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ž 3.2. The rights and duties of the seller in the sale contract of the goods by the right of Scotland

The seller is obliged to deliver the goods to the buyer, and the buyer is obliged to accept it and to pay. [334] the concept "delivery" is understood not as physical transfer of the goods, and źvoluntary transfer of the right of possession╗ is faster.

[335] Hence, whether should deliver the seller the goods to the buyer or the buyer to take away the goods from the seller - interpretation of treaty provisions of purchase and sale. If in the contract there is no the position regulating a condition of delivery the delivery place considers a trading premise of the seller or a place of its residence if the trading premise is absent. However if a subject of the contract of purchase are individually certain goods which site is distinct from a trading premise or a residence of the seller and it was known to the parties of the contract at the moment of its signing a delivery place is this place. If delivery time is not fixed by contract positions delivery should be made in reasonable term and reasonable hour. [336]

If the buyer delivered the goods in quantity, which less established in the contract of purchase the buyer can refuse to accept or accept and pay it it for contractual cost. If delivery has been carried out in bolshem quantity the buyer can refuse the goods, refuse only its superfluous quantity or accept all goods, having paid to it at contractual cost. The given rules are applied only in case other conditions have not been fixed by treaty provisions. [337]

Section 12 (1) of the Law on purchase and sale of 1979 fixes, that condition in law of the contract of purchase is the condition, that the seller has the right of the order the goods, and in case of the agreement on sale of the future thing - that it will have this right at the moment of the planned transition of the property right. In case of infringement of section 12 (1) the buyer has the right to refusal of the goods and on the refund.

Section 12 (2) of the Law on purchase and sale of 1979 establishes, that the seller undertakes (according to contract conditions in law), that at the moment of making contract and transition of the property right the goods are and remain free from any encumbrances which it has not been declared or it is known to the buyer at the moment of making contract, (the goods are free, and will remain free from any charge or encumbrance not disclosed or known to the buyer) also that to the buyer quiet possession of the goods (will enjoy quiet possession of the goods) is provided.

In case of the contract of purchase, in which quality of the goods it is defined by the description (goods are sold by description) condition in law of the contract of purchase is a condition, that the goods will correspond to its description. The goods under the description will be purchase and sale of the goods with generic characteristics, and also purchase and sale on

To the Internet. The description can be verbal, and also in the form of the image or numerical indicators. [338]

In a case when one party concludes the contract of purchase in frameworks realisation of the trading and enterprise activity, the goods delivered within the limits of the contract should be satisfactory quality and answer the purpose from which the buyer got the goods. [339]

Before detailed studying of conditions in law concerning satisfactory quality, it is necessary to note certain restrictions.

The given rules do not concern defects which have been shown the buyer before purchase and sale making contract. Also rules do not extend on defects which have not been found out by the buyer as a result of survey of the goods before making contract if as a result of such survey defect could be found out. [340] important condition is that by means of such survey was possible to find out corresponding defect.

The law of 1893 used the term źsuitable to sale╗ (merchantable) instead of źsatisfactory quality╗ (satisfactory quality). The concept of "satisfactory quality╗ is fixed in section 14 (2А) the Law of 1979. It has been based on judicial precedents. The goods corresponding to standards are considered as the goods of satisfactory quality, as which the reasonable person (reasonable person) would consider satisfactory, considering their description, cost

(If it is essential) and all other corresponding circumstances. [341 [342] [343]

The question of definition of sufficiency of quality is considered from a position of the reasonable person, instead of the expert. Such approach can vary a little according to the nature of the goods and that who usually uses it. Quality provides following indicators of a condition of the goods: conformity of the purpose for which the given type of the goods is usually got (fitness for all the purposes for which goods of the kind in question are commonly supplied); possession due appearance and completeness (appearance and finish); absence of minor defects (freedom from minor defects); safety at use (safety) and durability (durability).342 Regulations of 2002 have added a new indicator of conformity of quality, namely - conformity to the public statement of the seller (or its representative) about specific characteristics of the goods, in particular by means of advertising or marks if the consumer contract takes place.

Definition interpretation źsatisfactory quality╗ in judgements plays more important role, than definition. Kinds of the goods to which interpretation by definition court źsatisfactory quality╗ was applied, too much, and they are too various. In spite of the fact that motivations of judgements the fact is very diverse, obvious, that vessels also use till now old precedents in which the term źsuitable to the purchase - was used

343

To sale ╗.

As conformity of the purpose for which the goods usually are got, is one of factors on which basis are defined quality of the goods is specified above. Nevertheless, separate conditions in law concerning the conformity of the goods to its appointment are regulated by section 14 (3). If the buyer, in obviously expressed form or it is meant, any special appointment for which the goods are got the goods should correspond in the reasonable image to this appointment irrespective of, whether there correspond usually the goods of such type to this appointment informs to data of the seller. The buyer, however, cannot take advantage of the given position if from circumstances obviously, that he did not count or should not count on qualification or professional opinion продавца.344

The contract of purchase is considered the goods contract of purchase on the sample (a contract for sale by sample) if it is evidently expressed or it is meant in treaty provisions. 345 section 15 of the Law about kupleprodazhe establishes 1979 following conditions in law of the contract of purchase of the goods on the sample:

(1) wholesale purchase concerns the goods corresponding to the sample on quality (correspond with the samplein quality); 346

(2) wholesale purchase concerns the goods, which have no the defects doing the goods unsuitable for purpose of acquisition, if the wholesale subject cannot be defined by corresponding check (apparent on reasonable examination) образца.347 [344 [345] [346] [347]

