Contract - Brea.ch of - liai ver - origina.l terms of agreement reinstated.
Reception - Sale of- Goods Act 1893 - Persuasiveness in the Sudan.

Sale of .goods - Risk of loss- Passine of - Helo.tion to intention of

parties.

Sale of goods- Delivery - Intention of parties - Rela.tion tOtpassing
of risk of loss.

Sale of goods- rldghing a..."'ld Packing - Responsibility for - Extent of
duty.

Defendant, a Juba merc~"'lt, wa~ under contract to sell potatoes

to plaintiff, a Khartoum merchant, and to deliver them to plaintiff
at Juba by -1th.eirool1f3igning them to plaintiff by steamer. In fact
he consigned a parcel of 33 tons to himself in Khartoum, during

* Court: I"laxman, C.J., Platt J., and Cumings, J.

the voyage, plaintiff accepted the consignment, paid the contract
price and took over the delivery order. At Khartoum only 23 of
the 33 tons could be f'ound , and plaintiff claimed to recover the
price of 10 tons from defendant.

Held: (1) The English Sale of Goods Act 1893 has strong persuasive
authority i.n the Sudan, and the Sudan Courts will not depart from

it except for very good cause.

(2) Und ez- tho Act, it is a paramount rule that the intention of
the par-t i ea determino1!s the time when property and risk passes to
the buyer, and also that delivery m~ be made by means of any act
of the seller or the buyer \-Ihich it is agreed shall be treated as

c¹_(;livcry.

(3) In accepting and paying for the consignment, plaint iff most
likely Irrt ended the_t the r:1atter shou'ld . be put back. in the same

state as if d ef'endant had originally consigned to plaintiff at Juba.

(4) The property ~~d the risk therefor, passed, and the potatoes
wer-e dCl1ivored at Juba, and the loss duri~g the voyage fell on
p1n.btiff, 11110 could not rocover the price paid for the missing

t en tons.

Sn.lt:;r v. ~iocl18_~ls(1841) 2 "l-ian. & G. 650.Sde of Goods Act 1893, s8.16-20, 28-32.~()_l.

~,,()temfJer .• _13, lUI! 2,' Cumi.\€!.&.i~J. IThis case raises difficult qucat Lons
ill tl!O ::;-~;:'e.ra,t(! parts of the law of the sale of goods the part relating
to t he par;cinc of t he pr-oper-ty and the risk, and the part relating to
dc l i.ver-y of the t::0ods. Both "ere raised by the pleadings, but the tim~
of the C01~t w~s occupied almost exclusively by the former. Constrult
r-ef'er-en ce :1e.S rightly made to the provisions of the English Sale of
']oo''!.::; Act (as to property and risk, sections 16-20, and as to delivery,

The facts of the case 'l'lerl.! as follo\'ls Hajjar at Juba was under
contraot to sell potatoes to Khabbaz at Khartoum, Hajjar to obtain the
potatoes and deliver them to Khabbaz at Juba (by consigning them to him
at Khartoum by the steamers of tho Sudan Rail\'Ia,ys) 'on being paid the
pni.oe , This partioular parcel \'Ias oonsigned by Hajjar, then un,Paid,

to himself at Khartoum. B,y this unauthorised consignment Hajj4r appropriated
these goods to the contract but conditionally, for a dispute h8.d.. arisen

as. to whether Khabbaz 'l-laS obliged to take more potatoes, and Hajjar

desired to resl.!rve to himself a right of disposal in caso the dispute

was not satisfactorily settled by the time of arrival in Khartoum.

Hajjar informed Khaboaz of this unauthorised oonsigoml.!nt in a letter

dated December- 19, 1941, and it seems that. he intended that the potatoes
\'Iould not be delivered to Khabbaz unless he agreed to take the further
oonsignment. , Later in the course of the voyage, the matter \,/as settled

by Hajjar withdrawing his objection and tendering to Khabbaz, and Khabbaz
aooepting, a delivery order on the Sudan Raihlays for the potatoes. When.
houever , the consignment arrived at Khartoum, and Khabbaz pre~ented the
delivery order, only 23 tons could be found of the 33 Hajjar claimed. he

I had sent off and ,for which Khabbaz had paid •

. In this case Khabbaz seeks to recover the price paid for the missing
10 tons, on the ground that, even if 33 uer-e sent off and the 10 tons
loss occurred on the voyage (V/hich he did not admit), that loss should
fallon Hajjar as the property in the goods ~1d the risk were~en in

him as the consignee, (section 18, rules 3-5), and on the ground that
only 23 tons 'l-Iere delivered to him under tho contract (sectians 29, 30,
31 of the .ect).

