7.8 Rules Regarding Delivery and Transfer of Title and Risk of Loss of Goods

Delivery rules: delivery of the goods (or of their document of title) per the contract's mode, time and place; part-delivery is pro tanto; tender by the seller and the buyer's application both count; the buyer's reasonable opportunity to examine precedes acceptance. Transfer of title (the five rules): 1. Specific or ascertained goods — property passes when intended by the parties (the intention test — the contract's terms, conduct and circumstances; the English Rules by name only). 2. Unascertained goods — not until appropriation to the contract (ascertainment + unconditional assent). 3. Sale on approval/"on sale or return" — property passes on approval's sign, retention beyond the agreed time, or adoption. 4. Reservation of the right of disposal — the seller keeps title until his conditions (payment) are met — the practice of export and finance (retention-of-title clauses — the Romalpa line by name only). 5. Nemo dat quod non habet — a seller cannot pass a better title than he has; the exceptions: (i) estoppel by the owner's conduct/mercantile-agent authority; (ii) sale by a voidable-title holder before rescission; (iii) seller in possession after sale (reselling to an innocent buyer); (iv) buyer in possession (reselling/pledging before paying); (v) sale by an unpaid seller's or creditor's exercise of resale powers (7.10). Risk: prima facie follows property, not possession or payment (res perit…