Sale of Goods and Supply of Services Act, 2018

Section Interpretation Section In this Act, unless the context otherwise requires— “ action ” includes a counter-claim and a set-off; “ ascertained goods ” means goods which have become identified subsequent to the formation of the contract; “ bill of lading ” means a receipt for goods delivered to and received by a ship, evidencing the terms of the contract under which the goods are delivered and received, and signed by the person who has contracted to carry them, or his or her agent; “ bulk ” means a mass or collection of goods of the same kind which— (a) is contained in a defined space or area; and (b) is such that any goods in the bulk are interchangeable with any other goods of the same number or quantity; “ buyer ” means a person who buys or agrees to buy goods or who procures or agrees to procure services ; “ computer software ” means— (a) computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and (b) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formul...

Section Duties of seller, supplier and buyer Section It is the duty of the seller to deliver the goods , and of the buyer to accept and pay for the goods , in accordance with the terms of the contract of sale . It is the duty of the supplier of a service to perform the service and of the buyer to accept and pay for the service in accordance with the terms of the contract of supply of services .

Section Payment and delivery are concurrent conditions Section Unless otherwise agreed, delivery of goods and payment of the price are concurrent conditions, namely that, 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 ready and willing to pay the price in exchange for possession of the goods . This section applies to sales by instalments in accordance with the agreement of the parties. Unless otherwise agreed, supply of a service and payment of the price are concurrent conditions.

Section Rules as to delivery Section Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Where there is no contract, express or implied, as to place of delivery , the place of delivery is the seller ’s place of business, if the seller has one, and if not, the seller ’s residence. Where the contract is for the sale of specific goods which, to the knowledge of the parties when the contract is made, are in some other place, then that place shall be the place of delivery . Where under the contract of sale the seller is bound to send the goods to the buyer , but no time for sending them is fixed, the seller is bound to send them within a reasonable time. Where the goods at the time of sale are in the possession of a third party, there is no delivery by the seller to the buyer until the third party acknowledges to the buyer that he or she holds the goods on behalf of the buyer . Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour, and what is a reasonable hour is a question of fact. Unless otherwise agre...

Section Delivery of wrong quantity or description Section Notwithstanding subsections (1), (2), and (3) a buyer who is not a consumer may not— Where the seller delivers to the buyer a quantity of goods less than the seller contracted to sell, the buyer may reject them, but where the buyer accepts the goods so delivered, the buyer shall pay for the goods at the contract rate. Where the seller delivers to the buyer a quantity of goods larger than the seller contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or the buyer may reject the whole and where the buyer accepts the whole of the goods delivered the buyer must pay for them at the contract rate. Where the seller delivers to the buyer the goods the seller contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods , which are in accordance with the contract and reject the rest, or the buyer may reject the whole. reject the goods , where the seller delivers a quantity of goods less than the seller contracted to sell; or reject all the goods where the seller delivers a quantity of goods larger than the seller contracted to s...

Section Partial rejection of goods Section Where the buyer rejects goods by reason of a breach on the part of the seller which affects some or all of the goods but the buyer accepts some of the goods including any goods not affected by the breach, the buyer does not by accepting some of the goods affected by the breach and goods not affected by the breach lose his or her right to reject the rest of the goods . In the case of a buyer having the right to reject an instalment of goods , subsection (1) applies as if references to the goods were references to the goods comprised in the instalment. For the purposes of subsection (1), goods are affected by a breach if, by reason of the breach, they are not in conformity with the contract. This section applies unless a contrary intention appears in or is to be implied from the contract.

Section Delivery by instalments Section Unless otherwise agreed, the buyer of goods is not bound to accept delivery of the goods by instalments. Where there is a contract for the sale of goods to be delivered by stated instalments and to be separately paid and the seller makes defective deliveries in respect of one or more instalments or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case, depending on the terms of the contract and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated.

Section Delivery to carrier Section Where, under a contract of sale , the seller is authorised or required to send the goods to the buyer , delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie taken to be a delivery of the goods to the buyer . Unless otherwise authorised by the buyer , the seller shall make a contract with the carrier on behalf of the buyer that is reasonable, having regard to the nature of the goods and the other circumstances of the case. Where the seller omits to make a contract with the carrier on behalf of the buyer that is reasonable under subsection (2) and the goods are lost or damaged in the course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or herself or may hold the seller responsible in damages. Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, in circumstances in which it is usual to insure, the seller shall give such notice to the buyer as may enable him or her to insure them during their sea transit. Where the seller fails to give notice to the buyer under subsection...

Section Risk where goods are delivered elsewhere than at place of sale Section Where the seller of goods agrees to deliver them at the seller ’s own risk at a place other than that where they are when sold, the seller shall, unless otherwise agreed, take any risk of deterioration in the goods necessarily incidental to the course of transit.

Section Buyer’s right of examining the goods Section Where goods are delivered to the buyer , which he or she has not previously examined, the buyer shall not be taken to have accepted them until he or she has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer , the seller is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

Section Acceptance Section The buyer is taken to have accepted the goods — when the buyer intimates to the seller that the buyer has accepted them; when the goods have been delivered to the buyer and the buyer does any act in relation to the goods which is inconsistent with the ownership of the seller ; or when, after the lapse of a reasonable time, the buyer retains the goods without intimating to the seller that he or she has rejected them. The questions that are material in determining, for the purposes of subsection (1), whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods . The buyer shall not by virtue of this section be taken to have accepted the goods merely because the buyer asks for, or agrees to their repair by or under an arrangement with the seller or the goods are delivered to another person under a sub- sale or other disposition. Where the contract is for the sale of goods making one or more commercial units of sale , a buyer accepting any goods included in a unit is taken to have accepted all the goods making the unit. In subsection (4) “commercial unit” means a unit, division of which would material...

