Professional Documents
Culture Documents
Commercial Transactions 2_compressed
Commercial Transactions 2_compressed
· It may be the case that a companycan acquire all the capitalit needs throughthe
selling of shares
· However, in many companies, this will not be the case and the company will
need to obtain additional capital by borrowing it from others
· Companies can raise significant amounts of debt capital using debenture stocks
– these are similar to shares, except that the holder of a debenture stock is a creditor
and not a member, and is therefore entitled to interest on the loan (the debenture)
but will not receive a dividend
· A secured loan is one where the loan agreement provides the lenderwith a claim
over the company’s assets,so that if the
company defaults on the loan, the lender can seize the relevantassets and sell them in
order to satisfy the debt owed
· A further benefit of secured loans is that, in the event of the company being
liquidated, secured creditors have the right to be paid before the unsecured
creditors. Given that insolvent companies will have limited assets, this is an
extremely important advantage
CASE
HOLDING
Levy v Abercorris Slate and Slab
Co [1887]
‘Debenture’ is not a term of art, but has been defined to mean simply any document
Another [2014]
written document’ à the word ‘debenture’ has origins in the Latin word for ‘owing’
· In practice, a finance lawyeris most likelyto associate the term ‘debenture’ with
a documentthat:
o Is executed in favour of a creditor;
o A fixed chargeover the assetsof the company which are not disposedof in the
ordinary courseof business;
o It may also take an assignment by way of security over choses in action and
mortgages over specific assets such as real estate or shares
2. CHARGES
· The simplestform of charge is the fixed charge,so called becauseit is taken over a
fixed, identifiable asset of the company,
· Should the debtor company default on the loan, the creditor can look to the
charged asset to satisfy the debt, usually by selling it and recovering the proceeds of
sale
o It limits the debtor’s abilityto deal with the chargedasset (however, this created
inflexibility for the debtor)
· A more flexible form of chargeto the fixed charge was required, leadingto the
creation of the floating charge
o The charge will be taken over a class of assets (e.g. machinery, raw materials, or
even the entire undertaking), as opposed to a specific asset;
o The class of assets chargedis normally constantly changing (e.g. raw materials
will be used and replenished); and
o Floating charges leave the companyfree to use and deal with those assets
· This charge ‘floats’ over the chargedassets, but is not fixed on them, so the
company is free to use and dispose of those
assets
· The company can even grant fixedcharges on the assets over which the charge
floats,which may (depending on the terms of the floating charge) rank ahead of the
floating charge (Wheatley v Silkstoneand Haigh Moor Coal Co [1885])
· However, the company cannot create a subsequent floating charge over the
exact same class of assets as a prior floating charge, unless the first chargee agrees.
The company can, however, create subsequent floating charges over part of the
assets charged by a prior floating charge and the general rule is that later charges
rank behind earlier ones (although the terms of the first charge may
provideotherwise)
· Upon the occurrence of certain events, the charge will cease to float and will
become affixed to the charged assets, whereupon the company’sability to deal with
the charged assets will be limited (‘crystallization’). Certainevents will always cause a
charge to crystallize, including:
FIXED CHARGE
FLOATING CHARGE
Legal or equitable?
entire undertaking
asset(s)?
charged assets
areas?
Priority?
Ranks ahead of all other debts
Reliant on liquidator?
Not reliant on the liquidator – Fixed charge holders can obtain the charged asset
and sell it
Floating charge holders are reliant on the liquidator to obtain satisfaction of their
debt
charge
floating charges
CASE
HOLDING
(i) The court will look at the charge instrument in order to determine the
rights and obligations that the parties intended to grant each other – it is not the
task of the court to determine what type of charge the parties intended to create
(ii) The courts will use these rights and obligations to determine, as a matter
of law, whether the charge was fixed or floating
Since the courts are not concerned with the type of charge that the parties intended
to
create, it follows that the courts will not regard the parties’ own classification of the
charge as conclusive
Russel Cooke Trust Co. Ltd v Elliott [2007]
The courts will contradict the parties classification of the charge if the rights and
obligations imposed by the charge are not consistent with the label that the parties
have attached to it à in this case, the High Court held that what was described in
the charge
A company obtained an overdraft facility from a bank, with the bank taking what
was purported to be a fixed charge over the company’s book debts as security. The
charge required that the company could not sell, charge, or assign the book debts
without the bank’s consent, and that the proceeds of the book debts were to be paid
into the bank account that the company held with the bank. The company was,
however, free to draw upon the account, providing that the overdraft facility was
not exceeded. The company entered liquidation and, in order to determine the
priority of the company’s creditors, the court had to determine whether the charge
was fixed or floating
Held: The House held that the charge was a floating charge. Lord Scott stated that
the key feature of a floating charge was that it grants the chargor (the company) the
right to use the charged asset, including removing it from the scope of the charge.
As the company could draw from the bank account, the rights granted to the
chargor indicated
2.4 REGISTRATION
· For obvious reasons, prior to providing a company with capital,a potential
creditorwill want to know of any charges over
CHAPTER8: PARTNERSHIPS
· Section 3, Partnership Act 2012 (‘PA 2012’) defines partnership as the relation
which exists between persons carrying on a business in commonwith a view to
profit
o One advantage of a general partnership over LPs and LLPs is that they are simple
and cheap to set up; no formal agreementis necessary as the terms of the PA 2012
will apply in default of agreement
i. General partners – they have the responsibility for managing the LP’s
business and have unlimited liability for the firm’s debts and obligations; and
ii. Limited partners – who invest capital in the LP, but do not take an active
role in the LP’s operation and
have limited liability up to the amount of capital that they have contributed
o LPs are governedby a relatively light regulatory and statutory regimeas compared
to companies
o This flexibility afforded to LPs means that they may vary in size and nature from
two-person LPs to largerLPs with more complex structures (they are often used as
vehiclesfor venture capitalfunds)
· Limited Liability Partnerships are incorporated under the Limited Liability
Partnerships Act 2011 (‘LLPA 2011’)
o However, in return for such limit on liability, the accounts of the LLP are public
and there is the administrative and cost burden of regularly filing returns and forms
with theRegistrar of Companies
FEATURE
GENERAL PARTNERSHIP
LIMITED PARTNERSHIP
LIMITED LIABILITY
PARTNERSHIP
PARTIES
Partners
General Partners: responsible for managing the LPs business and have unlimited
liability for the firm’s debts and obligations
Limited partners: who invest capital in the LP, but do not take an active role in the
LPs operation, and have limited lability up to the amount of
Members à
GOVERNING LEGISLATION
No – E.g. when a general partnership or legal partnership owns a building, then the
building is owned by the partners and held in trust for the partnership (i.e. the title
deed will have the name of the partners)
Yes à An LLP is a body corporate and a legal entity separate from its members (S. 6,
LLPA 2011).
FORMATION
No registration required à
Yes à
FORMALITIES
AND
Certificate of Incorporation
LIMITED
No à
Yes à
Yes à
LIABILITY FOR
PARTNERS/
MEMBERS
2012).
PA 2012).
MEMBERS
Minimum number: 2
No upper limited.
No upper limit.
No upper limit.
Partners can be companies.
FILING REQUIREMENTS
None
Certain changes to the LP and the partners, their liability and the sums contributed
have to be registered
to be registered
ACCOUNTING REQUIREMENTS
b. The record are, on request, made available to the partnership or to any partner.
LLPS must lodge annual declarations of solvency or insolvency with the Registrar.
(1) A limited liability partnership shall lodge with the Registrar a declaration by
one of its managers that in the opinion
(2) Any partner shall have the duty to cooperate with the person keeping records of
the partnership or drawing up the accounts of the partnership on behalf of the
partnership
(1) An LLP shall keep such accounting and other records as will –
b. Enable a profit and loss account and a balance sheet to be prepared, from time
to time that gives a true and fair view of the state of affairs of the partnership
INTERNAL REGULATION
Governed by private LLP agreement with default rules in LLPA 2011 applying in
absence of specific agreement.
No constitutional documents.
MEMBERS
Yes
EXECUTION OF DOCUMENTS
SIMPLE CONTRACTS
A partnership has no legal personality and contracts with third parties through one
or more of its partners, or other duly authorised agent. The formalities for
executing a written contract that is intended to bind a
A limited partnership has no legal personality and so will usually contract with
third parties through its general partner(s). each general partner’s capacity to
contract depends on the nature of its own legal personality.
A simple contract with an LLP can be made in either of the following ways:
i. By the LLP itself, in writing and under its common seal (S. 7(2) LLPA 2011); or
personality of the person executing the contract for the partnership.
ii. On behalf of the LLP by anu person acting under its authority, whether express
or implied (S. 43(1)(b), CA 2006, as modified)
DEEDS
Deeds should be executed by all the parties in a partnership unless one partner has
been given the requisite authority by deed, e.g. through a power of attorney, to
execute the deed on behalf of all the partners.
· The form of execution will depend on the legal personality of the executing
partner;
· The instrument should make it clear that: the deed is made in the firm’s name;
the obligations in the deed are undertaken by the partner’s as a whole (not just the
executing partner); and, the person executing the deed does do as an agent of the
firm (S. 20, PA 2012)
The general partner must be given express authority, conferred by deed, to execute
the proposed deed on the LP’s behalf.
· The form of execution will depend on the legal personality of the executing
partner;
· The instrument should make it clear that: the deed is made in the firm’s name;
the obligations in the deed are undertaken by the partner’s as a whole (not just the
executing partner); and, the person executing the deed does do as an agent of the
firm (S. 20, PA 2012)
· Signature on behalf of the LLP, either: two members of the LLP, or, a single
member of the LLP in the presence of a witness who attests the member’s signature
Whether the member executing a document on an LLP’s behalf is itself a body
corporate, it must act through the agency of a duly authorised natural person (CA
2015).
HOLDING ASSETS
A general partnership does not have a separate legal personality so it cannot own
assets in its own name.
Assets are normally held in the name of individual partners who hold the assets as
trustees for the partnership.
An LP does not have separate legal personality so it cannot hold assets in its own
name.
TAX
TRANSPARENCY
Yes
CESSATION OF PARTNERSHIP
i. Expiration of a fixed term or the end of the venture for which the LP was
established;
ii. Illegality;
iii. Any limited or general partner may make an application to the court for
dissolution of the LP on grounds of: another partner’s permanent incapacity;
conduct by a partner calculated to prejudice the carrying on of the business;
deliberate or persistent breach of the LP agreement by a partner; the partnership
business only being carried on at a loss; or a dissolution being ‘just and equitable’.
