Apr 1, 1973
The Cambridge Law Journal
Act and not one for the " sale of a chance " : it says nothing as to the effect of a partial breakdown of such a contract. The seller in Sainsbury's case also relied on Barrow, Lane and Ballard Ltd. v. Phillip Phillips & Co. Ltd.  1 K.B. 574, where the contract was for " 700 bags marked E.C.P. and known as lot 7 of Chinese ground nuts in shell then lying at the National Wharves in London." Unknown to either party 109 bags had been stolen before contract and 441 more were stolen before delivery of the remaining 150 bags against delivery orders. The sellers claimed the price of 591 bags, whilst the buyers were willing to pay only for the 150 bags delivered. The buyers succeeded, since the contract was construed as an entire contract for a specific lot of 700 bags falling within section 6 of the 1893 Act: "Where there is a contract for the sale of specific goods, and the goods, without the knowledge of the seller have perished at the time when the contract is made, the contract is void." MacKenna J. distinguished that case both on the construction of the contract and on the ground that section 6, like section 7, applies only to existing goods and not to crops not yet grown. Thus there was no authority to compel his Lordship to imply a condition that any blameless shortfall of the crop, however small, should excuse the seller in Sainsbury's case from delivering what had matured and the buyers were entitled to damages for non-delivery of the 140 tons harvested. The decision is welcome since it implies that the statutory definition of " specific goods " is as applicable to questions of frustration under sections 6 and 7 as to the passing of the property and risk under other sections. Also, it is surely sensible that, on partial failure of such a crop, the buyer should have the option of demanding so much as does mature—at the contract rate (s. 30 (1)). But in such cases the seller may well feel that it is a matter of " Heads you win, tails I lose," since section 30 (1) expressly provides that where the seller delivers a quantity of goods less than he contracted to sell, the buyer may reject them, and so leave the blameless seller to find another market if he can. Nor, of course, could the decision do anything to remedy the many defects of section 7 (see G. L. Williams, The Law Reform (Frustrated Contracts) Act 1943 (Stevens, 1944), pp. 82-83).