(1979)1979 June 21 [TRIANTAFYLLIDES, P., STAVRINIDES, A. LOIZOU, JJ.] D. OUZOUNIAN, M. SOULTANIAN & CO. LTD., Appellants-Defendants, v. CHR. HJIPRODROMOU ESTATES LTD., Respondents-Plaintiffs. (Civil Appeal No. 5624). Sale oj goods—Passing of property—Transfer of risk—"Unconditionally appropriated" to the contract—Sections 23
(1)and 26 of the Sale of Goods Law, Cap. 267—Unascertained goods by description—Ordered in advanceof anticipated time of delivery— Paidfor by buyers—Kept by the sellers in theirstore pending the 5 date, in thefuture, when buyers would take delivery of them— Store coming under Turkish military occupation and delivery of goods to buyers impossible—Property in the goods, or risk in relation to, never passed from sellers to buyers—Nor were the goods kept by sellers as baileesfor the buyers—Amount paid by 10 buyers ordered to be refunded to them aspaidfor a consideration which has failed. On October 4, 1973, the respondents-plaintiffs placed with the appellants-defendants an order for twenty electric cookers and twenty refrigerators (both hereinafter referred to as "the 15 goods"), at a total agreed price of C£1560, which were to be installed at their block of flats in Famagusta, which was being built at the time and was expected to be finished at the end of 1974, or early in
- The purpose of the order was to take advantage of the prevailing price.; at the time and to avoid 20 having to pay more for the samegoods later. Itwas stated in the relevant order form that the goods were bought on a cash on delivery basis and that the delivery would take place within four to five months. On January 25, 1974 the appellants sent an invoice for the goods to the respondents who on February 23, 25 1974, paid by a cheque, and against a relevant receipt, the amount of C£I560.—to the appellants as the agreed price for the goods. 726 .1 C.L.R. , ^ \ Ouzounfan τ. HjiProdromouΙ ι 5 10 15 20 It was common ground that the invoice\was issued and the price was paid because the manager in Famagusta of the appel lants had informed the chairman of the respondents that the goods had arrived in Cyprus and had been cleared through the Customs; but it has been the version of the chairman of the respondents that he was told that, at the time, the goods were in Nicosia, whereas the said manager of the appellants has testified that he had said to the chairman of the respondents that the goods were already in Famagusta. The aforesaid manager testified that the goods, after they had been paid for by the respondents, were kept in the store of the appellants in Famagusta at the request of the chairman of the respondents, pending actual delivery of them to the respondents. It was, also, common ground that the goods were never actually delivered by-the appellants to the respondents, as before the completion of the construction of the block of fiats in question there intervened the Turkish invasion of Cyprus, which resulted in the still continuing Turkish military occupation of Famagusta, including'the store of the appellants in which the goods were kept. By letter dated November 4, 1975 the respondents asked for the delivery of the goods or for the refund of the said amount of C£1560.—but their request was turned down by the appellants. 25 30 35 In an action by the respondents fo" the refund of the said amount of C£1560.— the trial Jud^e found that the risk concerning the goods had not passed from the appellants, as sellers, to the respondents, as the buyers, because the property in such goods has not passed from the appellants to the respondents; and, therefore, as the goods were never actually delivered by the appellants to the respondents, he ordered the refund of the said purchase price on the ground that the consideration for the payment of such price had failed. In reaching this conclusion the trial Judge took the view that this was a case of sale of unascertained goods and he relied on the provisions of sections 23(f)* and 26* of the Sale of Goods Law, Cap.
