Table of Contents

Passing of property

Table of Contents

Theoretical overview

Passing of Property: – The literal meaning of the passing of property is the transfer of ownership at an agreed price. The passing of property is an important aspect to help determine the liabilities and rights of both the buyer and the seller. Once a property is passed to the buyer, then the risk in the goods sold is that of the buyer and not the seller. This is true even if the goods are in the possession of the seller. Ownership is transferred only when the ownership of property rights is transferred from the seller to the buyer.

Thus, the following will be determined: –

  • The exact time when the property in the goods is transferred from the buyer to the seller.
  • The time when the risk is transferred from the seller to the buyer.
  • The time when the seller give the right of ownership and possession to the buyer.

There are four primary rules that govern the passing of property: –

  • Specific or Ascertained Goods
  • Passing of Unascertained Goods
  • Goods sent on approval or “on sale or return”
  • Transfer of property in case of reservation of the right to disposal

There are three stages involved in the performance of a contract of sale of goods: –

Rules related to the passing of property

The rules related to the passing of property are as follows: –

  1. Risk passing (Section 24): – The section provides that the goods will remain with the seller until the property is transferred to the buyer. As soon as the property is transferred to the buyer, the goods are at the buyer’s risk of whether the goods have been delivered or not. But, if delivery is delayed due to either party’s fault, the risk lies with the party’s fault because of whom the delivery gets delayed. Therefore, ‘assets’ and ‘risks’ go together.
  2. Rules for the passage of property in goods (Section 18-25): – The general rules relating to the transfer of property in goods are: –
    • Ascertainment of goods (Section 18): – The property in goods cannot be transferred by the seller to the buyer if the contract for sale is of ascertained goods. Therefore, the goods must be ascertained for the transfer of property in goods.
    • Parties Intent [Section 19 (1)]: – Property in goods is given to the buyer when both parties intend to do so. The terms of the contract, the conduct of the parties and the circumstances of the case will be considered to determine the intent of the parties.
  3. Specific Goods (Section 20-22): – Rules relating to transfer of property in specific goods are provided under sections 20 to 22 which are as follows: –
    • Goods in Deliverable State (Section 20): – A state in which a buyer is obliged to take delivery of goods is known as a deliverable state. When the contract for the transfer of property in goods is unconditional, the transfer of property in goods is done when such a contract is made. For example: – Peter goes to an electronics store and buys a television set. He asks the shopkeeper to take it to his home. The shopkeeper agreed. Television immediately becomes Peter’s property.
    • To keep the goods in a deliverable condition (Section 21): – In some contracts, the seller is presumed to have something to do with the goods so that they can be placed in the deliverable condition, and the property in the goods is not yet transferred until such a thing is said to be done for the goods and the buyer is informed of the same. For example: – Peter buys a laptop from an electronics store and asks for home delivery. The shopkeeper agreed to it. However, the laptop does not have the Windows operating system installed. The shopkeeper promises to set it up and calls Peter before making the delivery. In this case, the property is transferred to Peter only after the shopkeeper has installed the OS to prepare the laptop for delivery.
    • Price of goods determined by means of weights (Section 22): – Where the price of the specific goods in the contract of sale is to be determined by weight, measurement or in any other way, the property in the goods is not said to be passed unless the weighing, measurement or method is used to determine the price and is informed to the buyer. For example: – Peter sells John a carpet and as part of the contract agrees to place it in John’s house. He lays the carpet and informs John that he will be laying it the next day. That night the carpet is stolen from John’s premises. In this case, John is not liable for the loss because the property was not given to him. As per the terms of the contract, it will be in a deliverable condition only after the carpet is laid.
  4. Uncertain Goods (Section 23): – In a contract for the sale of uncertain goods by description, the property in the goods is delivered to the buyer if the goods of the said description are in deliverable condition and are unconditionally appropriated to the contract by the seller with the consent of seller or vice versa. Consent can be either expressed or implied and given after or before appropriation.
  5. Goods sent on approval basis (Section 24): – When goods are delivered to the buyer on specific terms i.e. ‘approval’, ‘return on sale’ or any other such period, the property is transferred when: –
    • The buyer indicated his acceptance or approval to the seller;
    • The buyer acts in a way that indicates the adoption of the transaction;
    • The buyer retains the goods even after the expiry of the fixed period.
  6. Right to Dispose (Section 25): – If a seller reserves the right to dispose of the goods until certain conditions are met, the property in the goods cannot be transferred to the buyer until such conditions are fulfilled.

Relevant sections

  1. Section 24 Risk passing
  2.  Section 18 Ascertainment of goods
  3. Section 19 Parties Intent
  4. Section 20 Goods in Deliverable State
  5. Section 21 To keep the goods in a deliverable condition
  6. Section 22 Price of goods determined by means of weights
  7. Section 23 uncertain goods
  8. Section 24 goods sent on approval basis 
  9. Section 25  right to dispose

Important case laws

  1. Badri Prasad vs. State of Madhya Pradesh: – In this case, the court stated that in cases of sale of trees, property in goods is transferred when the trees fall after being cut down because they cannot be ascertained unless they fall.
  2. Multanual Chempalal vs. C.P. Shah & Co: – In this case, it has been held that Section 26 of the Sale of Goods Act, risk passes only when the property is passed, but if there is a contract to the contrary, for the passing of the l risk before the title of the property. Thus, the parties can enter into a contract that provides for the risk to pass before the property is passed.

Points to remember

  1. The passing of property is the transfer of ownership at an agreed price. The passing of property is an important aspect to help determine the liabilities and rights of both the buyer and the seller. Once a property is passed to the buyer, then the risk in the goods sold is that of the buyer and not the seller. This is true even if the goods are in the possession of the seller. Ownership is transferred only when the ownership of property rights is transferred from the seller to the buyer.
  2. Transfer of property in goods (Sections 18 to 25)
  3. Transfer of possession of goods (Section 26)
  4. Transfer of title (Section 27-30)
  5.  As soon as the property is transferred to the buyer, the goods are at the buyer’s risk of whether the goods have been delivered or not
  6.  A state in which a buyer is obliged to take delivery of goods is known as a deliverable state.
  7. Where the price of the specific goods in the contract of sale is to be determined by weight, measurement or in any other way, the property in the goods is not said to be passed unless the weighing, measurement or method is used to determine the price and is informed to the buyer.

Frequently Asked Questions (FAQs)

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