Sale of Specific Goods and Implied Conditions

This paper believes that in a sale of specific goods, there is no implied condition that the goods exist. Under the Sale of Goods Act 1979 s.5 , the ‘goods’ that form the subject matter of the contract can be either existing goods owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract. Hence the goods that form the subject matter of the contract do not have to be in existence at the time that the contract is made. If the goods are not in existence at the time that the contract is made, meaning that the contract is for future goods, s.5(3) states that the contract ‘operates as an agreement to sell the goods’.Specific goods are defined in s.61(1) as goods identified and agreed on at the time a contract of sale is made. For goods to be deemed specific, they must be designated as the unique articles that the contract is concerned with, and must be capable of being so and actually so designated at the time of the contract. However, it is not necessary that the goods in question should be physically present before the parties at that time, although that would be the most obvious example of ‘specific goods’: goods can also be specific even though they are identified only by words of description. On the other hand, some cases may not be that obvious. In Howell v Coupland , where a contract to sell 200 tonnes of potatoes to be grown on a particular piece of land, it was held that it was a sale of specific goods for the purpose of the common law rules of frustration. Currently, the tendency seems to be to restrict the meaning of ‘specific goods’ under the Act to cases where existing goods have actually been identified or agreed upon. In Re Wait , a sale of 5,000 tons of a cargo of 10,000 tons of wheat on a particular ship was held not to be a sale of specific goods within the meaning on s.52 of which specific performance could be ordered. In a similar vein, HR & S Sainsbury v Street , a sale of 275 tons…

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