BUT: the death or bankruptcy of a limited partner and the mental disorder of a
limited partner, unless their share cannot otherwise be ascertained and realised, are
not grounds for
Positive steps must be taken to terminate an LLP. It will not dissolve automatically.
The routes to termination are:
· The words ‘agent’ and ‘agency’ are often used in business, and even by courts,
to refer to relationships which fall short of the classiccommon law definition of the
agency relationship
· In the broadest sense of the word, the common law of agency determines who
(if anyone) is acting on behalf of whom, with what authority, and for how long,
when three or more persons or groups of persons become involved in dealings with
each other
o Sometimes, all the parties might be actingas principals (e.g. seller, resellerand
end-user purchaser)
· Note: the authority granted to the agent may fall short of an authorisation to
enter into binding legal relations on behalf of the principal, and without prior
reference to the principal
· In the classic common law agency relationship, the agent has the power to bind
and give rights to its principal when dealing with another principal
· Once the two principals are in a legal relationship with each other,the agent
dropsout of the transaction, with no furtherrights or dutiesconcerning the
transaction itself but with residual rightsagainst its principalarising out of the
transaction
CASE
HOLDING
Garnac Grain Co. Inc v HMF Faure and Fairclough Ltd [1968]
‘The relationship of principal and agent can only be established by the consent of
the principal and the agent. They will be held to have consented if they had agreed
to what amounts in law to such a relationship, even if they do not recognise it
themselves and even if they have professed to disclaim it … But the consent must
have been given by
each of them, either expressly or by implication from the words and conduct’
[1982]
‘The general principle is, of course, that a person who makes a contract ostensibly as
an
· Agency relationships are most often created under the law of contract, but the
relationship between principal and agent need not be contractual à anagent can act
gratuitously, without any compensation or reward
· Agency relationships have many implied rights and duties which will not be
implied undera purely contractual relationship
CASE
HOLDING
consent by the agent to his exercising such authority on behalf of the principal’
· A ‘full common law agent’is an intermediary with the authority to change the
legal positionof its principal
· Examples of roles which may not give rise to a full common law of agency:
(i) Company director: usuallya full common law agent of the company
(ii) Company employee: may be a full common law agent of the company,
depending on the seniority, job title, how she/he is held out by the company, etc.
(while otheremployees may be limitedagents only)
(iii) Estate agent:not a full common law agent of the seller,because he/she does
not have power to enter into legally bindingcommitments on behalfof the principal
(though he/shemay sometimes owe fiduciary duties)
(iv) Recruitment agent:not a full common law agent of the candidate, but
merely has the task of bringingthe employer and prospective employee together
(v) Auction house: usually a full common law agent for the seller and, if
necessary, the buyer (Phiips v Butler [1945])
LAW COST BUSINESS EXPANSION: an agent allows the principal to expand its
business without making a significant further
investment
REDUCED REVENUE: in the case of a business agency, the principal will usually
be obliged to give the agent some of its margin. Generally, a principal will need to
reimburse the agent in one way or another
Apart from the risks inherent in any business, there are few disadvantages in acting
as an agent, since the central concept of common law agency is that the agent drops
out of the chain of liability once a contractual relationship is secured between
two principals.
business can benefit from the success of a business that is already well established
UNAUTHORISED ACTS: the agent might act beyond the scope of its actual
authority, but not beyond the scope of its apparent authority, so that the principal
is saddled with unexpected
liability
become liable on a transaction, instead of, or in addition to, the principal, e.g. by
accidentally exceeding its authority
CIVIL OR CRIMINAL LIABILITY: following from the above, the agent might
make the principal civilly or criminally liable. A principal is liable for the torts of its
agent in accordance with
BRIBERY: the agent might make corrupt payments and contribute to criminal
liability on the part of the principal under the Bribery Act 2016 if the principal has
failed to implement
3. CREATION OF AGENCY
Express
Appointment
Implied Appointment (Conduct)
Appointment
by Necessity
Appointment by Ratification
· An agency can come into being through the conduct of the parties, e.g. a
principalmight recognise or acquiesce in the acts of another, and those acts might
be consistent with the principal/agent relationship (Targe Towing Limited v Marine
Blast Limited [2004])
o The conferring authority does not have to be proved by direct evidence– even
circumstantial evidence will suffice
o Circumstantial evidencecan include things said by the agent to the other party
(Monde Petroleum SA v Wrsternzagros Limited [2016])
o Where an agent alleges to have been authorised, the question is whether or not
the agent is reasonable in forming the impression that it has been authorised by the
principal to do whatever it did
o Where an agent allegesnot to have been authorised, the consent of the agent may
be inferred from the fact that it acted on behalf of a principal
o Note: the mere fact that an agent did what was requestedby the principal does
not mean that it did so on the
principal’s behalf
3.3 APPOINTMENT ON THE BASIS OF NECESSITY
· In certain cases, the law may treat an agent as ‘an agent of necessity’ – i.e. to do
something which the agent would not otherwise have authority to do on behalf of
its principal, where there is already an agency relationship, or even where there is no
pre-existing agency relationship at all
(iii) The agent is unable to obtain expressauthority from the principal in time
to take the necessary remedialaction
o The master of a ship enters into a salvage agreement to save the principal’s cargo
(The Unique Mariner (No. 1) [1978])
(i) The warehouse acts as an agent for the principal so as to commit the
principal to sell the produceto the purchaser, so that there is a contract between the
purchaser and the principal;
(ii) The warehouse sells the produce as principal, is liable itselfto the
purchaser for any breach of contract, and must accountto the principal for the
purchase price; or
(iii) The warehouse is entitled to compensation from the principal under the
law of restitution
o No authorityof any kind was grantedin the first place, in which case ratification
operatesas an original appointment;
· Ratification has been referredto as a unilateral act of the will, and does not
depend on estoppel
· There is alsono need for the principal to communicate the fact of ratification to
the thirdparty
· Silence or inactivity may not be enough to constitute ratification, but may do
so if the inactivity results in a state of affairs which is inconsistent with treating the
transaction as unauthorised (Yona International Ltd v La Reunion)
o Or, a third party might want to argue that a principalhas ratified the contract
entered into by the agent, so that
CASE
HOLDING
An agent purchased wheat in its own name, intending it to be a joint purchase for
the benefit of another, but without authority, and so the subsequent approval of
the transaction by the other purchaser did not amount to ratification. As a result,
the supplier did not succeed in holding the initially undisclosed joint purchaser
liable for the failure of both purchasers to take
· As with any other agency agreement, the agent drops out of the transaction but
retains its right to be paid fees and expenses in accordance with the agreement
· The principal in these situations might be considered to have waived any claim
it might have had against the agent for exceeding its authority, but it might still have
a claim if it suffered additional loss as a result of the agent’s acting beyond the scope
of its authority
· An agent is said to have actual authority when what it does is authorised by its
principal – whether expresslyor impliedly
CASE
HOLDING
‘An ‘actual’ authority is a legal relationship between principal and agent created by a
consensual agreement to which they alone are parties. Its scope is to be ascertained
by applying ordinary principles of construction of contracts, including any proper
implications from the express words used, the usages of the trade, or the course of
business between the parties. To this agreement the contractor is a stranger; he may
be totally ignorant of the existence of any authority on the part of the agent.
Nevertheless, if the agent does enter into a contract pursuant to the ‘actual’
authority, it does create contractual rights and liabilities
CASE
HOLDING
Lord Denning relief on freeman and Lockyer v Buckhurst Park Properties and then
went on to say the following:
a. The principal in some way represents or holds out the agent as having an
authority which is wider than the agent’s
actual authority (the person makingthe representation must have some authority to
make representations);
b. The agent commits the principal to a thirdparty within the scope of that
wider,apparent authority; and
· Where the agent acts within the scope of his apparentauthority, the principal is
bound to the same extent as if he actually authorised the transaction expressly
CASE
HOLDING
· The logical basis for the doctrine of apparent authority has been found in the
idea that the transaction, when viewed objectively, simplyresults from an
agreement, as with the formation of a contract: “where an agent is ostensibly
authorised to make an offer on behalfof the principal, any offer the
agentsubsequently makes that does not appear to transgress the scope of the
authority conferred indicates, viewed objectively, the willingness of the principal to
contract on the terms stated”
· The alternative approach, as outlined above and followed in many of the cases,
is that the doctrine of apparent authority is based onestoppel
· One problem with the estoppel approach is that, while the principal is
estopped from denying the contract that has been entered into in reliance on the
representation of authority, it acquires no rights under the contract. The doctrine
of estoppel in thiscontext confers rights on the third party, but not on the principal
CASE
HOLDING
‘In ordinary business dealings the contractor at the time of entering into the
contract can in the nature of things hardly ever rely on the ‘actual’ authority of the
agent. His information as to the authority must be derived either from the principal
or from the agent or from both, for they alone know what the agent’s actual
authority is. All that the contractor can know is what they tell him, which may or
may not be true. In the ultimate analysis he relies either upon the representation of
the principal, that is, apparent authority, or upon the representation of the
· A third party can generally rely on ostensible authority provided it does not
have knowledge of a relevant restriction or lack of authority, and where there are no
suspicious circumstances
· Questions to ask when deciphering the ‘apparent authority rule’ include: was
the belief reasonable? Did he have actual belief in the apparent authority, regardless
of the reasonableness or otherwise of the belief? Did the third part act dishonestly,
in bad faith,or irrationally in relying on the agent?
estoppel by representation:
o Ifa party has relied upon the truth of a representation, it is no answer to say that,
if he had thoughtabout it, he must have known that it was untrue
· Anagent has authorityto do what is usual for someone in the agent’s position –
‘usual authority’ can be considered as a type of impliedauthority; a type of apparent
authority; or, an independent kind of authority
· The principalis liable for all the acts of the agent which are within the authority
usuallyconfided to an agent of that character, e.g. one wouldexpect a horse-dealer to
have authority to warrantthat the horse was sound
· This is a type of ‘usual authority’, but with tighter rules on the application of
the doctrine due to the fact that most case s have arisen in relatively sophisticated
trading situations
· When an agent’s authority is derived from trade usages and customs, the same
must be more thanpatters of consistent behaviour – they must be accepted in the
trade as binding à Drexel Burnham Lambert International BV v Nasr [1986]: ‘what
has to be shown by evidence is that the custom is recognised as imposing a binding
obligation’
(iv) Reasonable – e.g. custom giving rise to conflicts of interest are not
considered reasonable; and
EXCLUSIVE RIGHTS
These prevent the principal from actively seeking sales in the agent’s territory, and
from appointing other agents or distributors there. However, the principal may
reserve certain rights to itself, e.g. right to continue
SOLE RIGHTS
These prevent the principal from appointing another agent for the territory and
other distributors, resellers,
etc. but will not prevent the principal actively seeking sales itself in the territory
NON-EXCLUSIVE
RIGHTS
These leave the principal free to appoint other agents and resellers, and actively seek
sales in the territory
· A ‘disclosed principal’ is one where the third party is aware that the agent is
acting on behalf of another person
o An identified principal: the third party knows the identity of the person with
whom it is contracting (via the agent)at the time the contract is made
o An unidentified principal: the third party knows the agent is acting on behalf of
another person but does not know the identity of the other person. However,
identification could, if necessary, take place at the time the contract is made.