- Held, that in the particular circumstances of this case, the goods were never "unconditionally appropriated" to the relevant * Quoted at pp. 731-2 post. 727 \ OiizouniaD τ. HjiProdromou
(1979)contract between the parties, in the sense of section 23
(1)of the Sale of Goods Law, Cap. 267; that neither the property in, nor the risk as regards, the goods concerned, passed from the appel lants to the respondents, in the sense of section 26 of the same Law, or was ever intended to have passed, until the time when 5 the store in which they were being kept in Famagusta came under Turkish military occupation; that since thereafter it has not been possible for the appellants to deliver to the respondents the goods, and they have refused to satisfy the claim made by the said letter of November 4, 1975, the said amount of C£1560 10 must be treated as being an amount which has been paid for a consideration which has failed; and that, consequently, it has to be refunded to the respondents as ordered by the trial Court. Held, further, that the contention of counsel for the appellants that the goods concerned were kept by them for the respondents 15 as bailees, cannot be accepted because this is not a case in which the goods sold, having been appropriated unconditionally, were kept in storage by the sellers on behalf, and for the benefit of, the buyers, pending their instructions for actual delivery to them, at any time, but it is a case in which the buyers placed an order 20 for certain goods in advance of the anticipated time of delivery, in order to take advantage of the prevailing prices at the time, and to avoid having to pay more for the same goods later; and because, when the goods which had been ordered arrived in Cyprus, they were paid for by the buyers, but they were kept by 25 the sellers pending the date, in the future, towards the end of 1974 at the earliest, when the buyers would take possession of them and in the meantime, as it has been correctly found by the trial Judge, the goods were only provisionally appropriated to the contractbetween theparties and therewas nothing to prevent 30 the sellers from selling to other customers of theirs such goods, or any number out of them, and replacing them by others of the same kind, provided that this would not, in any way, result in any increased financial burden for the buyers. 35 Appeal dismissed. Cases referred t o : Demetriades v. Caxton Publishing Co. Ltd.
(1973)1 C.L.R. 35 at p. 43; Ross T. Smyth & Co., Ltd., v. T.D. Bailey Son & Co. [1940] 3 All E.R. 60 at pp. 65, 66; 728 0 1 C.L.R. 5 Ouzounian v. HjiProdromou CarlosFederspiel & Co., S.A. v. CharlesTwigg& Co., Ltd.. andAnother [1957] 1Lloyd's Rep. 240at pp. 255,256; Sterns, Limitedv. Vickers, Limited[1923]IK.B.78at pp.82,83; ComptoirD"Achat et de VenteDu Boerenbond Beige S/A v. Luis De RidderLimitada(The Julia)[1949] A.C. 293; DembyHamilton & Co., Ltd. v. Barden (Endeavour Wines, Ltd. (ThirdParty)) [1949] 1All E.R. 435 at pp. 437,
- Appeal. Appeal by defendants against the judgment of the District 10 Court of Nicosia (Papadopoulos, S.D.J.) dated the 30th September, 1976(Action No. 833/76)whereby they were ordered to repay to plaintiffs the amount of C£l,560 with inteicst at 9% as money which had been paid for a consideration that had completely failed. 15 K. Chrysostomides, for the appellants. A. Dikigoropoullos, for the respondents. Cur. adv. vult TRIANTAFYLLIDES P. read the following judgment of the Court. The appellants, who were the defendants before the trial Court, 20 have appealed against a judgment by means of wliich they were ordered to repay to the respondents, who were the plaintiffs at the trial, the amount of C£1,560,with interest at the rate of nine per centum as from February 26,1974,as money which had been paid for a consideration that had completely failed. 25 The salient facts of this case appear, on the material before us, to be, briefly, as follows: The respondents were building a block of flats in Famagusta, which was expected to be finished at the end of 1974, or early in
- 30 As prices were about to rise, the chairman of the plaintiffs, Christakis HjiProdromou, who had, also, been urged to do so by the manager of the Famagusta branch of the appellants, Angelos Varnava, placed with the appellants, through their said manager, and on behalf of the respondents, an order for 35 twenty electric cookers at C£3I each and twenty refrigerators at £47 each, that is for an agreed total price of C£1,560, for the purpose of avoiding to have to purchase them later at higher prices; they were to be installed, eventually, at the aforemen729 Triantafyllides P. Oawnnian τ. HjiProdromou
