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in the law of sale, as it is the seller's duty to deliver the goods, damages are due for failure to do so. Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery. The measure of damages is the estimated loss directly and naturally, resulting in the ordinary course of events from the seller's breach of contract. Where there is an available market for the goods in question, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or, if no time was fixed, at the time of the refusal to deliver. Other remedies are available, including in both Scotland and England SPECIFIC PERFORMANCE, and in Scotland at common law, the remedy of SPECIFIC IMPLEMENT.

Late delivery gives the buyer the right to retain the price in security for his claim for damages arising there, when the claim is based on either non-delivery within a reasonable time or on delivery delayed beyond the time specified in the contract. Whether or not late delivery will entitle the buyer to rescind the contract and refuse to accept the goods depends on whether, in the particular case, the delay amounts to a material failure on the part of the seller. Whether a stipulation as to time in a particular contract is or is not of the essence of that contract depends on its terms. Where a contract is silent on the question of time, time can be made essential by notice.

Some cases of defective delivery are included in the Sale of Goods Act 1979 (as amended):

  1. (1) where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered, he must pay for them at the contract rate;
  2. (2) where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole;
  3. (3) where the seller delivers to the buyer a quantity of goods larger than he contracted to sell and the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate;
  4. (4) where the seller delivers to the buyer the goods he contracted to sell, mixed with goods of a different description not included in the contract, the buyer may accept the goods that are in accordance with the contract and reject the rest, or he may reject the whole. ‘Different description’ refers to identification under the contract and will generally not cover goods of the same description that are not of the appropriate quality.

The foregoing rules are subject to any usage of trade, special agreement or course of dealing between the parties, and in a case of the delivery of an incorrect quantity, where the buyer is not a consumer, the right to reject where the variation is so slight that it would be unreasonable to reject.

References in periodicals archive ?
The non-delivery of Balikbayan boxes usually occurs when foreign consolidators/ principal sea freight forwarders do not remit a portion of their collected charges to their accredited Philippine agents/ local sea freight forwarders to prompt the release and delivery of balikbayan boxes.
Besides non-delivery, some cargo companies have been accused of stealing the contents of the boxes.
lt;i>In case of non-delivery, treat as abandoned</i>.
The papers will be available for single copy sale on non-delivery days.
AS a resident of Tile Hill, and someone who regularly uses Malfunction Junction, I would like to respond to Nick Richards, team leader of Coventry City Council Transport Delivery Unit - or should it be called the Transport Non-delivery Unit?
When I collected the packet, the reason I was given for its non-delivery was that the envelope, probably bought at a Post Office, would not go through the new narrow slot.
According to the company, the proof-of-delivery (PoD) solution has been designed for organisations such as distributors and manufacturers, who make large numbers of deliveries to customers and who face frequent claims of non-delivery or incorrect delivery of goods, and the resulting issues of non-payment.
Included in this release are default configurations for the recent Internet Engineering Task Force's (IETF) standard DomainKeys Identified Mail (DKIM) (RFC 4871) email authentication method, the first commercial implementation of Vouch By Reference (VBR) for a free message certification service to MDaemon users, and implementation of Backscatter Protection (BATV protocol) to minimize the annoyance of receiving non-delivery replies to messages that were never sent by a user.
On the same day, the buyer disputed the deal, claiming non-delivery.
Dear Editor, - The impression could have been given by your leader column (Post, May 13) that the City Council was disinterested in the non-delivery of postal votes.
The Green Party and Conservative Party have suffered problems with non-delivery of leaflets.
The court noted that approval or disapproval of the publication was not on a case-by-case or issue-by-issue basis, depending on the content of the publication, that the regulation was applicable to all free or gift publications, and that inmates were notified of non-delivery.

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