o Direct contractual relations will be established between the principal and the
third party, so that only the principalcan sue or be sued on the contract; and
o The agent is not generally liable on the transaction to the third party unless he
agrees to be so (expressly orthrough trade custom)
· The third party believesit is contracting directly with the agent, believing the
agent to be the principal, when in fact the agent is actingon behalf of anotherentity
(its principal)
· Where a third party does not know that the agent is actingon behalf of a
principal, several scenarios are possible:
a. If the third party is never aware that the person with whom it isdealing is an
agent, then the partiesto the contract are the third party and the agent (who has not
revealedthat it is an agent)
(i) The third party may either treat the agent with whom he contracted as the
principal, or accept the true principal, in which case the agent is relieved of its
obligation to the thirdparty; and
(ii) The principal may enforce the contract made on his behalf
CASE
HOLDING
(ii) In entering into the contract, the agent must intend to act on the
principal’s behalf,
(iii) The agent of an undisclosed principal may also sue and be sued on the
contract;
(iv) Any defence which the third party may have against the agent is available
against his principal;
(v) The terms of the contract may, expressly or by implication, exclude the
principal’s
However. Each situation will depend on its own facts, e.g. if a third party has made
it clear that it did not wish to contract with anyone other than the agent.
· The logic here appearsto be that the third part shouldnot be at a disadvantage
where the agent has not revealed that he
is acting on the principal’s behalf
· The third party is entitled to deal with the personwhom it thought was the
principal. In addition, it is also fair to allow the third party to have theoption of
dealing with the real principal, if he so chooses
· The problem arises where the agent requests the contact details of the principal
for purposes of exercising its enforcement rights against the person, they lieà there
are two approaches to this problem in other jurisdictions:
(i) An agent that acts for an unidentified principal assumes personal liability
on the contract from the outset, unless a contrary intention is apparent;
(ii) On the other hand, the principal is liable under normal agency principles
and the agent is under an obligation to reveal the identity of the principalwithin a
reasonable time on demandof the third party, failingwhich the agent becomes liable
· The positionunder English law is not clear, but one can speculate as follows:
o Ifthe agent does not disclosethe identity of the principal, a court wouldstrain
to make the agentliable on the contract, and the agent would need to look to the
principal under the implied indemnity from principal to agent under common law;
or
o If the agent does disclose the identity of the principal, there is a possibility of
the agent being liable to the principal for breach of an express or common law duty
of confidentiality (but query whether the principal would have suffered any
additional loss as a resultof the breach)
7. DISTRIBUTOR/RESELLER v AGENT
· ‘Commercial agent’ is a loosely used term often referring to someone that acts
on behalf of another in a businesscontext
· The principal usually agrees to pay to the introduction agent commission based
on the value of the supply contract if the third party purchases the principal’s assets,
goods or services, alternatively, the principal may be willing to pay a fixed finder’s
fee forevery introduction that the introduction agent makes
· Many of the common law rights and duties applicable to a full common law
agency relationship will apply as between an introduction agent and its principal
CASE
HOLDING
Estates [1987]
context, unless the provisions of the contract of the facts negative the implication
The main rationale for implying a term that the agent has to be the effective cause
of the transaction to earn commission is to reduce the possibility that a client is
obliged to pay commission to more than one agent.
The paymen of two compensations is to be avoided, but there will be cases where
the terms of
the relevant contracts and the facts compel the payment of two commissions
[1993]
Where an effective cause term is implied, the burden is on the agent seeking the
commission to
· A del credereagent guarantees to its principal the payment of the priceof goods
or services sold (Morris v Cleasby[1816])
· Although del credere agents are not common in modern commercial situations
(mainly due to the availability of other forms of creditprotection), note that:
o The liability of a del credere agent to its principal is limited to ascertained sums
which becomedue as debts
o In all other respects, the del credere relationship is a classic common law agency
relationship. All disputes arising out of the contract are between the principal and
the customer with whom the principal has a contract throughthe agency of the del
credere agent
· While the del credere agent guarantees the paymentfor the price of goods or
servicessold, this obligation is not a promise to answer for the debt, default or
miscarriage of another, since the del credere obligation is incidental to another
transaction
· Therefore, a del credere agency does not need to be evidenced in writing, but
may be inferred from a courseof conduct
selling or disposingof the goods to another,if this is within the scope of the
agent’sactual authority
· However, at common law, the mere fact that an agent may have been entrusted
by its principal with the possession of goods or documents of title did not of itself
enablethe agent to make a transfer of the goods binding on the principal, not did an
authority to sell the goods include apower to pledge them
· This state of affairs created risks for those dealing with mercantile agents or
factors, whose business it was to take possession of goods with a view to selling
them on behalfof a principal
· The Factors Act 1889 is still in force and narrows down the common law
definition of a mercantile agent: ‘a mercantile agent having in the customary course
of his business as such agent authority either to sell goods, or to consign goods for
the purposes of sale, or to buy goods, or to raise money on the securityof goods’
· Both the Factors Act 1889 and the Sale of Goods Act 1979 include provisions
designated to allow valid transfers of goods from mercantile agents, or others in
possession of goods or their document of title, to bona fide third-party recipients of
the goods,in good faith without notice of any lack of authority on the part of the
transferor
· This person could be the managingdirector, the board of directors, one or more
directors, a manager, an employee, etc.
o Any major transaction should be approved by the Board which will normally
authoriseexecution of the necessary documents– a certified copy of the board
resolution should be requestedby the other party;
o Details of the directors and secretary of a company are kept by the Registrar of
Companies – these should be checked to ensure that the relevantsignatories are duly
appointed officersof the company
9. DUTIES OF AGENT TO PRINCIPAL &RIGHTS OF PRINCIPAL
· Most agency contracts are recorded in a written contract, so the most obvious
obligation of an agent to the principal will be to complywith the terms of the
agency agreement (failing which, he will be liable for breach of contract)
· Subject to what is written in the agreement, the agent also has furtherbasic
duties, impliedby common law and by equity
· This duty mirrors the duty of the agent to comply with the contractual
obligations set out in a written agreement. Therefore,
o The appointment may be drafted in such a way that the agent becomes
strictlyliable for a failure to perform, with no requirement for the principal to prove
negligence if the agent fails to discharge its duties. Such a duty should only be
accepted by an agent if the nature of the task is clear, e.g. to put up for sale certain
items (but not other items)for certain minimum prices
o On the other hand, the obligations on the agent may be general, giving the agent
a discretion as to how to achievegeneral goals, in which case terms may be implied
into the appointment that the agent will exercise reasonable care and skill in the
discharge of his duties, but there will be a reasonable amount of leeway as to how it
goes about it
· An agent who fails to carry out instructions generally has no right to
remuneration, because either a trigger event has not occurred, or because there has
been a total failure of consideration. In addition, the agent may have liability in
damages for breach of contract
· The liability of a gratuitous agent is in tort, and arises when the agent has
assumed responsibility to act, but either fails to act, or, when acting, fails to exercise
reasonable care and skill (Hendersonv Merrett Syndicates [1995])
· An agent that exceeds its authority will be liableto its principal for loss caused
by the unauthorised actions
· An agent who acts for two principals with potential conflicts of interest,
without the informed consentof both, is in breachof the obligation of undivided
loyaltyà FHR EuropeanVentures LLP v Cedar CapitalPartners: ‘he puts himself in a
positionwhere his duty to one principal may conflictwith his duty to theother’
o If the contract under which the agent is acting authorises him to do so, the
normal fiduciary duties are modified accordingly (Henderson v Merrett Syndicates
Ltd [1995])
o Such a term can be implied in the common situation where a principal is aware
that an agent instructed to sell propertyor goods also acts for other
competingprincipals. Estate agents act for many clients,so where there are
properties of a similar specification and price, there will be a conflict of interest in
relation to the estate agents’ principals. Despite this conflict, estate agents must be
free to act for severalcompeting principals, otherwise they would be unable to
perform their function
CASE
HOLDING
the agent having derived the relevant benefit from assets which were, or should be,
the property of the principal. If an agent is considered a constructive trustee for its
principal of any unauthorised benefits it receives the result is that it will be
personally liable to account for such benefit, but also the principal will enjoy
priority over other creditors in the event of the agent’s
insolvency
· Because the fact of commission was disclosed, it could not see how the
borrowers could “reasonably have expected undivided loyalty”. It found that the
broker was not the borrowers’ agent and did not owe a fiduciary duty.