(1979)tioned block of flats, when its construction would have been completed. It is common ground that thesaid cookers and refrigerators were never actually delivered by the appellants to the respon dents, as before the completion of the construction of the block of flats in question there intervened the Turkish invasion of Cyprus, which resulted in the still continuing Turkish military occupation of Famagusta. 5 The order for thecookers andtherefrigerators was placed, as aforesaid, on October 4, 1973, andit was stated in therelevant 10 order form that thecookers andrefrigerators were bought ona cash on delivery basis and that the delivery would take place within four to five months. On January 25, 1974,themanager of the Famagusta branch of the appellants sent an invoice for thegoods concerned to the 15 chairman of the respondents, who on February 23, 1974,paid by acheque,andagainst a relevant receipt,theamountofC£1,560 to the appellants, as the agreed price for such goods. The cheque was cashed by the appellants on February 26, 1974. It is common ground that the invoice was issued and the 20 price was paid because themanager in Famagusta of the appel lants had informed the chairman of the respondents that the goods in question had arrived in Cyprus andhad been cleared through the Customs;butithas been theversion ofthechaiiman of the respondents that hewas told that, at thetime, the goods 25 were in Nicosia, whereas the manager in Famagusta of the appellants has testified that hehad said to thechairman of the respondents that the goods were already in Famagusta. On November 4, 1975, counsel acting for the respondents wrote to theappellants requesting that thegoods concerned be 30 •either delivered totherespondents without anyfurther delay or that the sum of £1,560, with interest at nine per centum per annum, be refunded to the respondents by the appellants. It was stated in the letter of November 4, 1975,that it had been agreed between the appellants and the respondents that the 35 property inthegoods in question would notpass totherespon dents until after the goods had been ascertained and delivered to their premises late in 1974, and that such goods hadneither been ascertained nor been delivered. 730 1 C.L.R. Ouzounian ν, HjiProdromou Triantafyllides P. On November 13, 1975, counsel acting for the appellants replied, in writing, that the goods were ascertained anduncondi tionally appropriated to the relevant contract of sale between the parties to the present proceedings, with the full consent and 5 knowledge of the respondents, on January 25, 1974, when the relevant invoice was issued, as stated earlier in this judgment, and that as from that date the property in the goods had passed to the respondents, as well as the risk in relation to such goods; and, therefore, the refund of the amount of C£1,560 was refused. 10 It was, also, denied that there had been made between the parties any agreement concerning the time of the passing of the property in such goods. According to the testimony at the trial of the manager in Famagusta of the appellants, the goods, after they had been 15 paid for by the respondents, were kept in the store of the appel lants in Famagusta at the request of the chairman of the respon dents, pending actual delivery of them to the respondents. 20 25 The trial Judge has found that the risk concerning the goods had notpassed from the appellants, as sellers, to therespondents, as the buyers, because the property in such goods has not passed from the appellants to the respondents; and, therefore, as the goods were never actually delivered by the appellants to the respondents, he ordered the refund of the purchase price, namely the amount of C£1,560, on the ground that the consideration for the payment of such price had failed. In reaching his above conclusion the trial Judge took theview that this was a case of sale of unascertained goods and he relied on the provisions of sections 23
(1)and 26 of the Sale of Goods Law, Cap. 267, which read as follows :- 30 35 "23.
(1)Where there is a contract for the sale of un ascertained or future goods by description and goods of that description and in a deliverable state are uncondition ally appropriated to the contract, either by the seller with the assent of the buyer or by thebuyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.
(2)26. Unless otherwise agreed, the goods remain at the 731 Triaotafyllides P. Ouzotmianτ. HjIProdromoa „
(1979)seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the ° buyer, the goods are at the buyer's risk- wnether delivery has been made or not: J Provided that, where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: 5 Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee 10 of the goods of the other party." It is, also, relevant to refer to sections 18 and 19 of Cap. 267, which read as follows:" 18. Where there is acontract for thesale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. 15 19.
(1)Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
(2)For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract,the . conduct of the parties and the circumstances of the case.
(3)Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the 25 intention of the parties as to the time at which the property is the goods is to pass to the buyer." As it has been correctly pointed out in Demetriades v. Caxton .Publishing Co. Ltd.,
(1973)I C.L.R. 35, 43 our Cap. 267 reenacts, with small variations in order to adapt it to local 30 circumstances in Cyprus, the Sale of Goods Act, 1893, in England (see Halsbury's Statutes of England, 3rd ed., vol. 30, p. 6). Section 18 of Cap. 267 corresponds to section 16 of the said English Act, subsections (I) and
(2)of section 19 of Cap. 267 correspond to section 17 of such Act, subsection
(3)of 35 section 19 corresponds to the opening sentence of section 18, subsection
(1)of section 23 to rule 5 of section 18 and section 732 20 1 C.L.R..3 Ouzounfan v. HjiProdromou TriantafylHdes P. 26 to section
- It is, therefore, quite useful, and proper, to rely on relevant case-law in England for the purpose of the proper construction and application of the provisions concerned of Cap.
