Is It a Sale of Goods?

The Sale of Goods Act 1979, as we might expect, applies to sales of goods and nothing but sales of goods. A sale of goods is defined by s. 2(1) of the Act as ‘a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price’. ³ This definition excludes from the Act certain related contracts: (1) bailments, e.g. hire (no property is transferred); (2) barter (no price); and (3) work and materials. Whilst there would be obvious difficulties in applying the provisions of the Act to bailments such as hire, there is no very good reason why they should not be applied to contracts of barter or work and materials. Barter, it may be applied to contracts of barter, or work and materials. Barter, it may of cars, goods supplied in return for wrappers or coupons, ⁴ all involve barters. It might be possible to regard contracts of barter as mutual sales, the obligation on each side to pay the price being regarded as discharged by mutual accord and satisfaction on delivery of the goods. ⁵ Whilst that may sound a little artificial, it does have the merit of making the provisions of the Act applicable. Work and materials contracts offer no such easy solution. All that it is possible to say is that the courts at the present day have tended to assimilate the provisions applicable to these to sale of goods. ⁶ Historically, the distinction was important, because contracts for the sale of goods above £10 needed to be evidenced in writing or they were unenforceable, ⁷ whereas work and materials did not. That requirement has now been repealed, ⁸ but the cases on it are still cited as authorities which define the applicability of the Act. Bearing in mind, however, that a judge deciding a case on the evidence in writing provision was concerned with the possible enforcement of a contract in the absence of the evidence required by law for sales of goods, whereas a judge now will no doubt have at the forefront of his mind only the appropriateness of the Sale of Goods Act provisions to the case in hand, these old cases may not provide an entirely reliable guide. Moreover, the test set out in the leading case of Robinson v. Graves ⁹ leaves the judge a great deal of leeway.