Sale of Goods Act 1895 (WA)

Western Australia Sale of Goods Act 1895 Western Australia Sale of Goods Act 1895 Contents Part I — Formation of the contract Division 1 — Contract of sale 1. Sale and agreement to sell 2 2. Capacity to buy and sell 2 Division 2 — Formalities of the contract 3. Contract of sale, how made 3 4. Contract for sale of $20 and upwards 3 Division 3 — Subject matter of contract 5. Existing or future goods 4 6. Goods perishing before contract is made 4 7. Goods perishing before sale but after agreement to sell 4 Division 4 — The price 8. Ascertainment of price 4 9. Agreement to sell at valuation 5 Division 5 — Conditions and warranties 10. Stipulations as to time 5 11. When condition to be treated as warranty 5 12. Implied undertakings as to title etc. 6 13. Sale by description 6 14. Implied conditions as to quality or fitness 7 Division 6 — Sale by sample 15. Sale by sample 8 Part II — Effects of the contract Division 1 — Transfer of property as between seller and buyer 16. Goods must be ascertained 9 17. Property passes when intended to pass 9 18. Rules for ascertaining intention 9 19. Reservation of right of disposal 11 20. Risk, prima facie, passes with property 11 Division 2 — Transfer of title 21. Sale by person not the owner 12 22. Market overt 12 23. Sale under voidable title 12 24. Revesting of property in stolen goods on conviction of offender 12 25. Seller or buyer in possession after sale 13 Part III — Performance of the contract 27. Duties of seller and buyer 15 28. Payment and delivery are concurrent conditions 15 29. Rules as to delivery 15 30. Delivery of wrong quantity 16 31. Instalment deliveries 16 32. Delivery to carrier 17 33. Risk where goods are delivered at distant place 17 34. Buyer's right of examining the goods 18 35. Acceptance 18 36. Buyer not bound to return rejected goods 18 37. Liability of buyer for neglecting or refusing delivery of goods 18 Part IV — Rights of unpaid seller against the goods Division 1 — General 38. Unpaid seller defined 19 39. Unpaid seller's rights 19 Division 2 — Unpaid seller's lien 40. Seller's lien 20 41. Exercise of lien where part delivery 20 42. Termination of lien 20 Division 3 — Stoppage in transitu 43. Right of stoppage in transitu 21 44. Duration of transit 21 45. How stoppage in transitu is effected 22 Division 4 — Re-sale by buyer or seller 46. Effect of sub‑sale or pledge by buyer 23 47. Sale not generally rescinded by lien or stoppage in transitu 23 Part V — Actions for breach of the contract Division 1 — Remedies of the seller 48. Action for price 25 49. Damages for non‑acceptance 25 Division 2 — Remedies of the buyer 50. Damages for non‑delivery 26 51. Specific performance 26 52. Remedy for breach of warranty 26 53. Interest and special damages 27 Part VI — Supplementary 54. Exclusion of implied terms and conditions 28 55. Reasonable time a question of fact 28 56. Rights etc. enforceable by action 28 57. Auction sales 28 58. Repeals 29 59. Savings 29 60. Terms used in this Act 30 61. Commencement 31 62. Short title 31 Schedule — Imperial Acts that cease to apply Notes Compilation table 33 Defined terms Western Australia Sale of Goods Act 1895 An Act for codifying the law relating to the sale of goods. Part I — Formation of the contract Division 1 — Contract of sale [Heading inserted: No. 19 of 2010 s. 44(2).] 1. Sale and agreement to sell (1) A contract of sale of goods is a contract whereby the seller transfers, or agrees to transfer, the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time, or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. 2. Capacity to buy and sell (1) Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property: Provided that where necessaries are sold and delivered to an infant or minor, or to a person who by reason of mental incapacity or drunkenness in incompetent to contract, he must pay a reasonable price therefor. (2) In this section — necessaries means in this section mean goods suitable to the condition in life of such infant or minor or other person, and to his actual requirements at the time of the sale and delivery. [Section 2 amended: No. 19 of 2010 s. 51.] Division 2 — Formalities of the contract [Heading inserted: No. 19 of 2010 s. 44(2).] 3. Contract of sale, how made Subject to the provisions of this Act, and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties: Provided that nothing in this section shall affect the law relating to corporations. 4. Contract for sale of $20 and upwards (1) A contract for the sale of any goods of the value of $20 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre‑existing contract of sale whether there be an acceptance in performance of the contract or not. [Section 4 amended: No. 113 of 1965 s. 8(1).] Division 3 — Subject matter of contract [Heading inserted: No. 19 of 2010 s. 44(2).] 5. Existing or future goods (1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller, after the making of the contract of sale, in this Act called future goods. (2) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. 6. Goods perishing before contract is made Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. 7. Goods perishing before sale but after agreement to sell Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided. Division 4 — The price [Heading inserted: No. 19 of 2010 s. 44(2).] 8. Ascertainment of price (1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. 9. Agreement to sell at valuation (1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided: Provided that if the goods, or any part thereof, have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. (2) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault. Division 5 — Conditions and warranties [Heading inserted: No. 19 of 2010 s. 44(2).] 10. Stipulations as to time (1) Unless a different intention appears from the terms of the contract, stipulations as to the time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract. (2) In a contract of sale "month" means prima facie calendar month. 11. When condition to be treated as warranty (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated. (2) Whether a stipulation in a contract of sale is a condition the breach of which may give rise to a right to treat the contract as repudiated, or a warranty the breach of which may give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract. (3) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract express or implied to that effect. (4) Nothing in this section shall affect the case of any condition of warranty, fulfilment of which is excused by law by reason of impossibility or otherwise. 12. Implied undertakings as to title etc. In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is — (a) an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods; (c) an implied warranty that the goods shall be free from any charged or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made. [Section 12 amended: No. 19 of 2010 s. 51.] 13. Sale by description Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. 14. Implied conditions as to quality or fitness (1) Subject to the provisions of this Act, and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as provided in subsections (2) and (5). (2) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. (3) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed. (4) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (5) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. [Section 14 amended: No. 19 of 2010 s. 51.] Division 6 — Sale by sample [Heading inserted: No. 19 of 2010 s. 44(2).] 