Thursday, July 19, 2012

Unpaid Seller and his Right


Unpaid Seller and His rights
Section 45 define an unpaid seller as “One who has not been paid or tendered the whole of the price or one who receives a bill of exchange or other negotiable instrument as conditional payment and the condition on which it was received has not been fulfilled by reason of dishonour of the instrument or otherwise.”
The following conditions must be fulfilled before a seller can be deemed to be an unpaid seller –
               (i) He must be unpaid and the price must be due.
               (ii) He must have an immediate right of action for the price.
               (iii) A bill of exchange or other negotiable instrument was received but the same has been dishonoured.

The rights of an unpaid seller can be broadly divided under 2 main headings –
I] Rights against the goods and
II] Rights against the buyer

I] Rights against the goods:
A] Where the property in the goods has passed to the buyer – Where the ownership in the goods has already been transferred to the buyer the following rights are available to an unpaid seller –
1. Right of Lien – The right of lien means the right to retain the possession of goods until the full price is paid or tendered.
When can lien be exercised:
(a) Where the goods have been sold without any stipulation as to credit.
(b) Where the goods have been sold on credit, but the term of credit has expired, and
(c) Where the buyer becomes insolvent.

The right can be exercised even if the seller holds the goods as an agent or bailee. Where part delivery of goods has been made, it can be exercised on the remaining goods, unless circumstances show he has waived his right.
Termination of lien – The right gets terminated under following circumstances:
(a) When the goods are delivered to a carrier or bailee but without reserving the right of disposal.
(b) When the possession is acquired by the buyer or his agent lawfully.
(c) When the right of lien is waived by the seller.
(d) When the buyer has disposed of the goods by sale of in any manner with the consent of the seller.

2. Right of stoppage of goods in transit – The right of stoppage in transit means the right to stopping the goods while they are in transit, to regain possession and to retain them until the price is paid. The essential feature of stoppage in transit is that the goods should be in the possession of someone intervening between the seller and the buyer. The unpaid seller can exercise the right of stoppage in transit if:
(a) The seller has parted with the possession of the goods.
(b) The buyer has not taken possession of goods.
(c) Buyer has become insolvent.
The unpaid seller may exercise the right to stoppage in transit in any one of the following 2 ways:
(i) By taking actual possession of the goods, or
(ii) By giving notice of his claim to the carrier or other bailee in whose possession the goods are.

The right to stoppage in transit is lost under the following circumstances:
(a) If the buyer or his agent obtains possession.
(b) If after arrival of the goods at the appointed destination, the carrier or the bailee acknowledges to the buyer that he holds the goods on his (buyer’s) behalf.
(c) If the carrier or bailee wrongfully refuses to deliver the goods to the buyer or his agent.
(d) Where the part delivery of the goods has been made to the buyer or his agent, the remainder of goods may be stopped in transit. But if such part delivery has been given in such circumstances as to show an agreement to give up possession of the whole of the goods the transit comes to an end at the time of part delivery.

3. Right of resale – Where the unpaid seller has exercised his right of lien or resumes possession of the goods by exercising his right of stoppage in transit upon insolvency of the buyer, he can re-sell the goods under the following circumstance –
(a) where the goods are of perishable nature.
(b) Where the seller has given notice of his intention to re-sell the goods and yet the price remains unpaid.
(c) Where the seller expressly reserves a right of resale if the buyer commits a default in making the payment.

B] Where the property in the goods has not passed to the buyer – Where the property in the goods has not passed to the buyer, the unpaid seller can exercise the right to withholding delivery of the goods. This right is similar to and co-extensive with the right of lien and stoppage in transit where the property has passed to the buyer. Other remedies may include the right to claim damages for the loss suffered, special damages, etc.

II] Rights of an unpaid seller against the buyer personally
In addition to the unpaid seller’s rights against the goods, he has rights even against the buyer personally. They are as follows:

1. Suit for Price – Generally the seller can sue for the price of the goods only when the property in the goods has passed to the buyer and the price is not paid as per the terms of the contract. In cases where the property in the goods has not passed to the buyer, suit for price generally, cannot be maintained, unless under the contract, price is payable on a certain date irrespective of the delivery of passing of the ownership of the goods.

2. Suit for damages – The unpaid seller can bring an action for damages where the buyer wrongfully refuses to accept the goods or repudiates the contract.

3. Suit for interest – In case of breach of contract on the part of the buyer, the unpaid seller can claim for interest from the date of tender of the goods or from the date, the price becomes payable along with a suit for price.

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