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Sale of Goods Act 1979 and the Right to Reject and CISG

The stimulus extract implies that the object of international sales is to ensure performance. This is not a true reflection of the objectives of international sales. International sales law must strike a delicate balance between certainty and predictability on one hand and flexibility to give effect to the intention of the parties on the other. This central tension has been expressed throughout the history of international sales law. In order to highlight this tension, this paper will explore the right to reject in international sales law at the domestic level under the Sale of Goods Act 1979 and to compare and contrast this with the United Nations Convention on Contracts for the International Sale of Goods (CISG). The central thesis of this research is that the right to reject in many circumstances does frustrate performance of the contract but that in other respects it diminishes the power to the buyer to reject goods in international sales and in doing so ensures performance of the contract. This is against the backdrop of a legal system that attempts to deal pragmatically with the twin goals of certainty and flexibility. The central thesis of this paper is that those circumstances in which the domestic law is too beneficial to buyers should be reformed.

This research will proceed in three parts. Part I will examine the aims of international sales and explore the two objectives of certainty and flexibility. Part II will then critically assess the current approach to the right to reject under the Sale of Goods Act 1979. Part III will then compare and contrast the right to reject regime under the CISG and other legal instruments.


Part I: Framing the Debate: Certainty and Flexibility

It is submitted that international sales must achieve two twin aims, not one aim as implied by the stimulus statement in this question. Those twin aims are certainty and flexibility. In Vallejo v Wheeler it was held that ‘[i]n all mercantile transactions the great object should be certainty and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other.’ Because speculators in trade then know what ground to go upon’. The need for certainty is not merely as historical concern and commercial transactions and the need for certainty continues to preoccupy the consciences of the judiciary today. Certainty is needed for the practical functioning of international sales. Takahashi opines that there are three main reasons why certainty is important: (i) traders needs to be able to know when they are lawfully permitted to terminate a contract or face crippling damages (ii) traders need to be able to know promptly whether they can terminate a contract as many contracts are speculative and do not envisage actual physical delivery of commodities and (iii) traders require certainty as many sales are conducted as a string of interrelated sales and if one contract is terminated but similar contracts are not then this leads to inconsistent and inefficient outcomes.

However, international sales law must not hamstring sales by making laws overly certain. To do so is to prevent the proper functioning of the business world. Lord Devlin famously intimated that “[t]he function of the commercial law is to allow, so far as it can, commercial men to do business in the way they want to do it’. The courts strive to give effect to the idea of freedom of contract in which the parties are free to agree the terms and obligations of the business relationship between themselves. The courts also give effect to the idea of sanctity of contract which asserts that the courts should give effect to the terms of the contract and should be cautious to invalidate those agreed terms. The role of the courts in this balancing act was expertly stated by Lord Goff, who writing extra-judicially, posited that:

Our only desire is to give sensible commercial effect to the transaction. We are there to help businessmen, not to hinder them: we are there to give effect to their transactions, not to frustrate them; we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil.

However, the law is also cognisant of the fact that a party should not suffer an injustice. Where there is a balancing act between these two competing aims, Goode, suggests that certainty should win out:

…in a contest between contract and equity in a commercial dispute, contract wins almost every time; and I suspect that one reason why foreigners so frequently select English law, rather than Continental law, to govern their contracts and English courts to adjudicate their disputes is that they know where they stand on the law and can rely on judges experienced in commercial transactions to give effect to their understanding.

However, Goode’s opinion is challengeable when we look at the mechanics of English sales law. For example, section 20(1) of the Sale of Goods Act 1979 states that ‘[u]nless otherwise agreed [emphasis added], the goods remain at the seller’s risk until the property in them is transferred to the buyer’. This provision allocates priority to the intention of the parties but where this has not been agreed in advance, then default rules apply. This is an excellent example of the certainty and flexibility balancing exercise at work. Furthermore, the law will intervene where a law is overly certain and can lead to injustice. Section 16 of the Sale of Goods Act 1979 had stated that property could not pass in unascertained goods. Application of this section led to injustice in cases of undivided shares of a bulk. The approach to such transactions was transformed by the passing of section 20(a) of the 1979 Act. This provision allows a buyer who has purchased a specific quantity of unascertained goods to become a co-owner of the bulk if the buyer has paid for some or all of the goods. What these examples show, is that commercial law will intervene to cure an injustice where application of a legally certain rule leads to injustice.

