||All England Reporter
|| All ER (D) 203 (Jul)
||Court of Appeal, Civil Division
Peter Gibson, Potter LJJ and Sir Murray Stuart-Smith
||The claimant did not appear and was not represented.
||Michael Johnson (instructed by Roebucks, Blackburn) for the defendant.
||12 July 2002
Sale of goods - Passing of property - Action for price - Defendant contracting with claimant to pay 'buy-back' price to claimant for vehicles - Defendant failing to pay buy-back price - Claimant disposing of vehicles elsewhere - Whether claimant entitled to maintain action for price - s 49(2).
The commercial reality of a buy-back agreement between the claimant and defendant in the instant case was that payment and delivery would have been co-ordinated so as to have simultaneous effect. That being so, the agreement could not fall within s49(2) of the which provided for a seller to sue for the price of goods rather than for damages for breach of contract, since that provision required the price to be payable on a day certain, irrespective of delivery. Furthermore, a seller's entitlement to sue under s49(2) of the Act depended on his continued willingness and ability to deliver the goods to the buyer. In the instant case, the claimant had disposed of the vehicles elsewhere by the time the matter came to trial and for that reason also, the instant case could not fall within s49(2) of the Act.
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