What Can Be Sold Under The Kenya Sale Of Goods Law

Generally speaking, anything can be sold, be it corporeal or incorporeal in nature. Physicalexistence is not required in order for there to be a valid sale. Anything that can be held, possessed or sued for can be the subject of a valid sale. There are, however, certain morespecialised issues that need to be discussed, in order for the full picture to emerge.The question in respect of a sale ofres suaiswhether or not a person can enter into a validcontract of sale, involving the purchase of a thing which is (unbeknownst to him) his own property already.

The general rule is that things owned by the buyer cannot be the subject of a valid sale. It is possible, however,for the purchaser to buy rights in his own property which he does not yet hold.Unascertained goods may form the subject matter of a valid contract of sale. Such sales may be termed generic sales, oremptio generis. Future goods, or goods which do not yet exist, may also be the subject of a valid sale. Such a sale may take one of two forms.

A sale under the Kenya sale of goods law cancome into being if it involves a thing which is not yet in existence, provided that the thingmay, in the ordinary course of events, come into existence. Pothier says the following:There cannot, in truth, be a contract of sale without a thing sold, but it is sufficient that the thing sold may exist, though it has no present existence. Thus, it is common before harvest, to sell the wine which we may make; and in such case, there is a sufficient thing toconstitute the object of a valid contract, though as the thing sold does not yet exist, the contract depends upon the condition of its future existence; and if it should not yet happen to exist, that is, if no wine should be made, there will be no sale.These sort of contracts are known asemptio rei speratae. A classic example would be thatwhere Boucher agrees to purchase Smith's next crop of maize at Ksh40 per bag. Because the sale involves maize, it appears at first glance to be a generic sale, but it is distinguishable on at least two grounds:
1.The source of the grain is specified: It mustbe Smith's crop.
2.The agreement is subject to a suspensive condition: If Smith's crop does not materialise, there is no sale.It is possible to purchase the expectation or hope that something might come into existence, irrespective of whether it does or does not come into existence in future. The jurisprudent Pomponius is quoted as saying:Sometimes, indeed, there is held to be a sale, even without a thing, as where what is bought is, as it were, a chance. This is the case with the purchase of a catch of birds or fish. The contract is valid even if nothing results, because it is the purchase of a hope.Such a contract is a contractemptio spei. For example, Boucher agrees to purchase Smith's next catch of fish for Ksh200. What issold in this case is the hope or expectation ofa catch, not the catch itself. Thespesexists at the date of sale. It makes no difference to the obligations of the parties whether Smith catches anything at all. Thus, Boucher runs the risk of making a loss, in that he must pay even if nothing comes into existence, but may benefit in that he may receive greater value than his capital outlay.Res aliena, things which are not the property of the seller, may also be the subject of a valid sale.

It is not essential that the seller be the owner of the goods at the time of delivery. The sale is not void simply because the seller is not the owner of theres vendita, and has sold it without the owner's authority. What is essential is that the seller delivers theproperty to the buyer, and ensures that his possession is not thereafter interfered with by anyone with better title. The buyer in such circumstances is protected (at the very least)by the residual warranty against eviction.Delivery of theres, in such circumstances, would result in transfer from the seller to the buyer of whatever rights the seller had.

The buyer would acquire civil possession of theres, the consequences of which would be,inter alia,
*.the right to ownership upon completion of prescription;
*.the right to the fruits of the property; and*.the right to utilise possessory remedies.Things which are the subject of litigationin rem(res litigiosa) may be the subject of a valid contract of sale as well. Such a sale might occur where property, which is the subject of pending court action, is sold in the interim. Should such property be sold, the purchaser will be bound by the judgment in the action. The successful plaintiff will be entitled to recover it from the purchaser (the new possessor) by execution, without furtherproceedings.Where property is the subject of an actionin rem, it becomesres litigiosa at litis contestatio.