Part I of this research has sought to challenge the stimulus statement by asserting that the object of a legal regime of international sales is not only to ensure performance but also to ensure certainty within the system. One of the primary aims of international sales is indeed certainty. However, this is not the only aim and certainty must be properly balanced with the need for flexibility to ensure the intention of the parties is respected and that injustice in the circumstances is avoided. The ensuing discussion will therefore proceed on the basis that there are two competing aims of international sales, not one as implied by the stimulus extract. Part II will now specifically examine the right to reject under English law to test whether English law makes it easy for buyers to reject goods and in doing so frustrating the ability of the contract to be performed.




Part II: The Right to Reject Under the Sale of Goods Act 1979

A contract for the sale of goods or sales contract is a particular type of contract defined in section 2(1) of the Sale of Goods Act 1979 as ‘a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price’. In such contracts, the buyer has a range of remedies including the right to reject the goods. The right to terminate a contract is one of the most powerful tools of a buyer and is one of the most important aspects of a sales contract. The temptation to reject is more likely in international sales, especially sales involving commodities, as the buyer may want to purchase goods at a lower price in an ever-changing market.

There is a presumptive rule in English law that the contract can be avoided where the breach is serious. As Lord Diplock has stated, the test is whether such breach has deprived one party ‘of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings?’ Therefore, trivial breaches will not suffice. However, assessing when a failure is sufficiently serious to justify termination is a difficult task. Therefore, parties may include express termination clauses which will outline the circumstances in which a contract can be terminated. These clauses inject the agreement with a higher degree of certainty. The law adopts a broad approach in relation to the requirements for some rights to terminate, while adopting a much narrower approach with others. For example, there is no requirement of good faith or reasonableness by the party exercising the right nor is there a requirement that exercising the right must not lead to an unfair or unjust result. However, in order for such clauses to be upheld, the party seeking to uphold them must ensure strict compliance with the requirements in the contract which dictate how the clause should be exercised. Stipulations as to the time to terminate are construed particularly narrowly. To this effect, the use of these clauses invites a mixed response when used to test our central hypothesis. In one regard, where the courts allow such clauses, this can be said to make it easier for persons to reject goods, however, this statement is tempered by the fact that if strict stipulations as to how these clauses are not exercised properly, then the law will intervene and ensure that the right to reject is lost.


The next part of this section will examine particular aspects of the right to reject under the Sale of Goods Act 1979 including quality terms (and samples), quantity and time.


Quality Terms

One area in which English law affords a considerable level of buyer protection is those instances where there is a breach of s. 13-15 of the Sale of Goods Act 1979. Section 13 dictates that where a contract is for the sale of goods by description, the goods provided will be of that description. Section 14(2) SGA indicates that where a seller sells in the course of business there is an implied condition that good supplied should be of satisfactory quality. Section 14(3) also adds that goods should be fit for purpose. Finally, section 15 applies to the quality of good provided after a sale by sample.

In English sales law, the presumption is that where breach of ss. 13-15 exist, no matter how trivial, the buyer has a right to reject. In Re Moore & Co Ltd v Landauer & Co Ltd the Court of Appeal upheld a right to reject in relation to fruit delivered in tins of 24 instead of 30 despite the overall contract amount being properly delivered. However, this approach has been judicially questioned as being excessively technical despite some support from scholars.

The harsh position as regards rejection has been softened to some extent by section 15(A) of the Sale of Goods Act 1979. This condition stipulates that a buyer may not have a right to reject goods for breach of an implied term in sections 13-15 where the breach is so slight that it would be unreasonable to reject the. However, it is submitted that the real effect of this reform is slight and that its practical significance is limited. The Law Commission accepted this when they concluded on the issue that ‘[u]se of this technique should help to make it clear that the modification of the right to reject is not intended as a major alteration in the law but one which will apply only where the breach is slight and it is unreasonable for the buyer to reject the goods.’ The Commission was concerned, that unlike the position of consumers, non-consumers may use a more liberal approach to reject goods unfairly:

…the non-consumer who deals in goods uses their alleged non-conformity as his excuse for rejection: his real motive is that the market price of the goods has fallen. When prices fall it will be commercially advantageous to him to get rid of the expensive goods in his hands and perhaps then replace them with similar goods, bought at a lower price.

