Commercial and Consumer Sales Transactions: Cases, Text and Materials, 4th Edition

Commercial and Consumer Sales Transactions: Cases, Text and Materials, 4th Edition
Emond Publishing
Page Count:
Publication Date:
December 2001
Business, Corporate, and Commercial Law

Preface to the Fourth Edition

Six years have elapsed since the publication of the third edition of this casebook and users of this new edition will want to know the important changes we have introduced in it. We are pleased to provide them with at least an outline of this information. Easily the most significant change is the fact that Professor Ziegel was able to persuade Professor Duggan to join him as co-editor of the new edition.Professor Duggan is a very distinguished Australian commercial and consumer law teacher and scholar, with a solid background of practical experience, and taught at the University of Melbourne and Monash University law schools for 25 years before joining the University ofToronto law school in 1999. One of the great advantages of having an antipodean collaborator is that it has enabled us to add relevantAustralian cases and other materials in areas where there were no adequate Canadian counterparts.

We have divided the work of updating the casebook more or less evenly between us. In the interests of keeping individual chapters to a tolerable size, we have also subdivided several of the chapters in the third edition. Old chapter 6 has now been converted to three chapters:chapter 6 is now restricted to the seller’s implied obligations with respect to title; chapter 7 addresses the implied obligation of quality of the goods; and chapter 8 deals with fitness of the goods for use,sales by sample, and (to avoid having to create yet another new chapter) private sales, as well as the impact of public law legislation in the food and drugs areas. Former chapter 10 has been subdivided into chapters 13 and 14, the first dealing with the transfer of title between seller and buyer, and the second with transfer of title by anon-owner. Similarly, old chapter 12 has been transformed into chapter16 (buyer’s right of rejection of non-conforming goods) and chapter 17(buyer’s claim for damages). Finally, chapter 18, formerly chapter 13,has been expanded with the addition of a new section on choice of law and jurisdictional clauses and the role of class actions in the resolution of sales disputes. We have also expanded the treatment of policy questions, particularly in relation to the doctrine of unconscionability (chapter 2), implied terms (chapter 8), and transfer of title by a non-owner (chapter 14).

It has long seemed to both of us that a treatment of sales law that focuses exclusively on the parties’ substantive rights and obligationsis seriously deficient. Just as important is an understanding of how the rights are enforced in practice (or, more often, not enforced),particularly in the consumer area. Our one regret is that space constraints prevented us from developing these adjectival aspects much more fully. However, there is nothing that precludes individual law teachers from adding further materials of their own.

It goes without saying that, in addition to the changes noted above,we have tried hard to update all the chapters, though we do not claim to have been totally successful. Some of the new additions are the following. In chapters 1 through 3 we have added extensive amounts of material on the impact of electronic commerce and the many new issues it raises inside as well as outside the contractual areas. In chapter2, dealing with the definition of sale and the various types of near-sales, we have included the important English Court of Appeal decision in Atari Corporation (U.K.) Ltd. v. Electronics Boutiquestores (U.K.) Ltd.,[1998] QB 539 (CA), clarifying the parties’ rights and obligations in consignment sales. Similarly, in chapter 17, in dealing with the buyer’s claim to damages, we have added substantial extracts from theCourt of Appeal’s judgments in Bence Graphics Ltd. v. Fasson U.K. Ltd.,[1997] 1 All ER 979 (CA), adding yet another complicating twist to the uneasy relationship between the available market price measure of damages for the delivery of defective goods intended for resale and the buyer’s actual damages.

November 2001

  • Preface to the Fourth Edition
  • Acknowledgments
  • Detailed Table of Contents
  • Table of Cases
  • Table of Abbreviations
  • Concordance of Sale of Goods Acts
  • Chapter 1: Evolution of Modern Sales and Consumer Law
    • Sales Law
    • The Development of Canadian Consumer Law
    • The Impact of Electronic Commerce on Commercial and Consumer Transactions
  • Chapter 2: Concept of Sale
    • Introduction
    • Lease or Sale: The Form and Substance Problem
    • Contracts for Work and Materials
    • Consignment Agreements, Contracts of “Sale or Return” and Sales “On Approval”
  • Chapter 3: Formation of the Contract
    • Introduction
    • The Contractual Problems in Consumer Transactions
    • Writing Requirements
    • Writing Requirements in the Digital Age and the Shrinkwrap Problem
    • Consequences of Non-Compliance with Consumer Writing Requirements
    • Consumer Protection and the Contract Making Process: Specific Responses
    • Contract Policing: A Generalized Doctrine of Unconscionability
  • Chapter 4: Scope of the Contract
    • Private Law Aspects
    • Characterization of Contractual Terms
    • Manufacturers’ Representations
    • Public Law Aspects of False Advertising
  • Chapter 5: Seller’s Implied Obligations: Title, Quiet Possession and Freedom from Encumbrances
  • Chapter 6: Seller’s Implied Obligations with Respect to Description
  • Chapter 7: Seller’s Implied Obligations with Respect to Quality
  • Chapter 8: Seller’s Implied Obligations: Fitness for Use, Sales by Sample, Private Sales, and Food and Drug Laws
    • The Implied Conditions in a Sale by Sample
    • Private Sales
    • Public Control of Food, Drugs and Hazardous Products
  • Chapter 9: Manufacturer’s Liability for Defective Goods: The Privity Problem
    • Introduction
    • Judicial and Legislative Developments
    • The Problem of Horizontal Privity and the Position of Subsequent Transferees
  • Chapter 10: Manufacturer’s Express Performance Warranties
  • Chapter 11: Seller’s Delivery Obligations
    • Meaning of Delivery
    • Time of Delivery
    • Use and Interpretation of Mercantile Shipping Terms
    • Delivery and Documents of Title
  • Chapter 12: Risk of Loss and Frustration of the Contract of Sale
    • Risk of Loss
    • Frustration of Contract of Sale
  • Chapter 13: Property (Title) Aspects of the Contract of Sale: Transfer of Title Between Seller and Buyer
  • Chapter 14: Property (Title) Aspects of the Contract of Sale: Transfer of Title by Non-Owner
    • Introduction
    • Estoppel
    • Mercantile Agents
    • Seller in Possession
    • Buyer in Possession
    • Voidable Title
    • Reform
  • Chapter 15: Buyer’s Obligations and Seller’s Remedies for Buyer’s Breach
    • Introduction
    • Actions for the Price
    • Seller’s Right of Resale
    • Measurement of Damages in Lost Volume Sales
    • Anticipatory Repudiation and Measurement of Damages
    • Relief from Forfeiture of Monies Paid
  • Chapter 16: Buyer’s Remedies for Breach of Seller’s Obligations: Right of Rejection
  • Chapter 17: Buyer’s Remedies: Damages, Specific Performance and Other Remedies
    • The Measure of Damages
    • Specific Performance, Actions in Detinue and Replevin Remedies
  • Chapter 18: Disclaimers and Limitations of Liability, Choice of Law and Jurisdictional Clauses, and Class Actions
    • Introduction
    • The Role of Disclaimer Clauses
    • Judicial Reactions
    • Legislative Reactions
    • Choice of Law and Jurisdictional Clauses, and Class Actions

Appendix: Vehicle Purchase Agreement

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