non-delivery

in the law of sale, as it is the seller's duty to deliver the goods (See delivery), 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: (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) 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) 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) 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.