- 5 10 15 20 25 30 35 In Ross T. Smyth &Co., Ltd. v. T.D. Bailey Son & Co., [1940] 3 All E.R. 60, Lord Wright said (at pp. 65, 66) in relation to the relevant provisions of the Sale of Goods Act, 1893, and, in particular, to rule 5 of section 18 of such Act:" Where, as here, the sale is of unascertained goods by description, there are, at that stage, no goods to which the contract can attach. The seller is free to appropriate to the contract any goods v/hich answer the contract description. Tins he does by the notice of appropriation wliich specifies and defines the goods to which» the contract attaches. These thereupon he is bound to deliver and the buyer is bound to accept,subject to theterms of thecontract. Thai, however, does not involve the passing of the property. The property cannotpass under a contractof sale until the good;. are ascertained (the Sale of Goods Act, 1893, s. 16), but. once they are ascertained, the property passes at the time when the parties intend it shall (sect. 17
(1)). As the paities seldom express any such intention, or perhaps even think of it, the intention will generally be a matter of inference . from the terms of the contract, the conduct of the parties, and the circumstances of the case (sect. 17
(2)). Then sect. 18 gives some general rules which'arc to apply 'unless a different intention appears'. Of these rules, the Court of Appeal rely on r. 5
(1), which provides as follows: Where there is a contractfor the sale o: ·•[ascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer... The assent is generally inferred from tHe terms of the contract or the practices of the trade. Subrule
(2)deals with the delivery of the goods to the carrier for transmission to the buyer without reserving the' right of'disposal, and provides' that in such a case there is deemed to be an r :; """J* · ' ' ; " ι 733 Trlantafyllides P. Ouzounian τ. HjiProdromou
(1979)unconditional appropriation. This latter subrule, which only deals with delivery to the carrier and not with actual notice of appropriation, is disregarded by the Court of Appeal. In such event, the carrier receives and holds the goods for the buyer, so that in law they are delivered to the 5 buyer. Compare also section 32
(1). However, the Court, I venture to think, should not have disregarded the word 'unconditionally' in subrule
(1). I do not construe subrule
(1)as limited to a case where there is an express term that the notice of appropriationis unconditional,or, on the other 10 hand, to a case where the noticeof appropriation is in terms conditional " In CarlosFederspiel&Co., S.A. v. CharlesTwigg & Co., Ltd., and another, [1957] 1 Lloyd's Rep. 240, Mr. Justice Pearson said in relation to the question of what constitutes appropriation in the sense of the above rule 5 of section 18 (at pp. 255, 256):- 15 " On those authorities, what are the principles emerging? I think one can distinguish these principles. First, Rule 5 of Sect. 18 of the Act is one of the Rules for ascertaining the intention of the parties as to the time at which the property 20 in the goods is to pass to the buyer unless a different inten tion appears. Therefore the element of common intention has always to be bora in mind. A mere setting apart or selection of the seller of the goods which he expects to use in performance of the contract is not enough. If that is 25 all, he can change his mind and use those goods in performance of some other contract and use some other goods in performance of this contract. To constitute an appropriation of the goods to the contract, the parties must have had, or be reasonably supposed to have had, an inten- 30 tion to attach the contract irrevocably to those goods, so that those goods and no others are the subject of the sale and become the property of the buyer. Secondly, it is by agreement of the parlies that the appro priation,involving a change of ownership, is made,although in some cases the buyer's assent to an appropriation by the seller is conferred in advance by the contract itself or otherwise. Thirdly, an appropriation by the seller, with the assent of the buyer, may be said always to involve an actual or 734 35 1 CL.R. Oozooniao τ. HjiProdromou Triantafyllides P. constructive delivery. If the seller retains possession, he does so as bailee for the buyer. There is a passage in Chalmers' Sale of Goods Act, 12th ed., at p. 75, where it is said: 5 In the second place, if the decisions be carefully examined, it will be found that in every case where the property has been held to pass, there has been an actual or constructive delivery of the goods to the buyer. 