Case No.:

AC-APP-7- 1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Contract—Performance—Alternative promise—Party first required to act may elect

Plaintiff agreed to buy fireboxes from defendant. Under the contract delivery was to be at Atbara or Port Sudan. Since the agreement provides for alternative modes of performance, and does not specify which party is to have the option, the party who must perform the first act may elect his mode of performance in accordance with the contract. In this sale of goods, delivery by the vendor is the first performance required. Vendor may therefore choose the location of delivery.

Judgment

(COURT OF APPEAL)

ABDEL HADI EL GABBANI v. SUDAN GOVERNMENT

AC-APP-7- 1962

Advocate Abdel Rahman Yousif… for plaintiff-appellant

B. Awadalla J. September 8, 1962: —l am of opinion that this appeal should be summarily dismissed under Civil Justice Ordinance, Order Xl, R. i

Had there been a cross-appeal. I would certainly have advised that the case be referred to the Court of Appeal with a view to setting aside the judgment and dismissing appellant’s claim for damages.

It is not disputed that the offer of appellant to buy the fireboxes was made subject to the condition that delivery should be made either at Atbara or Port Sudan, but it was not stated anywhere that it was appellant (i.e., the purchaser) who was to make the choice and decide the place of delivery. So to the benefit of this condition both parties are entitled. 34 Halsbury, Laws of England 93 (3rd ed. 1960) says:

Whether it is for the buyer to take possession of the goods, or for the seller to send them to the buyer, is a question depending in. each case on the contract, express or implied, between the parties. Whether there is an express term as to place of delivery, it is a condition of the contract to the benefit of which both parties are entitled.”

So in the present case the vendor is not precluded at all from insisting upon delivery at Atbara. Nor is the purchaser precluded from insisting upon delivery at Port Sudan.

How then is this difficultly to be solved? In my view it is the vendor’s choice that should prevail. In the law of contract, where the agreement provides for alternative modes of performance the party who first has to act on one or other of the alternatives has the right to choose between them. Reed v. Kilburn Co-operative Society (I875) L.R. 10 Q.B. 264.

As delivery of the goods is the duty of the vendor, the choice of the place of delivery in the present case no doubt belongs to him and not to the purchaser.

M. A. Abu Rannat C.J. September 8, 1962: —l agrees. The appeal is summarily dismissed under Civil Justice Ordinance, Order Xl, R. 13A.

* Court. M. A. Abu Rannat C.J. and B. Awadalla J.