The learned judge dismissed Khabbaz's claim as to the property and
the risk as follows:

"At the commencement of the voyage, therefore, the property in the
33 tons of potatoes remained in the defendant. At uhat subsequent
stage did this state of affairs alter, if at all? It seems to me

t.hat it alt{-;red ;,;hem, in ensuer to instructions received from
def'endant , his ag",nt, 1>1r. Ashkar, delivered the railway policy

and the assignment note, endor-sed over to plaintiffs, to the
plaintiffs at Khartoum. This was in effect the conversion of a
conditional into a final appropriation of the goods to the contract.
On this ooaurring the transaction, "'hich up to that moment in
respect of the 33_tons had remained only an agreement for sale,
became a sale, and tho property in the goods in question there-

upon passed. iiith it I am of opinion also passed the risk. The
transfer of the documents affected the oonsignment of the 33 tons,
in l-lhatevcr condition they were, together with any rights that

might exist against the defendant or a third party at that time."

In o-th<lr words he applied section 19(1) of the m to this case.

I cannot find that he dca.lt Hith the claim of non-dclivery at all, it
h:winB' been buried in the maze of intricate argument on the property

Applying tho rules of the Sale of Goods Apt as to passing of '
yrc'pel'~;i", riok, and deli very, it muat first be observed - (a) that_ all

-tn.e rules as to passing of property and risk give wa;y to the paramo'lmt
ruh that the ma-ttor is governed by the intention of the parties, who

rr.a;r agree that proi.')erty and risk pass at different times, (Seotion 17)
and (b) that th~ rules as to delivery in Seotions 28-32 are also subj~ot
t o ~lv; in-t-:mtion of t:1J parties. "Delivery mey be made by means of any
act of th:l Gellcr or the buyer 1'lhioh it is agreed shall be treated as

a d~li1icl"J"l and see the case of Salter v. Woollami which decision it
i;:!!lll'.e can only be expla.ined by the parties having agreed that the handing
of th'~ lic"Jnce to th~ buyer should be deemed to be a delivery, though

r.o-~ ntric:-;j_y such under the rules of t ho Aut (sections 29-33), there
havL'1[S oe·~~. no attorr.ment by the person in possession nor possession
'.)btt'.illOd by the licenoe • ..J

L'I'J. my vieN tr..is case turns on tho effect ot the transmission and
accept ance of the deli very order, and the first question on that is

1. IY-J'ljamin on Sales p , 115, 727 (7th ed , 1931).
2. (1841) 2 l>!un. & G. 650.

3. See nen~amin op. cit. Gupra at 127.

can the court ascertain the intention of the parties when they did that?
For this purpose the ;AC:t. (section 17) says that regard shall be had to

the terms of the contract, the conduct of the parties and the circumstances
of the case, for, if so, it is, as explained above, ~hat intention

vlhich will govern the !:latter and not the rules laid down by the Act

and 1-1hich the judge applied.

Now the parties could only have i.."ltcnded one of three things

(a) that the matter should be put back in th~ same state as if Hajjar
had originally consigned to Khabbaz s,t Juba and the property and risk

and delivery had taken place there in accor-dance "lith the contract terms,
or

(b) that property and. risk should pass, and deli very take place at

the moment of the acceptance of the delivery order, wher-ever the goods
might then be on the river; 

(c) that all three things should only

t2..):e place on arrival at Khartoum when the buyer got possession, or on
u:~tornment by the Sudan Raill'lays. Giving the matter the best attention

