Question 3 OR (b)
Nemo dat quod non habet and its exceptions
6 marks
- Time to write
- About 12 minutes
Question
Question 3 OR (b) · 6 marks"No seller can transfer to a buyer of goods a better title than the one he himself has." Comment, giving the exceptions to this rule.
Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.
Before you write
Read off the question and its marks
Read from the question
- CommentA statement to judge: take a stand on it in your first line, and come back to it at the end.
Write it in this order
- Read; underline the asks; jot your points 1 min
- 1 The rule in section 27 2 marks 2 min
- 2 Exceptions 4 marks 8 min
- Check: every ask answered, key terms underlined 1 min
Easy marks
- The rule in section 27 (step 1, 2 marks): state the rule and its section exactly. It earns its marks before you apply it to the facts.
Short on time? Cut step 2 short rather than leave anything out.
Try it first. About 12 minutes for 6 marks. Write it out, then open the solution.
Solution
Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.
The rule. Section 27 of the Sale of Goods Act, 1930 lays down that where goods are sold by a person who is not their owner and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had. This is the rule nemo dat quod non habet: a person cannot pass on a title he does not have. It protects the true owner.
1A stolen cycle sold on the footpath passes no title—the buyer's cash buys him nothing.
Nemo dat quod non habetA person cannot pass on a title he does not have.
2But the agent holding the owner's car and papers with consent can pass a good title.
Sale by a mercantile agentIf he was in possession of the goods or documents of title with the owner's consent
3And the seller still holding the sold goods can pass title to an innocent second buyer.
Sale by a seller in possession after saleDelivers or transfers the goods or their documents of title to a person who receives them in good faith without notice of the previous sale
Exceptions. In the following cases a non-owner can pass a good title to a buyer who buys in good faith:
- Sale by a mercantile agent (proviso to s. 27): if he was in possession of the goods or documents of title with the owner's consent, sold them in the ordinary course of business as a mercantile agent, and the buyer acted in good faith without notice that he had no authority.
- Sale by one of several joint owners (s. 28) who is in sole possession with the others' permission, to a buyer in good faith who has no notice that the seller lacks authority to sell.
- Sale by a person in possession under a voidable contract (s. 29), before the contract is rescinded, to a buyer in good faith.
- Sale by a seller in possession after sale (s. 30(1)) to a second buyer who receives delivery of the goods or documents of title in good faith without notice of the previous sale.
- Sale by a buyer in possession before property has passed (s. 30(2)), with the seller's consent, where the goods or documents of title are delivered or transferred to a person who receives them in good faith without notice of any lien or other right of the original seller.
- Sale by an unpaid seller, in the cases the Act allows.
- Estoppel: where the owner by his conduct leads the buyer to believe the seller has authority.
- Sales under other Acts: by a finder of goods, a pawnee, an Official Receiver or a liquidator.
Where the 6 marks sit
| # | Component | Marks |
|---|---|---|
| 1 | The rule in section 27 | 2 |
| 2 | Exceptions | 4 |
| Total | 6 |
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