15. Sale by sample (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample — (a) there is an implied condition that the bulk shall correspond with the sample in quality; (b) there is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; (c) there is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. Part II — Effects of the contract Division 1 — Transfer of property as between seller and buyer [Heading inserted: No. 19 of 2010 s. 44(2).] 16. Goods must be ascertained Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. 17. Property passes when intended to pass (1) Where there is a contract for the sale of specified or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. 18. Rules for ascertaining intention Unless a different intention appears, the rules in the Table apply for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Table Rule 1. Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. Rule 2. Where there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof. Rule 3. Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price the property does not pass until such act or thing be done, and the buyer has notice thereof. Rule 4. When goods are delivered to the buyer on approval or on "sale or return", or other similar terms, the property therein passes to the buyer — (a) when he signifies his approval or acceptance to the seller, or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 5. (1) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. [Section 18 correction to reprint: Gazette 12 Mar 2002 p. 1032; amended: Act No. 19 of 2010 s. 51.] 19. Reservation of right of disposal (1) Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of the disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is, prima facie, deemed to reserve the right of disposal. (3) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. 20. Risk, prima facie, passes with property Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liability of either seller or buyer as a bailee or custodier of the goods of the other party. Division 2 — Transfer of title [Heading inserted: No. 19 of 2010 s. 44(2).] 21. Sale by person not the owner (1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, 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, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. (2) Provided also that nothing in this Act shall affect — (a) the provisions of The Factors Acts 1823 to 1878 2, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof; (b) the validity of any contract of sale under any special common law, or statutory power of sale, or under the order of a court of competent jurisdiction. 22. Market overt Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith, and without notice of any defect or want of title on the part of the seller. 23. Sale under voidable title When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title. 24. Revesting of property in stolen goods on conviction of offender (1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. (2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to stealing, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender. [Section 24 amended: No. 57 of 1997 s. 109.] 25. Seller or buyer in possession after sale (1) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. (2) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3) In this section the term mercantile agent shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. [26. Deleted: No. 59 of 2004 s. 141.] Part III — Performance of the contract 27. Duties of seller and buyer It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. 28. Payment and delivery are concurrent conditions Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. 29. Rules as to delivery (1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending, in each case, on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if he have one, and if not, his residence: Provided that if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery. (2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf: Provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods. (4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. 30. Delivery of wrong quantity (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts the goods so delivered he must pay for them at the contract rate. (2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract, and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. (3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract, and reject the rest, or he may reject the whole. (4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. 31. Instalment deliveries (1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. (2) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated. 32. Delivery to carrier (1) Where, in pursuant of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is, prima facie, deemed to be a delivery of the goods to the buyer. (2) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. (3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit. 33. Risk where goods are delivered at distant place Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. [Section 33 amended: No. 73 of 1994 s. 4.] 34. Buyer's right of examining the goods (1) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 35. Acceptance The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. 36. Buyer not bound to return rejected goods Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them. 37. Liability of buyer for neglecting or refusing delivery of goods When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods: Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract. Part IV — Rights of unpaid seller against the goods [Heading inserted: No. 19 of 2010 s. 44(2).] Division 1 — General [Heading inserted: No. 19 of 2010 s. 44(2).] 38. Unpaid seller defined (1) The seller of goods is deemed to be an unpaid seller within the meaning of this Act — (a) when the whole of the price has not been paid or tendered; (b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. (2) In this part of this Act the term seller includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price. 39. Unpaid seller's rights (1) Subject to the provisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law — (a) a lien on the goods or right to retain them for the price while he is in possession of them; (b) in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; (c) a right of re‑sale as limited by this Act. (2) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co‑extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. Division 2 — Unpaid seller's lien [Heading inserted: No. 19 of 2010 s. 44(2).] 40. Seller's lien (1) Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely — (a) where the goods have been sold without any stipulation as to credit; (b) where the goods have been sold on credit, but the term of credit has expired; (c) where the buyer becomes insolvent. (2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer. 41. Exercise of lien where part delivery Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention. 42. Termination of lien (1) The unpaid seller of goods loses his lien or right of retention thereon — (a) when he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods; (b) when the buyer or his agent lawfully obtains possession of the goods; (c) by waiver thereof. (2) The unpaid seller of goods, having a lien or right of retention thereon, does no lose his lien or right of rete