The Timing of the Passing of Risk Under the English Sale of Goods Act 1979, the Interplay between the Principle of Party Autonomy and the Default Rule: Should the Risk Linked to the Passing of Property or to the Situation of the Goods?

Abstract

It is common knowledge that, the term ‘unless otherwise agreed’ part one set out in s.20 of SOGA allows for the parties to transfer the risk at a specific time separately before the property, the germane question relates to unascertained goods, where the parties intend to passes the risk before the property. In fact, there is no expressed provision in English statutory law which prevents the parties in the contract from agreeing to pass the risk before the property with regard to unascertained goods, which creates problem, because the goods must be sufficiently identifiable as those to which the risk relates. The aim of the paper will examine the difficulty where the parties intend to pass the risk before property in the case of unascertained goods, where the English law does not proclaim explicitly on this issue, when it, linked the issue of passing of risk to the property, rather than linked to the situation of the goods. Assuming, that the prima facie and general standard of the English law is the sufficiently identifiable goods which the risk relates, and the contract must then be one for the sale of specific goods; as a result, it is illogical to rely upon such standards, due to the fact that they are impossible to apply, because the goods remain unascertained and are not sufficiently identifiable as those to which the risk relates (unknown goods). Accordingly, the risk never passes before the property in relation to unascertained goods. Along the lines of United Nations Convention on Contracts for the International Sale of Goods CISG, article 67, sets out explicitly that the risk does not pass to the buyer until the goods are clearly identified within the contract.