PART I SALE OF GOODS

BOOKS
The recommended book is P.S. Atiyah, The Sale of Goods (Pitman’s Publishing). Students who find this book
difficult to understand may refer to Wu Min Aun, Legal Aspects of Sale (Heinneman). Reference may be made to
A.G. Guest (ed.), Benjamins’ Sale of Goods (Sweet & Maxwell), and Ivamy & Powell-Smith, Malaysian Law of Sale
of Goods, Cases And Materials.
STATUTES
(A) SALE OF GOODS ACT 1957
The main statute is the Sale of Goods Act 1957 which came into force in West Malaysia. For the
background of this statute refer to Ivamy & Powell-Smith pg 1-2.
There is no specific statute in Sabah and Sarawak. Section 5 (2) Civil Law Act 1956 states that if there is no
local law then the law to be used is “the law to be administered in England in the like case at the
corresponding period.” However, English law must be appropriate for “local position.” Can the English Sale
of Goods Act 1979, be used in Sabah and Sarawak? Refer to Heng Long Co etc v Osman b. Abdullah
[1994] 2 M.L.J. 456. In this case the High Court in Kuching decided that the English Sale of Goods Act 1979, is
applicable in Sabah and Sarawak. The question whether the UK Act is suitable for local conditions was not
discussed.
In Part I of this outline the word “SOGA” refers to the Sale of Goods Act 1957. When answering the
examination questions candidates may assume that the transactions specified in the questions occurred
in West Malaysia.
(B) CONSUMER PROTECTION ACT 1999
This Act shall apply to a business of supplying goods in trade to a consumer. For the definition of the word
“goods”, “trade” and “consumer”, please refer to section 3 of the Act.
Students are required to refer to Parts I, V, VI and VII of the Act. Please refer to 15
A and 15B in this outline. This course does not cover other parts contained in the Act. In this outline the
word “APP 1999” refers to the Consumer Protection Act 1999.

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1. Application of the Sale of Goods Act 1957
(A) The transaction must be a contract of sale of goods as specified in s. 4 (1). Please note the
elements of the definition in s. 4 that it must be the sale of goods, for a price and the intention of
transferring property.
(B) Definition of ‘goods’ in s. 2
“Goods” means every kind of movable property other than actionable claims and money; and include stocks
and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to
be severed before sale or under the contract of sale.”
Refer to the following cases:
Moss v Hancock [1899] 2 P 111 (cash value “curio” are “goods”)
Morgan v Russell [1909] 1 KB 357 (sale of “cinders and slag”, which is not collected, but abandoned
on the ground is not goods)
Mills v Stokman (1966 67) 116 CLR 61 (This case involves “slate” that is abandoned on the ground as
waste. Barwick CJ referred to this material as “unwanted dross cast on one side with the intention that it
should remain on the land indefinitely, and by implication, that it should form part of the land.”)
(C) Elements of payments
See the words “for a price” s. 4
(i) Barter is not a sale.
(ii) Whether a sale of goods may occur if both sides did not set the price is subject to the facts of
each case.
Refer to
May & Butcher v The King [1934] 2 KB 17n
Foley v Classique coaches, Ltd. [1934] 2 KB 1
What is the difference between the case of May & Butcher
and Foley?
Refer also to the Esso v Commissioners of Customs & Excise
[1976] 1 All ER 117
(This case is important because it involves a “free gift” that was given by the seller. Is the gift part
of the sale of goods?)

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 (iii) If a contract exists even if the price is not agreed upon, how then will the price be determined?
Refer to s. 9 (2)
(D) Element of transfer of property by the seller
Please note the word “agrees to transfer the goods in the property to the buyer.”
This matter will be discussed later.
2. Difference in the contract of sale of goods from the contract to provide services
Contract of sale must be separated from other commercial contracts, such as a contract to provide
services. The Sale of Goods Act 1957 and its provisions only apply to a contract of sale of goods. Refer
to:
Robinson v Graves [1935] 1 K.B. 579 (contract to paint a portrait)
(This case suggests a test to distinguish a sale of goods from a contract for services)
Perlmutter v Beth David Hospital (1955) 123 NE 2d 792 (blood containing “Jaundice” virus supplied by the
hospital. Separate charges have been made to for the blood. Is this sale of goods or contract for services?)
3. Types of goods under SOGA
(A) The type of goods as set out below are important because the application of some provisions of the
SOGA (e.g. sections 7, 8 and 20-23) are subject to whether the goods are specific, unascertained or
future goods.
(B) Specific goods (s. 2)
“Specific goods” is defined as “goods identified and agreed upon at the time a contract of sale is made.”
The meaning of “identified” is not established
Refer to Kursell v Timber Operators [1927] 1 KB 298
(Sale of all trees in a forest that fulfils a certain size on a certain date is not sale of specific goods.)
Reid Joseph Pty Ltd v Schultz [1949] SR (NSW) 231
(Sale of all “millable hardword or marketable timber” in a particular place is the sale of specific goods).

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 (C) Unascertained good
There is no definition thereof in the Act. It refers to goods that exists at the time of sale,
but not identified at that time.
Re Wait [1927] Ch 606 (sale of 500 tons of grain of 1000 tons of the cargo in a ship is a
sale of unascertained goods).
(D) Future goods (s. 2)
“Future goods” is defined as “goods to be manufactured or produced or acquired by the seller
after the making of the contract.” If the seller has to manufacture the goods or to acquire it
from another person the goods are future goods.
4. Where the goods perished before the contract under SOGA (s. 7)
What is the effect, if the seller sells and the buyer buys goods that have been destroyed at the time
the contract is made?
(A) Under s. 7 the contract will be void where the goods are specific goods.
(B) The goods perished without the knowledge of the seller. Refer to Couturier v
Hastie (1856) 5 HLC 673
5. Where the goods perished after the contract of sale under SOGA (s. 8)
What is the effect, if the goods perished after the contract of sale is made?
(A) Under s. 8 if the goods are specific.
(B) The goods perished without the fault of either party.
(C) The risk in the property have not passed on to the buyer, then the contract is void.
For the meaning of “perishing” refer to the case of Barrow Lane & Ballard Ltd v Philip Philips
& Co [1929] 1 KB 574