If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention. In section 40, replace “the Illegal Contracts Act 1970” with “subpart 5 of Part 2 of the Contract and Commercial Law Act 2017”. If the third party is prevented from making the valuation by the fault of the seller or the buyer, the party not at fault has a right to claim damages against the party who is at fault. If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. This section applies if any goods are sold, destroyed, or otherwise disposed of in accordance with any of sections 285 to 291. Undue Influence In Contract Law ‘ Influence ’ can be described as the ascendancy acquired by one person over another. the good faith purchaser of the goods is not required to inquire whether that notice has been sent. contractual privity (provisions that permit a person who is not a party to a deed or contract to enforce a promise made in it for the benefit of that person) (see subpart 1): contractual remedies (in particular, provisions relating to damages for misrepresentation and to cancellation) (see subpart 3): contracts entered into by minors (persons under the age of 18 years) (see subpart 6): certain stipulations in contracts not being of the essence of contracts (see subpart 7). An unpaid seller of goods has, by implication of law,—. the benefit was obtained because of anything done by another party to the contract (B) in, or for the purpose of, performing the contract. In section 66B(2)(b), replace “section 5(2) of the Minors’ Contracts Act 1969” with “section 93 of the Contract and Commercial Law Act 2017”. failed at the time of the offer to give the owner of the goods correct information of the time at which the goods could be delivered. Nothing in section 93 applies to any agreement entered into under section 4A of the Maori Housing Amendment Act 1938. inquire into and determine any application or claim, as the case may be, under any of the following if that application or claim is in respect of the sale of any motor vehicle: subpart 3 of Part 2 or Part 3 of the Contract and Commercial Law Act 2017; and. Despite any other enactment, the property in goods obtained by fraud or other wrongful means that does not amount to theft does not revest in the person who was the owner of the goods (or that person’s personal representative) by reason only of the conviction of the offender. Subsection (2) does not limit any other remedy that the shipowner may have for the recovery of the freight. In section 14(1), replace “the Illegal Contracts Act 1970, and that Act” with “subpart 5 of Part 2 of the Contract and Commercial Law Act 2017, and that subpart”. An unpaid seller of goods loses the seller’s lien or right of retention on the goods—. No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract. An application for approval under section 98 may be made—, by the minor or any other person who will be a party to the proposed contract; or, The court may refer an application under section 99—, if the court considers it necessary for the purposes of the application, to—. The assignee is not liable in damages, whether by way of set-off, counterclaim, or otherwise, for a sum exceeding the value of the performance of the assigned contract to which the assignee is entitled because of the assignment. For the purposes of relief under section 28 in respect of a contract, the decision of a party to the contract to enter into it is not made under the influence of a mistake if, before the party enters into it and at a time when the party can elect not to enter into it, the party becomes aware of the mistake but elects to enter into the contract despite the mistake. While the gold is stored as part of an undifferentiated bulk, ownership of the gold coins does not pass to A. For the purposes of relief under section 28 in respect of a contract, a mistake, in relation to that contract, does not include a mistake in its interpretation. An order under section 111 may be made by the court on its own motion or on an application made by—. wholly performed before the time of discharge except for the payment, in respect of that part of the contract, of money that is or can be ascertained under the contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: the validity of the contract or of any of its provisions or of any usage; the effect which the contract may have on the property in the goods sold. The promisor has available, by way of defence, counterclaim, set-off, or otherwise, any matter that would have been available to the promisor—, if the beneficiary had been a party to the deed or contract in which the promise is contained; or, the promise to which the proceeding relates had been made for the benefit of the promisee; and. continues in possession of the goods as bailee for the buyer or the buyer’s agent. If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination. In section 21, replace “section 12 of the Minors’ Contracts Act 1969” with “sections 103 to 110 of the Contract and Commercial Law Act 2017”. The District Court must not approve a contract under section 98 if—, the contract relates to property held on trust; and. The agreement becomes void when the goods perish. The contract is brought to an end from the point of termination onwards – so, neither party has to perform any obligations which fall due after the date of termination. it is necessary to promptly destroy or otherwise dispose of the goods in order to avoid the threat of harm to any persons or property. However, subsection (1) does not apply if the holder of the bill of lading has had actual notice at the time of receiving the bill of lading that the goods were not in fact loaded on board. If, under