Table Of Content
Principles of
Commercial Law
Second Edition
C
P
Cavendish
Publishing
Limited
London • Sydney
EDITORIAL ADVISORY BOARD
PRINCIPLES OF LAW SERIES
PROFESSOR PAULDOBSON
Visiting Professor at Anglia Polytechnic University
PROFESSOR NIGELGRAVELLS
Professor of English Law, Nottingham University
PROFESSOR PHILLIPKENNY
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: [email protected]
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 ACOMPLETE CODE? 4
1.3 DOMESTIC AND INTERNATIONALSALES 5
1.4 COMMERCIALAND CONSUMER SALES 5
1.5 TYPES OF TRANSACTION 6
1.6 MEANING AND TYPES OF GOODS 11
SUMMARYOFCHAPTER 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
2.4 THE PRICE IS LEFT TO BE FIXED IN AMANNER
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
4.2 THE SELLER’S DUTIES AS TO THE TRANSFER
OF OWNERSHIP 39
4.3 MEANING OF ‘RIGHT TO SELL’ 40
4.4 TO 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
4.7 CAN 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
4.10 TRANSFER 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 CRIMINALLIABILITY 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
7.3 STATUTORY CONTROLOF EXEMPTION AND
LIMITATION CLAUSES 104
7.4 EUROPEAN STATUTORY CONTROL 110
SUMMARY OF CHAPTER 7 117
8 REMEDIES 119
8.1 GENERALPRINCIPLES 119
8.2 WITHHOLDING 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
