Sale of Goods Act (Deals with leases)

"action" includes counterclaim and set off;

"buyer" means a person who buys or agrees to buy goods;

"contract of lease" has the same meaning as "lease";

"contract of sale" includes an agreement to sell as well as a sale;

"delivery" means voluntary transfer of possession from one person to another;

"document of title" includes

(a) any bill of lading, dock warrant, warehouse keeper's certificate and warrant or order for the delivery of goods, and

(b) any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods represented by it;

"fault" means wrongful act or default;

"future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale;

"goods" includes

(a) all chattels personal, other than things in action and money, and

(b) growing crops, whether or not industrial, and things attached to or forming part of the land that are agreed to be severed before sale or under the contract of sale;

"lease" means a lease or an agreement to lease where the lessee is acquiring the goods that are being leased primarily for personal, family or household purposes;

"lessee" means a person who leases or agrees to lease goods from a lessor primarily for personal, family or household purposes;

"lessor" means a person who leases or agrees to lease goods to a lessee;

"mercantile agent" means a mercantile agent who has, in the customary course of the agent's business as an agent, authority to

(a) sell goods, or consign goods for the purpose of sale, or

(b) buy goods or raise money on the security of goods;

"pledge" includes any contract pledging or giving a lien or security on goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability;

"property" means the general property in goods, and not merely a special property;

"quality of goods" includes their state or condition;

"sale" includes a bargain and sale as well as a sale and delivery;

"seller" means a person who sells or agrees to sell goods;

"specific goods" means goods identified and agreed on at the time a contract of sale is made;

"warranty" means an agreement with reference to goods that are the subject of a contract of sale, but collateral to the main purpose of that contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated.

(a) has ceased to pay the person's debts in the ordinary course of business, or

(b) cannot pay the person's debts as they become due.

(2) There may be a contract of sale between one part owner and another.

(3) A contract of sale may be absolute or conditional.

(4) If under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale.

(5) If the transfer of the property in the goods is to take place at a future time or is subject to some condition to be fulfilled later, the contract is called an agreement to sell.

(6) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

(2) Capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property.

(3) Despite subsection (2), if necessaries are sold and delivered to a person who because of mental incapacity or drunkenness is incompetent to contract, that person must pay a reasonable price for them.

(2) Nothing in this section affects the law relating to corporations.

(2) There may be a contract for the sale of goods, the acquisition of which by the seller depends on a contingency that may or may not happen.

(3) If by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.

(a) set by the contract,

(b) left to be set as agreed in the contract, or

(c) determined by the course of dealing between the parties.

(2) If the price is not determined in accordance with subsection (1), the buyer must pay a reasonable price.

(3) What is a reasonable price is a question of fact dependent on the circumstances of each case.

(2) If the goods or any part of them have been delivered to and appropriated by the buyer, subsection (1) does not apply and the buyer must pay a reasonable price for the goods.

(3) If the third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.

(2) Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(3) In a contract of sale, unless there is evidence to the contrary, "month" means calendar month.

(a) waive the condition, or

(b) elect to treat the breach of the condition as a breach of warranty, and not as a ground for treating the contract as repudiated.

(2) Whether a stipulation in a contract of sale or lease is a condition the breach of which may give rise to a right to treat the contract as repudiated, or is a warranty the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract.

(3) For the purposes of subsection (2), a stipulation may be a condition though called a warranty in the contract.

(4) If a contract of sale is not severable and the buyer has accepted the goods or part of them, or if the contract is for specific goods the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect.

(5) If a lessee has accepted goods or part of them, the breach of a condition to be fulfilled by the lessor can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the lease as repudiated, unless there is a term of the lease, express or implied, to that effect.

(6) Section 39 applies to a determination of whether a lessee has accepted goods or part of them under subsection (5) of this section.

(7) Nothing in this section affects any condition or warranty the fulfillment of which is excused by law because of impossibility or otherwise.

(a) an implied condition on the part of the seller or lessor that

(i) in the case of a sale or lease, the seller or lessor has a right to sell or lease the goods, and

(ii) in the case of an agreement to sell or lease, the seller or lessor will have a right to sell or lease the goods at the time when the property is to pass or the lessee is to take possession of the leased goods,

(b) an implied warranty that the buyer or lessee is to have and enjoy quiet possession of the goods, and

(c) an implied warranty that the goods are free from any charge or encumbrance in favour of any third party, not declared or known to the buyer or lessee before or at the time when the contract is made.

