Introduction :

Delivery of goods is the most important part of the performance of contract of sale. Section 31 provides for Duties of seller and buyer as to delivery. It states that, It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. This section emphasizes reciprocity of the promises of duties. The words “in accordance with the terms of the contract of sale” are intended to show that the parties are at liberty to modify the terms. In absence of a contract to the contrary these duties are concurrent conditions.

Delivery Definition :

Section 2(2) defines delivery :  “delivery” means voluntary transfer of possession from one person to another; The word ‘voluntary’ is intended to show that the transfer of possession should not be under fraud, or coercion or criminal offence. As a general rule, delivery of goods may be made by doing anything which has the effect of putting the goods in possession of the buyer or of any person authorised to hold them on his behalf. Delivery may be actual or constructive.

Modes of Delivery :

Section 33 of The Sale of Goods Act provide for delivery. It states that, “Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or ……..which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf.”

So from above definition, we can say that, Delivery may be ‘Actual delivery’, ‘Symbolic delivery’ or ‘Constructive delivery.’ This can be understood more clearly by following two illustrations

First part of section 33 : Delivery how made : Illustration : Where a seller sells his horse but the buyer allows the horse to remain in custody of the seller on buyer’s behalf. The delivery in this case would fall under the first part of sec 33 viz. “made by doing anything which the parties agree shall be treated as delivery.”

Second part of section 33 : the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Illustration : A sells to B 5 tonnes of rice in possession of C, a warehouse manager. A gives B an order to C (delivery order) to transfer the rice to B, and C assents to such order, and transfers the rice in his books to B. This is a delivery to B.

Illustration of Actual Deliver : A sells his mobile to B for 10,000 and B agrees to pay immediately. A delivers mobile to B and B pays immediately.

Rules as to Delivery of Goods

Payment and delivery are concurrent conditions (section 32) : This section states that, delivery of the goods and payment of the price are concurrent conditions. The rule laid down in this section applies “unless otherwise agreed.”

Effect of Part Delivery (section 34) :

This section affirms the rule that, delivery of part may be a delivery of the whole if it is so intended and agreed, but not otherwise. But a delivery of part of the goods, with an intention of severing it from the whole, does not operate as a delivery of the remainder.

Illustration : A sells 500 kg of rice to B. The rice remains in A’s warehouse. After the sale, B sells to C 100 kg of the rice, and A at the B’s desire sends the 100 kg to C. This has not the legal effect of a delivery of the whole.

Buyer to apply for delivery (section 35) : This section provides that, the seller of goods is not bound to deliver them until the buyer applies for delivery. The buyer has no cause of action against the seller if he has not applied for delivery.

Sivayya v. Ranganayakulu : The application for delivery must be according to the provisions of section 32 (the buyer shall be ready and willing to pay the price in exchange for possession of the goods).

Rules as to delivery with regards to time and place (section 36) :

Place and mode of delivery : The first part of this rule deals incidently with the mode of delivery, and the second part with the place of delivery. The section lays down a specific rule as to the place of delivery, but none as to the mode of delivery. (The mode as per rule 1, depends on the contract between parties.)

Time for delivery : Where time is fixed, the seller is bound to deliver the goods in time. If no time fixed, then within a reasonable time.

Goods in possession of third person : When the goods are in possession of a third person, eg, a warehouse manager, there is no deliver unless he assents to attorn (transfer) to the buyer and become his bailee instead of that of the seller.

Delivery of wrong quantity (section 37) :

As per the provisions of this section if the seller delivers less quantity than prescribed in contract, buyer may refuse to accept. But if he accepts it, he has to pay for it.

Also if the quantity of goods sold is more than the quantity prescribed, the buyer may reject to accept it or he may accept the quantity mentioned in the contract and return the excess quantity or he may accept the whole quantity. If he accepts the whole quantity he has to pay as per the contract price.

Delivery in installments (section 38) :

As per section 38, the buyer of goods is not bound to accept delivery by installments except agreed at the time of contract. Parties can decide amongst themselves regarding delivery in nstallment and terms of payments thereafter.

Illustrations :  A agrees to sell goods to B to be delivered in three instalments in Jan, Feb, & Mar and paid for within 14 days after delivery, “all payments to be made on due date as a condition precedent to future deliveries.” B fails to pay for the first instalment on the due date. A may refuse to make further deliveries.

Delivery to carrier (section 39) :

According to the terms of the contract, if the delivery is given to the carrier, for transmission to the buyer will be considered as delivery to the buyer.

Risk where goods are delivered at distant place (section 40) :

Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the merchantable quality of the goods may be affected by the operation of the transit. In such a case the section throw the risk of necessary deterioration on the buyer.

Buyer’s right of examining the goods (section 41) :

This section is based on the principle that a buyer cannot be said to have accepted the goods unless he had an opportunity to examine the goods and ascertain that they are in conformity with the contract. This section emphasizes the distinction between delivery of goods and acceptance of goods. Delivery of goods to the buyer does not amount to acceptance thereof by the buyer. Despite examination of the goods by the buyer in consonance with his right under this section, the buyer has a right to reject the goods if a hidden, not apparent, defect is subsequently found out.

Modes of acceptance of Delivery (section 42) :

This section contemplates direct and indirect modes of acceptance. The direct method is the intimation by the buyer to the seller that he has accepted the goods. The indirect methods are (i) exercise by the buyer of his right of ownership on the goods such as using the goods, sale or mortgage of the goods etc. and (ii) retaining the goods without examining them, and despite lapse of a reasonable time after delivery.

Buyer not bound to return rejected goods (section 43) :

Buyer not bound to return rejected goods : Where a buyer rejects goods as not being of the contract description, it is not his duty to send them back to the seller it is enough for him to give a clear notice that they are not accepted, and then they are at seller’s risk. Since the seller has to take back the rejected goods, the cost of returning or taking back, the rejected goods has to be borne by the seller. This rule is based on the presumption that, the seller is at fault for delivery of the goods which are not in conformity with the contract. But the buyer, being the bailee of goods, though an involuntary one, must take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own.

Liability of buyer for neglecting or refusing delivery of goods (section 44) :

When the seller is ready and willing to deliver the goods and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery and also for a reasonable charge for the care and custody of the goods: