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Section 25 (1) of the Sale of Goods Act 1893: The Reluctance to Create a Mercantile Agency
Published online by Cambridge University Press: 16 January 2009
Extract
Section 25 (1) of the Sale of Goods Act 1893 provides:
Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.
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1 It may be argued that the owner is deemed to authorise the delivery under the sale etc. rather than the mere delivery. What, however, is meant by “the same”? It has been said that “‘The same’ generally refers to the last preceding antecedent” (Co.Litt. 20b, 385b), i.e., in this case, “the delivery or transfer.” Further, a similar phrase used in subs. 2 of s. 25 would seem to refer to the receipt of delivery. In any event, what would be the effect of the owner of the goods being deemed to have authorised the delivery under a sale? The reference to a “sale” in s. 25 (1) must be to “that which would have been a sale had the seller been the owner of the goods or a person authorised to sell.” The owner of the goods would, therefore, be considered to have authorised a delivery under that which purports to be a sale. The reference to a “sale” means that a mere delivery will not be authorised, a delivery will only be authorised if made under that which purports to be a sale, but the authority of the owner still attaches to the delivery and not the “sale.” The delivery is deemed to be legitimate, the sale is not.
2 See Ant. Jurgens Margarinefabriken v. Louis Dreyfus and Co. [1914] 3 K.B. 40, 44Google Scholar and D. E. Mount Ltd. v. Jay and Jay (Provisions) Co. Ltd. [1960] 1 Q.B. 159, 168Google Scholar for a consideration of the meaning of a transfer of documents of title.
3 s. 1 (4) of the Factors Act 1889 provides: “The expression ‘documents of title’ shall include any bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.”
4 See the fourth situation.
5 (1877) 3 C.P.D. 32.
6 Note that an “agreement for sale is not referred to here, which throws doubt upon the utility of those words in s. 9.
7 [1965] 1 Q.B. 560.
8 [1947] A.C. 362.
9 “Certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect?” McCombie v. Davis (1805) 6 East 538, 540 per Ellenborough C.J.
10 Salmond, Law of Torts, 15th ed., p. 139.
11 See 35 M.L.R. 268, 282 where the concept of limited title is discussed.
12 [1965] A.C. 867.
13 [1971] 3 All E.R. 708.
14 At p. 712.
15 For persuasive authority, see Barnett Group Hospital Management Committee v. Eagle Star Ins. Co. Ltd. [1959] 3 All E.R. 210 per Salmon, J. at p. 213Google Scholar: “the words … ‘any person’ are as wide as they can be …”; Re Turners Will Trusts, Bridgman v. Turner [1959] 2 All E.R. 689, per Danckwerts, J. at p. 692Google Scholar: “The words ‘any person’ are perfectly general …;” Clark-Jervoise v. Scutt [1920] Ch. 382, per Eve, J., at pp. 387, 388Google Scholar: “any is a word of very wide meaning and prima facie the use of it excludes limitation.”