Usually, the seller cannot approve, that it could not find defects. The liability of infringement of conditions in law of the contract of purchase in this sense is bezvinovnoj (liability for breach is absolute). The law on unfair treaty provisions of 1977 does not allow the seller to exclude the obligation made to it to transfer the faultless legal title. [348] this obligation exists without dependence from type of the contract of purchase, including, consumer it is the contract or not. [349]

As to other conditions in law of the contract, namely, settled by section 13 of the Law of 1979 (conformity to the description), section 14 of the Law of 1979 (quality and conformity), section 15 of the Law of 1979 (purchase and sale on the sample), they can be excluded the seller depending on, whether goes speech about the consumer contract or not. In a case if it is a question of the consumer contract, attempts will exclude such conditions in law void, in other cases - check on honesty and validity (fair and reasonabless test) demand. [350 [351]

Speaking about other contracts, except for purchase and sale contracts, it is important to recollect the Law on delivery of the goods and services of 1982 (Supply of Goods and Services Act 1982) 351. Initially, given law was not applied in territory of Scotland. Application of the given law in Scotland has been statutory about purchase and sale and delivery of the goods of 1994.

Protection of buyers can be divided on two categories. The first category includes dogovory on transition of the right to the goods, except for purchase and sale, rent, purchase and donation. As a whole, this class of contracts includes barter and dogovory on delivery of works and materials. The contract on transfer (transfer) of the goods (contract for the transfer of goods) - the contract on which one person transfers or agrees to transfer to another the property right to the goods. [352] second category includes dogovory rent. The rent contract (contract for the hire of goods) - the contract on which one person (supplier) leases or agrees to lease the goods to another. [353] rent contract should be distinguished from the rent contract with the call future.

It is similar to the positions fixed by sections 12-15 of the Law of 1979, in rent contracts with the call future the buyer it is protected by the Law on delivery of the goods 1973. In Scotland, similar protective positions were inaccessible within the limits of other contracts. It strongly differed from principles of the English right on which similar protection was given by means of the Law of delivery of the goods and services of 1982 which in Scotland did not operate. This contradiction has been eliminated in 1994. If the contract is consumer the same conditions in law of the contract fixed by the statute, are applied to barter contracts, contracts on granting of services and materials and rent contracts, as well as for contracts of purchase. [354]

The seller also has the certain rights of judicial protection in case of breach of contract by the buyer, namely the right to demand through court at the buyer of compensation of cost of the goods and-or losses. But

If to the seller have not paid, it can take advantage of the certain rights which are based on its possession of the goods. [355]

It is considered, that to the seller have not paid, if full cost of the goods has been paid not, and also if the bill of exchange (or other negotiable document (negotiable instrument)) has been received as payment with a condition (conditional payment) or at the protest of such bill (dishonoured). [356] If to the seller have not paid, it on hand has three variants of a legal protection which can be used even if possession has already passed to the buyer:

1) the pledge right (lien) (or the right of retention of the goods which yet have been not transferred in possession (right to retain));

2) if the buyer is insolvent or the bankrupt (insolvent), the right to forbid goods transfer after it has arrived in possession of other person;

3) the resale right. [357]

Except ways of a legal protection of the seller which are based on possession of the goods, the seller has the remedies at law based on breach of contract by the buyer. Namely, the seller has the right to the requirement through court of payment of cost of the goods or the indemnification. Advantage of the right to demand payment of cost of the goods is that circumstance, that the seller does not have duty to minimise the losses (loss) by means of search of the new buyer. [358]

The seller can demand to pay goods cost:

1) if it has transferred the property right and the buyer wrongfully does not care of payment or refuses to pay. [359] nevertheless, the seller has no such right, if the property right to the goods has not passed because of wrongful acts of the buyer (wrongful act) [360];

2) if goods cost should be paid in concrete day (day certain), without dependence from delivery, and the buyer wrongfully does not care of payment or refuses to pay, is not dependent on property right transition. [361]

Definitions of "concrete day╗ (day certain), following from judgements, are ambiguous. The date instructions will be, of course, certain day, and whether the binding to event in the future here will be considered in the certain afternoon - remains an open question. [362] It seems disproportionate, that after contract cancellation in reply to non-observance by the buyer of the requirement to pay the goods in certain day, the seller has the right to demand payment of the price of the goods without delivery of the goods, but English precedents are the proof of such approach. [363] Scottish precedents fix other approach. [364] if the buyer wrongfully does not care of payment or refuses the acceptance or goods acceptance (accept) and refuses to pay the goods the seller has the right to demand through indemnification court. [365]

Though guarantees (guarantee) are not directly connected with the purchase and sale contract, it is necessary to notice, that the Regulations about protection of consumers of 2000 (Consumer Protection (Distance Selling) Regulations 2000) 366 have entered the new form of protection of consumers. 367 guarantee is an assumption of the obligation to the consumer of the person operating within the limits of the enterprise activity, without additional surcharge to compensate the paid cost, or to replace, repair or adjust consumer goods if they mismatch the characteristics declared in a guarantee on the goods (guarantee statement) or corresponding рекламе.368 Further the guarantee is defined as the contractual obligation of the guarantor according to conditions of the guarantee and corresponding рекламы.369 It differs from a position of the Scottish right, according to which the guarantee can be defined as the promise (promise) qualities or the unilateral obligation (unilateral obligation).370

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A source: Afanaseva Taisija Aleksandrovna. LEGAL REGULATION OF RELATIONS OF THE TRADING TURN In Scotland. The dissertation on competition of degree of the master of laws. Moscow, 2017. 2017

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