This article has been written by Nehal Misra, a student at Nirma University, Ahmedabad. In this article, she discusses the insights related to the symbolic delivery and constructive delivery.
Table of Contents
Introduction
Delivery involves the voluntary transfer of one person’s possession to another. Under the Sales of Goods Act, sellers and buyers are individuals for whom such voluntary transfer is made. The vendor usually delivers the goods to the purchaser. Nevertheless, delivery can be made to some other individual or approved representative of the purchaser particularly if the purchaser gives orders to make such a delivery. Delivery may be made immediately, or maybe made at a future date, or maybe made under some condition that is to be met. The Sale of Goods Act is the law governing the sale of goods in all parts of India. Delivery is the process of transporting the goods to a predefined destination from the source location. Delivery types are different. The cargo (physical goods) is mainly delivered via roads and railroads, sea lanes, and airline networks. Some specialized products can be distributed by other networks, such as liquid products pipelines, electrical power grids, and computer networks such as the Internet, or electronic information transmission networks. In almost every form of a company, the selling or purchase of products is the most recurrent activity. Businessmen get involved in the sale and purchase of goods now and then and enter into the sale contract. The Sale of Goods Act, 1930, governs those contracts. It is important for each individual, whether a legal professional or a common man who regularly deals with the sales transaction, to have an understanding of the important terms in the Sale of Goods Act,1930. The general production method of the products is known as distribution. Studying effective processes for delivering and disposing of goods and staff is called logistics. Companies specializing in the supply of commercial goods from the point of production or storage to the point of sale are generally known as distributors, while those specializing in the supply of goods to consumers are known as the supply services. Postal, courier, and relocation services also supply goods for business and private interests. The Act describes various words that are used in the Act itself.
I. Buyer And seller
Under Section 2(1) of the Sales of Goods Act, a buyer is someone who purchases or has agreed to purchase goods. Since a sale is a contract between two parties, a purchaser is one of the contractual parties. Sec 2(13) of the Sales of Goods Act describes a seller. A seller is someone who sells goods or has decided to sell them. For a sales contract to come into being, the Law must define both buyers and sellers. Those two words reflect a sales deal between the two parties. A minor difference between the concept of buyer and seller defined by the Act and the purchaser and seller’s colloquial sense is that as per the act, only the person who agrees to buy or sell is considered as a buyer or seller. The actual transfer of goods doesn’t have to take place for the identification of the two parties of a sales contract.
II. Goods
One of the most crucial terms to define is goods that are to be included in the sales contract. In its Section 2(7), the Act describes the term “goods” as all forms of movable property. Section 2(7) of the Act states: “Any type of movable property other than actionable claims and money; and includes stocks and shares, growing crops, grass, and things attached to or forming part of the land that are agreed to be severed before sale or under the sale contract shall be deemed to be goods”.
1. Existing goods
When present (in existence) at the time of the contract, the goods referred to in the sale contract are referred to as existing goods. In Section 6 of the Act, the existing goods are those goods that are in legal possession or owned by the seller at the time the contract of sale was formulated. The existing goods are additionally of the following types:
A) Specific goods
Under Section 2(14) of the Sales of Goods Act, these are those goods that are “identified and agreed” when the sales contract is formed. You would like to sell your mobile phone online for example. You put your picture and information on an advertisement. The sale is decided by a buyer, and a contract is created. In this case, the mobile is a particular product.
B) Ascertained goods
This is a type not defined by the law but by the judicial interpretation. This term is used for specific goods that have been selected from a larger set of goods.
C) Unascertained goods
These are the goods that have not been specifically identified but have rather been left to be selected from a larger group.
2. Future goods
Future goods have been defined in Section 2(6) of the Sales of Goods Act, as the goods which the seller will either manufacture or produce or acquire at the time the sale contract is concluded. The contract to sell future goods will never have the actual sale therein, it will always be a selling agreement. You’ve got an apple orchard with apples in it for example. After the apples are ripe you agree to sell 1000 apples to a buyer. This is a transaction that will take place in the future but the items have already been established and the agreement has been made. These goods are referred to as futures goods.
3. Contingent goods
Contingent goods are a subtype of future goods, which refers to goods whose actual sale of contingent goods is supposed to be made in the future. These goods form part of a contract of sale which contains some contingency clauses. For example, the apples are a contingent good if you sell your apples from your orchard when the trees are yet to produce apples. This sale is dependent on the condition that the trees can produce apples, which may not happen. This sale is dependent on the condition of whether the trees can produce apples.
III. Delivery
Delivery of goods signifies the voluntary transfer of possession from one individual to another. A delivery process is the objective or result of any such process which results in the goods coming into the purchaser’s possession. The distribution may take place even if the goods are transferred to an individual other than the buyer, but who is allowed to keep the goods on the buyer’s behalf. There are various forms of delivery as follows:
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Actual delivery
If the goods are physically put into the purchaser’s possession, the delivery is delivered in effect. Where the goods are shipped to the buyer or its duly approved agent by the seller, the delivery shall be said to be real. Goods may also be delivered by doing anything that has the effect of putting the goods in the purchaser’s possession [Section 33 of Sales of Goods Act 1930].
