Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - REMEDIES FOR INTERNATIONAL SELLERS OF GOODS
REMEDIES FOR INTERNATIONAL SELLERS OF GOODS. General Editor Dennis Campbell, B.A., J.D., LL.M., of the New York and Iowa State Bars, Director, Centre for International Legal Studies, Salzburg. 2 volumes, liv and 998 pp., plus 36 pp. Index. Looseleaf £195.
Remedies for International Sellers of Goods is yet another two-volume looseleaf work dealing with a narrow area of law. It comprises a series of chapters each devoted to a different jurisdiction (from Australia to the United States). From the title it might be supposed that it is restricted to remedies and to international sales. Neither is in fact the case.
Consider, first, the chapter on the law of England and Wales (Scotland, thankfully, is not given a separate chapter). It covers, in addition to remedies proper, the interpretation of the contract, buyer’s and seller’s obligations under c.i.f. and f.o.b. contracts, implied conditions and warranties, and letters of credit. In short, it attempts to cover nearly the whole of sales law; this reflects the inherent difficulty of considering the buyer’s and seller’s remedies for breach without considering when a breach has occurred. Given the breadth of coverage, it would be surprising if it was sufficiently detailed to be useful, and it is not. A few examples, chosen almost at random, will suffice.
In Eng.-005, the seller’s obligations as to title under the Sale of Goods Act 1979, s. 12 are considered. This is nothing more than a digest of the section, and takes almost exactly the same number of words (Benjamin’s Sale of Goods required 21 pages! (see Chap. 4)). Can the seller being sued for the return of the price set off a sum for the buyer’s usage (see Rowland v. Divall [1923] 2 K.B. 500 and Butterworth v. Kingsway Motors Ltd. [1954] 1 W.L.R. 1286)? We are not told. Alternatively, consider the section on Romalpa clauses (Aluminium Industrie v. Romalpa Aluminium Ltd. [1976] 1 W.L.R. 676). “The Romalpa case decided that the defendants [buyers] were bailees of the goods. Thus, the resale of the goods by the buyer could be seen as a sale of the seller’s goods, requiring the buyers to account for the resale price received” (Eng.-027). Such an assertion is of almost no use. There is no mention of why they were considered to be bailees when ostensibly they were but buyers (the point was in fact conceded by counsel and there was some evidence that the clause provided for redelivery to the seller in certain circumstances). Furthermore, why did it matter that they were bailees? Any resale of goods by the buyer where the seller has effectively retained title under S.G.A., s. 19(1) will be a sale of the seller’s goods, but that will not give the seller a claim to the proceeds. Rather, the point is that the buyer either sold as an agent for the seller within his authority or as a mere bailee outside his authority and, in either case, was under a fiduciary duty to account. Roskill, L.J. (at p. 690) left no room for doubt when he said:
I see no difficulty in the contractual concept that, as between the [buyers] and their sub-purchasers, the [buyers] sold as principals, but that, as between themselves and the [sellers], those goods which they were selling as principals within their implied authority from the [sellers] were the [sellers’] goods which they were selling as agents from the [sellers] to whom they remained fully accountable. If an agent lawfully sells his principal’s goods he stands in a fiduciary relationship to his principal and remains accountable to his principal for those goods and their proceeds. A bailee is in a like position in relation to his bailor’s goods (emphasis supplied, see also Goff and Megaw, L.JJ., at pp. 693 and 694, respectively).
Understandably, pressures of space no doubt precluded a lengthy discussion, but this merely means that it, and many other passages like it, needed to be drafted with much greater care.
The coverage of American law provides good evidence that the same problems that appear in the English chapter are to be found throughout the book. Thus, the American chapter consists largely of the Uniform Commercial Code paraphrased. Take, as another example picked from the many available, a question particularly pertinent to sellers’ remedies, that of the nature of the credit seller’s right of reclamation in the Uniform Commercial Code, §2–702. Some courts have held that it is a “security interest” within Art. 9 (Dixie Bonded Warehouse and Grain Co. Inc. v. Allstate Finance
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