(2) If the sale or lease is by sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.

(a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller's or lessor's skill or judgment, and the goods are of a description that it is in the course of the seller's or lessor's business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose; except that in the case of a contract for the sale or lease of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;

(b) if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined the goods there is no implied condition as regards defects that the examination ought to have revealed;

(c) there is an implied condition that the goods will be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale or lease;

(d) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;

(e) an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it.

(2) In a contract for sale or lease by sample,

(a) there is an implied condition that the bulk must correspond with the sample in quality,

(b) there is an implied condition that the buyer or lessee must have a reasonable opportunity of comparing the bulk with the sample, and

(c) there is an implied condition that the goods must be free from any defect rendering them unmerchantable that would not be apparent on reasonable examination of the sample.

(a) to a purchaser for resale or to a lessee for subletting,

(b) to a purchaser or lessee who intends to use the goods primarily for business purposes,

(c) to a corporation or an industrial or commercial enterprise, or

(d) by a trustee in bankruptcy, a liquidator or sheriff.

(2) Despite section 18 (e) or 69, in the case of a retail sale or lease of goods, other than goods that on reasonable inspection appear to be used goods or goods that are described or represented by the seller or lessor to be used, any term of a contract of sale or lease, or any collateral or contemporaneous contract or agreement, that purports to negative or in any way diminish the conditions or warranties under sections 17, 18 and 19 of this Act, is,

(a) if a term, severable from the contract and void, or

(b) if a collateral or contemporaneous contract or agreement, void.

(3) Despite section 18 (e) or 69, in the case of a retail sale or lease of new or used goods,

(a) any term of a contract of sale or lease, or

(b) any collateral or contemporaneous contract or agreement,

that purports to negative or in any way diminish the condition or warranty under section 16 is,

(c) if a term, severable from the contract and void, or

(d) if a collateral or contemporaneous contract or agreement, void.

(2) For ascertaining the intention of the parties, regard must be had to the terms of the contract, the conduct of the parties and the circumstances of the case.

(2) If there is 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, and it is immaterial whether the time of payment or the time of delivery, or both, are postponed.

(3) If there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until that thing is done and the buyer has notice of it.

(4) If there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until that act or thing is done and the buyer has notice of it.

(5) When goods are delivered to the buyer on approval or "on sale or return", or other similar terms, the property passes to the buyer as follows:

(a) when the buyer signifies approval or acceptance to the seller or does any other act adopting the transaction;

(b) if the buyer does not signify approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been set for returning the goods, at the end of that time, and, if no time has been set, at the end of a reasonable time.

(6) For the purposes of subsection (5), what is a reasonable time is a question of fact.

(7) If there is a contract for the sale of unascertained or future goods by description, the property in the goods passes to the buyer when goods of that description and in a deliverable state are unconditionally appropriated to the contract

(a) by the seller with the assent of the buyer, or

(b) by the buyer with the assent of the seller.

(8) For the purposes of subsection (7), the assent may be express or implied, and may be given either before or after the appropriation is made.

(9) If, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee, whether named by the buyer or not, for transmission to the buyer, and does not reserve the right of disposal, the seller is deemed to have unconditionally appropriated the goods to the contract.

(2) In such a case, despite the delivery of the goods to the buyer, or to a carrier or other bailee for transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(3) If goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or the seller's agent, the seller is deemed, unless there is evidence to the contrary, to reserve the right of disposal.

(4) If the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if the buyer does not honour the bill of exchange.

(5) If the buyer wrongfully retains the bill of lading, the property in the goods does not pass to the buyer.

(2) If delivery has been delayed through the fault of either buyer or seller, then despite subsection (1), the goods are at the risk of the party in fault as regards any loss that might not have occurred but for that fault.

(3) Nothing in this section affects the duties or liabilities of either seller or buyer as a bailee or custodian of the goods of the other party.

(2) Nothing in this Act affects the validity of any contract of sale under any special common law or statutory power of sale, or under the order of a court of competent jurisdiction.

(2) This section does not affect the law relating to the sale of horses.

(2) Despite any enactment to the contrary, if goods have been obtained by fraud or other wrongful means not amounting to theft, the property in the goods does not revest in the person who was the owner of the goods, or that person's personal representative, merely because of the conviction of the offender.

(2) Subsection (1) does not apply to a sale, pledge or other disposition of

(a) goods, or

(b) documents of title to goods, other than negotiable documents of title,

that is out of the ordinary course of business of the seller, pledger or disposer if, before the sale, pledge or disposition, the owner's interest in the goods is registered in the personal property registry in accordance with the regulations made under the Personal Property Security Act, and Part 4 of that Act applies to the registration.

