Things that cannot be sold
There are various things which cannot be sold in the Kenya sale of goods law.Res extra commerciumare among them. Numerous rules of statutory and common law prohibit the sale of certain things, often on grounds of public policy.
For example, the common law does not sanction the sale of a person (slavery), and statute prohibits the sale of human tissue, and of many narcotics, chemical substances and so forth.It is also quite clearly impossible to purchasea thing that never existed.
The most extreme example would be the putative sale of a mythical or fictitious object. Justinian says:Anything, whether moveable or immoveable, which admits of private ownership, may be made the object of a stipulation; but if a man stipulates for the delivery of a thing which either does not or cannot exist, such as [...] an impossible creature, like a hippocentaur, the contract will be void
What Cannot Be Sold Under The Kenya Sale of Goods Law
Making a Sale Agreement Under The Kenya Sale of Goods Law
Under the Kenya Sale of goods law, the parties must be in agreement that the object of the contract is to purchase and to sell the res concerned, for the price agreed upon, andthat the seller will (usually) ensure the transfer of possession and/or ownership of the res to the buyer.The general principles relating to consensus in purchase and sale are the same as those pertaining to other multilateral consensual contracts.
The relevant points may be summarised as follows:
*.There must be an agreement of the minds of the parties, mutually communicated, usually by means of offer and acceptance.
*.The parties must act with the intention of contracting a sale. there must be aconcursus animorum animo contrahendi.
*.The agreement should be free from mistakeor error, and should not have been induced wrongfully by misrepresentation, duress or undue influence.
*.The agreement should be legal and satisfy the dictates of public policy.
*.The agreement should be rational. It cannottherefore exist in cases of extreme youth, irrational intoxication or insanity.In sales in particular, there must be agreement as to:
*.the subject matter of the sale and its essential characteristics;
*.the price to be paid; and
*.any other item raised in the negotiations and expressly or impliedly regarded as material.
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.
Contract of Sale Under Kenya Sale of Goods Law
The contract of sale, as it is known in Kenya today, derives its origins from the Roman consensual contract of emptio venditio. In D 18.1 (the title devoted to the contract of emptio venditio), there is no all-embracing definition of the special contract, but certain critical features can be extracted from the early fragments of the title:Sale is a contract of the law of nations, and so is concluded by simple agreement. There is no sale without a price. There can be no sale without a thing to be sold.The Roman-Dutch lawyers followed these guidelines closely in their definitions of the contract of sale. For example, Voet said:Purchase defined—But in this title, as distinguished from lease, it is a bonae fidei contract, resting on consent, by which it is arranged that merchandise shall be exchanged at a definite price. There are three essential requirements for it—consent, merchandise and price. If one of them is wanting, there is no purchase.
Essential Elements of a Contract of Sale Under Kenya Sale of Goods Law
In general terms, the essential elements of a contract of sale are no different to the essential elements of any other contract. There must be contractual capacity and consensus, the agreement must be legal (not contrary to public policy), performance must be possible, and any formalities required by law must be complied with. The contract of sale does, however, have a number of additional substantive requirements (known as essentialia), which are assimilated into thegeneral contractual structure. Of course, like any contract, the requirement of consensus, or agreement, is the most important general element.
Introduction to Kenya Sale of Goods Law
The Kenya sale of goods law is an area of thelegal system which describes the rules applicable to a contract of sale (or, to be more specific, purchase and sale, or emptio venditio), generally described as a contract whereby one person agrees to deliver to another the free possession of a thing in return for a price in money.The rules for the sale of goods are spelt out in the Kenya sale of goods Act.
Sale of goods law: Sale of goods contract in Kenya
Sale and agreement to sale- A contract of sale of goods under Kenya law is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.There may be a contract of sale between one part owner and another.A contract of sale may be absolute or conditional.Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but, where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
Capacity to buy and sell- Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property:Provided that, where necessaries are sold and delivered to an infant or minor, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefore.
FORMALITIES OF THE CONTRACT
A contract of sale may be made in writing (either with or without seal) or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties:Provided that nothing in this section shall affect the law relating to corporations.
Contract of sale for ten pounds or more to be in writing- A contract for the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action unless the buyer accepts part of the goods so sold, and actually receives them,
or gives something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent in that behalf.
- SUBJECT MATTER OF THE CONTRACT
not happen.Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.
Sale of perished goods- Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is
thereby avoided.
THE PRICE
Ascertainment of price- The price in a contract of sale may be fixed by the contract, or may be left to be fixed in a manner thereby agreed, or may be determined by the course of dealing between the parties.Where the price is not determined in accordance with the foregoing provisions, the buyer must pay a reasonable price; and what is a reasonable price is a question of fact dependent on the circumstances of each particular case.
Agreement to sell at valuation- Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and the third party cannot or does not make a valuation, the agreement is avoided: Provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefore.Where the third party is prevented from making the valuation by the fault of the seller or buyer, the party not at fault may maintain an action for damages against the party at fault.