A CRITICAL EXAMINATION OF PASSING OF PROPERTY AND RISK IN SALE OF GOODS CONTRACT IN NIGERIA AND UK: A COMPARATIVE APPROACH

Abstract

Abstract
Passing of property in the goods has over the years been recognized as one of the most important aspect of
sale of goods contracts: on the ground that passing of property in the goods from the seller to the buyer in
ascertained or unascertained goods, involves the delivery of the goods and the risk of loss. It also involves
the various stages of parties’ performance of their obligations. Though, the intention of the parties can be
discerned from the terms of the contract, conduct of the parties and the circumstances of the case in
specific/ascertained and unascertained goods, but there are problems of the buyer bearing the risk of loss,
when the goods have been shipped but has not been delivered/received by the buyer. The challenges was
observed more in a cost, insurance and freight (C.I.F.) contract/transportation term particularly when
goods are bought afloat and the buyer is deemed to have assumed the risk of loss on shipment. There was
also problem of transfer of property in unascertained goods forming part of the bulk and goods in undivided
shares forming part of the bulk. In order to resolve these problems, that a doctrinal method of research
was used: whereof we used the primary research materials such as Sale of Goods Act, 1893, (which is
statute of general application in Nigeria) Sale of Goods Act, 1979 of England, and the Sale of Goods
(Amendment) Act, 1995 of England and case laws; secondary research materials like opinion of law writers
in textbooks, journals and tertiary sources like online materials. We found out that in interpreting the
intention of the parties, due regard is not made to the nature of the goods which is the subject matter of the
contract. Our findings also include that the application of rule 5 of section 18 of the Act, relating to passing
of risk and property in unascertained goods forming part of the bulk and property in the goods in undivided
share forming part of the bulk, there are harsh and inequitable effects on the transactions of parties
particularly against the buyer. We further found that with the provisions of sections 20A and 20B of the
English Sale of Goods (Amendment) Act 1995; such harsh and inequitable provisions of sections 16 and
18 rule 5 of the 1979 English Sale of Goods Act, has been cushioned. At the end, we recommended that the
provisions of the amended Sale of Goods Act 1995 (English) should be adopted in Nigeria, by amending
the current sale of Goods Act 1893, as Nigeria Sale of Goods Act in order to remedy the harsh effects and
litigations in this respect.