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Law: The Risk Of Destruction And Deterioration

720 words - 3 pages

The issue in this case is whether the risk of destruction and deterioration had passed onto Bagio, the buyer, or remained with ProformAgric, the seller.

Generally, risk and benefit pass to the buyer on transfer of possession and ownership (assuming these occur simultaneously). The general rule is that the risk and benefit pass to the buyer as soon as the sale is “perfecta”, meaning that the agreement is unconditional and the identity, quality, quantity and price of the thing sold are certain readily ascertainable. Because contracts vary, parties can expressly agree that risk and benefit will pass either before or after delivery. Nugent AJA in Islando Foods v Fedgen Insurance opined that the ...view middle of the document...

ProformAgric will have failed to deliver the merx on time at the specified place, and therefore the risk will fall back upon them. If it was a vis major and the derailment was completely out of the control of the transporter, then Bagio will have suffered his own loss and not be entitled to any damages from ProformAgric.

PART B
The general rule is that the seller must take care of the res vendita from the date of completion of the sale until it is made available to the buyer or delivery is affected.
The seller may not make available more or less than the amount stated in the contract, nor the contract goods mixed with others of a different description. In the case of Cedarmount Store v Webster & Co 1922 TPD 106, A bought 400 bags of grade 2 white hickory maize from B at 16s 11d per bag. On delivery, A examined 100 of the bags, found that 10 bags were unsound and rejected the whole consignment. the court held that A had been entitled to reject the whole consignment as not being a substantial performance of the...

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