After learning the meaning and types of delivery, let us now study the rules regarding the delivery of the goods. These rules are as follows:
1. Delivery of the goods may be made in any of the types discussed above. The important point to remember is that it should have the effect of putting the goods in the possession of the buyer or his authorised agent.
2. Delivery and payment are concurrent conditions: Unless otherwise agreed, the delivery of goods and payment of price are concurrent conditions. The seller should be ready and willing to give possession of the goods to the buyer, and the buyer should be ready and willing to pay the price (Section 32).
3. Effect of part delivery:Sometimes when goods in large quantity are to be delivered, then during the process of delivery when part of the goods are delivered, it is treated as the delivery of the whole, for the purpose of passing the property in the goods. But where part delivery is made with the intention of separating it from the whole lot, then it does not amount to the delivery of the whole of the goods (Section 34).
You should, however, note that part delivery should not be confused with instalment delivery.
4. Buyer to apply for delivery: Unless some contract exists the seller of goods is not bound to deliver them until the buyer applies for delivery (Section 35). In case the goods are to be subsequently obtained or procured by the seller, then the duty of the seller is to intimate the buyer that the goods have been obtained by him, even then, the buyer should apply for delivery. The buyer can have no cause of action against the seller, if he fails to apply for delivery.
5. Place of delivery: The place where goods are to be delivered is generally agreed between the parties. Where the place of delivery is agreed upon, the goods must be delivered at that place during business hours on a working day. But if nothing specific is agreed upon them.
a) the goods sold are to be delivered at the place at which they are at the time of the sale, and
b) goods agreed to be sold are to be delivered at the place at which they are at the time of the agreement to sell, or
c) if the goods are not in existence at the time of the agreement to sell, they are to be delivered at the place at which they are manufactured or produced Section 36(1).
6. Time of delivery: Where under the contract of sale the seller is bound to send the goods to the buy but no time for sending them is fixed, the seller is bound to send them within a reasonable time [Section 36(2)]. What is a reasonable time is a question of fact depending upon the facts and circumstances of each case?
7. Manner of delivery: Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf [Section 36(3)].
8. Expenses of delivery: Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state shall be borne by the seller [Section36(3)].
9. Delivery of wrong quantity: Wrong quantity may be either ‘short delivery’, ‘excess delivery’ or ‘mixed delivery’. Following are the rules, but they are subject to any usage of trade, special agreement or course of dealing between the parties.
a) short delivery: Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them. But if the buyer accepts the goods so delivered, he shall pay for them at the contract rate [Section 37(1)]. By accepting a lesser quantity, the buyer is not debarred from suing for damages on the ground of short delivery.
b) Excess delivery: Where the seller delivers to the buyer a quantity of goods larger than contracted for, the buyer has the option: -
i) to accept the contracted quantity and reject the excess; or
ii) to accept the whole, in this case, he shall become liable to pay for all the goods at the contract rate; or
iii) to reject the whole quantity [Section 37(2)].
Example: A agrees to sell 1000 quintals of rice to B at Rs. 2,000 per quintal. A delivers 1,050 quintals. B may reject the whole lot, or accept only 1,000 quintals and reject the rest or accept the whole lot and pay for them at the contract rate.
c) Mixed Delivery: Where the seller delivers to the buyer the goods, he contracted to sell mixed with the 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 reject the whole [Section 37(3)]. For example: A agrees to sell 10 quintals of wheat to B. A sends 20 quintals of wheat and 10 quintals of rice. B may reject the whole or may accept 20 quintals of wheat and reject the rice.
You have noted that when goods in wrong quantity are delivered, the buyer has the option to reject the whole lot. If the buyer does so, it does not amount to cancellation of the contract. The seller still has the right to deliver the goods contracted for, and the buyer shall be bound to accept the same.
10. Instalment deliveries: In the absence of an agreement to the contrary, the buyer is not bound to accept delivery by instalments Section 38(1). For example, A agrees to deliver to B 100 quintals of wheat in April. But A delivers only 80 quintals in April and the remaining 20 quintals in the first week of May. B is entitled to reject the whole 100 quintals.
Sometimes, there may be a contract for the supply of goods in instalments which are to be separately paid for. In such a case a problem arises when there is a breach either by the seller or the buyer. In such a situation it is a question of fact whether the whole contract is to be treated as repudiated or only one instalment is repudiated for which the party may claim damages and the remaining instalments are to be duly delivered and accepted.
11. Delivery to a carrier or wharfinger: According to Section 39(1), where the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier for the purpose of transmission to the buyer or the delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of goods to the buyer.
The seller must make a reasonable contact with the carrier or wharfinger for the safe transmission or custody of the goods, and if he fails to do so, and the goods are lost or damaged, the buyer may either decline to treat the delivery to the carrier or wharfinger as a delivery to himself, or hold the seller liable for damages [Section 39(2)].
