Abstract
The history of the development of the implied terms on short delivery is a complex story of judicial and academic ignorance of law and facts. Sir Mackenzie Chalmers' statutory formulation of the right to correct delivery was the same as that provided in Judah Benjamin's 1868 work on sales. However, Benjamin's formulation was flawed, which led to a highly unsatisfactory rule of law. This article considers the history of the case law on short delivery, leading up to the 1893 codification. The operation of the statutory rule further illustrates the depth of confusion which remained following codification. A comparison with the history of short delivery in the United States demonstrates that the confusion within the English system could easily have been avoided.
Highlights
If a seller delivers the wrong quantity of goods to the buyer, the Sale of Goods Act 1979 (‘SGA 1979’), s. 30(1) provides that ‘the buyer may reject the goods’
They do not say when a contract may be treated as discharged for delivery of a wrong quantity.’[2]. Most recently the Law Commissions have stated that they do not see any particular need to reform the provisions of section 30, primarily because ‘[c]onsultees tended to see section 30 as a reasonable, sensible and logical set of rules to deal with the wrong quantity of goods being delivered.’[3]. In considering the right to reject in general, the Law
Commissions’ view that section 30(1), ‘which is placed among a set of provisions about delivery, appears in origin to be no more than an enumeration of the results of particular decisions.’[6]. This confusion and ambiguity over the legislative provisions on short delivery justifies a historical enquiry,[7] which will demonstrate the difficulty with enumerating any particular conclusions about the nature of the right to reject for short delivery that existed prior to the Sale of Goods Act 1893 (‘SGA 1893’), s. 30(1)
Summary
If a seller delivers the wrong quantity of goods to the buyer, the Sale of Goods Act 1979 (‘SGA 1979’), s. 30(1) provides that ‘the buyer may reject the goods’. There is a considerable volume of judicial consideration of the matter,[5] which may explain the earlier Law. Commissions’ view that section 30(1), ‘which is placed among a set of provisions about delivery, appears in origin to be no more than an enumeration of the results of particular decisions.’[6] This confusion and ambiguity over the legislative provisions on short delivery justifies a historical enquiry,[7] which will demonstrate the difficulty with enumerating any particular conclusions about the nature of the right to reject for short delivery that existed prior to the Sale of Goods Act 1893 (‘SGA 1893’), s. Codification of sales in the 1890s; some of the intervening decisions exacerbated the problems with short delivery This history will show how the judicial explanations of the consequences of short delivery lacked any coherent theoretical basis, as well as demonstrating how such contradictions continued even after the SGA 1893. A brief comparison with the American experience demonstrates that the difficulties evident in English law were effectively avoided as a result of greater care taken by American commentators (in contrast to Benjamin and Chalmers’ efforts)
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