(3) If a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for that person, of the goods or documents of title under any sale, pledge or other disposition of them, or under any agreement for the sale, pledge or other disposition of them, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods has the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

(4) Subsection (3) does not apply to a sale, pledge or other disposition of goods or of documents of title to goods by a person who has obtained possession of the goods under a security agreement by which the seller has a security interest as defined in the Personal Property Security Act.

(5) The interest of an owner under subsection (1) that, immediately before October 1, 1990, was covered by an unexpired registration under the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, is deemed for the purposes of subsection (2) to be registered in the personal property registry and the registration continues,

(a) in the case of an interest in a motor vehicle registered under section 7 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, for the unexpired portion of the registration, and

(b) in the case of an interest in goods other than a motor vehicle under section 7 of the Chattel Mortgage Act, R.S.B.C. 1979, c. 48, for 3 years from October 1, 1990.

(6) Before the expiry of the registration under subsection (5) (a) or (b), registration of the owner's interest may be further continued by registration in the personal property registry in accordance with regulations made under the Personal Property Security Act, and Part 4 of the Personal Property Security Act applies to the registration.

(2) Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if the seller has one, and if not, the seller's residence.

(3) If the contract is for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then despite subsection (2) that place is the place of delivery.

(4) If under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is set, the seller is bound to send them within a reasonable time.

(5) If the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until that third person acknowledges to the buyer that the third person holds the goods on the buyer's behalf.

(6) Nothing in this section affects the operation of the issue or transfer of any document of title to goods.

(7) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.

(8) For the purposes of subsection (7), what is a reasonable hour is a question of fact.

(9) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

(2) If the buyer accepts the delivered goods, the buyer must pay for them at the contract rate.

(3) If the seller delivers to the buyer a quantity of goods larger than the seller contracted to sell, the buyer may

(a) accept the goods included in the contract and reject the rest, or

(b) reject the whole.

(4) If the seller delivers to the buyer a quantity of goods larger than the seller contracted to sell and the buyer accepts the whole of the goods delivered, the buyer must pay for them at the contract rate.

(5) If the seller delivers to the buyer the goods the seller contracted to sell mixed with the goods of a different description not included in the contract, the buyer may

(a) accept the goods that are in accordance with the contract and reject the rest, or

(b) reject the whole.

(6) This section is subject to any usage of trade, special agreement or course of dealing between the parties.

(2) If there is a contract for the sale of goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is

(a) a repudiation of the whole contract, or

(b) a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated.

(2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case.

(3) If the seller fails to act as required under subsection (2), and the goods are lost or damaged in course of transit, the buyer may

(a) decline to treat the delivery to the carrier as a delivery to the buyer, or

(b) hold the seller responsible in damages.

(4) 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, the seller must give such notice to the buyer as may enable the buyer to insure them during their sea transit.

(5) If the seller fails to give notice as required under subsection (4), the goods are deemed to be at the seller's risk during the sea transit.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, the seller is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

(a) the buyer intimates to the seller that the buyer has accepted them,

(b) the goods have been delivered to the buyer, and the buyer does any act in relation to them which is inconsistent with the ownership of the seller, or

(c) after the lapse of a reasonable time, the buyer retains the goods without intimating to the seller that the buyer has rejected them.

(a) any loss occasioned by the buyer's neglect or refusal to take delivery, and

(b) a reasonable charge for the care and custody of the goods.

(2) Nothing in this section affects the rights of the seller if the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

(2) The seller of the goods is deemed to be an unpaid seller within the meaning of this Act

(a) when the whole of the price has not been paid or tendered, or

(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled because of the dishonour of the instrument or otherwise.

(a) a lien on the goods or right to retain them for the price while the seller is in possession of them,

(b) in case of the insolvency of the buyer, a right of stopping the goods in transit after the seller has parted with the possession of them, and

(c) a right of resale as limited by this Act.

(2) If the property in goods has not passed to the buyer, the unpaid seller has, in addition to any other remedies, a right of withholding delivery similar to and coextensive with the seller's rights of lien and stoppage in transit where the property has passed to the buyer.

(a) if the goods have been sold without any stipulation as to credit;

(b) if the goods have been sold on credit, but the term of credit has expired;

(c) if the buyer becomes insolvent.

(2) The seller may exercise the right of lien even if the seller is in possession of the goods as agent or bailee for the buyer.

