Author(s): EBERECHI JACK OSIMIRI | Volume 18 (2)April, 2023
Abstract
Passing of property in the goods has over the years been recognized as one of the most important aspect of sale of goods contracts: on the ground that passing of property in the goods from the seller to the buyer either in ascertained or unascertained goods, involves the delivery of the goods and the risk of loss. It also involves the various stages of parties‟ performance of their obligations. Though, the intention of the parties can be discerned from the terms of the contract, conduct of the parties and the circumstances of the case in specific/ascertained and unascertained goods, but there are problems of the buyer bearing the risk of loss, when the goods have been shipped but has not been delivered/received by the buyer. The challenges is observed more in a cost, insurance and freight (C.I.F.) contract/transportation term particularly when goods are bought afloat and the buyer is deemed to have assumed the risk of loss on shipment. There is also problem of transfer of property in unascertained goods forming part of the bulk and goods in undivided shares forming part of the bulk. It is in order to resolve these problems and to achieve the aim of this article, that a doctrinal method of research was used: whereof we used the primary research materials such as Sale of Goods Act, 1893, Sale of Goods Act, 1979 of England, and the Sale of Goods (Amendment) Act, 1995 of England and case laws; secondary research materials like opinion of law writers in textbooks, journals and tertiary sources like online materials. We found out that in interpreting the intention of the parties, due regard is not made to the nature of the goods which is the subject matter of the contract. Our findings also include that the application of rule 5 of section 18 of the Act, relating to passing of risk and property in unascertained goods forming part of the bulk and property in the goods in undivided share forming part of the bulk, there are harsh and inequitable effects on the transactions of parties particularly against the buyer. We further found that with the provisions of sections 20A and 20B of the English Sale of Goods (Amendment) Act 1995; such harsh and inequitable provisions of sections 16 and 18 rule 5 of the 1979 English Sale of Goods Act, has been cushioned. At the end, we recommended that the provisions of the amended Sale of Goods Act 1995 (English) should be adopted in Nigeria, in order to remedy the harsh effects and litigations in this respect.