sections 24 to 26, the court has power to grant relief, the court may make any order that it thinks just. If, in respect of the loss of or damage to any hand baggage, the carrier proves that the loss or damage was contributed to by the negligence or wilful default of the passenger, the court may, under the Contributory Negligence Act 1947, relieve the carrier from any part of the carrier’s liability. If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: if the contract of sale involves carriage of the goods—in handing the goods over to the first carrier for transmission to the buyer; if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place—in placing the goods at the buyer’s disposal at that place; in other cases—in placing the goods at the buyer’s disposal at the place where the seller had his place of business at the time of the conclusion of the contract. Stipulations in contracts as to time or otherwise that would not, before the relevant date, have been deemed to be or to have become the essence of such contracts in a court of equity must receive in all courts the same construction and effect as they would have received in equity before that date. if the relevant carrier does not know the whereabouts of the consignee when the carrier is capable of tendering the goods to the consignee in accordance with the contract, when the relevant carrier has taken reasonable steps to find the consignee and give notice to that effect to the consignee: if the goods are to be collected by the consignee,—, when the goods are collected by the consignee; or, on the expiry of the fifth day after the date on which the relevant carrier notifies the consignee that the goods are available for collection (but see subsection (3)(d)); or. In section 352(1) and (2), replace “section 26(1) of the Sale of Goods Act 1908” with “section 152(1) of the Contract and Commercial Law Act 2017”. The responsibility of the contracting carrier for goods ends as follows: if the goods are to be delivered to the consignee,—, when the goods are tendered to the consignee in accordance with the contract; or, if any due freight has not been paid at or before the time the goods are to be tendered to the consignee in accordance with the contract, when the relevant carrier is capable of so tendering the goods and has given notice to that effect to a person liable to pay the unpaid amount of due freight (but see subsection (3)(c)); or. In section 14C(2)(a), replace “the Electronic Transactions Act 2002” with “Part 4 of the Contract and Commercial Law Act 2017”. Nothing in this subpart affects the law relating to contracts, or provisions of contracts,—. Despite any rule of law to the contrary, a carrier is not liable in its capacity as a carrier, whether in tort or otherwise, and whether personally or vicariously, for the loss of or damage to any goods carried by the carrier except—, in accordance with the terms of the contract of carriage and the provisions of this subpart; or. To be effective, a notice given to A’s principal must be given at a time and under circumstances that enable the principal, by exercising reasonable diligence, to communicate it to A in time to prevent a delivery to the buyer. Unless otherwise agreed, if goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure goods, the seller must give enough notice to the buyer to enable the buyer to insure the goods during the sea transit. on or subject to the conditions and directions that it thinks fit, whether as to the terms of the agreement or of the compromise or settlement, or as to the amount, payment, securing, application, or protection of the money paid or to be paid, or otherwise. Going back to the first requirement – that the purported victim placed trust and confidence in the other party - there have been many types of relationship which have fallen in this category. A seller of goods must be treated as being an unpaid seller, within the meaning of this Part,—. This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person. For the purposes of section 270, successive carriers are jointly responsible for the goods from the time when the goods are accepted by the first successive carrier for carriage in accordance with the contract until the time when, if the contract were not a contract of successive carriage, the contracting carrier’s responsibility would have ended under section 258(1). In section 92I(3)(g), replace “the Illegal Contracts Act 1970” with “subpart 5 of Part 2 of the Contract and Commercial Law Act 2017”. A consistent definition of goods is included. The Governor-General may, by Order in Council, make regulations for all or any of the following purposes: prescribing any conditions that must be complied with in order to meet a legal requirement by electronic means: without limiting paragraph (a), prescribing 1 or more requirements that—, must be complied with in order to meet, by electronic means, a legal requirement to which any of sections 222 to 224 apply; and. A contract of sale is a contract of sale by sample if there is a term in the contract, express or implied, to that effect. The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics. The court may, if it finds under section 87 that the contract was not fair and reasonable at the time the contract was entered into,—. This inequity in power between the parties can vitiate one party's consent as they are unable to freely exercise their independent will. A becomes subject to the same liabilities under the contract of carriage as if A had been a party to the contract. The court may modify a provision even if the modification cannot be effected by deleting words from the provision. The goods that form