Sugar was agreed to be sold, with the price payable ‘Prompt at one month; goods at seller’s risk for two months’, to be kept at the seller’s premises and drawn down by the buyers as wanted. After two months and after only some of the sugar had been drawn down by the buyers, a fire destroyed the rest. The buyer having disputed his liability to pay for the undelivered sugar which had been burned in the fire, the seller brought an action ‘to recover the price of [the] sugars sold’ and the question was whether the sellers were so entitled. Held, by Cockburn, CJ, on the ground that the property in the titlers undelivered had passed to the defendant, by Blackburn, Lush, and Quain JJ, whether it had passed or not, that, by the terms of the contract of sale, the risk, after the lapse of the two months, was in the buyer, and the loss was, therefore, his.
Secondly, that, as there was no contract between the plaintiffs and their customers as to insurance, the plaintiffs were under no obligation in the matter, and were entitled to appropriate to their own losses the whole sum received from the insurance offices.
Semble, by Blackburn and Lush, JJ., that the property in the titlers undelivered had passed to the defendant.
Blackburn J said: ‘As a general rule res perit domino, the old civil law maxim, is a maxim of our law; and when you can show that the property has passed, the risk of the loss prima facie is in the person in whom the property is.’
Blackburn J said: ‘As a general rule res perit domino, the old civil law maxim, is a maxim of our law; and when you can show that the property has passed, the risk of the loss prima facie is in the person in whom the property is.’ and ”[A]ssume that [property] had not passed. If the agreement between the parties was, ‘I contract that when you pay the price I will deliver the goods to you, but the property shall not be yours, they shall still be my property so that I may have dominion over them; but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you;’ and then the goods perish; to say that the buyer could then set up this defence and say, ‘Although I stipulated that the risk should be mine, yet, inasmuch as an accident has happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you because the property did not pass to me,’ is a proposition which, stated in that way, appears to be absolutely a reductio ad absurdum; and that is really what the argument amounts to. If the parties have stipulated that, if after the two months the goods remain in the sellers’ warehouse, they shall, nevertheless, remain there at the buyer’s risk, it would be a manifest absurdity to say that he is not to pay for them; and I think the case of Castle v Playford is a clear authority of the Court of Exchequer Chamber, that where the parties have stipulated that the risk shall be on one side, it matters not whether the property had passed or not. The parties here have by their express stipulation impliedly said, after the two months the goods shall be at the risk of the buyer, consequently it is the buyer who must bear the loss.’
Cockburn CJ, Blackburn, Lush and Quain JJ
(1872) LR 7 QB 436, 26 LT 836
England and Wales
Citing:
Cited – Castle v Playford Cexc 1872
The contract for the sale of ice was for cash on delivery at the rate of 20s a ton as weighed on arrival and delivery in the United Kingdom, but it was agreed that the buyer should ‘take upon himself all risks and dangers of the seas’. The vessel . .
Cited by:
Cited – PST Energy 7 Shipping Llc and Another v OW Bunker Malta Ltd and Another SC 11-May-2016
Parties had entered into a bunker supply contract which contained a retention of title clause in favour of the supplier. It purported to allow the buyer to use the goods before title came to be passed.
Held: The owner’s appeal failed. It did . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.618138