CASE
HOLDING
An agent has no right to employ as against his principal materials which that agent
has obtained only for his principal and in the course of his agency. They are the
property of the principal. The principal has … such an interest in them as entitles
him to restrain the agent form the use of
them except for the purpose for which they were got
The rule that a person may not derive a profit from the use of confidential
information ‘depends on the broad principle of equity that he who has received
information in confidence shall not take unfair advantage of it. He must not make
use of it to the prejudice of him who gave it without
obtaining consent’
CASE
HOLDING
The court held him liable for the amount of the discounts which he did not pass on
to the principal
‘The rule of equity which insists on those who by use of a fiduciary position make a
profit, being liable to account for that profit, in no way depends on fraud, or
absence of bona fides; or upon questions or considerations as whether the property
would or should otherwise have gone to the
plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff,
or whether the
plaintiff has in fact been damaged or benefitted by his action. The liability arises
from the mere fact
· In most situations, money will not pass through the hands of the agent à
however, where it does, the question is whether the agent holds the money on trust
for the principal or whether it is simply a debtorto the principal
o If the agent mixes the principal’s money with his own, or to buy property, the
principal is nonetheless entitled to be repaid up to the value of the contribution;
o The principal may be able to trace and recoverthe money from third parties
(other than bona fide purchasers)
9.9 DUTY NOT TO DELEGATE AUTHORITY
· The general rule is that an agent is not allowed to delegate its authoritywithout
the approval of the principal ( McCann (John) & Co v Pow [1974]) à consistent
with the maxim ‘delegatus non potest delegare’(a delegate cannotdelegate)
· In an agency situation, the principal is assumed to have chosen the agent after
an assessment of the agent’s skill and
o Where the delegated duties are routineand do not require particular skills;
· Where delegation is permitted, the principal will be liable for the acts of the
sub-agent. However, the sub-agent will normally be responsible to the agent, not to
the agent’s principal, on the basis that there is no contract between the principal
and the sub-agent. However, the sub-agent may be liable directly to the principal in
tort, for example, for negligent misstatement, under the principle in Hedley Byrne
& Co v Heller [1964]
These terms may be set out in the contract, or implied by statute, but may be
excluded by contract (subject to statutory
control)
Not to put itself into a situation where its interests will conflict
competing interests
There will normally be no implied obligation on a party to disclose, for example, it’s
costing or profit margins. Therefore, depending on all the circumstances, a builder
would normally be under no obligation to reveal that, as well as charging its
customer, it is also receiving a discount from its supplier. Of
To account to the principal for property and the money of the principal that is
under its control
Contractual duties can be subcontracted by one party, and the other party is
generally obliged to accept the subcontractor’s performance if the subcontractor
fulfils all that the subcontracting party had agreed to do. This may not suit the
other party, but if it failed to prohibit subcontracting expressly in the contract, it
will be deemed to have consented to the
subcontract
10. DUTIES OF PRINCIPAL TO AGENT & RIGHTSOF AGENT
· In situations where the agent introduces a customer to the principal but the
principal, for its own reasons, decides not to proceed, the courts have felt able to
imply a term into the agency agreement which might enable the agent to recover
commission, or damages as compensation for loss of commission
· The implied term would need to have the effect that the agent should not be
deprived of is commission of it has done all that was required of it, but the
principalhas for its own reason breacheda commissionable contract
CASE
HOLDING
Cooper [1941]
In several cases, the courts have refused to imply a term to the effect that the
principal is under
– Patten [1981]
However, where the principal for its own commercial reasons put itself in breach of
a concluded cement purchase contract, the Court of Appeal was able to imply a
term into the associated
agency contract which had the effect of ensuring the agent its commission
o Pay all the expenses of the agentproperly incurred in discharging its agency
obligations (Anglo-Overseas
o Indemnify the agent against all liabilities incurredby the agent in the
performance of lawful acts within the scope
· The implied indemnity does not extend to liabilityarising from the agent’s
acting outside the scope of its authority,nor
· Where an agency is gratuitous then rights to expenses may arise underthe law
of restitution
(ii) If it executesa deed in its own name other than under a power of attorney;
(iii) Ifthere is a custom of the trade that an agent is personally liableon the
contracts that it makes, especially if the agent does not name the principal;
(iv) Where the agent enters into a contract as an agent, but is in fact acting on
its own behalf (whetheror not this is the casewill usually turn on an interpretation
of the contract);
(v) Where the agent enters into a collateral contract confirming the main
contractor an associated contract; or
· The third party is deemed to supply consideration for the collateral contract by
enteringinto the main contract with the principal
· The claimantin an action for breachof warranty of authority must prove that:
o The would-be agent represented that it had authority to act as an agent on behalf
of the principal
o There was nothing to put the third party on notice that the would-beagent
lacked authority; and
· Aprincipal will also be liable where it does not inform existing customers and
the world at large that another person is misrepresenting itself as an agent
o AJU Remicon V Alida Shipping Company [2007]: ‘an estoppel by acquiescence
will arise where the putative principal is aware that an agent is purporting to act as
such but fails to take steps to intervene when those could readily have been taken’
o City Bank of Sydney v McLaughlin [1914]: ‘in general a man is not bound
actively to repudiate or disaffirm an act done in his name but withouthis authority.
But this is not the universal rule. The circumstances may be such that a man is
bound by all rules of honesty not to be quiescent, but actively to dissent, when he
knows that others have for his benefit put themselves in the positionof
disadvantage, from which, if he speaks or acts at once, they can extricate themselves,
but from which, after alapse of time, they can no longer escape’
· Where the principal does not know the identityof the unauthorised agent or
the third parties to whom the misrepresentations have been made, that would seem
to reduce the chances of liability considerably
· As for whether a principal can be liable on a contract which the principal has
no seen, this depends on whether the agent is acting with the scope of its actual or
apparent authority – the answer ordinarily turns on the wording of the specific
agency contract, and in particular, the extent to which the principal has held the
agent out as havingauthority
· E.g. if the agent has actual or apparentauthority to enter into a certain type of
contracton behalf of its principal, and does so, it will not matter whether the
principal has seen the contract or not (it will still be bound)
13. RIGHTS AND DUTIESOF THIRD PARTIES AGAINSTPRINCIPAL
AND AGENT
· A third party will have the right to enforce against a principal the commitment
of an agentmade on behalfof the principal, if the agent is actingwithin its actual or
apparent authority à the third party sues the principal, the agent havingdropped
out of thechain (Freeman and Lockyer v Buckhurst Park Properties (Mangal)Ltd
[1964])
· If a third party does not know that the person with whom it is dealing is an
agent, then the third party can enforce its contract againstthe agent. However,if the
third party gets to know that the person who he thinks is the principal is in fact the
agent,it may sue either the agent or theprincipal. If the latter, the agent drops out of
the chainagain
· Although itcan be said that the third party has the right to enforce the contract
made by an agent on behalf of its principal, the usual rule with regard to specific
performance applies, i.e. specific performance will not be available if damages
constitute an adequate remedy
14. REMEDIES
(iv) Anaccount and paymentof monies received– e.g. where an agent makes an
unauthorised profit from the use of his position,even in the absence of misconduct
(vi) Equitable liens – generallythe agent may get a lien over the principal’s
property
(vii) Rescission – this involves the setting asideof a contract, and is available at
common law and in equity
(ii) Damages where thereis no contractual link, e.g. for breachof an equitable
duty
(iii) The remedies for breach of fiduciary duties vary according to the
circumstances and are more extensive than would be available had the agent merely
been in breachof contractual duties.They include the right to an accountof profits.
In the contextof the law of agency, some recurring issues arise:
a) Whether or not the agent has misconducted itself, which may or may not be
relevant
b) Whether or not the principal has a proprietary interest in funds which have
ended up in the hands of third partiesafter breach of fiduciary duty onthe part of
the agent
(iv) It is settled law that there are circumstances in which a fiduciary (which
can be an agent) that acts in breach of its fiduciary duties can lose its right to
remuneration, e.g. in Hosking v Marathon Asset Management LLP [2016], the
High Court confirmed that a partner in breach of his or her fiduciary duty can be
deprived of the appropriate profit share in the partnership, and not just the
partner’s remuneration
(v) A fiduciary’s liabilityto account for profit made from his position does not
depend on whetherthe principal has in fact
been damaged, but from the mere fact of a profit havingbeen made in breach of a
fiduciary duty
(vi) The aim of this remedy is not to compensate the innocent party, but to
strip the fiduciary of the benefit received by the breach of theduty
(ii) A court order directing the principal to provide an account detailing all
sums received from its customers in respect of which the agent might be entitled to
commission
(iii) The court may imply an agreement to pay remuneration into the agency
contract, if there is no express contractual provisionabout payment
(iv) Agent’s lien over the principal’s property – the agent’s position with
regard to compensation and reimbursement of expenses is strengthened by the fact
that under the commonlaw, the agent has a lien over property of the principalin the
agent’s possession. The main features of a common law or legal lien are that it:
d. Does not give the creditor the right to sell the property and use the proceeds
of sale to pay the outstanding debt;
g. Can extend to all sums owed in connection with the relevanttransaction, not
just sums due in respect of the
(i) Damages for breachof contract createdby the agent between the third
party and the principal
o There is a contractual term specifying the duration of the agency and/or the
circumstances in which it may be terminated unilaterally (which is the case in most
commercial agreements); or
o The common intentionof the parties at the time when they enteredinto the
contract;
o The time that would be required by the terminated party to replacethe lost
businessrepresented by the contract;
o And, the extent to which the agent remains subjectto restrictive covenants
(iv) Winding up or bankruptcy-this arise sunder common law and will almost
invariably be one of the trigger events included within a standard termination
clause
(iii) Not to use any of the principal’s branding and otherintellectual property
(v) To delete any software made available by the principal for the purposesof
the agency
CHAPTER10: SALE OF GOODS
1. INTRODUCTION
· The law in Kenya relating to the purchaseand sale of goods is the Sale of Goods
Act (Cap. 31) (‘SOGA’)
· All other conditions prescribed by common law for validity of a contract must
be met
à note: a contract for Kshs. 200/= or more must be evidenced in writing
· The ‘property in the goods’ means the ‘ownership of the goods’ sold or agreed
to be
sold – the buyer pays not for the physical goods, but the right to own them
In Aldridge v Johnson: the court held that the apparent inadequacy of the
consideration is
legally irrelevant, and in any case the owner of the goods must be assumed to know
what he is doing
‘transferred’
This means there must be two different parties to the contract as a person cannot
sell goofs to
· The SOGA provides that ‘goods’ include ‘all chattels personnel other than
things in action and money’ – i.e. anything that can be touched, moved or taken
away but does not cover land and other species of commercial property such as
shares, debts, etc. which cannot physically be moved or taken away
(i) Specific goods: those which are identified and agreed upon at the time the
contract of sale is made (Section2 SOGA)
(iii) Existing and future goods: existing goods are owned and possessed by the
ownerwhen the contractof sale is made, while future goods are goods to be acquired
or manufactured by the sellerafter the contractis made
CASE
HOLDING
Robinson v Graves
Dispute arose over an agreement under which an artist had promised to make a
portrait for 250 guineas. It was held that this agreement was not a sale of goods
contract, but a contract for ‘work and materials’ à although a good was to be
ultimately delivered, the substance of the contract was not a transfer of
1.2 CAPACITY
· Section 4(1) SOGA: capacityto buy and sell is governed by the generallaw
concerning capacityto contract
· However, where ‘necessaries’ are sold and delivered to an infantof a person who
by reason of mental incapacity or
1.3 FORM
· Section 6 SOGA: a contract for the sale of goods to the value of Kshs. 200/= or
more cannot be enforced unless the buyer accepts and receives the goods, or gives an
earnest/had made past payment, or the party to be charged signed a written
memorandum thereof
· On the other hand, contracts for sale of goods whose value is less than Kshs.
