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Principles of

Commercial Law

Second Edition

C

P

Cavendish

Publishing

Limited

London • Sydney

EDITORIAL ADVISORY BOARD

PRINCIPLES OF LAW SERIES

PROFESSOR PAUL DOBSON

Visiting Professor at Anglia Polytechnic University

PROFESSOR NIGEL GRAVELLS

Professor of English Law, Nottingham University

PROFESSOR PHILLIP KENNY

Professor and Head of the Law School, Northumbria University

PROFESSOR RICHARD KIDNER

Professor at the Law Department, University of Wales, Aberystwyth

In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects.

Principles of

Commercial Law

Second Edition

Professor Michael Furmston

TD, MA, BCL, LLM, Barrister

Bencher of Gray’s Inn

Emeritus Professor of Law and Senior Research Fellow

The University of Bristol

C

P

Cavendish

Publishing

Limited

London • Sydney

Second edition first published in Great Britain 2001 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

Telephone: + 44 (0)20 7278 8000

Facsimile: + 44 (0)20 7278 8080

Email: info@cavendishpublishing.com

Website: www.cavendishpublishing.com

This title was previously published under the Lecture Notes series

© Furmston, MP

2001

First edition

1995

Second edition

2001

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.

Furmston, MP (Michael Philip)

Principles of Commercial Law – 2nd ed

1 Commercial law – England 2 Commercial law – Wales

I Title II Commercial law

346.4'2'07

ISBN 1 85941 463 X

Printed and bound in Great Britain

PREFACE

The first edition of this book formed part of the Lecture Notes series, which was intended to help students by giving them a clear outline of the material to be covered in the course, so as to enable them to concentrate on the lectures and other reading within a framework which was easy to assimilate and understand. The second edition has been written with the same purpose in view although the Lecture Notes series itself is no more.

Apart from bringing the text up to date, there are two more substantial changes. The first is the disappearance of the discussion of consumer credit. If commercial law is about the relations between merchants, then the law of consumer credit, important and complex as it is, is not part of commercial law. This doctrinal consideration is reinforced by the fact that examination shows that nowadays relatively few universities include this material in courses entitled Commercial Law or something similar. I am very grateful indeed to Peter Shears for undertaking this formidable labour in the first edition. At a relatively late stage in preparation of the text, it was decided that a rather fuller treatment of agency was appropriate. My other commitments did not permit me to do this myself within the desired time frame and I am extremely grateful to Professor Richard Stone, who has not only done this, but done it better than I could have done myself.

There is a strong case for a general expansion of the whole work so that it could fit in to the Cavendish Principles series. This would present a formidable but exciting challenge but it is one which will have to be postponed until the third edition.

Michael Furmston

April 2001

v

 

CONTENTS

 

Preface

v

Table of Cases

xiii

Table of Statutes

xxix

Table of Other Legislation

xxxiii

 

PART I – SALE OF GOODS

 

1

INTRODUCTION TO SALE OF GOODS

3

1.1

NATURE OF THE SUBJECT

3

1.2

IS THE SALE OF GOODS ACT A COMPLETE CODE?

4

1.3

DOMESTIC AND INTERNATIONAL SALES

5

1.4

COMMERCIAL AND CONSUMER SALES

5

1.5

TYPES OF TRANSACTION

6

1.6

MEANING AND TYPES OF GOODS

11

SUMMARY OF CHAPTER 1

15

2

THE PRICE

17

2.1

INTRODUCTION

17

2.2

THE PARTIES SAY NOTHING ABOUT THE PRICE

17

2.3

THE PARTIES FIX THE PRICE IN THE CONTRACT

18

2.4THE PRICE IS LEFT TO BE FIXED IN A MANNER

AGREED BY THE CONTRACT

18

2.5 FIXING THE PRICE BY THIRD PARTY VALUATION

19

SUMMARY OF CHAPTER 2

21

3

PAYMENT, DELIVERY AND ACCEPTANCE

23

3.1

INTRODUCTION

23

3.2

PAYMENT

23

3.3

DELIVERY

24

3.4

ACCEPTANCE

31

SUMMARY OF CHAPTER 3

37

vii

Principles of Commercial Law

4

OWNERSHIP

39

4.1

INTRODUCTION

39

4.2THE SELLER’S DUTIES AS TO THE TRANSFER

OF OWNERSHIP

39

4.3 MEANING OF ‘RIGHT TO SELL’

40

4.4TO WHAT REMEDY IS THE BUYER ENTITLED IF THE SELLER BREAKS HIS OBLIGATION

 

UNDER S 12(1)?

40

4.5

SCOPE OF ROWLAND V DIVALL

41

4.6

SUBSIDIARY OBLIGATIONS

42

4.7CAN THE SELLER EXCLUDE HIS OR HER

 

LIABILITY UNDER S 12?