10 I think that is right, subject only to this possible qualifica tion, that there may be after such constructive delivery an actual delivery still to be made by the seller under the contract. Of course, that is quite possible, because delivery is the transfer of possession, whereas appropriation transfers ownership. So there may be first an appropriation, constructive delivery, whereby the seller becomes bailee for the buyer, and then a subsequent actual delivery involving actual possession, and when I say that 1 have in mind in particular the two cases cited, namely, Aldridge v. Johnson, sup.,* and Langton v. Higgins, sup.** 2 "" JU " Fourthly, one has to remember Sect. 20 of the Sale of Goods Act, whereby the ownership and the risk are normally associated. Therefore as it appears that there is reason for thinking, on the construction of the relevant documents, that the goods were, at all material times, still at the seller's risk, that is prima facie an indication that the property had not passed to the buyer. Fifthly, usually but not necessarily, the appropriating act is the last act to be performed by the seller. For instance, if delivery is to be taken by the buyer at the seller's premises and theseller has completed his part of thecontract and has appropriated thegoods when hehas madethe goods ready and has identified them and placed them in position to be taken by the buyer and has so informed the buyer, and if the buyer agrees to come and take them, that is the assent to the appropriation. But if there is a further act, an important and decisive act to be done by the seller, then • [1857]7 E. A B. 885. ** (1859]4 H. & N. 402. 735 Triantafyllides P. Ouzounian τ. HjiProdromoa
(1979)there is prima facie evidence that probably the property does not pass until the final act is done." A case which has been relied onby counsel for theappellants in relation to the issue of whether the property in the goods in question, and the risk in respect of them,have passed—as he 5 contended—from the appellants to the respondents, is Sterns, Limitedv. Vickcrs, Limited, [1923] 1K.B. 78, in which Bankes L.J. said the following (at pp. 82, 83):"The Admiralty were possessedof a large quantity ofwhite oil orspiritinbulk lyingatThamesHaven. Thedefendants 10 on January 3, 1920, purchased a portion of it, and on Januaiy 17sold to theplaintiffs a portionof what theyhad bought. The spirit was at the time contained in a tank, No. 78, belonging to the London and Thames Haven Oil Wharves Company. The contract between the defendants 15 and the plaintiffs provided that the spirit should be similar to the bulk samples drawn, which samples on analysis showed a specific gravity of 786. The defendants by the terms of their contractwith theAdmiralty were allowed fre»; storage intheThamesHavenCompany'stankuntilJanuary 20 31, and it was agreed between the defendants and the plaintiffs that the plaintiffs should make their ownarrange ment with the Thames Haven Company for the further storage of the spirit after that date. On January 23 the plaintiffs sold the spirit to a Mr. Lazarus upon a bulk 25 sample with the analyst's certificate attached. That contract provided thatall charges including storage should be for buyers' account.Itis notdisputed thatat thetime of that contract the spirit was still intank No.78,andthat the bulk was similar tothesample submitted,thatis to say that 30 it was of the requisite specific gravity. On January 28 the defendants obtained from the Thames Haven Company a delivery warrant for thespirit,whereby it was madedeliver able to the plaintiffs' order,and handed it to the plaintiffs, who indorsed it to theirpurchaser. Lazarus, who did not 35 desire totakedelivery immediately,enteredintoanarrange ment with thecompanyby which heundertookto pay rent for thestorage. Thespiritwas allowed toremaininstorage for a considerable time and it was then found to have deteriorated in quality owing to an alterationin thespecific 40 736 1 C.L.R. *5 Ouzountan v. HjiProdromou Triantafyllides P. gravity due partly to evaporation but mainly to the storage company having mixed with it spirit of a different