The Report further warned that there would be no parity between the breach and the benefit to the buyer in circumstances where the ‘fall in the market price may be immense.’ The practical importance of the reform is doubted when it is appreciated that it will only apply to breaches of sections 13-15. Where there is a breach of a condition related to time, where time is of the essence (see further below), the section does not apply. Furthermore, it is open to the parties to oust section 15A either explicitly or by implication. Bridge ruminates on the possibility that such a restrictive approach was borne out of a need to ensure that England as a jurisdiction remained an attractive forum for commercial men of business to settle their disputes. The provision can be said to give effect to the intention of the parties by limiting the ambit of the provision. This is evidenced by the fact that the provision has only been named as a live issue in two appeal cases – one in 2011 and the other in 2004.

Returning to the central thesis of this paper. When we assess the particular provisions of section 13-15 of the Sale of Goods Act, it is apparent that in these circumstances, the right to reject is pro-buyer. In all of these circumstances, the buyer is entitled to reject goods, subject to the limited provision in section 15(A) which has little practical impact. These sections are perhaps the most powerful tools in the buyer’s arsenal. However, it is submitted that these provisions go too far. The positon in cases like Re Moore & Co Ltd v Landauer & Co Ltd tilts the balance too much in favour of the buyer and without any strong justification. This is an area that demands a potential reform so that a more moderate approach can be adopted and the performance interest in the contract restored.

The next part of this paper will examine other quality terms which are no covered explicitly by sections 13-15


Other quality terms

In relation to other quality terms, the question of whether a right to reject exists is a matter of fact and in order to ascertain the intention of the parties the court will examine all of the surrounding circumstances. The seminal case of Cehave NV v Bremer Handels GmbH (the Hansa Nord) is instructive. C had agreed to purchase from B a number of citrus pulp pellets for GBP 100,000. An express term of the contract was that shipment was to be made in good condition. The cargo arrived in Rotterdam part of the goods were damaged. C rejected the whole cargo on grounds that the shipment did not satisfy the requirement of being in good condition. However, C then bought the pellets at a later date from X at a substantially reduced price. The product was still fit-for-purpose in terms of being capable of being used as cattle-feed.

The Court of Appeal rejected the submission that the express term as to quality could not be an innominate term and that it must either be a condition or warranty. The court asserted that the classification of innominate term had been revived by Hong Kong Fir. As the term relating to the quality of the feed was an innominate terms, and not one that went to the root of the contract then the claimant’s only remedy was for damages. This shows that in these circumstances, the court was not willing to adopt a liberal approach to the right to reject. However, despite the fact that the innominate term does apply to a large category of terms (e.g. terms in a charterparty as to seaworthiness as in Hong Kong Fir or to carry out a voyage with reasonable dispatch ) it has not eclipsed the classification of conditions and warranties where that use has been settled by statute or common law. Where a term is a condition that goes to the root of a contract, then the claimant has a right to reject. It should also be particularly remembered that the ‘attitude of the courts to the classification of terms and their breaches does not appear to have been affected by statutory rules for a 'slight' breach of condition in business sales of goods’ which are contained in section 15A of the 1979 Act as stated above.

However, there has been criticism of the revival of innominate term in some quarters. The innominate term looks at the consequences of a breach rather than the nature of the term. The advantage of this approach is that it ‘achieves greater justice between the parties than is possible by an a priori classification’. However, the disadvantage is that it attacks the requirement of certainty in international sales. Weir, writing in 1976 outlines the problem:

Under the old dispensation, when the right to reject depended on the nature of the term in the contract which was broken, the innocent party simply had to go to the filing-cabinet, consult the contractual document and decide whether the term broken was a very serious one or not; this final step admittedly called for judgment, and there could often be two views, but at any rate the requisite data were immediately and presently available. Now that the right to resile turns on the gravity of the consequences of the breach, the necessary data are not words but events, they may be in the China Sea rather than in the head office where decisions are taken, and one will probably have to wait for them, since consequences tend to occur, after their cases; nor has the difficulty of assessment been alleviated, rather the reverse. There has therefore been an undeniable loss of speed and sureness of decision-making, and the Court of Appeal is responsible for it. This is a matter of regret.

