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Date: Thu, 27 Oct 2005 12:58:09 +0100 From: Andrew Tettenborn Subject: Re-tender of goods - Scots get it right?
A recent Scottish decision may be of interest for sale of goods buffs. Can a seller who tenders bum goods then retender conforming goods & insist that the buyer accept them? Yes, according to the Court of Session -- at least sometimes. In J & H Ritchie Ltd v. Lloyd Ltd [2005] ScotCS CSIH_3 a farmer bought a seed drill that didn't work. The sellers agreed to look at it, meanwhile lending him another. They then put the original machine into tiptop condition and redelivered it. The ungrateful farmer turned round, said he didn't want it and asked for his money back. By a majority the Inner House (equivalent to the English CA) held for the sellers. The tender of non-conforming goods didn't prevent a later corrected tender. Only if the farmer had originally rejected the machine on first tender (which he hadn't) would he have been entitled to succeed. This seems right to me, and in accordance with general contract law. Provided I tender due performance which the other party would ordinarily be bound to accept, I can't see why the fact that I previously tendered bad performance should affect the matter. Indeed, but for the unfortunate drafting of our sale of goods law (which says that tender of bad goods gives the buyer the right to reject and cancel the contract) I'd even go further and allow the seller to retender - provided he does so on time - even over an initial rejection by the buyer.
Andrew --
Tel:
01392-263189 / +44-392-263189 (outside UK) Snailmail:
School of Law, Exeter
Law School homepage: http://www.law.ex.ac.uk
LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).
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