LEGAL PERSPECTIVE: Sales to Pass Title, by Dr AbdelGadir Warsama, Legal Counsel

Dr AbdelGadir Warsama , Legal Counsel

It is not necessary to observe complex formalities to create a contract for sale of goods. This contract, may be in writing or by word of mouth or even implied form the conduct of the parties. The capacity to enter into contracts is generally governed by the law of contract. Generally, the parties are free to agree to the terms of the deal. However, the law, includes a number of conditions and warranties in sale of goods.

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There is a very essential implied condition on the part of the seller, that he has the right to sell the goods, and moreover in an agreement to sell he will have the right to sell when the property title is to pass to the other party. If the seller cannot pass the goods title to the buyer, he will be liable for breach of a condition. Also, there are implied warranties, as the goods are free from any charges or encumbrances not made known to the buyer before the contract and that the buyer will enjoy quiet possession of the goods. If seller lacks ownership of title, and sells the buyer will not enjoy since he had not received what he had contracted for which is failure of consideration. In a situation where the seller is unsure about his title to goods, he can sell them on the basis that he is transferring only when such right of ownership as he may have. If he does this there is no implied condition that he has the right to sell the goods, but the sale is subject to implied warranties relating to freedom from third party rights and quiet possession.

Sale of goods can take many forms as agreed by the parties. Herein, if there is sale of good by description, there is an implied condition that the goods will correspond with the description. If the buyer does not see the goods before he buys them there has clearly been a sale by description, we have this now in e-commerce contracts. Even where the buyer has seen the goods and perhaps selected them by himself, it may still be a sale by description provided he has relied to some extent on a description. There is an implied conditions into every sale that the goods are of merchantable quality and they are fit for a particular purpose.

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