Ascertainment and unconditional appropriation (principles of personal property)
1. What is the difference and relationship between ascertainment and unconditional appropriation?
From what I've read, it seems that ascertainment is the process of ascertaining unascertained goods. It can be achieved by a seller's conscious act of earmarking unascertained goods to particular contracts, by exhaustion (rule 5(3) s. 18 SOGA 1979), or by unconditional appropriation (rule 5 (1) and (2)) which can be used when there is no factual ascertainment by earmarking or exhaustion. Therefore, unconditional appropriation is one of the means to establish ascertainment in order for property to pass, and it is more of an automatic process that is operated by law rather than by facts/parties' intention.
2. What is needed to establish unconditional appropriation?
Rule 5(1) and (2) have each set out several requirements, on the other hand, it was held in Carlos Federspiel & Co SA [1957] that "the parties must have had, or be reasonably supposed to have had, an intention to attach the contract irrevocably to those goods" for unconditional appropriation to arise. Which is the correct test?
Thank you very much for your help
From what I've read, it seems that ascertainment is the process of ascertaining unascertained goods. It can be achieved by a seller's conscious act of earmarking unascertained goods to particular contracts, by exhaustion (rule 5(3) s. 18 SOGA 1979), or by unconditional appropriation (rule 5 (1) and (2)) which can be used when there is no factual ascertainment by earmarking or exhaustion. Therefore, unconditional appropriation is one of the means to establish ascertainment in order for property to pass, and it is more of an automatic process that is operated by law rather than by facts/parties' intention.
2. What is needed to establish unconditional appropriation?
Rule 5(1) and (2) have each set out several requirements, on the other hand, it was held in Carlos Federspiel & Co SA [1957] that "the parties must have had, or be reasonably supposed to have had, an intention to attach the contract irrevocably to those goods" for unconditional appropriation to arise. Which is the correct test?
Thank you very much for your help
(edited 6 years ago)
1. Property will pass when goods are ascertained.
2. Ascertainment will only take place when there is unconditional appropriation.
3. Unconditional appropriation is presumed in s18 rule 5(1)(2)(3)
4. Case of Carlos Federspeel is a case that interprets s18 rule 5(1). That case sets out certain key principles and it does not conflict with the section but rather helps one understand how the section works.
You do show a reasonable grasp on the difficult area of law on this. :
2. Ascertainment will only take place when there is unconditional appropriation.
3. Unconditional appropriation is presumed in s18 rule 5(1)(2)(3)
4. Case of Carlos Federspeel is a case that interprets s18 rule 5(1). That case sets out certain key principles and it does not conflict with the section but rather helps one understand how the section works.
You do show a reasonable grasp on the difficult area of law on this. :
I get it now, thank you so much!!!
Original post by LawDisciple
1. Property will pass when goods are ascertained.
2. Ascertainment will only take place when there is unconditional appropriation.
3. Unconditional appropriation is presumed in s18 rule 5(1)(2)(3)
4. Case of Carlos Federspeel is a case that interprets s18 rule 5(1). That case sets out certain key principles and it does not conflict with the section but rather helps one understand how the section works.
You do show a reasonable grasp on the difficult area of law on this. :
2. Ascertainment will only take place when there is unconditional appropriation.
3. Unconditional appropriation is presumed in s18 rule 5(1)(2)(3)
4. Case of Carlos Federspeel is a case that interprets s18 rule 5(1). That case sets out certain key principles and it does not conflict with the section but rather helps one understand how the section works.
You do show a reasonable grasp on the difficult area of law on this. :
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