specific gravity. The question is Who are to bear the loss of that, the buyers or the sellers? It seems to me plain that, upon the facts quite apart from the question whether the property in the spirit had passed, the risk of deterioration rested upon the buyers, and they must bear the loss." As is, however, correctly pointed out by Atiyah on The Sale ofGoods, 5th ed.,p. 165,the Sternscase,supra,istobe accepted 10 only as a correct decision on its own particular facts, because it is a case of an exceptional nature. In this respect, it is useful to refer to the case of ComptoirZ)' Achat et de Vente Du BoerenbondBeige S/A v. Luis De Ridder Limitada (The Julia), [1949]A.C. 293;the headnote of the report 15 of this case reads as follows :- 20 25 30 35 40 "By a contract made in'Aprih 1940, the sellers, an Argentine company, sold to the buyers, a Belgian company, 500 tons of rye for shipment 'c.i.f. Antwerp,' on the terms contained in Form 41 of the London Corn Association. The contract provided for payment 'on first presentation of and in exchange for first arriving copy/ies of bill/s of lading .... and/or delivery order/s and policy/ies and/or certificate/s .... of insurance.' The sellers were to pay for any deficiency in weight; they- guaranteed condition on arrival and made themselves responsible for all averages. The rye sold was part of a larger parcel covered by a bill of lading signed before the contract was made arid the policies of insurance effected by the sellers covered a quantity different from that sold and that covered by the bill of lading amount. Both the bill of lading and the policies remained throughout in the possession of the sellers or their agents. The sellers exercised their option to demand payment in exchange for a delivery order. The surh to be paid, by cable transfer to New York, against the delivery order, was stated in a provisional invoice handed to the buyers to be $4,999.33, i.e., cost less freight plus a proportion of insurance. A delivery order directed to the sellers' agents atAntwerpwashanded tothe buyers against payment of this sum. It was indorsed by the agents with ah uhdertaking to honour it. The sellers delivered to their agents two certificates of insurance and the delivery order in terms 737 Triantafyllides P. Onzotmian τ. HjiProdromou
(1979)recognized thebuyers' interest inthese totheextent oftheir purchase. The charterparty under which the ship sailed recognized no port of discharge but Antwerp. While she was still atsea the Germansinvaded Belgium and occupied that town. By arrangement between the owners andthe sellers as charterers, but without the buyers' consent the ship discharged hercargo atLisbon,where itwas sold bythe sellers. It was admitted that theproperty in therye had never passed to thebuyers, who claimed total reimburse ment of the sum paid by them:- 5 10 Held, that despite the designation of the contract as 'c.i.f.* the true effect of all its terms must be taken into account and, inthelight of these, the contractwasnot'c.i.f.' but a contract to deliver at Antwerp. The payment made was not for the documents as representing the goods but for 15 delivery of the goods themselves. There was a frustration of the adventure and no part performance and the consideration had wholly failed so that the buyers were entitled to recover the amount paid." Lord Porter observed (atp. 312):- 20 " Indeed, it is difficult toseehowa parcel is at the buyers' risk when hehas neither property norpossession exceptin such cases asInglisv. Stockl and Sterns Ld.v. Vickers Ld.2, where the purchaser had an interest inah undivided part of a bulk parcel onboard a ship, orelsewhere, obtained by 25 attornment of the bailee to him." Also, Lord Normand stated (atpp. 319,320)the following:"It may be conceded that the parties can agree to some purely artificial allocation of the risk andif they express that agreement in suitable language inthe contractit must 30 somehow be given effect. But the parties to commercial cottracts arepractical people and inthose cases inwhich it has been held that the risk without the property has passed to ti:";buyer it hasbeen because thebuyer rather than the seller vas seen to have an immediate and practical interest 35 in the -oods, as for instance when he has an immediate right uider thestorekeeper's delivery warrant to the delivery
- 10 App. Cas.
- -
- [1923] 1Κ.B.