200/= may be made in writing, by word of mouth, or implied from conduct
1.4 SUBJECT MATTER OF THE CONTRACT
· Section 7(1) SOGA: the subject matter of the contract of sale may be either
existing goods, owned or possessed by the seller, or future goods, to be
manufactured or acquired by the sellerafter the makingof the contract of sale
· Where the contract is for the sale of divisible or severable goods, it therefore
appears reasonable that Section 8 would avoid the contract as to the goods which
had actually perished
· Section 9 SOGA: where the contract is for the sale of unascertained or future
goods and subsequently the goods, without any fault of the seller or buyer, perish
before the risk passes to the buyer, the agreement is avoided
CASE
HOLDING
The plaintiffs contracted to sell to the defendants 700 bags of nuts which were
believed to be lying in certain warehouses. Unknown to them, 109 bags had
disappeared (presumably by theft) at the time the contract was made, and a further
450 bags disappeared before the goods could be delivered to the defendants. The
plaintiffs sued for the price of the goods. It was held that the
The word ‘perished’ may be construed to cover a change in the physical condition of
the goods,
which renders them unfit for the purpose for which they would normally be
bought. In such a
· Section 10 SOGA: the price for goods may be fixed by: contract; the manner
provided in the contract; or, the course of dealing of the parties à if the price is not
fixed or determines as aforesaid, the buyer must pay a reasonable price
· The contract is unvoiced where the contract specifies that the price is to be
fixed by the valuation of a third party, and that third party does not make the
valuation. However, if the failure to value is the fault of the buyer or seller, they
must pay damages
· The purpose of the implied term was to protect buyers against unfair
consequences of the common law rule ‘caveat emptor’
a) RIGHT TO SELL
· Section 14 SOGA: thereis an implied condition that the sellerhas a right to sell
the goodsand, in the case of an agreement to sell, that he will have a right to sell
atthe time that the property is to pass
CASE
HOLDING
The defendants sold the plaintiffs 3,000 cans of condensed milk which were being
shipped to the United Kingdom from America. The cans were labelled “Nissly”,
which was an infringement of the trademark of Nestle, an English company.
Customs authorities in England refused to release the cans to the plaintiff until
after the labels had been removed and destroyed. The plaintiff sold the unlabelled
tins for the best price he could obtain and then sued for damages for breach of the
implied condition. It was held that the defendants were in breach. Although they
owned the goods and so had power to sell them, they did not have the right
CASE
HOLDING
Varley v Whipp
The defendant agreed to buy from the plaintiff a second-hand reaping machine
which was stated to have been new the previous year and hardly used at all. The
defendant had not seen the machine at the time of the sale. He later refused to
accept it, on the ground that it did not correspond with the description.
Held: the machine did not correspond with its description and so the defendant
was not liable for the price.
The judge stated that the phrase “sale by description” must apply to “all cases where
the purchaser has not seen the goods but is relying on the description alone”
Grant v
The plaintiff went to the defendant’s shop and asked for a pair of long woollen
underwear. The goods were displayed on the counter before him and a sales
assistant selected a pair which he bought. The underwear contained an excess of
sulphite and the plaintiff contracted dermatitis after wearing it. The chemical
should have been removed before the underwear was sold but this had not been
done. It was held that there had been a sale by description.
The judge stated: ‘There is a sale by description even though the buyer is buying
something displayed before him on the counter: a thing is sold by description,
though it is specific, so long as it is sold not merely as the specific thing, but as a
thing corresponding to a description, e.g. woollen undergarments, a hot-water
bottle,
CASE
HOLDING
The plaintiff agreed to sell to the defendants some oil which was described as
‘foreign refined rape oil, warranted only to equal sample’. He delivered the oil to the
quality sample but which was not ‘foreign refined
rape oil’. It was held that the defendant was entitled to reject the goods
Re: Moore and Company, and Landauer and Company [1921]
The buyer ordered 3000 cans of canned fruit in crates containing 30 cans per crate.
However, on delivery, some crates contain 24 cans while others contained 30 cans –
even though the market value of both the crates was the same. The court held that
the way in which the goods were to be packed was part of the description and the
buyer had rightly rejected them, even though he was not in any way affected by the
wrong packing
d) MERCHANTABLE QUALITY
· S. 16(b) SOGA: where goods are bought by description from a seller who deals
in goods of that description, there is an implied condition that they are of
‘merchantable quality’, i.e. the goods must be reasonably fit for the
purpose/purposes for which the goods of that kind are generally bought
CASE
HOLDING
Wren v Holt
Beer containing an abnormal quantity of arsenic acid was not of merchantable
quality
Godley v Perry
A catapult which broke while being used by a child for whom it had been caught
and captures his eye was
Frost v Aylesbury
Dairy Company
Milk which was contaminated with germs of typhoid fever, from which the plaintiff
died, was not of
merchantable quality
· S.16(a) SOGA: goods which are bought for aparticular purpose are reasonably
fit for that purpose.This condition is only appliedif:
· An exceptionis that the seller would not be liable if he proves that the goods
were sold under a patent or other trade
name, and that the buyer did not actuallyrely on the seller’s skill and judgement
· Nichol v Godts: where goods are bought by sample and description, the goods
suppliedmust correspond with both the sample and the description
· Further, the buyer will have a reasonable opportunity of comparing the bulk
with the sample (thus suspending the S. 28 provision that renders time of
paymentand time of delivery concurrent conditions)
· The goods must be free from any defect rendering them unmerchantable which
would not be apparent on a reasonable examination of a sample
· Godley v Perry it was held that the defendants were liable for sale of a defective
catapult because: the catapult was not reasonably fit for the purpose for which it
had been bought, and, the catapult was not of merchantable quality, and the defect
of the goods could not be discovered by a reasonable examination of the sample à
the judge held that a buyer is not expected to carry out every test that might be
practicable; the test is ‘not extremeingenuity but reasonableness’
a) QUIET POSSESSION
· S. 14(b) SOGA: this provision is intended to protect the buyer against defects
of title which arise after the contract is entered on to. However, these situations are
rare and problematic when they arise
CASE
HOLDING
In January 1970 the sellers sold a number of road marking machines to the buyer.
Unknown to both parties, another company was in the process of patenting their
own road marking apparatus under the Patents Act which gave them rights to
enforce the patent from November 1970. In 1972 the patentee sued the buyer for
using the road marking machines in breach of patent. The buyers then claimed
against the sellers for breach of implied condition as title and breach of the implied
warranty as to quiet possession. It was held that:
(i) There was no breach of the implied condition since at the time of the sale, the
sellers could not have
(ii) But there was a breach of the implied warranty as to quiet possession. Lord
Denning explained that the warranty is a continuing warranty which applies not
just at the time of the sale but also in the future
· S. 14(c) SOGA: the goods shall be free from any charge or encumbrance in
favour of any third party which is not declared or made known to the buyer before
or at the time when the contract is made
· Another common law maxi mis ‘nemo dat quod non habet’, i.e. a personcannot
give that which he does not have – where the goods are sold by a personwho is not
the ownerthereof and who does not sell them with the consent or the authority of
the owner, the buyer acquires no better title to the goods than the seller had
· Consequently, if the goods had been obtained by fraud and the seller had a
voidable title thereto, even the buyer would acquire a voidable title (regardless of
whether he was aware of the fraud)
Estoppel
S. 23(1) SOGA provides that the ‘nemo dat’ rule will not apply if ‘the owner of the
goods is by his conduct
Pickard v Sears stated that an estoppel will be raised against the owner of the goods
only if his conduct misled a third party into believing that the person who was
selling the disputed goods was either their owner, or had the owner’s authority to
sell them
Sale by factor
The factor is ordinarily the mercantile agent whose business is to sell or otherwise
deal in goods. He can sell the goods entrusted to him and give a good title to the
same provided the conditions of the Act are complied with (i.e. the goods were
entrusted to him in the ordinary course of his business and they are in
title
S. 24 SOGA: where the seller is good has a voidable title thereto but his title has not
been avoided at the
time of the sale, a buyer in good faith without notice of the defect in the seller’s title
acquires good title
S. 26(1) SOGA: if a person who has sold goods, but remained in possession of
them/their documents of title, transfers the goods o documents of title to a third
person, that person acquires a good title if he
receives the goods in good faith and without notice of the previous sale
S. 26(2) SOGA: where a person, having bought or agreed to buy goods, obtains
possession of the goods or documents of title to them (with the seller’s consent), a
transfer by that person of the goods or documents of title to a third person
receiving them in good faith and without notice of lien or other right of the original
seller in regard to the goods, has the same effect as if the person making the transfer
were a mercantile agent in possession of the goods or documents of title with the
consent of the owner.
