The sale of goods ACT 1893 in Zambia: Its applicability in today's commercial transactions

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Makayi, Ndala
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The law relating to the sale of goods is codified in the Sale of Goods Act, 1893. Like any other piece of legislature its aim was to give clear and set guidelines for the transactions involving the buying and selling of certain goods, and at its creation was hailed to be a convenient answer to the problems and malpractices encountered in the business of buying and selling goods.Prior to the Act, buying and selling of certain goods was directed by the customs and usages prevailing in mercantile transactions at the time. It is these customs that were codified and given a statutory force of law where before they only relied on equity as an underlying force. The creation of the Act came at the height of the industrial revolution, an era well documented in history as having altered the social and economic factors of the civilized world, i.e. Europe, at that time. The industrialisation brought vest leaps and bounds production capability being increased in multiple folds and thereby ultimately leading to more profits. The technology of the revolution used in production, that in turn affected profits, also had an effect on the manner in which people transacted in certain goods. The quantity and quality of goods produced was greatly altered. This in turn altered the manner in which people dealt with goods. Issues of quality of a product became of great importance to parties to a transaction. And it is such issues that often brought disagreements that the mercantile custom of that time could not deal with adequately. Enter Sir Mackenzie Chalmers. Chalmers originally drafted the Sale of Goods Bill in 1888 that was enacted, save for some modifications as to its jurisdiction, in 1893. The Act of 1893 has been adopted with little modification in most jurisdictions of the British Commonwealth. Zambia adopted it after her independence in 1964 in its entirety without any modifications and has never revised it.It is ironic, however, that the originators of the Act, i.e. U.K., saw it fit to amend the 1893 Act so as to keep in line with the ever changing face of mercantile law and other economic factors that affect buying and selling of goods. Yet in Zambia, we are still using an Act that is stuck in the nineteenth century and is confined to the dealings prevailing in that period. The SOGA was received in the Zambian legal system as an English Act of General application due to the English Law (Extent of Application) Act'.The question therefore is how applicable is the 1893 Act in Zambia's current commercial atmosphere.This dissertation aims to answer this important question in four chapters. Chapter one will look the history and evolution of the Act and shall further delve into the salient features of the Act. An understanding of the history of the Act shall give a clear picture as to why such an Act was promulgated at that time and as will also somewhat expose why it is still necessary today. This chapter will also outline the salient features of the Act and the effect they have on a transaction particularly in relation to the position of the buyer and seller.From the outlined features of the Act chapter two will deal with contentious sections of the Act, especially section 14(2), which deals with the aspect of 'merchantable quality' of a good. This chapter shall be used to clearly show the pitfalls of an archaic statute by giving critique on this section by way of decided cases, in particular the case of Sumner, Permain & Co. v. Webb & Co. (1922) 1KB 55, that threw the spotlight on the absurd outcome application of section 14(2) produced. Other cases shall also be ' Cap. 11 of the Laws of Zambia. referred to in order to further bring out the Act's other inadequacies. Chapter two will also dwell on some of the amendments the U.K. has made to improve on the Act and show the effect these amendments have had on positions of buyer and seller.A crystallization of the problems of the Act shall be pursued in the following chapter in order to direct the reader's attention to the effect the application of the Act in its current form shall have not only to local transactions. This chapter simply aims to make transparent the dire effects maintaining an obsolete law has on a certain section of the economy i.e. trade. A comparison of laws shall also be given by referring to other jurisdictions, particularly India, who being former colonies of Britain as Zambia was, have adopted the same legislation for the sale of goods as Zambia but has made it to suit that country's conditions. This shall be done in order to give some insight into what ought to be considered in amending or creating a Sale of Goods Act that suits Zambia.Chapter four will attempt answer the question: why amend or repeal the 1893 Act? Since the preceding chapters have outlined the obsoleteness of certain sections, the absurdity of outcomes as a result of the application of these sections, and the impairment the Act creates to trade, it is necessary to suggest amendments to the Act so as to make it more applicable to Zambia's economic and trade atmosphere. The amendments of the current U.K. Act will be reflected upon to direct one to realise that the inclusion of economic, social technological and political concepts are crucial to amending or creating a law that is in line with the needs of the people to whom it applies in that era. Particular attention will be given to socio-economic differences existing between Zambia and the U.K. as this will direct one's attention to the specific requirements of the Zambian trade sector. This section shall briefly touch on the effect the maintenance of an obsolete law has to Zambia's performance of obligations in relation to regional trade agreements such as COMESA FTA. This will be briefly dwelled upon because in international relations of any sort it is custom, normally, for contracting parties (the different states) to agree to have, or at least encourage that, municipal law that does not conflict with or violate obligations of an international trade agreement in any way so as to ensure free flow of trade.Finally, chapter five shall give a summary of the issues outlined in the preceding chapters in order to come to the conclusion that the Sale Of Goods Act of 1893 ought to undergo major reforms or better still be totally removed from the law books and replaced by a purely home grown, trade friendly Act thereby encouraging more trade and freeing it from legal hurdles it may currently face.