There is force in Weir’s argument. Afterall, the Court of Appeal may have been wrong in applying the rules of Hong Kong Fir to contracts for the Sale of Goods – the Sale of Goods Act explicitly mentions conditions and warranties but does not mention innominate terms. However, it should also be recognised that section 62(2) of the 1979 Act in fact requires the rules of the common law to apply to sale of goods transactions. Therefore, Weir’s argument may lose some of its potency when we look at the more recent legislation. Nevertheless, there are other arguments against the use of the pro-breaching party innominate term. According to Andrews, the innominate classification can ‘induce sloppiness in performance in commercial contracts’. The author further adds that it can:

…introduce considerable uncertainty in the application of contractual terms: assessment whether reach of an intermediate term justifies termination can divide both arbitral panels and judges. Obtaining a final answer might require protracted and expensive litigation, and the decision might be taken on more than one appeal.


Therefore, one can see that while the use of the innominate term classification has considerable disadvantages. In terms of the present discussion, it reduces the circumstances in which a party has the right to reject goods. This has an impact in terms of the certainty of international sales but goes a long way to ensuring that the contract is performed in circumstances where previously a contract may not have.


There is an interesting divergence between the quality terms laid down in sections 13-15 of the 1979 Act and other quality terms. In relation to the former the circumstances in which a right to reject is possible is construed broadly with some limited exceptions. However, in relation to other quality terms the question will turn on the facts. With the revival of the innominate term parties are less free to reject goods. While this may achieve a sense of justice in some circumstances, this more flexible approach attacks one of the primary aims of international sales – certainty.

Before leaving the issue of terms as to quality, two further issues fall to be explored. First, the issue of the delivery of goods by instalments and secondly, the issue of whether a seller has the right to retender goods before the expiration of the contractually agreed delivery time.

Instalments

Many international sales contracts, especially for the sale of goods, will take place in instalments. The question that needs to be considered for present purposes is whether a buyer has the right to reject goods where one or more, but not all, instalments is defective. The law dictates that the whole contract can be repudiated in such circumstances where there is a reasonable inference that similar breaches will be committed with further deliveries, providing each of the recurring breaches in the future would go to the heart of the contract. The generosity of the rule is seen in the case of Robert A Munro & Co v Meyer. This case involved a contract for sale for 1500 tons of meal and stipulated that the meal was to be a specified quality. The shipment was to be delivered in equal instalments. A clause in the contract read ‘[e]ach delivery or shipment shall be treated as a separate contract, and the failure to give or to take any delivery or shipment shall not cancel the contract as to future deliveries or shipments’. The buyer paid two instalments and then discovered that the meal provided had been adulterated and did not match the description required. Despite the inclusion of this clause, the court held that the right of the buyer to reject the goods in this instance was not defeated. This was despite the fact that the seller had acted in good faith and was not aware of the quality issue. This is another example of how English sales law may tilt the balance too much in favour of the buyer. However, one related area in which the right to reject is curtailed, is where the goods to be delivered are separately paid for and the payment price is not contained in one contract. In such contracts, each contract will be dealt with individually and therefore a breach within one will not affect the other.


One final issue within this area is whether a seller has a right to cure any problem with goods which initially do not conform but are redelivered within the date for delivery. There is considerable debate as to whether we should have a so-called right to cure under English law. Such a right would be justifiable in that it would give legislative recognition to commercial practice and would allow businesses to maintain business relationships and reputation. Such a regime may also reduce economic waste:

It may well be that the seller has incurred expense in preparing to perform the contract and it can be argued that it is wasteful if this is lost as a result of a minor breach. This can be seen as another way of saying that a cure regime promotes the performance of contracts. It can also be seen as a way of limiting the room for manoeuvre of those who wish to escape from a bad bargain or have some other ulterior motive.

Whether such a right exists in not apparent in English law. Some case law suggests that such a right may exist. However, the issue was not a central issue of the case therefore, the weight of this authority must be doubted. If such a right does exist, then it would favour the seller. However, if it does not, then the current law supports the stimulus question by tilting the balance in favour of the buyer, when justice would require that the seller should be able to remedy his mistake and not suffer a penalty because he delivered early. The next issue to consider is the delivery of the wrong quality.



