Rights and Remedies under the Sale of Goods Act - Sale of goods consumer, contract, risk, property and title

Sep 17, 2026

Uploaded by Finn

Material outlines the criteria for when the Sale of Goods Act applies and how liability allocation is determined. It tests whether the transaction is a consumer sale under the ACL, and whether the parties formed a valid contract for sale of goods under SOGA elements. It then analyzes passage of risk and property (including ascertained vs unascertained goods and destruction or perishing), and the separate issue of title transfer under the nemo dat rule. It also addresses exceptions and related principles such as PPSA security interests, SOGA s 26, and estoppel cases.

LanguageEnglish

CategoryExam

FormatPDF

Pages2

Reading Time5 min

AccessFree to download

Sale of Goods Act applicability

Consumer status under the ACL

Contract for the sale of goods requirements

Passage of risk

Passage of property

Passage of title and nemo dat

Exceptions to nemo dat

Rights and Remedies under the Sale of Goods Act 1. Is this a sale to a consumer? - What is a consumer? The goods must be under $40,000, for domestic, personal or household use under s 3 ACL. - Or if more than that amount, goods which were of a kind ordinarily acquired for personal, domestic or household use or consumption, or the goods consisted of a vehicle or trailer acquired for use principally on public roads. - If falls under the definition of consumer then it is ACL, if not, commercial transaction and subject to the SOGA 2. Is this a contract for the sale of goods? In order for SOGA to apply it must satisfy three elements: Must be a Contract for the Sale of Goods Contract-s 6 SOGA - Regular conditions of contract must apply – offer, acceptance, consideration and capacity - When goods are to be exchanged at the time of sale, contract = sale - When agreement to sell at future time/according to a condition, the contract = agreement to sell - Can be in writing, verbal, express or implied s 8 SOGA Sale - Must be for ownership of the goods Goods - s 5(1) SOGA – must be tangible property, not services, only choses in possession not choses in action 3. Has risk passed? This will determine liabilities between the parties and which party is to bear any loss or damage to the property. Risk will generally pass when property passes - General rule is that risk passes when property passes s 25 SOGA - Goods must be ascertained for risk to pass with property s 25 SOGA - If specific goods have been destroyed at the time of entering into the contract then the contract is void s 11 SOGA - Goods perish after contract is made then risk has passed and the contract can only be avoided s 12 SOGA - If goods are unascertained there are no grounds for avoiding agreement because there are no particular goods attached to the agreement and seller must find replacement goods to satisfy the performance of the contract and avoid being in breach 4. Has property passed? - Property passes when the parties intend it to pass s 22 SOGA - Property in unascertained goods cannot pass until those goods are ascertained. - Where the parties have not evidenced a contrary intention, certain sub-rules set out in the s 23 SOGA apply. Refer to mind map ‘Section 23 Rules for Ascertaining Intention’ 5. Has title passed? - Nemo dat rule - Seller can only pass as good as title as the seller posses and the buyer cannot obtain a better title to the seller 6. Is there an exception to nemo dat? - If an exception to the nemo dat operates, the buyer can obtain full title to the goods, regardless of any defects in the title of the seller. - Consider also whether the PPSA applies. The PPSA applies where the transaction, in substance, secures the performance of an obligation (such as payment of the price) or is otherwise deemed to create a security interest. S 26 SOGA sale by person not the owner Estoppel (owner of goods is prevent by their conduct from denying the sellers authority to sell) Big Rock v Esanda Sale under a voidable title - Jiao Chen v Sell your car fast

FAQs

How do you determine whether the transaction is with a consumer under the ACL?

Check whether the goods are for domestic, personal or household use under s 3 ACL, including the $40,000 threshold and the relevant kinds of goods or vehicle/trailer use. If it fits the consumer definition, the ACL applies; otherwise it is treated as a commercial transaction under SOGA.

What elements must be satisfied for SOGA to apply as a contract for the sale of goods?

There must be a contract for the sale of goods. The contract must satisfy regular contract requirements—offer, acceptance, consideration, and capacity—and the arrangement must match whether the goods are exchanged immediately or a future sale/agreement is formed. The contract can be written, verbal, express, or implied, and the goods must be tangible property (not services, and not choses in action).

How do risk and property passing differ, and what happens if goods are destroyed or unascertained?

Risk generally passes when property passes (s 25 SOGA), and goods must be ascertained for risk to pass with the property. If specific goods are destroyed at entry, the contract is void (s 11). If goods perish after the contract is made, risk has passed and the contract can only be avoided (s 12). If goods are unascertained, they cannot support avoidance because no particular goods attach to the agreement; the seller must provide replacement goods to perform.

Sep 17, 2026

Uploaded by Finn