(a) when the seller delivers the goods to a carrier or other bailee for transmission to the buyer without reserving the right of disposal of the goods,

(b) when the buyer or the buyer's agent lawfully obtains possession of the goods, and

(c) by waiver of it.

(2) The unpaid seller of goods, having a lien or right of retention, does not lose the lien or right of retention merely because the seller has obtained judgment or decree for the price of the goods.

(2) If the buyer or the buyer's agent in that behalf obtains delivery of the goods before the arrival at the appointed destination, the transit is at an end.

(3) If after the arrival of the goods at the appointed destination the carrier or other bailee acknowledges to the buyer or the buyer's agent that the carrier or other bailee holds the goods on the buyer's behalf, and continues in possession of them as bailee for the buyer or the buyer's agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.

(4) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.

(5) When the goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case whether they are in possession of the master as a carrier or as agent to the buyer.

(6) If the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or the buyer's agent in that behalf, the transit is deemed to be at an end.

(7) If part delivery of the goods has been made to the buyer or the buyer's agent in that behalf, the remainder of the goods may be stopped in transit, unless the part delivery has been made under circumstances that show an agreement to give up possession of the whole of the goods.

(a) by taking actual possession of the goods, or

(b) by giving notice of the seller's claim to the carrier, or other bailee in whose possession the goods are.

(2) Notice of stoppage in transit may be given either to the person in actual possession of the goods or to that person's principal.

(3) To be effectual, notice given to a principal under subsection (2) at a time and under circumstances that the principal, by the exercise of reasonable diligence, may communicate it to a servant or agent in time to prevent a delivery to the buyer.

(4) When given notice of stoppage in transit by the seller, the carrier or other bailee in possession of the goods must redeliver the goods to or according to the directions of the seller.

(5) The expenses of redelivery under subsection (4) must be borne by the seller.

(a) if such last mentioned transfer was by way of sale, the unpaid seller's right of lien, or retention or stoppage in transit, is defeated, and

(b) if such last mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien, or retention or stoppage in transit, can only be exercised subject to the rights of the transferee.

(2) When an unpaid seller who has exercised the right of lien, or retention or stoppage in transit, resells the goods, the buyer acquires a good title to it as against the original buyer.

(3) If the goods are of a perishable nature, or if the unpaid seller gives notice to the buyer of the seller's intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by the buyer's breach of contract.

(4) If the seller expressly reserves a right of resale in case the buyer should default, and on the buyer defaulting resells the goods, the original contract of sale is rescinded by that act, but without prejudice to any claim the seller may have for damages.

(2) If, under a contract of sale, the price is payable on a day certain, irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.

(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract.

(3) If there is an available market for the goods in question, the measure of damages is to be ascertained, unless there is evidence to the contrary, by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or if no time was set for acceptance, then at the time of the refusal to accept.

(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract.

(3) If there is an available market for the goods in question, the measure of damages is to be ascertained, unless there is evidence to the contrary, by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was set, then at the time of the refusal to deliver.

(2) The order may be unconditional, or on terms and conditions as to damages, payment of the price, and otherwise, as the court thinks just, and the application by the plaintiff may be made at any time before judgment.

(a) set up against the seller the breach of warranty in diminution or extinction of the price, or

(b) maintain an action against the seller for damages for the breach of warranty.

(2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(3) In the case of breach of warranty of quality, the loss is, unless there is evidence to the contrary, the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent the buyer from maintaining an action for the same breach of warranty if the buyer has suffered further damage.

(2) If a mercantile agent has, with the consent of the owner, been in possession of goods, or of the documents of title to goods, any sale, pledge or other disposition that would have been valid if the consent had continued is valid despite the termination of the consent, if the person taking under the disposition has not at that time notice that the consent has been terminated.

(3) If a mercantile agent has obtained possession of any documents of title to goods because of being or having been, with the consent of the owner, in possession of the goods represented by it, or of any other documents of title to the goods, the agent's possession of the first mentioned documents is, for the purposes of this Act, deemed to be with the consent of the owner.

(4) For the purposes of this Act, the consent of the owner is presumed unless there is evidence to the contrary.

(2) If goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee acquires no right or interest in the goods so pledged in excess of the value of the goods, documents or security when so delivered or transferred in exchange.

(2) Nothing in this section limits or affects the validity of any sale, pledge or disposition by a mercantile agent.