If the seller delivers the wrong quantity

Traditionally, the over or under delivery of goods has raised a presumption that goods can be rejected. According to Thomas ‘the practical value of termination is clear: it enables the buyer to enter a different transaction. It is in essence a self-help remedy which enables the buyer to kill an unworkable deal without having to rely on judicial determination of the issues’. However, this rule has also been subject to an exception that the shortfall should be more than de minimis. This exception has now been given statutory effect through section 30(2A) of the Sale of Goods Act 1979 which states that:

(2A) A buyer who does not deal as consumer may not—
(a) where the seller delivers a quantity of goods less than he contracted to sell, reject the goods under subsection (1) above, or
(b) where the seller delivers a quantity of goods larger than he contracted to sell, reject the whole under subsection (2) above,
if the shortfall or, as the case may be, excess is so slight that it would be unreasonable for him to do so.
It can be seen from section 2A that the inability of the buyer to reject goods for under and over deliveries. The key is that it must be reasonable to do so. It is submitted that the introduction of section 2A does not advance us much further than the de minimis rule it pre-dated.

Extinguishing the Right to Reject

No discussion of the right to reject would be complete without an exploration of when that right is extinguished. The stimulus question infers that English law makes it far too easy for a buyer to reject goods. However, that right will be extinguished whenever the right is waived or when they goods have been deemed in law to have been accepted. Both of these methods are capable of extinguishing the right to reject.

The right to reject can be lost by waiver. Waiver is defined as ‘[w]here a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated’. This is demonstrated in the case of Westbrook v Globe.

The second way in which the right can be rejected is through acceptance. There are three primary ways in which goods can be accepted: express intimation, an inconsistent act with ownership rights of the seller and passage of time. Section 35(1)(a) of the 1979 Act indicates that goods will be deemed to have been accepted where a buyer expressly intimates to the seller that he has accepted them. However, and crucially, there is one significant exception to this general rule. By virtue of section 35(2) a buyer is not deemed to have accepted goods which he has not previously accepted unless the buyer has had a reasonable time to inspect the goods. This may appear to be a significant provision. However, the power of section 35(2) is greatly minimised by section 35(3) which asserts that this requirement can be contracted out of by agreement between the parties. In terms of achieving certainty in international sales, this ability to contract out is beneficial. Both parties can come to a meeting of the minds and decide in advance whether the Act should not apply in these circumstances and effect will be given to the agreement made between the parties. The legislation cannot therefore be used to oust an agreement with two business entities operating at arm’s length. This is an example of how English law could be said to not make it easy for buyers to reject goods.

Furthermore, section 35(1)(b) indicates that a buyer will have accepted goods when they have been delivered and the buyer does any act which is inconsistent with the ownership of the seller. However, the legislation does not provide us with an indicator of what acts are inconsistent with the ownership of the seller and has no fixed meaning. In some cases, it is possible to find an inconsistent act such as where there have been alterations to goods which mean it is impossible to return them to their original state. Another example is the use of goods which would usually only be done by an owner such as the use of the goods or resale. However, there are a considerable number of acts that will not qualify. Acts such as unloading goods and mere enquiries as to resale have been held not to qualify as inconsistent acts. These more preparatory or peripheral acts will not constitute acceptance and might therefore in such cases the buyer will not lose the right to reject. However, just as is the case with section 35(1)(a) it is possible for parties to agree to contract out of this provision, and also subject to the caveat on reasonable inspection. This represents another example of the Act making it more difficult for the buyer to reject goods and to give effect to what both parties had agreed before commencing performance but where no such agreement is in place, there are a multitude of acts which will not constitute an inconsistent act – a position that favours the buyer.

Finally, it falls to consider section 35(4) of the Act which deals with the lapse of reasonable time as constituting acceptance. This provision states that a buyer is deemed to have accepted goods after the lapse of a reasonable time the goods are retained without indicating to the seller that they are rejected. In deciding what constitutes a reasonable time, a key factor will be whether the buyer has had a reasonable time to inspect the goods and to seek repairs. In Clegg v Andersson the court held that a delay of seven months was a reasonable time in which to reject a yacht. The court held that section 59 of the 1979 Act indicated that the question of reasonable time was one of fact. It was significant that the Sale and Supply of Goods Act 1994 had introduced the requirements that the buyer should have a reasonable time to inspect and crucially that asking for repairs did not count towards the calculation of reasonable time. This new approach is more pro-buyer ‘with the result that (considerable) time taken to ascertain what was required for modification or repair could be taken into account in determining whether there had been acceptance.’ Similarly, where goods are purchased for resale, the length of time may also be long. For example, in Truk (UK) Ltd v Tokmakidis GmbH the court held that in such cases a reasonable time included the time to resell as well as a further period of time during which the ultimate purchaser has the opportunity to test the goods and ensure they are fit for the purpose for which they were purchased. The issue of reasonable time favours the buyer. In many instances, the right to reject will not be lost, even where the buyer is in possession of the goods for a considerable time.