The seller has rights against the original purchaser but cannot claim the goods from
the second purchaser
Sale under statutory powers of sale, e.g. under the Uncollected Goods Act
Sale under a common law power of sale, such as sale by an agent of necessity
Sale in a market
d) STOLEN GOODS
· Where goods have been stolen and the thief has been prosecuted and convicted,
the property in the goods reverts to the originalowner
· This is so even if the goods have been resold or otherwise dealt with in the
mean time
3. TRANSFER/PASSINGOF PROPERTY
3.1 Where there is an unconditional contract for sale of specific goods ina
deliverable state, the property passes to the buyer at the time when the contractis
made
· Goods are said to be inadeliverable state if they are insuch a state that the buyer
would, under the contrac t, be bound to take delivery of them
CASE
HOLDING
In this case there was a contract for the sale of a machine weighing 30 tons. At the
time of the sale, it was still fixed to the floor of the building in which it was
installed. However, it was agreed between the seller and the buyer that the machine
would be detached, dismantled and delivered by the seller “free on rail”. The seller
detached the engine and dismantled it but while it was being taken to the railway
station it was damaged. The buyer refused to accept it and the seller sued for the
price. It was held that the property had not passed to the buyer, because the engine
was not in a deliverable state at the time
The defendants bought a carpet from the plaintiffs. When the carpet was delivered
to their showroom where it was to be laid, it was found that it could not fit
properly and had to be sent away for stitching. It was returned the next day
wrapped in heavy bales. It was stolen before it could be laid and the defendants
refused to pay for it. It was held that they were not liable. The property in the
carpet had
not passed to them since, at the time it was stolen, it was not in a deliverable state
3.2 Where thereis a contract for sale of goods not in a deliverable state, and the
seller has to do something to the goods to put them in a deliverable state, the
propertydoes not pass until that thing is done and the buyer has noticeof it
· E.g. in the case of Underwood Limited v Burgh above, the property in the
machine could not have passeduntil the machinehad been safelyput on the rail and
the buyer notified
3.3 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 something with reference to the
goodsfor the purposeof ascertaining the price, the property does not pass until that
thing is done and the buyerhas notice of it
CASE
HOLDING
Acraman v Morrice
The defendant had agreed to buy the trunks of certain trees. Although the contract
did not expressly say so, the custom of the particular trade was that the buyer
measures and marks the portions of the trees that he wanted and the seller would
then cut off the rejected parts. The seller did not do so but nevertheless sued for the
price. It was held that the defendant was not liable because no property in the trees
had passed to him. The property would have passed after the seller had actually
severed the rejected
3.4 Where the goods are delivered to the buyer on approval or ‘on sale or return’
or other similar terms, the property therein
b. If he does not signify his approval or acceptance, he retains the goods without
giving notice of rejection –
· The effect of this provision is to change the relevant common law rules relating
to offer and acceptance. At common law, there would have been no contract
between the parties. However, the provision creates a contract by converting what
would have been lapse of an offer into an acceptance thereof
CASE
HOLDING
Kirkham v
Attenborough [1987]
The meaning of ‘any act adopting the transaction’ was explained. In this case, the
plaintiff delivered jewellery to a third party “on sale or return”. The third party
pledged the jewellery with the defendant without informing the plaintiff that he
had accepted his offer. The plaintiff sued for the recovery of the jewellery on the
ground that it was still his property. It was held that the pledge was an act by the
third party (offeree) “adopting the transaction” and, therefore, the property in the
jewellery had passed to
Kempler v Bavington
The above decision can be contracted with this case à the plaintiff, a diamond
merchant, delivered a quantity of diamonds to a third party “on sale or return”. The
delivery note which accompanied the diamonds informed the third party that the
plaintiff would debit his account with the price of any diamonds if they were not
returned within seven days, and that, until the account was charged, the diamonds
belonged to the plaintiff. As soon as he received the goods, the third party sold them
to the defendant and disappeared with the money. As the third party’s account had
not been charged with the price of the diamonds at the time he sold them, it was
held that the property in them still rested with
the plaintiff. For this reason, the plaintiff was able to recover the diamonds from the
defendant
3.5 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 assent of
the buyer, or the buyer with the assent of the seller, the property in the goods
thereupon passesto the buyer
3.6 Where the seller delivers the goods to a carrier or to any other person for the
purpose of transmission to the buyer, he is deemed to have unconditionally
appropriated the goods to the contract provided that when he makes such delivery,
he does not reserve the right of disposal
· In Pignatorio v Gilroy it was explained that where the seller gives notice of
appropriation and the buyer makes no objection within a reasonable time, his
assent is presumed and the propertypasses on the expiration of that time
· Where the seller reserves the right of disposal of the goods until certain
conditions are fulfilled, the property in the goods does not pass until such
conditions are fulfilled
· On a sale by auction, the property in the goods knocked down passes to the
buyer at the fall of the hammer,in the absence of any agreement to the contrary
4. PERFORMANCE OF CONTRACT
o S. 28 SOGA: it is the duty of the seller to deliver the goods, and of the buyer to
accept and pay for them, in accordance with the terms of the contractof sale
o S. 29 SOGA: unless otherwise agreed, delivery of the goods and payment of the
purchase price are concurrent conditions, i.e. the seller must be ready and willing to
give possession of the goods to the buyer in exchange for the price, and the buyer
must be readyand willing to pay the price in exchange for possession of the goods
o Where the goods have been delivered to the buyer, and he has had reasonable
opportunity of inspecting them, he is deemed to have accepted them
o Delivery must be of the exact quantity – if it is too much or too little, the buyer
may reject the whole consignment
o However, where the delivery is greater or less than the amount contracted for
and the buyer nonetheless acceptspart/more of the whole delivery, he is liable for
the price at the contract rate and cannot claim damages afterwards
(i) Take delivery – under S. 2 SOGA: it is the duty of the buyer to take
delivery of the goods, failing which the seller may maintainan action against him for
damages for non-acceptance pursuant to S. 50(1) SOGA
(ii) Pay the price – under S. 28 SOGA: it is the duty of the buyer to pay the
price of the goods, failing which the seller may maintainan action against him for
the price pursuant to S. 49 SOGA
5. DELIVERY
e) Delivery by attornment
(ii) Unless otherwise agreed,the cost of putting the goods into a deliverable
state is borneby the seller
(iii) Whether it is for the seller to transmitthe goods to the buyer or for the
buyer to take delivery thereofdepends on the terms of the contract
(v) In sale of specific goodswhich the partiesknow are in some other place,
that other place is the place of delivery
(vi) If the goods are in the hands of a third party, delivery takes place when
such party notifies the buyer that he holds goods on his behalf
(vii) If the seller is bound to transmit the goods, delivery by common carrieris
prima facie complete when the goods are handed on to the common carrier
(viii) If the sellerdelivers less goods than contracted, the buyer is entitled to:
(ix) If the goods are mixed with goods of a different description, the buyer is
entitled to:
(xi) Where delivery is by instalments to be paid for separately and the seller
makes one or more defective deliveries or the buyer neglects or refuses to accept and
pay one or more deliveries, whetherthis is treatedas a severable breach or a total
repudiation of the contractdepends on:
(xii) If the buyer refuses to take delivery as of right, he would not be bound to
return the goods but must notify the seller his refusal
5.2 DELIVERY BY INSTALMENTS
· Section 32(1) SOGA: unlessotherwise agreed, the buyer of goods is not bound
to acceptdelivery thereof by instalments
· If the contract states definitely that the good are to be delivered by instalments,
each instalment to be paid for separately, it is ‘a question in each case depending on
the terms of the contract and the circumstances of the case’ whether a breach is a
breach of the contractas a whole, or whethersuch breach can be dealt with apart
from the main contract
· Each instalment must fulfil the conditions of sale as to quality, description, etc.
and the fact that the buyer has accepted previous instalments does not preclude him
from rejecting subsequent instalments which are not of the contract quality,
description, etc. (Jackson v Rotax Motor Company [1910])
CASE
HOLDING
It was held that the tests to be applied to determine whether the breach is such as to
give the buyer the right to regard the contract as at an end are:
(i) The quantitative ratio which the breach bears to the whole contract; and
Brandt v Lawrence
Repudiation by the buyer cannot take place until after proper performance of the
contract has become impossible. This means that if tender of part of the goods only
is made, tender of that part cannot be
refused because at that time the buyer does not know for certain that the balance
will not be delivered
6. BREACH OF CONTRACT
· Real remedies are remedies against the goods and are enforceable without
judicial intervention, while personal remedies are against the buyer and enforceable
through the courts
o Section 49 SOGA
o The unpaid seller has a right of action for the price of goods where the property
in the goods has passed to the buyer and he refuses to pay for them according to the
contract, or where the buyer has agreed to pay for the goods on a certain day and
then wrongfully refusesto pay for them
o Section 50 SOGA
o Where a buyer wrongfully neglects or refuses to accept and pay for the goods, i.e.
the property in the goods has not been passed to the buyer, the sellermay maintain
an action againsthim for damages for non-acceptance
o The amount of damages will be the estimated loss caused by the buyer’sbreach of
contract
o Section 41 – 43 SOGA give the unpaid seller who is still in possession the right
of lien in the following cases:
i. Where the goodshave been sold on credit but the term of credit has expired;
ii. Where the goods have been sold withoutany stipulation as to credit; or
o The lien is lost if the unpaid seller delivers the goods to a carrier or other bailee
for transport to the buyer,without reserving the right of disposal of the goods or
where the buyer lawfully obtainspossession of the goods orwhere the unpaidseller
waives his rights
o Where part delivery is made, the unpaid seller has a lien over the rest of the
goods, provided the part delivery does not amountto a waiver of the right of lien
(and the lien is limited for the unpaid balanceof price only)
o Section 44 – 46 SOGA provide that where the buyer becomes insolvent, the
unpaid seller has a right to stop the goods ‘in transitu’
o This right is onlyexercisable where the goods are in transit; if the transit is at an
end, the right is alsoat an end
o Goods are in transitfrom the time they are delivered to a carrierby land or water
or other bailee,for the purposeof transport to the buyer, until the buyer or his agent
takes delivery of them from the carrier or bailee à If the buyer obtains the goods
before they reach the appointed destination the transit is at an end, and the transitis
also at an end when the goods reach the appointed destination and the carrier or
bailee informs the buyer that he (the carrier or bailee) holds them on his (i.e. the
buyer’s) behalf
o Where part delivery has been made, the right of stoppage in transitu is effective
over the remainder of the articles,unless the part delivery was made in such a way as
to show that the seller has agreed to give up possession of the whole of the goods
o The unpaid seller exercises his right of stoppage in transitu either by taking
possession of the goods or by giving notice to the carrier or bailee that he wishes to
exercise the right. The carrier or baileemust then return the goods to the unpaid
seller who must pay all the expenses connected with such return
o Section 48 SOGA: the seller may re-sell the goods if the buyer does not pay for
the goods, or tender their price, within the agreed or a reasonable time. The rightof
re-sale is allowed in the following three situations:
ii. Where the unpaid seller gives notice to the buyer of his intentionto re-sell,
and the buyer dos not within a reasonable time pay or tender the price; or
o If, despite re-selling the goods, the seller still suffers a loss, he can bring an action
for damages for non-acceptance, but the first buyer will be discharged from any
further liability to pay the price
o Where the seller of the goods obtains more for them than the original contract
price, he can retain the whole of the proceeds
(vi) Right to withholddelivery of goodswhere the propertyhas not passedto
the buyer
o Section 51(1) SOGA: where the seller wrongfully neglects or refuses to deliver
the goods to the buyer, the buyer may maintain an action against the seller for
damages for non-delivery
o Section 51(2) SOGA: the measureof damages is the estimatedloss directly and
naturally resulting in the ordinary
o Section 51(3) SOGA: where there is an available market for the goods in
