There is no firm rule prescribing where examination should occur. However, a buyer should have a reasonable time to examine the goods.
a) The Court doubted the existence even of a prima facie rule that the place of destination for FOB delivery is the place of examination, rather the opportunity to examine a shipment depended on all circumstances; Schofield (JW ) & Sons v Rownson, Drew and Clydesdale Ltd (1922) 10 Ll LR
b) Where goods were sold FOB New York and shipped on a vessel bound for Liverpool, which was diverted by Admiralty orders to Glasgow, the buyers rejected the goods after examination at his premises in London. The Court held inter alia that the rejection was effective despite all of the delays leading to the examination, sellers having contended that the buyer ought to have examined the goods in Glasgow; Scaliaris v. Ofverberg (E) and Co. (1921) 37 TLR 307
Acceptance
Under S. 35 a buyer is deemed to have accepted goods:
1. When he intimates to the seller that he has accepted them.
Acceptance must be unqualified: Transcatalana de Commercio SA v. Incobrasa Industrial e Commercial Brasiliena SA [1995] 1 Lloyd’s Rep 215,220
(An action resulting from the rejection of goods by the buyer on the basis that loading was not done from the contractual berth. The seller argued that the buyer had made representations to the effect that they accepted the loading of the goods from the non- contractual port. The Court found that though the buyer may have made representations to this effect, it did not constitute an unqualified acceptance of goods and documents within the scope of S. 35)
2. When the goods have been delivered to him and he does any act in relation to them which is inconsistent with the seller’s ownership.
ESSENCE OF AN INCONSISTENT ACT: buyer asserts proprietary rights in the goods or acts in a way that is detrimental to the seller’s ownership of the goods.
Tradax Internacional SA v Goldschmidt SA [1977] 2 Lloyd’s Rep 604,613; where buyers were aware of the contents of a certificate of quality which indicated that the goods has a high proportion of foreign matter, and went ahead and discharged the goods, they accordingly lost their right to reject the documents.
A buyer who goes on to commit an inconsistent act after notice of rejection may be liable for the tort of conversion.
3. Reasonable Time
Where goods are delivered to the buyer and he has not previously examined them, he is not deemed to have accepted them until he has had a reasonable opportunity to do so.
1. The buyer is deemed to have accepted the goods after the lapse of a reasonable time when he retains the goods without intimating to the seller that he has rejected the goods.
2.The buyer is not deemed to have accepted the goods merely because;
§ He agrees or asks to their repair by or under an arrangement with the seller
§ Goods are delivered to another under a sub-sale or other disposition.
Kwei Tak Chao v British Traders & Shippers Ltd [1954] 2 QB 459; right to reject goods arose only once goods were landed.
Gill & Dufus SA v. Berger & Co. [1984] AC 382; CIF buyer’s right to reject goods wouldn’t become exercisable until the seller’s…..reservation of the right of disposal….is terminated by his transferring the shipping docs to the buyer.
4. Partial Acceptance
Where the sale of goods making one or more commercial units, a buyer accepting any goods included in the unit is deemed to have accepted the goods making the unit, commercial units means a unit division of which would materially impair the value of the goods of the character of the unit.
5. Partial Rejection
This is subject to s. 35A which states where the buyer has a right to reject goods or an instalment of goods, by reason of breach by the seller of all or some goods, accepts some goods……. he does not by accepting them lose his right to reject the rest.
REFERENCES
1.Michael Bridge, The International Sale of Goods; Law and Practice (2nd Edn, 2007), Ch.8[1]
2. The Sale of Goods Act Ch.54 1979
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