the subject of a contract of sale may be—, existing goods that are owned or possessed by the seller; or. If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract. when the rules of private international law lead to the application of the law of a Contracting State. Where subparts 1 to 5 refer to a reasonable time, the question of what is a reasonable time is a question of fact. relevant property means real or personal property that was the subject of the contract or was the whole or part of the consideration for the contract. must pay the balance (if any) to the consignee. Part 5 relates to various other commercial matters, including matters relating to—. References in this subpart to the goods to which a document relates must be interpreted in accordance with subsection (1). Under an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made. The purported victim should also be urged to take separate legal advice where possible. However, the court must take a representation referred to in subsection (3) into account in deciding whether to exercise any of its powers under sections 87 to 89 or section 93 or 95. a trustee to pay money or deliver property to a minor otherwise than in accordance with the terms of the trust: a minor to enter into an agreement by which a trust is extinguished or the terms of a trust are varied. If goods are delivered to the buyer without the buyer previously examining them, the buyer is not treated as having accepted them unless and until the buyer has had a reasonable opportunity to examine them for the purpose of ascertaining whether they conform with the contract. The court may make an order under section 76 even if the person granted relief entered into the contract, or committed an unlawful act or unlawfully omitted to do an act, with knowledge of the facts or law giving rise to the illegality. This section applies, with all necessary modifications, to contracts of carriage between contracting carriers and actual carriers, and between actual carriers, subject to any express term in the contract (see section 245). If, before the goods are accepted for carriage, the contracting party notifies the contracting carrier or the first actual carrier of any material particular that would otherwise constitute a breach of either of the terms specified in subsection (1), the carrier may—. any provision of the contract that imposes an obligation on a party to the contract who was a minor was harsh or oppressive. The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies. In section 52(3A)(b), replace “the Electronic Transactions Act 2002” with “Part 4 of the Contract and Commercial Law Act 2017”. matters concerning the legal effect of information that is in electronic form or that is communicated by electronic means are set out in section 211: default rules about the time and place of dispatch and receipt of electronic communications are set out in sections 212 to 217: key provisions concerning the use of electronic technology to meet certain legal requirements are set out in sections 218 to 221: provisions that specify certain legal requirements that may be met by using electronic technology, and how they may be met, are set out in sections 222 to 236. data storage device means any article or device (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device, electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic, electronic communication means a communication by electronic means, electronic signature, in relation to information in electronic form, means a method used to identify a person and to indicate that person’s approval of that information, information includes information (whether in its original form or otherwise) that is in the form of a document, a signature, a seal, data, text, images, sound, or speech, information system has the meaning set out in section 213(2), legal requirement has the meaning set out in section 219(2). the parties to the communication otherwise agree: An electronic communication is taken to be dispatched at the time the electronic communication first enters an information system outside the control of the originator. See subpart 2 of Part 5 (which relates to sales, pledges, or other dispositions by mercantile agents). The Acts or parts of Acts revised by this Act are specified in section 345. In section 13B(3)(b), replace “section 24 of the Electronic Transactions Act 2002” with “section 228 of the Contract and Commercial Law Act 2017”. In other words, the third party should to some extent be aware of some undue influence at issue. More specifically, it is particularly common when it comes to mortgages and guarantees. The surplus (if any) must, as soon as practicable after the completion of the sale, be paid to the Registrar of the office of the District Court nearest to the place of sale (to be held by the Registrar for the benefit of the person entitled to it). There is a contract for the purposes of this subpart where a contract would have come into existence but for circumstances of the kind described in section 24(1)(a). If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation. by any other party to the agreement or proceeding. The purpose of this Part is to facilitate the use of electronic technology by—, the legal effect of information that is in electronic form or that is communicated by electronic means; and, the time and place of dispatch and receipt of electronic communications; and. The proceeds of a sale of goods under this subpart must be applied in the following order: in payment of the expenses of the advertising and sale: in payment of the amount due under the lien: in payment of the surplus (if any) under subsection (2).