- ' 738 1 C.L.R. 5 10 15 20 25 30 35 40 Oazoanlanτ. HjiProdromou Triantafyllides P. \ \ of a portion of an undivided bulk in store or animmediate right under several contracts with different persons to ttw whole of a bulk notyetappropriatedto theseveral contracts. But in the present case the buyers had no more than a promise to deliver a part of the bulk cargo and the case is typically one for the general rule res peritdomino." Lastly, in relation to the issue of the passing of the risk in goods sold, but not actually delivered, it appears useful to refer to the case Demby Hamilton & Co., Ltd. v. Barden (Endeavour Wines, Ltd. (Third Party)), [1949] 1 All E.R. 435, in which Sellers J. said (at pp.437, 438), in relation to the first proviso to section20 of the Sale of Goods Act, 1893,whichcorresponds to thefirstproviso to section26 of our Cap.267, thefollowing :" The first requirement of the.proviso in question is that delivery has been delayed through the fault of the buyer. I am satisfied on the facts in the present case that a good delivery, which would have avoided all loss, was delayed through the fault of thebuyer, and that of the third parties. The next requirement of the proviso is that,where delivery has been delayed through the fault of the buyer, the goods are at the risk of the party in fault 'as regards any loss which might not have occurred but for such fault.' The goods referred to there must be the contractual goods which have been assembled by the seller for the purpose of fulfilling his contractand making delivery. The goods may have been "defined goods, goods manufactured for the purposes of delivery, or goods which had been acquired by the seller from somebody else for the purpose of fulfilling lus contract. It does not seem to me that the Act requires to be construed in any narrow sense. The real question is whether the loss which has accrued was brought about by the delay indelivery, and thatmusthave regard tothe goods which were'there to be delivered. Different circumstances may arise'in different cases. It may be that the seller was in a position to sell the goods elsewhere and acquire other goods for thepostponed time of delivery, and if he does not do that and thereis someloss in themeantimetheresponsi bility for the loss would be held to fall upon him. ' Again, there may be cases (and I think this is one of them) where the seller has his goods ready for delivery ,and has to keep 739 Triantafyllides P. Ouzonnlan τ. HjiProdromou
(1979)them ready for delivery asand when thebuyer proposesto take them." In thepresent case, inthe light oftheforegoing expositionof the relevant provisions and principles oflaw, and relying onthe totality ofthe compositepicturepresentedbytheversions ofthe 5 two main witnesses, HjiProdromou,whoisthechairman ofthe respondents, and Varnava, who wasthe manager inFamagusta, at the material time, of the appellants—and neither of which seems to have been rejected as untrue by thetrial Court—we have reached the conclusion,inagreement with the trial Court, 10 that the goods in question, namely thetwenty electric cookers and thetwenty refrigerators, were never "unconditionallyappro priated" totherelevant contractbetween theparties,in thesense of section 23
(1)of Cap. 267,nor didtherisk inrelation to such goods pass from the appellants tothe respondents, inthe sense 15 of section 26ofthe same Law, atany timeuntil thestore ofthe appellants, in which thegoods were being kept, wasoccupied, together with therest of Famagusta town, by Turkish military forces in the summer of 1974. We cannotaccept thecontentionofcounsel for theappellants 20 that thegoods concernedwere kept bythemfortherespondents as bailees. This is nota case inwhich thegoods sold, having been appropriated unconditionally, were kept in storage by the sellers on behalf, and for thebenefit of, thebuyers, pending their instructionsfor actual delivery to them,atanytime,butit 25 is a case inwhich the buyers placed anorder for certain goods in advance of the anticipated time of delivery, in order totake advantage of the prevailing prices at the time, and to avoid having to pay more for thesame goods later; and, whenthe goods which had been ordered arrived in Cyprus, they were paid 30 for by thebuyers, butthey were kept bythesellers pendingthe date, inthefuture, towards theend of 1974 attheearliest, when the buyers would take possession of them;inthe meantime, as it has been correctly found by thetrial Judge, thegoods were only piwisionally appropriated to the contract between the 35 parties a dtherewasnothingtoprevent the sellers from selling to other cistomers of theirs such goods, orany number out of them, and ^placing themby others ofthe same kind, provided that thiswcaid not,inanyway, result inany increased financial burden for the buyers. 40 As it has been stated by Varnava, the manager of the 740 1 CL.R. Ouzouulan v.HjiProdromou TriantafyllidesP. Famagusta branch of the appellants, they had, at the same time, other orders for similar electric cookers and refrigerators from other hotels or apartments in Famagusta, and he remembers delivering similar goods to other customers. 5 In the result, wehave reached the conclusion, bearing in mind theparticular circumstances ofthiscase,that neitherthe property in, nor the risk as regards, thegoods concerned, passed from the appellants to the respondents, or was ever intended to have passed, until the time when the store in which there were being 10 kept in Famagusta came under Turkish military occupation; and since thereafter it has not been possible for the appellants to deliver to the respondents the said goods, and they have refused to satisfy the claim made by the aforementioned letter of counsel for respondents of November 4, 1975,the amount of 15 C£1,560,which has been paid as the agreed price for these goods to the appellants by the respondents, must be treated as being an amount which has been paid for a consideration which has failed, and, consequently, it hastoberefunded to the respondents as ordered by the trial Court. 20 In the result, this appeal is dismissed accordingly, without,' however, in view of the rather extraordinary nature of this case, any order as regards its costs. Appeal dismissed. No order as to costs. 741