Uniform Acts Drafting Conventions

PART I - INTERPRETATION

Definition

1 In this Act,

(a) "action" includes a counterclaim;

(b) "agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances, including those circumstances described in section 26;

(c) "bill of lading" means a document that:

(i) evidences the receipt of goods for shipment by any mode of carriage; and

(ii) is issued by a person engaged in the business of transporting or forwarding goods;

(d) "buyer" means a person who buys or contracts to buy goods;

(e) "buyer in the ordinary course of business" means a person who, in good faith and without knowledge that a sale to him is in violation of the ownership rights or security interest of a third party in the goods, buys in the ordinary course from a person in the business of selling goods of that kind for cash or by exchange of other property or on secured or unsecured credit, and includes a person who receives goods or documents of title under a pre-existing contract of sale, but does not include a person who receives a transfer in bulk within the meaning of [insert reference to bulk sales legislation ] or as security for, or in total or partial satisfaction of, a money debt;

(f) "C.F." or "C. & F." means that the price for the goods includes cost and freight to the named destination;

(g) "C.I.F." means that the price includes in a lump sum the cost of the goods and the insurance and freight to the named destination;

(h) "commercial unit" means a unit of goods that by commercial usage is a single whole for the purpose of sale, the division of which would materially impair its character or value on the market or its use, and includes a single article, a set of articles or a quantity treated in use or in its market as a single whole;

(i) "conforming", with respect to a contract of sale, means that goods or conduct, including any part of performance, are in accordance with the obligations under the contract;

(j) "contract" means the legal obligations that result from the parties agreement as affected by this Act and any other applicable rules of law;

(k) "contract of sale" means a contract whereby the seller transfers or agrees to transfer the title in goods to the buyer for a price, and includes

(i) a contract for the supply of goods to be made, created or produced by the seller, whether or not to the buyer's order, and without regard to the relative value of the labour and materials involved,

(ii) a contract in which the seller retains a security interest in the goods, and

(iii) a contract to which section 43(2) applies;

(1) "course of dealing" means previous conduct between the parties to a transaction that may fairly be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct;

(m) "cure" means

(i) tender or delivery of any missing part or quantity of the goods;

(ii) tender or delivery of other conforming goods or documents or, in the case of a sale of identified goods, goods that differ in no material respect from those goods,

(iii) the remedying of any other non-conformity in performance,

(iv) a money allowance or other form of adjustment of the terms of the contract, or

(v) any appropriate combination of subclauses (i) to (iv);

(n) "delivery" means the voluntary transfer of possession;

(o) "document of title" means a writing that

(i) purports to be issued by or addressed to a bailee,

(ii) purports to cover goods in a bailees possession that are identified or that are fungible portions of an identified mass, and

(iii) in the ordinary course of business, is treated as establishing that the person in possession of the document of title is, with any necessary endorsement, entitled to receive, hold and dispose of it and the goods it covers;

(p) "express warranty" means

(i) a term of the contract,

(ii) a statement, in any form or language made by a seller before or at the time of the contract, including a promise or a representation of fact or opinion, whether or not made fraudulently, negligently or with contractual intention, that relates to the subject matter of the contract, except where the buyer did not rely, or it was unreasonable for him to rely, on the statement,

(iii) a statement described in section 42(5), (6), or (7), or

(iv) an express warranty described in section 42(9);

(q) "F.A.S." means free alongside;

(r) "fault" means a wrongful act, omission or breach;

(s) "financing agency" means a bank, finance company or other person who, in the ordinary course of business, makes advances against goods or documents of title or who, by arrangement with either the seller or the buyer, intervenes in the ordinary course to make or collect a payment due or claimed under the contract of sale, whether or not documents of title accompany the bill;

(t) "F.O.B." means free on board;

(u) "fungible goods" means goods of which any one unit is the equivalent of any other unit by nature or by usage of trade or is so treated by agreement or in a document;

(v) "good faith" means honesty in fact and observance of reasonable standards of fair dealing;

(w) "goods means tangible personal property and includes the unborn young of animals and anything attached to or forming part of real property as provided in section 9 or 10, but does not include things in action or the money in which the price is to be paid;

(x) "insolvent" means a person who has ceased to pay his debts in the ordinary course of business, who cannot pay his debts as they become due or who is insolvent within the meaning of the Bankruptcy Act (Canada);

(y) "instalment contract" means a contract that requires or authorizes the delivery of goods in separate lots to be separately accepted, notwithstanding a provision in the contract to the effect that each delivery is a separate contract;

(z) "lease" includes hire;

(aa) "merchant" means a person

(i) who deals in goods of the kind involved in a transaction,

(ii) who, by his occupation, holds himself out as having skill or knowledge appropriate to the practices or goods involved in a transaction, or

(iii) to whom the skill or knowledge described in subclause (ii) may be attributed by his employment of an agent or broker or other intermediary who, by his occupation, holds himself out as having that skill or knowledge;

(bb) "notify" means to take any steps that are reasonably required to give information to the person to be notified so that the information

(i) comes to his attention, or

(ii) is directed to him at the place of business or residence through which the contract or offer was made or at any other place that is held out by him as the place for receipt of such information;

(cc) "prescribed" means prescribed in the regulations;

(dd) "receipt", with respect to goods, means taking physical possession of them;

(ee) "security interest" means an interest in personal property, including goods, that secures payment or performance of an obligation;

(ff) "seller" means a person who sells or contracts to sell goods;

(gg) "signed" includes the execution or adoption of any symbol by a party to a contract of sale with the present intention of authenticating a writing;

(hh) "sale on approval" means a contract in which the goods are delivered primarily for use and in which the buyer has the right to return delivered goods even though they conform to the contract;

(ii) "sale or return" means a contract in which the goods are delivered for resale and in which the buyer has the right to return delivered goods even though they conform to the contract;

(jj) "usage of trade" means any reasonable practice or method of dealing that is observed in a place, vocation or trade with sufficient regularity to justify an expectation that it will be observed with respect to a specific transaction;

(kk) "value" means a consideration sufficient to support a contract;

(ll) "writing" includes any mechanical, electronic or other form of recording of information.

Interpretation re contracts of sale

2 In this Act, in relation to a contract of sale,

(a) termination of a contract of sale occurs when a party, pursuant to a power created by agreement or law, puts an end to the contract otherwise than for its breach, and thereupon all executory obligations are discharged, but any right based on prior breach or performance survives;

(b) cancellation of a contract of sale occurs when a party puts an end to the contract for breach by the other, and its effect is the same as that of termination, except that the cancelling party also retains any remedy for breach of the whole contract or any unperformed part of the contract;

(c) where any action is required to be taken within a reasonable time, any time that is not manifestly unreasonable may be fixed by agreement;

(d) what is a reasonable time for taking any action depends on the nature or purpose of the action and all the other surrounding circumstances;

(e) an action is taken seasonably when it is taken at or within the time agreed or, if no time is agreed, at or within a reasonable time.

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