By Jonathan Fitchen
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Extra info for Commercial Lawcards 2010-2011
The grain began to overheat and was sold by the ship’s captain in Tunis in April. This was unknown to Couturier’s London agent, Hastie, who, in May ‘sold’ the cargo to Callender. When the truth emerged Callender refused to pay. Couturier sued Hastie arguing that under their Agency agreement he was responsible for the debt. The court disagreed. Relevance If, unknown to the parties, there is actually no subject matter because it has perished prior to the contract, there can be no contract. This case inspired s 6.
Subsequently liquidators and receivers have been unwilling to make such helpful concessions. Even if the unpaid seller can convince the court that such a duty can be found, it may be dangerous to mention it. In Tatung (UK) Ltd v Galtex Telesure Ltd  BCC 325 Phillips J held that such a fiduciary relationship itself created a charge which should have been registered and was thus void for non-registration. Assuming the seller to successfully overcome the difficulties mentioned above, a more fundamental problem awaits if the seller tries to claim that it owns the money received by the buyer for the sale-on of the goods.
What is necessary for s 20A–B to apply? When will risk in the goods pass? ■ ■ ■ ■ ■ PASSING OF PROPERTY AND RISK CLASSIFICATION OF THE CONTRACT Any contract for the sale of goods will concern one of three types of goods. SPECIFIC GOODS These are goods identified and agreed upon at the time the contract is made (s 61). Thus, the goods are specific goods only if it is possible, at the time the contract is made, to identify the particular goods which are being sold (Kursell v Timber Operators ).