Part III: the CISG

The United Nations Convention on Contracts for the International Sale of Goods (CISG) has powered its way to become a world sales law and is widely lauded as a successful project by the United Nations Commission on International Trade Law (UNCITRAL). The central tenet of the CISG is to provide a uniform global sales law and by 2012 the CISG had 78 contracting states which represented over 80 per cent of global production and trade. The success of the CISG is demonstrated by the fact that many countries have used the CSG as a model for their domestic sales laws. It has also provided a foundation for regional and international principles such as the Principles of European Contract Law. Despite the widespread appeal of the CISG, the UK remains a notable exception which has refused to sign up to the obligations of the Convention.

As has been shown, there are many ways in which the Sale of Goods Act 1979 makes it easy for buyers to reject goods. Sometimes the level at which this is permitted defies logic and justice. It is submitted that there are aspects of the legislation that need to be reformed. The aim of this part is to look at other legislation to see how it deals with similar situations to those described above.

As noted previously, the Sale of Goods Act 1979 takes a pro-buyer approach to quality terms, especially those that fall under sections 13-15. The CISG takes a much more narrow approach to when goods can be rejected in these circumstances. Article 46(2) indicates that ‘[i]f the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract’. Article 49(1) further adds that ‘[t]he buyer may declare the contract avoided…if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract’. The buyer must overcome a series of hurdles in order to reject the goods. He must show a fundamental breach and he must request the delivery of substitute goods within a reasonable time. The narrow circumstances in which such a right can be invoked ‘envisages the situation where the goods are already in the buyer’s hands. In this case, substitute delivery would call for a reshipment of the goods to the seller and thus cause the seller to incur considerable additional costs.’ Whether the time to reject is reasonable will be influenced by the nature of goods, the defect complained of, price fluctuations and other market conditions and the position of the parties vis-à-vis one another. This is a departure from the position under English law and represents a more fair outcomes that has more potential to give effect to the sanctity of contract. Furthermore, Article 48 CISG indicates that:

the seller may, even after the date of delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer.

This article gives the seller a right to cure in certain circumstances. It is a stance which is just as between the parties. Such a right will only exist where no delay or expense accrues to the buyer. This is a much more equitable outcome between the parties than that currently evidenced in English law.

It is submitted that the current law on international sales in England should be amended in these two important respects. Until such reform occurs, the law will be unhelpfully pro-buyer at the expense of the sanctity of contract and justice between the parties.




Conclusion

The central aim of this paper has been to explore whether the right to reject under English law is currently too affable to buyers at the expense of sanctity of contract. This research has shown that while certainty is indeed an important aspect of international sales, a proper debate can only be presented where certainty is balanced with the requirement of flexibility. The current law on the right to reject does in certain circumstances make it easier to reject goods. However, there are certain checks and balances in place which means that buyers are not given carte blanche to reject goods at will. However, on balance, the stimulus statement is correct in that the circumstances where a buyer can reject are plentiful and the exceptions to them extremely limited.

Various aspects of the domestic law prove that the stimulus statement is correct. Particularly, sections 13-15 provides a generous power to reject for the most trifling of breaches of quality and sales by sample. Furthermore, English law does not recognise a right by the seller to cure a breach before the contractual delivery date. In addition, the right to reject is helpful to the buyer where there is a shortfall or over delivery. Finally, the right to reject, although extinguished when the goods are accepted or the right is waved, is still one that survives as there are many circumstances in which the required criteria for acceptance will not be satisfied which leaves the buyer free to reject.

The approach of the CISG is decidedly more pro-seller, however, there appears to be little appetite under English law to transpose the obligations of the Convention into English law. Until such a reform takes place, the statement that English law makes it too easy to reject goods is one that is hard to challenge.









