Role of a Revised Sale of Goods Act 2000

FOOTNOTES

1. The citations and a comparative table of the sections will be found in GHL Fridman, The Sale of Goods in Canada 2nd ed., pp. 4‑5. One of the earliest initiatives of the Conference of Commissioners on Uniformity of Legislation in Canada was to encourage the Provinces that had not yet done so to adopt the UK Act of 1893, but the Act was never formally adopted as a Uniform Act. See Proc. 1st Ann. Meeting, 1918, p. 9, and Proc. 2nd Ann. Meeting, pp, 7, 11 and 60.

2. See OLRC Report, pp. 8‑9. The 1893 Act and the subsequent amendments have now been consolidated in The Sale of Goods Act, 1979, c. 54 (U.K.).

3. OLRC Report, pp. 9‑11.

4. Ibid., pp. 12 et seq.

5. Ibid., p. 30.

6. Section 3.2 of the Ontario bill reads: "Every right and duty that is created by a contract of sale or by this Act imposes an obligation of good faith in its enforcement or performance whether or not it is expressly so stated." The "good faith" requirement is discussed in the OLRC Report, pp. 163‑69.

7. OLRC Report, ch. 7, pp. 153 et seq.

8. Law Reform Commission of British Columbia. Report on Parol Evidence Rule (1979) LCR 44.

9. OLRC Report, pp. 140‑41, and 489‑91.

10. This point is illustrated by the recent decision of the English Court of Appeal in Lambert v. Lewis, [ 1980] 1 All. E.R. 978, rev'd on other grounds [ 1981 ] 1 All. E.R. 1185 (H.L.).

11. OLRC Report, p. 247.

12. Supra, n. 10.

13. See s. 6.2 and OLRC Report, ch. 5.

14. OLRC Report, pp. 265, and 276‑78.

15. See now ss. 8.11 to 8.15.

16. See OLRC Report, ch. 6(B) and ch. 17, pp. 459‑61; and Ontario bill, ss. 8.1, 8.10, 8.2, 9.3(2) and 9.12(2).

17. See draft Act, ss. 9.4(f) and 9.5 (seller's rights), and ss. 8.1, 9.12 and 7.7 (buyer's rights).

18. Op. cit., pp. 474‑75.

19. Cf. Beswick v. Beswick, (1968) A.C. 58 (H.L.).

20. See e.g., ss. 6.1(3)2, 6.2, 7.2(4), 7.4, 7.5, 7.8, and 7.9. "Document of title" is defined in s. 1.1(1)11.

21. See sections cited in previous note.

22. OLRC Report, p. 329, recom. I‑2.

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[1] Transport Canada www.tc.gc.ca

[2] Statscan . Figures have been rounded off to the nearest decimal point.

[3] See John Whalley in Trebilcock et al., Federalism and the Canadian Economic Union, University of Toronto Press, 1981, pp. 173-78, tables 2-5.

[4] Infra, Section V.1 .

[5] Since 1893, Scotland has basically shared the same sales law regime with England and Wales.

[6] Ontario Law Reform Commission, Report on Sale of Goods, 3 vols. (1979), pp.7-8. (“OLRC Report”).

[7] With minor exceptions, the Act also applies to Scotland.

[8] For more detailed descriptions of the post-war U.K. legislation, see Appendix 1.

[9] For a more detailed description of the Australian legislation, see Appendix 2.

[10] The Commonwealth derives its jurisdiction in these areas mainly through its corporations and interstate trade and commerce power in the Commonwealth Constitution.

[11] See OLRC Report, vol. 1, pp.12-13.

[12] ALI, Uniform Commercial Code, Revised Article 2. Sales. Proposed Final Draft (May 1, 1999), p.xxiii.

[13] For a complete list of substantial changes, see Proposed Final Draft, xxiv-xxxi.

[14] A separate status was deemed necessary to overcome statute of limitations problems.

[15] He is Prof. Henry D. Gabriel of Loyola University School of Law in New Orleans.

[16] ALI, Uniform Commercial Code, [New] Revised Article 2. Sales. Discussion Draft (April 14, 2000). For a summary of the changes being considered in the new Revised Article 2, see Appendix 3 to this report.

[17] For the details see, GHL. Fridman, Sale of Goods in Canada, Comparative Table of provincial Acts, 4th ed. (1995), p.3.

[18] Two important exceptions involve conditional sales legislation which actually predates the British SGA and Farm Implements legislation adopted in the Prairie provinces from about 1914 onwards and more recently adopted in some of the Maritime provinces as well.

[19] See Arthur Close, “The B.C. Buyer’s Lien – A New Consumer Remedy” (1995) 25 CBLJ 127.

[20] For the details see OLRC Report, vol. 1, pp.9-10.

[21] The Committee’s reasoning was that Article 2 reflected North American trading conditions much more faithfully than did the SGA, and that since the US was Ontario’s most important trading partner it made sense to adopt a sales law that was common to both jurisdictions.

[22] Ontario Law Reform Commission, Report on Consumer Warranties and Guarantees in

the Sale of Goods (1972).

[23] Supra n. 6 .