question, the measure of damages is prima facie to be ascertained by the differences
between the contract price and the market/current price of the goods at the time
when they ought to have been delivered. If no time was fixed,then at the time of the
refusalto deliver the goods
o Judgements for specific performance are usuallyonly made where the goods are
uniqueor of some special value,
o Section 53 SOGA: where there is a breach of warranty by the seller, the buyer is
not entitled to reject the goods on that account. He may, however, “set up against
the seller, the breach of warranty in diminution of extinction of the price”; or he
may sue the seller for damages for the breach of warranty
· Under an F.O.B. (Free on Board)contract it is the duty of the seller to put the
goods on board a ship for the purpose of their transmissionto the buyer à the
contract of carriage by seahasto be made by, or on behalf of, the buyer
· The cost of putting the goods on board must be borne by the seller, but once
the goods cross the ship’s rail, they remain at the risk of the buyer
· Delivery is complete when the goods are put on board the ship, but the seller
should give notice of the shipment to the buyer so as to enable him toinsure the
goods à ifthe seller fails to do this, the goods will be at his risk
· In Colley v Overseas Exporters, it was explained that the property in the goods
does not pass to the buyer until the goods cross the ship’s rail. If, therefore, the
seller is prevented from putting them on board by failure of the buyer to nominate
an effective ship, i.e. a ship able and readyto carry the goods, the proper remedyof
the seller is an action for damages for non-acceptance and notan action for the price
· Clemens Horst v Biddel Brothersexplained the dutiesof the seller under such a
contract:
(ii) To procure a contract of carriage by sea, under which the goods will be
deliveredat the destination contemplated by the contract;
(iii) To arrange for insurance upon the termscurrent in the trade which will
be available for the benefitof the buyer;
(v) To tender, within a reasonable time after shipment, the bill of lading,the
policy or certificate of insurance and the invoiceto the buyer so that he may obtain
deliveryof the goods, if they arrive, or recover for their loss if they are lost on the
voyage. The bill of lading tenderedmust correctly state the date of
shipment,otherwise the buyer can reject the goods
· Under a C.I.F. contract the buyer has a right to reject the documents of title if,
on delivery, they show non- compliance with the terms of the contract. He also has
a separate right to reject the actual goods if, when delivered, they are found not to
conform to the contract
(i) Todeliver the goods to the buyer from a ship which has arrived at the port
of delivery at a place from which it is usual for goods of that kind to bedelivered;
(iii) To furnish the buyer with delivery order,or some other effectual direction
to the shop to deliver
completes the purchase by paying a series of instalments while the seller retains
ownership until the final instalment is paid’
· The instrument that facilitates the hire purchaseis known as the Hire Purchase
Agreement
· The Hire Purchase Act of 1968 (‘HPA 1968’)defines hire purchaseas ‘an
agreement for the bailmentof goods under which
the bailee may buy thegoods or under which the property in the goods will or may
pass to the bailee’
o Section 3, HPA 1968: The Act does not apply to transactions of below Kshs. 4,
000, 000/=
o The Act doesnot apply to any scheme controlled, managed or guaranteed by the
Government for the purposes of providing loans to any person for thepurchase of
motor vehicles
o Section 3(2), HPA 1968: The Act does not allow a body corporate to act as the
Hirer
2. REQUIREMENTS AND CONTENTOF THE HIRE PURCHASE
AGREEMENT [Read in conjunction with slides on HPA]
· Section 6 HPA 1968: A Hire Purchase Agreement must be written and signed
by the hirer and by all the parties to the agreement
2.2 REGISTRATION
· This period may be extended by the Registrar is the delay was due to an
accident, an inadvertence or some sufficient cause
o No one can enforce the agreement againstthe hirer or take any action againstany
guarantor of the agreement;
· The owner must state in writing,in the prescribed form, to the prospective
hirer, a price at which the goods may be purchased by him/her for cash. The
agreement must include:
· The agreement must have a statutory noticesetting out the rights of the hirer
· The owner must delivera copy of the agreementto the hirer, or send the same
by registeredpost, within 21 days of the date of the agreement
· Incase of failure to adhereto this requirement, the owner will not be entitled to
enforce the Hire PurchaseAgreement or any contract of guarantee relating to it
3. CONDITIONS &WARRANTIES
(i) Condition that the owner has or will have a right to sell the goods at the
time when the property is to pass
(iii) Acondition that the goods will be reasonably fit for the purpose that the
hirer expressly or by implication makes known to the owner asbeing the purpose for
which he wants the goods
(iv) A condition that the legal ownership of, and title to, the goods shall
automatically be vested in the hirer upon payment of the hire purchase price in full
(ii) A warranty that the goods are free from any charge or encumbrance
(iv) A warranty that the goodswill be reasonably fit for the purpose that they
are needed
· The implied conditions and warranties set out above must not be excluded and
will be implied notwithstanding any agreement to the contrary
· The owner shall not be entitled to rely on any provision in the agreement
excluding or modifying the condition regarding fitness for the purpose, unless he
proves that before the agreement was made the provision was brought to the notice
of the hirer and its effect made clear to him (S. 8(3), HPA 1968)
CASE
HOLDING
The Defendant (Mr. Wallis) agreed to buy a used car if the vendor was able to find a
company with which the Defendant could enter into a hire-purchase agreement.
The vendor found such a company (the Claimant). Once the agreement was entered
into, the Defendant inspected the vehicle he had agreed to purchase through the
hire purchase agreement and found that it had been substantially altered from the
version he had previously seen and agreed to buy. Namely, the radio was missing, as
were the chrome strips around the body, the new tires had been replaced by old
ones, the bumper was not held together with rope and perhaps most importantly,
the car could not start. The Defendant therefore refused to pay for the car. The hire
purchase agreement contained an exclusion clause which stated that ‘No condition
or warranty that the vehicle is roadworthy or as to its age, condition or fitness for
any purpose is given by the owner or implied herein’
Held: Karsales was under an obligation to provide a car which is in substantially the
same condition as when Mr. Wallis inspected it. This is particularly the case for hire
purchase agreements where the purchaser had previously inspected the vehicle.
More broadly, where there is a fundamental breach of a contract, a party cannot rely
on an exemption clause. Not in the least, the Sale of Goods Act 1979 would still
imply a term into the contract that the goods will be fit for purpose which cannot
be
The House of Lords, after examining a number of earlier cases, held that there was
no rule of law that an exemption clause could not cover a fundamental breach and
that the scope of an exemption clause was a question of construction of the clause
and the contract as a whole. The implication is that the provisions in the Act which
appear to ban exclusion clauses cannot be relied on to provide the kind of
protection that was originally intended. In practice, it is unlikely that the courts
would allow a seller to promise to deliver one thing and actually deliver another,
and argue that he is not liable for the mis delivery. The courts would strike out such
an exemption as being repugnant to the main purpose of
the contract. The courts could also declare the whole contract void for want of
consideration
· Usually, the first sale in the transaction is by the dealer to the financialcompany,
even when custody of the propertyappears to be with the dealer
· No contractof sale exists between the dealer and the hirer (Drury v
VictorBuckland Limited [1941])
· If, however, the dealer gives express warranty to the hirer, the courts will infer a
collateral contract between the dealer and the hirer (Andrew v Hopkins [1957])
· There are also situations where the dealer may be deemed to be an agent of the
finance company (Financing Limited v Stimson[1962])
· However, there is no rule of law that in a hire purchase transaction the dealer
never is or always is acting as agent of the finance company (Mercantile
CreditCompany Limited v Hamblin [1965])
5. GUARANTOR
à i.e. his liability dependson the validity of the main agreement and on whetherthe
hirer defaultsor not
· If the existing contractis varied withouthis consent, the guarantor will
automatically be discharged
· The guarantor may also take over any securities such as cheques or promissory
notes which the owner took
6. VOID PROVISIONS
(i) Allows the owneror his agent to enterthe premises of the hirerand take
possession of the goods;
(iv) Attempts to relievethe owner from liability for the defaultof any of his
agents
· In addition,provisions which imposean agent on the hirer are also void:
o Any provision purporting to impose such a personon the hirer as his agent will
be void
o A provisionwhich relieves the owner from liability for acts or defaults of any
personacting on his behalf in connection with the formation or conclusion of the
agreement is equally void
· Section 29, HPA 1968 prevents the owner – in the event of the hirer’s breach –
from enforcing any kind of accelerated payment, unless more than one tenth
(1/10th) of the hire purchase price is due in one instalment or more than one
twentieth (1/20th) in two instalments
· This section gives the hirer time to re-organise himself and avoid the adverse
consequences of what might have been a mere oversight on his part
· The owner of the goods may also stipulatethat the hirer shall not remove or
permit the removal of the goods from Kenya without the written consent of the
owner (S. 10, HPA 1968)
o Before he removes or allows the goods or part thereof to be removed from any
premises for keeping at other premises, the hirer must notify the owner or his agent
in writing
o The hirer will be liable for a fine of up to Kshs. 10,000/=and for one year’s
imprisonment if he contravenes this,
and further, if the reasonfor removal was to deprivethe owner of his ownership
· The court may, on the application of the hirer and after hearing any
representations made by or on behalf of the owner, make an order approving the
removal of the goods to some other placewithin Kenya. That place shall, thereafter,
and for the purposes of theagreement, be substituted for the first-mentioned place
(S. 11, HPA 1968)
9. RECOVERY OF POSSESSION
· Once two-thirds of the hire purchase price has been paid or rendered by the
hirer, then any right to repossess the goods can only be exercised through court
action
· Ifthe owner institutes a suit to enforce a right to recover possession of the
goods from the hirer and he provesthat before the institution and after the right to
recover had accrued, he had made a request in writing to surrender the goods, then
the hirer’s possession shall be deemed to be adverse possession (S. 14, HPA 1968)
· Section 16(4) HPA 1968 provides that at a hearing for repossession, the court
can make the following orders:
o Condition that the hirer pays the unpaid balance in order to repossess the goods
· Under Section 25 HPA 1968, if the owner legally retakes possession of the
goods otherwise than by a suit, there is a duty places on him or her to resell at the
best possible price
· The hirer shall not be liable to the owner for conversion if he refusesto give up
possession to the owner by reason only of such refusal(Section 26 HPA 1968)
· Every person carrying on hire purchase business must have an annual license,
failing which he is liable to a fine not exceeding Kshs. 20,000/= or imprisonment
not exceeding 1 year
· Section 32 HPA 1968 states that notices to be served on either the owner or the
hirer should:
12. INFORMATION
· A hirer can seek any information from the owner, e.g. on the outstanding
balance under the Hire PurchaseAgreement –
· The owner is to give the hirer the information requestedfor within 14 days à
ifthe owner defaultsto supply the information within30 days, he will be
committing an offence and would be liable to a fine not exceeding Kshs. 500/=
· Under Section 34 HPA 1968, a person who gives any false information in a
proposal form or document will be guilty of an offence and liable to a fine not
exceeding Kshs. 5000/=or 6 months imprisonment, or both
13. TERMINATION
(i) Exercising of the hirer’s option to determine by returning the goods to the
owner and giving notice à if he exercises this option, the hirer must deliver the
goods to the owner, meet the depreciation costs and pay not less than ½ of the
purchase price
14. COMPLETION
· The hirer may give notice in writing to the ownerof the goods of his intention
to complete the purchase of the goods and to pay the owner the netbalance of the
purchase price on a specific day
1. INTRODUCTION
(i) Choses in possession: these are corporeal property rights which can be
perceived by the senses and may be physically possessedor transferred, e.g. cash,
jewellery, a book, a watch, a table, etc. (i.e. tangibleproperty which exists in material
form)
(ii) Choses in action: these are incorporeal property rights, i.e. they have no
material existence and are not of a tangible nature
· Negotiable instruments are a classof documents that are todayfreely used for or
as payments in commercial transactions and monetary dealingswithin a country,
territory or region
· Mercantile custom and usage wield an important influence in this field, and the
certainty guaranteed under the law relating to negotiable instruments is still prized
in commercial transactions
These are instruments which have, over the years, acquired the
(i) Traveller’s cheque – not negotiable because of the condition attached, i.e.