42

4.8

THE PASSING OF PROPERTY

43

4.9

RETENTION OF TITLE CLAUSES

50

4.10TRANSFER OF TITLE WHERE THE SELLER IS

NOT THE OWNER

54

SUMMARY OF CHAPTER 4

65

5 NON-EXISTENT GOODS, RISK AND

 

 

FRUSTRATION

67

5.1

NON-EXISTENT GOODS

67

5.2

THE DOCTRINE OF RISK

68

5.3

THE DOCTRINE OF FRUSTRATION

71

SUMMARY OF CHAPTER 5

75

6

DEFECTIVE GOODS

77

6.1

INTRODUCTION

77

6.2

LIABILITY IN CONTRACT: EXPRESS TERMS

77

6.3

LIABILITY FOR MISREPRESENTATION

78

6.4

IMPLIED TERMS

81

6.5

LIABILITY IN TORT

94

6.6

CRIMINAL LIABILITY

99

SUMMARY OF CHAPTER 6

99

viii

Contents

7

EXEMPTION AND LIMITATION CLAUSES

101

7.1

INTRODUCTION

101

7.2

THE POSITION AT COMMON LAW

102

7.3STATUTORY CONTROL OF EXEMPTION AND

LIMITATION CLAUSES

104

7.4 EUROPEAN STATUTORY CONTROL

110

SUMMARY OF CHAPTER 7

117

8

REMEDIES

119

8.1

GENERAL PRINCIPLES

119

8.2WITHHOLDING PERFORMANCE, TERMINATION

 

AND THE BUYER’S RIGHT TO REJECT

120

8.3

SPECIFIC ENFORCEMENT

126

8.4

ACTIONS FOR DAMAGES

128

8.5

PARTY PROVIDED REMEDIES

132

8.6

SELLERS’ REMEDIES AGAINST THE GOODS

134

SUMMARY OF CHAPTER 8

135

 

PART II – LAW OF AGENCY

 

9

INTRODUCTION TO THE LAW OF AGENCY

139

9.1

DEFINING AN AGENCY

139

9.2

TYPES OF AGENCY

142

9.3

CREATION OF AGENCY

144

9.4

RATIFICATION

145

9.5

AGENCY BY OPERATION OF LAW

148

9.6

TERMINATING THE AGENCY

150

SUMMARY OF CHAPTER 9

153

ix

Principles of Commercial Law

10

THE EXTERNAL RELATIONSHIP

155

10.1

AUTHORITY

155

10.2

DISCLOSED AND UNDISCLOSED PRINCIPALS

161

10.3

CASES WHERE A IS LIABLE TO BE SUED

165

10.4

CASES WHERE A IS ENTITLED TO SUE

167

SUMMARY OF CHAPTER 10

169

11

THE INTERNAL RELATIONSHIP

171

11.1

DUTIES OF AGENT TOWARDS PRINCIPAL

171

11.2

RIGHTS OF AGENT AGAINST PRINCIPAL

176

SUMMARY OF CHAPTER 11

181

 

PART III – CARRIAGE OF GOODS BY SEA

 

12

INTRODUCTION TO CARRIAGE OF

 

 

GOODS BY SEA

185

12.1

NATURE OF THE SUBJECT

185

13

BILLS OF LADING

179

13.1

WHAT IS A BILL OF LADING?

179

13.2

DOCUMENT OF TITLE

192

13.3

THE BILL OF LADING AS A TRANSFERABLE CONTRACT

193

13.4

OTHER DOCUMENTS USED FOR SEA CARRIAGE

195

SUMMARY OF CHAPTER 13

199

14

CHARTERPARTIES

201

14.1

TYPES OF CHARTERPARTY

201

14.2

VOYAGE CHARTERPARTIES

203

14.3

TIME CHARTERPARTIES

211

14.4BILL OF LADING FOR GOODS IN

CHARTERED SHIP

213

SUMMARY OF CHAPTER 14

205

x

Contents

15 THE HAGUE AND HAGUE-VISBY RULES

219

15.1 ORIGIN OF THE HAGUE RULES: THE HARTER ACT

219

15.2THE BRUSSELS CONVENTION OF 1924:

 

THE HAGUE RULES

219

15.3

APPLICATION OF THE RULES

219

15.4

PROVISIONS OF THE RULES

220

15.5

THE HAGUE-VISBY RULES

221

SUMMARY OF CHAPTER 15

223

16

FREIGHT

225

16.1

INTRODUCTION

225

16.2

FREIGHT PAYABLE ON DELIVERY

225

16.3

LUMP SUM FREIGHT

225

16.4

PRO RATA FREIGHT

225

16.5

ADVANCE FREIGHT

225

16.6

BACK FREIGHT

226

16.7

DEAD FREIGHT

226

16.8

SET-OFF

226

16.9

WHO IS LIABLE FOR FREIGHT?

226

 

PART IV – INTERNATIONAL SALES

 

17

GENERAL PROBLEMS

231

17.1

CONFLICT OF LAWS

231

17.2

THE SALE OF GOODS ACT

232

17.3

FINANCE

232

17.4

EXPORT AND IMPORT LICENCES

236

17.5

INSURANCE

237

17.6

THE BILL OF LADING

238

SUMMARY OF CHAPTER 17

239

xi

Principles of Commercial Law

18

CIF CONTRACTS

241

18.1

DEFINITION

241

18.2

DUTIES OF SELLER

241

18.3

DUTIES OF BUYER

242

18.4

PASSING OF PROPERTY

242

18.5

PASSING OF RISK

243

18.6

REMEDIES OF THE SELLER

243

18.7

REMEDIES OF THE BUYER

244

SUMMARY OF CHAPTER 18

247

19

FOB AND OTHER CONTRACTS

249

19.1

DEFINITION AND CLASSIFICATION

249

19.2

DUTIES OF THE SELLER

250

19.3

DUTIES OF THE BUYER

250

19.4

PASSING OF PROPERTY

250

19.5

PASSING OF RISK

251

19.6

REMEDIES OF THE BUYER

251

19.7

REMEDIES OF THE SELLER

252

19.8

OTHER CONTRACTS

253

SUMMARY OF CHAPTER 19

255

Index

 

257

xii

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