Would you say this is a contract for specific or unascertained goods?

On Monday, Billy, a garden products retailer, visited the premises of ‘Muckers’ in order to purchase some decorative bark chips. Alex checked the stock records and confirmed to Billy that ‘Muckers’ had 150 standard size bags of decorative bark chips in stock in its warehouse. Billy agreed to buy all of such stock as the price was extremely good. Delivery was arranged for Wednesday of the following week with payment to be made within 10 days of delivery.

A few hours later, Alex began a physical stock check of the goods in the warehouse. Alex immediately realised that the stock records were incorrect and that there were just 50 standard size bags of decorative bark chips in the warehouse. The reason for this discrepancy has not yet been determined. Alex therefore telephoned Billy in order to cancel his order. Billy is furious and is demanding compensation.

I personally believe it is a contract for the sale of specifc goods. This is what ive wrote so far:

Parvinder will be advised on when the risk of goods has passed and whether the contract is still binding in relation to the buyers. The agreement between Billy and ‘Muckers’ did not contain any provision of when risk and property where to pass between seller and buyer. In the absence of such an agreement, risk will pass with property (S.20 of the Sales of Goods Act 1979). Subject to S.16 (goods must become ascertained), property will pass when the parties intend it to pass (s.17) and will so according to the rules in s.18. To apply these rules we must first determine whether the contract in place was for specific or unascertained goods. To determine this, we have to go back to the time when the contract was made. The contract with Billy is for goods which are ‘identified and agreed upon’ at the time of the contract, it is therefore a contract for the sale of specific goods (s.61 (1)). In the contract with Billy, Alex identified ‘150 standard size bags of decorative bark chips in stock in its warehouse’; the 150 bags in the warehouse were identified specifically as the contractual stock, not just any 150 standard size bags of decorative bark chips. It is thus submitted, that Billy’s contract was for specific goods.

Reply 1

jacketpotato

I agree.

But I don't see why risk is important on these facts.

Don't forget to consider frustration/mistake, even if this question is not from a contract module.

Don't forget to consider the nature of the contract. The question tells you that Billy agreed to buy "all of the stock". And remember that Alex made the telephone call immediately. The question does not tell you whether or not Alex will be able to get a further 100 bags in time for delivery on Wednesday - has there been a breach of contract at all?

Would you say this is a contract for specific or unascertained goods?

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