List of Cases and Statutes

List of Cases

Afovos Shipping Co. S.A. v R. Pagnan & Fratelli (The Afovos) [1983] 1 WLR 195
Cehave NV v Bremer Handels GmbH (the Hansa Nord) [1976] QB 44
Clegg v Andersson [2003] EWCA Civ 320
Clipsham v Vertue (1843) 5 QB 265
Compania Naviera S.A. v Bergbau-Handel GmbH (The Mihalis Angelos) [1971] 1 QB 164
Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 2 All ER 216
Financings Ltd. v Baldock [1963] 2 QB 104
Freeman v Taylor (1831) 8 Bing 124
Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce [1997] 4 All ER 514
Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (The Golden Victory) [2007] UKHL 12
Hi-Flyers Ltd v Linde Gas UK Ltd [2004] EWHC 105
Hongkong Fir v Kawasaki [1962] 2 QB 26
Kum v Wah Tat Bank Ltd [1971] 1 Lloyd’s Rep 439
Lowe v W Machell Joinery Ltd [2011] EWCA Civ 794
Maple Flock Co Ltd v Universal Furniture Products (Wembley) Ltd [1934] 1 KB 148
MMP GmbH v Antal International Network Ltd [2011] EWHC 1120 (Comm)
Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989
Re Moore & Co Ltd v Landauer & Co Ltd [1921] 1 KB 519
Re Wait [1927] 1 Ch 606
Robert A Munro & Co v Meyer [1930] 2 KB 312
Shipton Anderson & Co v Weil Bros & Co [1912] 1 KB 574
The Kanchenjunga [1990] 1 Lloyd’s Rep 311
Truk (UK) Ltd v Tokmakidis GmbH [2000] 1 Lloyd’s Rep 543.
Vallejo v Wheeler (1774) 1 Cowp 143
Westbrook v Globe [2009] 1 Lloyd’s Rep 224



Australian Cases

Burger King Corporation v Hungry Jack's Pty. Ltd [2001] NSWCA 187


Legislation

Sale and Supply of Goods Act 1994
Sale of Goods Act 1979







Bibliography

Textbooks

Adams J and Macqueen , Atiyah's Sale of Goods (12th edn, Pearson 2010)
Andrews N, Contract Law (2nd edn, Cambridge 2015).
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Beatson J et al, Anson's Law of Contract (29th edn, OUP 2010)
Goode R, Commercial Law (LexisLibrary 2009)
Peel E, The Law of Contract (13th ed, Sweet and Maxwell)
Sealy L and Hooley R, Commercial Law: Text, Cases and Materials (3rd edn, Butterworths 2003)
Schwenzer I et al, International Sales Law (2nd edn, Hart Publishing 2012)


Journal Articles

Beale H and Dugdale T, ‘Contracts between Businessmen’ (1975) 2 British Journal of Law and Society 45
Bridge M, ‘The Sale and Supply of Goods Act 1994’ (1995) Journal of Business Law 394
Ervine WCH, ‘Cure and Retender Revisited’ (2006) Journal of Business Law 799
Goode R, ‘The Codification of Commercial Law’ (1998) Monash Law Review 135
Lord Goff, ‘Commercial Contracts and the Commercial Court’ [1984] Lloyd’s Maritime and Commercial Law Quarterly 382
Randall J, ‘Express Termination Clauses in Contracts’ (2014) 73 Cambridge Law Journal 113
Takahashi K, ‘Right to Terminate (Avoid) International Sale of Commodities’ (2003) Journal of Business Law 102
Tan T, ‘Nesting the Taxonomy in the Remedial: a Re-examination of Promissory Terms’ (2011) 62 Northern Ireland Legal Quarterly 321
Thomas S, ‘The Right to Reject for Short Delivery and Termination’ (2012) 11(1) Journal of International Trade Law and Policy 44
Weir T, ‘The Buyer’s Right to Reject Defective Goods’ (1976) 35 Cambridge Law Journal 33

Practitioner’s Texts

Halsbury’s Law of England, Contract (Lexis Library 2012)

Official Published Sources

The Law Commission and the Scottish Law Commission, Sale and Supply of Goods (Law Com No 160, Scott Law Com No 104 1987)

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Article published 25/05/2017

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