[24] Report, vol. 1, pp. 26-29.

[25] ULCC, Annual Proceedings 1981, pp. 185 et seq. The members of the Committee were drawn from across Canada and were made up of 4 well known commercial law professors, a senior research counsel with the Alberta Institute of Research and Law Reform, a member of the Quebec Ministry of Justice, and, as chair, Prof. Derek Mendes da Costa, chair of the Ontario Law Reform Commission. Prof. Ziegel served as non-voting consultant to the Committee.

[26] The Committee's Report is reproduced in Appendix 4 to this report.

[27] Ibid., pp.193-194.

[28] Ibid., p.34.

[29] ULCC, Annual Proceedings 1984, pp.35, 430 et seq.

[30] Ibid., pp.433 et seq..Ironically, the Ontario draft bill had been drafted by Prof. Ziegel in close consultation with L.R. McTavish, Q.C.., former chief Ontario legislative counsel and a ULCC commissioner for many years.

[31] Martin Boodman of McCarthy Tétrault in Montreal was kind enough to assist us with some bibliographical references but we alone are responsible for the summary of the Quebec position in the text. We have found particularly helpful G. Goldstein , “La vente dans le nouveau Code civil du Québec: quelques observations critiques sur le projet de loi 125” (1991) 51 Rev. de Barreau 329 and Le Code civil du Québec, Commentaires du ministre de la Justice, tome 1 (Publications du Québec 1991).

[32] E.g., Que., arts. 1738-1739. CISG is discussed further, infra Part IV.

[33] Title 2 on Sales also deals with specific types of sale (§7), with sale of an enterprise (bulk sales) (§8), and with sale of incorporeal property (§9).

[34] Art. 1726. Under art. 1728, the seller is liable for damages if he knew or ought to have known of the defect and, under art. 1729, the defect is presumed to exist at the time of sale by a professional seller if the property malfunctions or deteriorates prematurely. Art. 1729 is new and greatly extends the seller’s warranty obligations under Quebec law. The buyer’s duty of examination under the provisions of the old Civil Code provoked a lively debate in the 1960s between Professors Durnford and Gow, both of the McGill Faculty of Law. See J.W. Durnford, “What is an Apparent Defect in the Contract of Sale?” (1964) 10 McGill L.J. 60, J.J. Gow, “A Comment on the Warranty in Sale Against Latent Defects” , ibid., 243, Durnford, ibid., 341, and Gow (1965) 11 McGill L.J. 35. See also Ziegel, “The Seller’s Liability for Defective Goods at Common Law” (1966-67) 12 McGill L.J. 183.

[35] Art. 1730 is new and gives codal effect to the celebrated decision of the Supreme Court of Canada in General Motors of Canada Ltd. v. Kravitz [1979] 1 S.C.R. 790.

[36] Art. 1714, para. 2. This provision replaces arts. 1488-1490 in the old Code.

[37] See e.g., Ont. SGA, s.25.

[38] The complex common law position is discussed in the OLRC Sales Report, ch.12.

[39] OLR.C Report, pp.19-21.

[40] See Ziegel, “Canada Prepares to Adopt the International Sales Convention” (1991) 18 CBLJ 1.

[41] Ziegel, “Canada’s First Decision on the International Sales Convention” (1999) 32 CBLJ 313. (The second Canadian decision is discussed by the author in a postscript to the Comment.) We are only aware of one Australian decision and know of no New Zealand decisions. New Zealand and Australia both adopted the Convention before Canada did.

[42] E.g., the validity of the contract, the passing of property and its effect on third parties, the seller’s liability for death or personal injury caused by defective goods. CISG, arts. 4-5.

[43] This is particularly true of the formational provisions in the Convention although some of these defects may now be cured by UNCITRAL’s Model Law on Electronic Commerce and Unidroit”s Principles of International Commercial Contracts (1996).

[44] E.g., the law governing the calculation of interest on judgments or payments to which a party is entitled under the Convention. See CISG, article 78.

[45] Cf. the frequently quoted aphorism hat consumption is the goal of all economic activity.

[46] For example, British Columbia’s Sale of Goods Act contains a substantial number of consumer protection provisions.

[47] As previously mentioned, the OLRC published an LCAA in 1987 which unfortunately was never acted on by the Ontario government.

[48] The Commonwealth states have been cautious in committing themselves to the template solution but where they have done so (as with respect to the Corporations Law and Uniform Consumer Credit Code) it appears to have worked extremely well.

[49] Prof. Gow (as he then was) recommended in 1965 (see supra n. 34, at 11) that the provinces enact the Hague Uniform Laws to govern domestic sales contacts in Canada but he did not elaborate on his ideas and it is not clear how far he would have gone. In correspondence with the research director of the OLRC project, Prof. Paul Crépeau, then chair of the Quebec Civil Code Revision Office, said he saw no reason why Quebec and the common law provinces should not be able to agree to common sales provisions. However, he did not explain how he would have brought about the harmonization and, in our view, he considerably underestimated the technical challenges.

[50] See OLRC Report, vol. 1, pp.30-31.

[51] As evidenced by some of the changes made in the sales provisions of the new Civil Code.

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