Behrend and Co Ltd v Produce Brokers Co Ltd
Rule established
Unless otherwise agreed, the buyer is not bound to accept delivery by instalments. Where only part is delivered and the balance follows after a substantial interval, the buyer may keep and pay for the part delivered and reject the remainder, recovering the price paid for it.
Facts
- The sellers sold a quantity of cotton seed to the buyers, to arrive by ship.
- The buyers paid the price against the shipping documents.
- The vessel reached London and began to discharge, landing only a small portion of the seed sold.
- Before completing delivery, the vessel left London to discharge other cargo at another port.
- She returned roughly a fortnight later with the balance of the seed.
- The buyers elected to keep the portion landed at the first discharge and refused to accept the balance.
Issue
- Whether a buyer, having received part of the contract goods, is bound to accept the remainder tendered after a substantial interval, or may keep the part and reject the balance while recovering the price paid for it.
Held
- The buyers were entitled to keep and pay for the part landed, to reject the remainder, and to recover the price paid for the rejected portion. They had bargained for a delivery of the whole, not for a delivery split by an interruption of that length, and could not be compelled to take the goods in instalments.
Ratio Decidendi
Delivery is governed by the contract. Where the contract contemplates a single delivery, a tender in separated parts is not performance in the manner promised. The buyer's acceptance of what has actually been landed does not commit him to accept the residue, because he has not agreed to instalment delivery. Since the price was paid for a whole that was never delivered as a whole, the sum attributable to the undelivered part is recoverable.
How to use it in an exam
- Direct authority on S.38(1) of the Sale of Goods Act 1930: unless otherwise agreed, the buyer of goods is not bound to accept delivery by instalments.
- Read with S.37(1) on short delivery: where the seller delivers less than he contracted to sell, the buyer may reject, but if he accepts he must pay at the contract rate.
- Also the standard illustration that acceptance of part is not acceptance of the whole, which qualifies the reach of acceptance by conduct under S.42.
- Contrast with Hardy and Co v Hillerns and Fowler 1923, where a dealing with the goods inconsistent with the seller's ownership did destroy the right to reject. The two together mark out where the right to reject survives and where it is lost.
- Note the restitutionary limb: the price paid for goods never delivered is recoverable.
Source
Source: [1920] 3 KB 530; leading authority on interrupted and short delivery and the buyer's right to sever; proposition and year confirmed; the report page number was not independently confirmed
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.