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The three different contingencies which may arise in case of a defective delivery, i.e., delivery of a wrong quantity, are:
(1) Delivery of goods less than contracted for . where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject the goods. If he accepts them, he shall pay for them at the contract rate [sec. 37(1)].
Example. A sells to B 2,000 OF “200 yards reels of sewing cotton. After taking delivery B finds that the length of the cotton per reel is less than 200 yards. The average being shortage of about 6 per cent. B may reject the goods. If he waives the right of rejection, he is liable to pay the price of the goods at the contract rate [Back etc. v. synzmanoski, (1924)A.C. 43].
If the goods have been rejected for short delivery. The seller can make, within the time limit, another delivery in accordance with the terms of the contract.
(2) Delivery of goods in excess of the quantity contracted for. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may (i) accept the whole ; or (ii) reject the whole ;or (iii) accept the quantity he ordered and reject the rest. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract rate [sec. 37(2)
Example . A places an order with B to supply 25 bottles of orange syrup. B sends 30.A is entitled to reject the whole, or he may accept 25 and reject the rest. If he accepts all the 30, he must pay for them at the contract rate.
(3) Delivery of goods contracted for mixed with other goods. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description, the buyer may accept the goods which are in accordance with the contract and reject the rest, or may reject the whole [sec 37(3)].
Example. A contracts with B to buy 100 tons of cane sugar. A delivers to B 75 tone of cane sugar and 25 tons of beet sugar. A may either (i) accept 75 tons of cane sugar which is in accordance with the contract, and reject 25 tons of beet sugar which is of a different description, or (ii) reject the whole sugar.
The provision of sec.37 are subject to any usage of trade, special agreement, or course of dealing between the parties [sec.37(4)].
If quantity deliver is deficit or excess which is negligible , the court does not take it into account. The maxim is “ the law does not take trivial deviations into account.”
(1) Delivery of goods less than contracted for . where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject the goods. If he accepts them, he shall pay for them at the contract rate [sec. 37(1)].
Example. A sells to B 2,000 OF “200 yards reels of sewing cotton. After taking delivery B finds that the length of the cotton per reel is less than 200 yards. The average being shortage of about 6 per cent. B may reject the goods. If he waives the right of rejection, he is liable to pay the price of the goods at the contract rate [Back etc. v. synzmanoski, (1924)A.C. 43].
If the goods have been rejected for short delivery. The seller can make, within the time limit, another delivery in accordance with the terms of the contract.
(2) Delivery of goods in excess of the quantity contracted for. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may (i) accept the whole ; or (ii) reject the whole ;or (iii) accept the quantity he ordered and reject the rest. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract rate [sec. 37(2)
Example . A places an order with B to supply 25 bottles of orange syrup. B sends 30.A is entitled to reject the whole, or he may accept 25 and reject the rest. If he accepts all the 30, he must pay for them at the contract rate.
(3) Delivery of goods contracted for mixed with other goods. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description, the buyer may accept the goods which are in accordance with the contract and reject the rest, or may reject the whole [sec 37(3)].
Example. A contracts with B to buy 100 tons of cane sugar. A delivers to B 75 tone of cane sugar and 25 tons of beet sugar. A may either (i) accept 75 tons of cane sugar which is in accordance with the contract, and reject 25 tons of beet sugar which is of a different description, or (ii) reject the whole sugar.
The provision of sec.37 are subject to any usage of trade, special agreement, or course of dealing between the parties [sec.37(4)].
If quantity deliver is deficit or excess which is negligible , the court does not take it into account. The maxim is “ the law does not take trivial deviations into account.”
