of
4
HCCS 136 2013
5
[1956] 1 All ER 874
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reselling them who are not end users. The act mixes business to business transaction and
business to consumer transactions which makes it quite inapplicable to the consumers’ peculiar
rights and needs.

Failure to distinguish between a good and a service

The consumers’ right under the sale of goods act and the supply of services act should be
enjoyed in so far as the act is applicable to them. The act for example does not clearly define
what service is and whet is a good. It is hard to determine whether things such as electricity ,
water and gas are goods or services for the purpose of determining the rights of the consumer.
This makes the rights envisaged and hard to apply because it must be first clear that a particular
amenity or item constitutes a service or good before determining the right of the consumer since
the two are different.

No clear dispute settlement mechanism

The sale of goods applicability to the consumer needs and right is poor since the act does not
provide proper manner for handling of disputes between sellers and the consumers. In as much as
the act seems to provide some remedies such as damages the act does not clearly provide how
these remedies can be pursued and the specific forum to address them. Jurisdictions like the UK
have put in place institutions to handle consumer protection grievances and mechanisms for
lodging complaints that are separate from the ordinary courts.

Consumer’s right to privacy is not protected

The present sale of goods and supply of services act does not have provisions on the protection
of the consumer’s right to privacy. The protection of the right to privacy is very important
especially I the current digital age where companies and suppliers are relying more on
consumer’s data and information for the purpose of advertising. The breach of privacy is mostly
affecting the consumers of the digital products. Big tech companies like Google, Facebook,
Amazon Instagram and most recently Tiktok have access to people personal data and are being
accused of selling the same to online store and even physical stores for the purpose of knowing
their consumers’ consumption behavior. The laws on sale of goods and services should therefore
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not leave this area unregulated if they are to be applicable in the protection of the rights of
consumers.6

Consumer Rights on Delivery

Consumer rights in as to delivery of goods under the sale of goods have become inapplicable
with the technological developments that have given rise to new forms of delivery of goods
wherein the procedures followed are no longer as tradition al they were. The law has no changed
to incorporate these technological changes in the concept of delivery of goods.

6
Trade and Industry Sector of South Africa, The Consumer Protection Act, A Guide to the Consumer Rights and
How to Protect Them