I can, I think that it is reasonably clear that the intention must have
been (a). In coming to that conclusion I have regard to the fact that

it-he cons i.gnmenb in Hajjar's name, though not authorised by Khabbaz, 1ias

not at all unusual in the circumstances. It uas for the benefit of

both, and involved no extra risk above Hhat Khabbaz had originally agreed
to bear, for it was the same voyage, and carriage Has at the same rate

as originally fixed, havinlj in mind that Khabbaz was to bear the risk

of the voyage from Juba to Khartoum. It did not involve a different

risk as did the land journey in Ullock v. Reddelein^l and Khabbaz after-
wards assented to the course taken by Hajjar by accepting the d::livory
order. In other words I think that there was a 1'laiver of the uuni;tthr.,ri sed
conai.gnment , and that distinguishes the case from the Ullock case, in
which there wac no such thing. I think further that they vlould not have
agreed to (b), it being so unusual and/~~lisfactory, for there was no

Nay of determining the state of the goods at that time. As to (c), had

it been intended that the property should only pass on arrival and

delivery at Khartoum, or on attornment by Sudan nailNays, there vlould
almost ,certainly have been some modification of the contract price for

the risk of the voyage then fell exclusively upon Hajjar, a risk not
contemplated in the original agreement.

1. (1828) Dan. & Ll. 6 see also Benjamin OPe cit. supra at 365.

NO'l'1 the learned judge has found, taking a very favourable view

of the evidence given by Hajjar, that 33 tons '\'lere put on board at Juba
by Hajjar, and ~re is no reason to disturb that finding. It follows,
therefore, on the vim. I take, that property, risk and delivery passed
and occurred at Juba, that ITajjar is free of all responsibility, if

the potatoes Nere of the right quality and properly weighed and packed.
No oomplaint has been made as to the quality. No point about the
paokd.ng is to be found in the petition; it might have' been taken on
the issues, but it 'Vas not really taken, and it Has allowed by oounsel
for Khabbaz to remain very much in the background, so that I think

that counsel for Hajjar .·Ias right in disregarding it, and conoentrating
on the matter of the t1eighing, about which a great deal W1j.S made. While
on that t I should sa:y that I think that the judge was right in finding
on the evidence that Hajjar took all proper_steps as to weighing, which
,iould have or could have been required by him by the original contract.
He could only hand over to the Sudan Railw~s so many tons, and oould
not insist on the Sudan Railways iVeig~ing, if they preferred to acoept
his weight, and we must accept, t,29, that he did not know that the Sudan
Raihvays had not 'l'leighed. As t 0 the paoking, I am not nearly so sure
tha-i; Hajjar 'l'las in the right; the note endorsed on the invoioe that

the goods wez-e not properly packed, coupled lvith the bursting of some
packages on the journey, require a good deal of ans\Voring. Even then
there would still remain for Khabbaz the diffioulty of shOWing that

the improper packing caused the loss, and not bad marking and mixing

up or bad handling by the Sudan Railwa,ys. It woUId·obviously be a difficult
matter, and I think that it w6uld be hard on Hajjar to send the case r .

back.for further consideration on this point now. As the evidenoe stands

we can make no deoision on it here. In view of these facts I do not
think that the question of packing merits further consideration.

My opinion is therefore that Hajjar correctly carried . out the
contract at Juba except by the consigning to himself t which unauthorised
consignment was afterwards waived by consent, so that property and risk
passed at Juba and delivery occurr-ed thepe; thus the loss on the vOY'tge
falls on Khabbaz, and he cannot recover the prioe paid for the missing
ten tons.

This is the same result as that reached below, but for differen1;
reasons. I need not therefore consider the reasons given by the learned
Judge of the High Court, as I should have had to do had I been unable

to find the intention of the part:ires. I am sorry to have to say that
a:f'ter all the labours spent on this case I cannot, in view of the doubts
that must still exist as to the packing, regard the decision as a

really satisfactory one. This is a case where a substantial loss has

occurred, and one of the parties bets to bear the whole of that loss t

to share the lose between them, though in rey opinion the fairest way
of settling the matter, is not a course \-Ie can take. That loss should
fall on the party who has some responsibility for it, and that party
is certainly not Khabbaz, whereas it is still uncertain whether it

was not Hajjar, by reason of his faulty packinb. In any event, on

the ~ia::r the case was fought below, this deoision is the most sa.t isfaotory
 

one 'l'le can make.Flaxman, C.J.: I concur.

Platt, J.:I ooncur.

Appeal dismissed