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Symbolic delivery
This method of distribution involves delivering something in token of a transfer of something else. The distribution can be symbolic where the items are weighty or bulky and incapable of real distribution, for example, haystack in a meadow. The handing over of the key of a warehouse to the purchaser is a symbolic delivery of the goods to the purchaser and is as effective as actual delivery, even though the possession of the goods does not change.
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Constructive delivery
The transfer of goods may take place even when it occurs without any alteration in the ownership or custody of the goods. Where a third person (e.g., a bailee) who has like time of the sale agrees to the purchaser that he owns the goods on his behalf, the transfer shall be made by a solicitor or by constructive delivery [Section 36(3) of the Sales of Goods Act]. For example, a case of distribution by solicitor or acknowledgement would be a successful delivery. If you pick up a package on your friend’s behalf and decide to hold on to it for him, that’s a constructive delivery.
Symbolic delivery
Symbolic delivery refers to the delivery by gift or sale of goods when it is either inaccessible or cumbersome. Goods under symbolic delivery are offered via a replacement article, which indicates the donor’s or seller’s intention and is recognized as the representative of the original object. Symbolic delivery is necessary if a seller does not have the item sold under the circumstances, or is of such a nature as not to be vulnerable to manual delivery. In Springer versus Lipsis, it was held that symbolic delivery is necessary where mortgage products are of such a character that they do not permit actual manual delivery. A symbolic transmission suffices to transfer ownership where the parties expect to do so.
The constructive conveyance of the subject of a gift or sale, when it is either inaccessible or cumbersome, through the offering of some replacement article which indicates the donor or seller’s intention to donate and is accepted as the representative of the original item. For example, if one person wishes to gift a car to another person, he or she may do so by handing over the keys and all the documents that indicate ownership of it. In real estate law, the transfer of a twig or cloud of dirt from the land grantor to the grantor was a livery of seisin which constituted a symbolic delivery of the right to legal ownership or possession of land according to a freehold property. Today, the transfer of a seller’s deed to a buyer demonstrates the change in property ownership. If any person is given the key to any store, the goods in the store will also be considered to be delivered to that person. It is a delivery that is symbolic. Example:- Mr. Ram is selling the car to Mr. Anarta in the “Show Room.” Mr. Ram hands Mr. Anarta the key to the showroom. It is a delivery that is symbolic.
Constructive delivery
Constructive delivery refers to an act that amounts to a transfer of title by law when the actual transfer is not possible. Constructive delivery is a general term that encompasses all those acts that, while not conferring actual ownership on the consumer, were held by the construction of law similar to real delivery acts. However, when there is no actual transfer of goods or their symbol, constructive delivery is effected, the behaviour of the parties is such that it is inconsistent with any supposition other than that a change like the holding has occurred. In the case of Atwell v. Miller, it was held that constructive delivery is a mixed question of law and fact, and the jury must find the circumstances or facts necessary to constitute such delivery as is the case with actual delivery.
In Section 29(4) of the Sales of Goods Act 1979, the third party must grant or “recognize to the buyer that he holds the goods on his behalf” to carry out the delivery of goods held by a third party. Phillips J described it as a “well known” that, in the absence of such an attorney, the mere transfer (from the seller to the buyer) of a third party warrant or receipt is not a delivery. His decision was followed in Farina v Home and Dublin City Distillery v Doherty, which explicitly endorsed this proposition. Section 29(4) of the Selling of Goods Act codified existing common law. Therefore, it is sensible to read the first part of Section 29(4) of the Sale of Goods Act as requiring an attorney. So, Phillips J correctly held that there was no constructive delivery of the metals to Mercuria under general sales of goods law. Section 29(4) of the Sale of Goods Act further states that “nothing in this provision affects the operation of the issue or transfer to products of any title documents.” Therefore, distribution could be successful by moving a title document.
Conclusion
Symbolic delivery refers to the delivery of gift or sale of goods when it is either inaccessible or cumbersome. Goods, under symbolic delivery, are offered via a replacement article, which indicates the donor’s or seller’s intention and is recognized as the representative of the original object. This type of delivery involves delivering something in token of a transfer of something else. For example, a symbolic delivery would be the key to the godowns with the goods therein, when handed over to the buyer.
Constructive delivery refers to an act that amounts to a transfer of title by law when the actual transfer is not possible. Constructive delivery is a general term that includes all those acts that, although not conferring real possession on the buyer, are held by the construction of law equivalent to real delivery acts. However, where there is no actual transfer of goods or their sign, positive distribution is observed, the action of the parties is such that it is incompatible with any supposition other than that a shift in the essence of the holding has occurred. Constructive delivery is a mixed question of law and fact, and the jury must find the circumstances or facts necessary to constitute such delivery as is the case with actual delivery. The transfer of goods may take place even when the transfer happens without any alteration in the ownership or custody of the goods. A case of delivery by proxy or acknowledgement, for example, will be a constructive delivery. If you pick up a parcel on your friend’s behalf and agree to hold on to it for him, that’s a constructive delivery.
References
- https://www.owlgen.in/discuss-the-rules-relating-to-delivery-of-goods-under-the-sale-of-goods-act/
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