In relation to the Sale of Goods Act, Explain four circumstances when a seller may give a better title to the buyer than he himself has in the goods

This question is based on the exceptions to the common law principle of nemo dat quod non habet i.e. one cannot give what he has not. However, there are many instances in law where a seller of goods can give the buyer a better title thereto than he himself has, for example

• Estoppel
Under section 23 (1) of the Sale of Goods Act the buyer gets a better title if the owner is his conduct precluded from denying the seller‟s authority to sell. i.e. the owner has represented some other person as the owner. He can not deny the apparent ownership. However, the requirements of estoppel must exist.

• Sale mercantile agent or factor
Under the provisions of the factors Act 1889, which applies in Kenya as a statute of general application, (Kapadia V. Laxmidar) a sale factor passes a good title if:
– The agent has possession with the principal‟s consent
– The agent sells in his capacity as mercantile agent
– The agent sells in the ordinary course of business as a mercantile agent
– The buyer takes in good faith and for value

• Sale under voidable title
Under section 24 of the Act if the seller‟s title is voidable but he sells the goods to a bona fide purchaser who takes without notice of the seller‟s defective title, before the title is avoided, he passes a good title, as was the case in Phillips V. Brooks Ltd. and in Lewis V. Avery. In Phillips V. Brooks Ltd.though Mrs North‟s title to the ring was avoidable for fraudulent misrepresentation, he pledged it to Brooks Ltd before his title was avoided and hence Brooks Ltd. got good title.

• Resale seller in possession
Under section 26 (1) of the Act, if a seller who has already sold goods but retains their possession or documents of title disposes them off to a bona fide purchaser for value without notice of the previous sale, he passes a good title.

Other exceptions include:
• Sale buyer in possession
• Sale under statutory power
• Sale court order
• Sale under common law power.



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