Section Buyer not bound to return rejected goods Section Unless otherwise agreed, where goods are delivered to the buyer , and the buyer refuses to accept them, having the right to do so, the buyer is not bound to return them to the seller , and it is sufficient if the buyer intimates to the seller that he or she refuses to accept them.

Section Liability of buyer for neglecting or refusing to take delivery of goods Section Where the seller is ready and willing to deliver the goods , and requests the buyer to take delivery , and the buyer does not take delivery within a reasonable time after the request to take delivery of the goods , the buyer is liable to the seller for any loss occasioned by his or her neglect or refusal to take delivery , and also for a reasonable charge for the care and custody of the goods . Subsection (1) shall not affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

Section Implied term as to time for performance of services Section Where, under a contract for the supply of services by a supplier acting in the course of business, the time for the services to be carried out is not fixed by the contract, but is left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time, and what is a reasonable time is a question of fact.

Section Right to repair or replace goods Section Where the buyer requires the seller to replace or repair goods , the seller shall— The buyer shall not require the seller to repair or replace the damaged goods if that remedy is— A remedy is disproportionate in comparison to the other remedies where it imposes costs on the seller which, in comparison to those imposed on him or her by the other remedies, are unreasonable, taking into account— Where the goods do not conform to the contract, the buyer may require the seller to replace or repair the goods . repair or as the case may be, replace the goods within a reasonable time but without causing significant inconvenience to the buyer ; and bear any necessary costs incurred in doing so, including in particular, the cost of any labour, material or postage. impossible; disproportionate in comparison to the other remedies available; or disproportionate in comparison to an appropriate reduction in the purchase price under section 48 . the value which the goods would have if they conformed to the contract of sale ; the significance of the lack of conformity; and whether the other remedy could be effected without significant inconvenience t...

Section Right to reduce purchase price or rescind contract Section The condition is that— Where goods under a contract of sale do not conform to the contract, the buyer may require the seller to reduce the purchase price of the goods in question by an appropriate amount or rescind the contract with regard to those goods if the condition in subsection (2) is satisfied. it is impossible for the seller to repair or replace the goods , or it is disproportionate to repair or replace the goods in comparison to other remedies available or it is disproportionate in comparison to an appropriate reduction in the purchase price; or the buyer has required the seller to repair or replace the goods , but the seller neglects or refuses to do so within a reasonable time and without significant inconvenience to the buyer . For the purposes of this section, if the buyer rescinds the contract, any reimbursement to the buyer may be reduced to take into account the use the buyer has had of the goods since they were delivered to him or her.

Section Relation to other remedies Section Where the buyer requires the seller to repair or replace the goods , the buyer shall not reject the goods and terminate the contract for breach of condition until he or she has given the seller a reasonable time in which to repair or replace the goods .

Section Unpaid seller defined Section A seller of goods is an “unpaid seller ” within the meaning of this Act— when the whole of the price has not been paid or tendered; or when a bill of exchange is received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. In this Part “ seller ” includes any person who is in the position of a seller , such as, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself or herself paid, or is directly responsible for, the price.

Section Rights of unpaid seller Section Subject to this Act or any other law, notwithstanding that the property in the goods may have passed to the buyer , the unpaid seller of goods , has by implication of law— a lien on the goods or right to retain them for the price while he or she is in possession of the goods ; in the case of the insolvency of the buyer , a right of stopping the goods in transit after he or she has parted with the possession of the goods ; a right of re- sale as limited by this Act. Where the property in the goods has not passed to the buyer , the unpaid seller has, in addition to his or her other remedies, a right of withholding delivery similar to and co-existent with his or her rights of lien and stoppage in transit where the property has passed to the buyer .

Section Variation of implied rights Section Where any right, duty or liability would arise under a contract of sale or supply of services by implication of law, it shall not be negatived or varied by express agreement or by the course of dealing between the parties, or by usage.

Section Reasonable time Section Where, by this Act, any reference is made to a reasonable time, the question of what is a reasonable time is a matter of fact.

Section Rights enforceable by action Section Where any right, duty or liability is declared by this Act, it may, unless otherwise provided by this Act, be enforced by action .

Section Auction sales Section In the case of sale by auction— where goods are put up for sale by auction in lots, each lot is prima facie taken to be the subject of a separate contract of sale ; a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner, and until that announcement is made, any bidder may retract his or her bid; where a sale by auction is not notified to be subject to a right to bid on behalf of the seller , it is lawful for the seller to bid himself or herself or to employ any person to bid at that sale , or for the auctioneer knowingly to take any bid from the seller or any such person, and any sale that contravenes that rule may be treated as fraudulent by the buyer and a sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller . Where a right to bid is expressly reserved, but not otherwise, the seller , or any one person on his behalf, may bid at the auction.

Section Power of Minister to amend Schedule Section The Minister may by statutory instrument with the approval of Cabinet, amend the Schedule to this Act.

Section Repeal Section The Sale of Goods Act, Cap. 82 and the Bulk Sales Act, Cap. 69, are repealed.

Section Savings Section The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security.