the drawer must sign in front of the payee;
(ii) Bills of lading – not negotiable because they represent title to property
and not title to money;
(viii) I.O.U’s
2.2 SOURCES OF LAW
· The BEA applies to Bills, Chequesand Promissory Notes,and came into force
on 14th May 1927
SOURCE OF LAW
RELEVANT
SECTION
WHAT IT PROVIDES
Section 84
Section 73
(i) The BEA does not mention other negotiable instruments, but its
principles are often used by courts in cases involving other types of instruments;
(ii) All cheques are – by law – bills of exchange, but not all bills of exchange
are cheques
(iv) The most common commercial document known today is the cheque
(v) Promissory notes, other than bank notes, are mainly used in medium-term
export credits today
The Cheques Act
Borrowed from the English Act of 1957, and came into effect on 28th July 1968
· In practice, cheques were almost wholly issued to payees who presented the
same to bank for encashment or collection – they had long ceased to be instruments
of transfer
· Under this Act, banks are not required to examine endorsements on cheques
and
Judicature Act
Section 3
By virtue of Section 3 of the Judicature Act, common law and the doctrines of
equity are –
subject to the Kenyan constitution and various statutes – sources of Kenyan law.
Common law today is simply the body of law derived from judicial decisions as
opposed to the constitution and statutes
3. BILLS OF EXCHANGE
· E.g. where a seller of goods allows his overseas buyer a period of credit but
needs access to funds in the interim, he may draw a bill of exchange in his own
favour on the buyer, or, more usually, on a bank that has undertaken to pay under
the terms of a documentary creditor
· The bill of exchange is thereafter presented by the seller to the buyer for
acceptance (and in the case of a documentary credit transaction, the seller presents
the bill to the bank for acceptance)
· Where a bill has been accepted, the seller may proceed to discount it to his own
bank for immediate but reduced payment
à at this point, the seller’s bank assumes liability to collect payment from the buyer,
or other party that has accepted liability, when the bill matures
· A bill of exchangemust:
o Be in writing;
o Be an unconditional order;
o Be signed by thedrawer;
(v) Instructions (e.g. “Pay [insert name] on demand [or after 30 days]”);
o It is alwayspayable on demand
· Acheque as a bill of exchange is a negotiable instrument and can be
negotiatedfrom one person to another by mere delivery, or delivery and
endorsement, or whateverthe case may be
(i) Drawer – the bank customerwho draws the cheque and orders the bank to
make payment;
(ii) Drawee – the bank whichis ordered to make the payment; and
BILL OF EXCHANGE
CHEQUE
immediate payment
of a cheque
· In a promissory note there are only two parties, but despite this the note still
countsas a negotiable instrument:
(i) Maker – the person who makes the promise to pay and signs;and
(ii) Payee – the person to whom the payment is to be made, that is, unless
henegotiates it
· The prominentcharacteristics of a promissory note are as follows:
BILL OF EXCHANGE
PROMISSORY NOTE
A bill is an order
5. NEGOTIATION
· When a bill of exchange, cheque or promissory note is transferred to any
person, so as to constitute that person the holderthereof, the instrument is said to
be negotiated
§ The personwho endorses the instrument is called the ‘endorser’ and the person to
whom it is endorsed is called the ‘endorsee’
· Asper Section 29 BEA, in each case the transfereemust take the negotiable
instrument: for value, in good faith, and withoutnotice of conflicting claims or
defences (if any)
(ii) Drawee – the person who is directedto pay under the bill of exchange
(iii) Acceptor – the drawee becomesthe acceptor when he or she signs the bill
(iv) Payee – the person to whom paymentis to be made under the bill
6.1 HOLDER
· However, the possessor may not necessarily be the ownerof the bill
§ Against the transferor from whom he got it, whether or not the transferor
signedthe bill;
(ii) Right to acquire full rights in respect of a bill – for this, the holder must
give value for it by himselfor should have obtained it froma person who gave value;
and
· Aholder of a bill in respect of which value has been given at any time is deemed
to be a holder for value as regards the acceptorand all parties to thebill who became
parties prior tothat time (S. 27 BEA)
· ‘Valuable’ means:
· Once a bill or cheque is given for value, all subsequent holdersare holders of
value
o Value given need not be adequate, but it must be something recognised by the
law as capableof being consideration
· This is someone who takes the bill complete and regular on the face of it (on
both sides of the bill – i.e. ‘face’ and ‘back’):
(iv) Without notice of any defect in the transferor’s title at the time the bill
was negotiated to him
· ‘Complete’ means that it has all essential formal requirements as per the BEA,
e.g. unconditional order, is in writing, is addressed to one person, etc.
(iii) The Bill must not be overdue and must be taken withoutnotice of
previousdishonour;
(iv) The holder of the bill took it in good faith and for value; and
(v) Atthe time the bill was negotiated to the holder, he had no notice of any
defect in the title of the person who negotiated it
(ii) His title cannotbe disputes and is not affected by any defectin the previous
title or any counterclaims;
(iii) Hecan enforce againstany prior partiesand can sue all prior parties (if
necessary) in his own name if the bill/cheque is not honoured; and
· A holder who derives his title to a bill through another holder in due course
will be entitled to all the rights of the latte r holder as regards the acceptor, and all
parties to the bill prior to that holder, if he is himself not a party to any fraud or
illegality affecting the bill (Section 29(3) BEA)
· Jade International Street v Robert Nicholas [1978]: it was held that even a
person who draws a bill in his own favour can benefitfrom this provision where the
bill is negotiated from him, as payee, to an endorsee, who is a holder in due course,
and later renegotiated back to the original payee by that endorsee
7. CAPACITY OF PARTIES
7.1 MINOR
· The holderis entitled to receive paymentof the bill and enforceit against any
other partyto it (S. 22(2) BEA)
· That is, the holdermay operate as a channelthe convey title and liability
· Bills and promissory notes drawn or made by a person of unsound mind are
void as against him, if at the time of the executionif such instruments he is not
capableof forming a rational judgment
· However, the other partiesto the bill or promissory note will continueto be
liable
7.3 CORPORATIONS
· A corporation – being an artificial person – can exercise only those powers
which its memorandum or articles of association confer on it
· Bya proviso to Section 22 BEA, acorporation cannot make itself liableas drawer,
acceptor or endorser of a bill unless it is competentto do so under the law for the
time being in force relating to corporations
· Ifa corporation exceedsits powers and executes a bill, chequeor note, the
instrument is void and cannot even be ratifiedby a subsequent unanimous
resolution of all of its members
· Furthermore, even a bona fide holderin due course cannot make the
corporation liable on such an instrument
(ii) By; or
(iv) On account of, the companyby any person acting under its expressor
implied authority (S. 35 Companies Act)
· An agent who signs a negotiable instrument for his principal may bind his
principal, provided:
(i) He signs the principal’s name or stateson the face of the instrument that he
signs asan agent; and
CASE
HOLDING
Liverpool Bank v Walker
[1859]
The manager of a company, in accepting a bill, signed by stating his name and
adding the word
‘Manager’. The court held that he was personally liable on the bill
A managing director signing ‘for’ the company was held not to be personally liable
7.5 PARTNER
· In a trading firm, each partner has implied authority to bind his co-partners by
drawing, endorsing, accepting or negotiating bills, promissory notes and cheques
· Section 7, PA 2012: every partneris an agent of the firm and his other partners
for the purpose of the business of the partnership
o This provision does not affectthe general rule relating to execution of deeds or
negotiable instruments
· A bearer bill:
o This is one that is expressed to be payableto beater or an orderbill that has been
endorsedin blank, i.e. when:
§ The only, or last, endorsement on an order bill is one in blank, i.e. specifies no
endorsee (Section8(3), 34(1) BEA); or
§ By the endorsement of the payee or the holder to whom it has been specifically
endorsedand
8.1 ENDORSEMENT
8.2 DELIVERY
· Inthe ordinary sense of the word, deliverymeans – among other things – the act
of giving or transferring, or the state of being transferred or given
· Aperson taking an instrument bona fide, and for value, known as a holderin
due course, gets title even thoughthe title of the transferor may be defective
· A ‘rough and ready’ test of negotiability in the case of bearer instruments is:
can a good title be acquired through a thief? If yes, the instrument is negotiable
· In otherwords, the principle of ‘nemo dat quod non habet’ does not apply to
negotiable instruments
· Section 24 BEA: where a signature ona bill is forged or placed thereon without
the authority of the person whose signatureit purports to be, the forged or
unauthorised signature is wholly inoperative and no rights can be acquired by
reason of such signature
· The only exception is where the party against whom enforcement is sought is
estopped from denying the genuineness of the signature
· Where the acceptor’s signatureis forged, he incurs no liability, but all other
persons whose signatures are genuine are
· Any forgery of the endorsement on an order bill nullifies the transfer since the
endorsement is vital for transfer of an order bill
face
CASE
HOLDING
It was held that a cheque on which a drawer’s signature is forged is a mere paper and
is not a cheque at all, unless it becomes valid by estoppel.
However, the suggestion in that case that a forged cheque could also be validated ‘if
adopted by the drawer’ seems to go against the law on ratification of a forgery.
10. MATERIAL ALTERATION
· Section 64(2) BEA: examplesof material alterations to a bill are: the date, the
sum payable,the time of payment, the place of payment, the addition of a place of
payment (without the acceptor’s consent), alteration of the name of the drawee,
crossing,change from ‘order’ to ‘bearer’ (and vice versa), alteration to the payee’s
name, etc.
o Amount;
o Name of payee;
o Any crossing;
· Section 64(1) BEA provided that a holder in due course may, notwithstanding a
material alteration, enforce payment of a bill according to its original tenor where
the alteration is not apparent
(iii) An alteration made to carry out the common intention of the originalparties,
e.g. the subsequent insertion of the
words ‘or order’ where the drawerof the bill forgets to insert the words;
· Where the alteration is not apparent,a holder in due coursecan enforce the
cheque as if it was unaltered
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