(2) This Act does not prevent

(a) the owner of goods from recovering the goods from an agent or assignee for the benefit of creditors at any time before the sale or pledge of them, or

(b) the owner of goods pledged by an agent

(i) from having a right to redeem the goods at any time before the sale of them, on satisfying the claim for which the goods were pledged, and paying to the agent, if required by the agent, any money in respect of which the agent would by law be entitled to retain the goods or the documents of title to them, or any of them, by way of lien as against the owner, or

(ii) from recovering from any person with whom the goods have been pledged any balance of money remaining in the person's hands as the produce of the sale of the goods, after deducting the amount of the person's lien.

(3) This Act does not prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the goods, or any part of that price, subject to any right of set off on the part of the buyer against the agent.

(a) by express agreement,

(b) by the course of dealing between the parties, or

(c) by usage, if the usage is such as to bind both parties to the contract.

(a) if goods are put up for sale by auction in lots, each lot is, unless there is evidence to the contrary, deemed to be the subject of a separate contract of sale;

(b) a sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner, and until that announcement is made a bid may be retracted;

(c) if a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it is not lawful for the seller to bid or to employ any person to bid at the sale, or for the auctioneer knowingly to take any bid from the seller or any such person, and any sale contravening this rule may be treated as fraudulent by the buyer;

(d) a sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller, and if a right to bid is expressly reserved, but not otherwise, the seller or any one person on the seller's behalf may bid at the auction.

(2) This Act does not affect the enactments relating to bills of sale.

(3) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale that is intended to operate by way of mortgage, pledge, charge or other security.

"buyer's lien" means a lien arising under section 75;

"payment" includes an obligation incurred by the buyer to a person, other than the seller, to whom the buyer remains liable despite a default by the seller;

"seller" includes

(a) a successor in interest or title of a seller, and

(b) a trustee;

"trustee" means a person who assumes control of a seller's property by operation of law, under legal process or under the terms of a security agreement, and includes a sheriff, a trustee in bankruptcy, a liquidator and a receiver.

(a) the buyer pays all or part of the price,

(b) the goods are unascertained or future goods, and

(c) the buyer is acquiring the goods in good faith for use primarily for personal, family or household purposes,

then the buyer has the lien described in subsection (2).

(2) The lien under subsection (1) is for the amount the buyer has paid towards the purchase price of the goods and is against

(a) all goods

(i) that are in or come into the possession of the seller and are held by the seller for sale,

(ii) that correspond with the description of or with any sample of the goods under the agreement to sell, and

(iii) the property in which has not passed to a different buyer under a different contract of sale, and

(b) any account in a savings institution in which the seller usually deposits the proceeds of sales.

(a) fulfills the contract of sale by causing property in goods to pass to the buyer in accordance with the contract of sale, or

(b) refunds to the buyer the money that the buyer has paid towards the purchase price of the goods.

(2) Whether a buyer's lien is to be discharged under subsection (1) (a) or under subsection (1) (b) is at the option of the seller, but a discharge of the lien under subsection (1) (b) does not affect any right of action the buyer may have for a breach of the contract of sale.

(3) A buyer's lien ceases to bind goods that are appropriated to a sale made in good faith to a different buyer, whether or not that sale is in the usual course of the seller's business.

(2) A buyer's lien has priority over other security interests.

(2) A trustee who deals with property that is subject to a buyer's lien is not liable to the buyer if the trustee acts in good faith and without knowledge of the lien.

(2) In a proceeding to enforce the lien, the court may make one or more of the following orders:

(a) an order declaring that the buyer's lien exists;

(b) an order that goods be seized and sold and the proceeds applied to the discharge of one or more buyers' liens;

(c) an order that goods be seized and delivered to the holder of a buyer's lien to discharge the lien.

(3) No proceeding may be brought under this section to enforce a buyer's lien against goods that are in the possession, custody or control of a trustee.

(a) the seller fails, or is unable, to discharge the liens, and

(b) on the enforcement of the liens, insufficient money is realized to satisfy the claims of those buyers,

then, subject to subsection (2), the shortfall must be attributed to the buyers' claims in the proportions that their respective claims bear to the sum of those claims.

(2) The equitable principles respecting the marshalling of claims apply to competing buyers' liens.

(2) Nothing in this Part derogates from the rights of a buyer under a contract of sale, including the right of a buyer to

(a) reject goods if the buyer would otherwise be entitled to do so, or

(b) claim damages in respect of defective or deficient goods.

Copyright (c) 2004: Queen’s Printer, Victoria, British Columbia, Canada