Delivery of Goods: Actual, Symbolic and Constructive Delivery, Part Delivery, Delivery to a Carrier or Third Party, Wrong Quantity, Instalments, Place, Time and Expenses, and How Delivery Differs from Ownership and Acceptance

Delivery is the seller's central obligation, and the Act devotes a dozen sections to it. The definition itself is short: the voluntary transfer of possession from one person to another. Everything else follows from working out how possession can be transferred, who must do what and when, and what happens when the wrong quantity arrives or the goods travel through other hands. Two distinctions run through the subject and are worth fixing at the outset. Delivery is not the same as the transfer of ownership, and it is not the same as acceptance.

1. The Meaning and Kinds of Delivery

Sections 2(2) and 33, Sale of Goods Act, 1930

2(2) “Delivery” means voluntary transfer of possession from one person to another.

33. Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf.

Actual delivery: the goods themselves are handed to the buyer or his agent.
Symbolic delivery: something representing control is handed over, such as the key of the warehouse where the goods lie, or a document of title.
Constructive delivery: possession changes without any movement of the goods, because the person holding them agrees to hold for the buyer. Section 36(3) requires such an acknowledgment where the goods are with a third party.

📖 Galbraith and Grant Ltd. v. Block, [1922] 2 KB 155

Facts: Goods were sold to be delivered at the buyer's premises. The carrier delivered them there, and they were receipted by a person at the premises who was not authorised to receive them; the goods were then lost. The buyer refused to pay, saying he had never received them.

Held: The seller had performed his duty. He had delivered the goods at the agreed place in the ordinary way and, having done so without negligence, was not responsible for what happened to them there. The buyer remained liable for the price.

Ratio: A seller who delivers at the agreed place in the ordinary course discharges his duty, even if the goods are received by the wrong person at the buyer's own premises.

The kinds of delivery, the rules that govern it, and the two things it is not

2. The Rules of Delivery

Provision	The rule
Section 31	The seller must deliver; the buyer must accept and pay
Section 32	Delivery and payment are concurrent conditions, unless otherwise agreed
Section 34	Part delivery in progress of delivery of the whole passes property in the whole, unless intended to sever
Section 35	The seller need not deliver until the buyer applies for delivery
Section 36	Place: where the goods are; time: reasonable; hour: reasonable; expenses of putting the goods into a deliverable state: the seller's
Section 37	Wrong quantity: short, excess or mixed delivery, and the buyer's options
Section 38	The buyer need not accept delivery by instalments; a defective instalment may or may not repudiate the whole
Section 39	Delivery to a carrier or wharfinger is prima facie delivery to the buyer, subject to a reasonable contract of carriage and notice to insure
Section 44	A buyer who does not take delivery after request is liable for loss and a reasonable storage charge

3. Place, Time and Hour

📖 Startup v. Macdonald, (1843) 6 M & G 593

Facts: Oil was to be delivered within the last fourteen days of a month. The seller tendered it at about half past eight on the evening of the last day, a Saturday. The buyer refused to accept it because of the lateness of the hour.

Held: The tender was good. There was still time before midnight for the buyer to have received and examined the oil, so the tender was made at a reasonable hour and in reasonable time. The buyer's refusal was a breach.

Ratio: A tender of delivery is effectual if made at a reasonable hour, judged by whether there remained time for the buyer to take and examine the goods. Section 36(4) makes reasonable hour a question of fact.

4. Delivery to a Carrier or a Third Party

Delivery to a carrier for transmission to the buyer is prima facie delivery to the buyer under Section 39(1), and, without a reservation of the right of disposal, an unconditional appropriation under Section 23(2).
The seller must make a reasonable contract of carriage, or the buyer may refuse to treat the delivery as made and may claim damages.
On a sea route where insurance is usual, notice must be given so that the buyer can insure, failing which the goods are at the seller's risk during the sea transit.
Where a third party holds the goods, Section 36(3) requires him to acknowledge that he holds them for the buyer, unless a document of title is transferred.

5. Delivery, Ownership and Acceptance

	Delivery	Transfer of ownership	Acceptance
What it is	Transfer of possession	Transfer of the general property	The buyer's adoption of the goods as conforming
Governed by	Sections 31 to 39	Sections 18 to 25	Sections 41 to 43
Can happen without the others	Yes, as on sale or return	Yes, as under s. 20 with no delivery	Yes; delivery does not imply acceptance
Effect	The buyer has the goods	The buyer bears the risk and may be sued for the price	The right to reject is lost

6. The Position Stated Shortly

Delivery is the voluntary transfer of possession, and may be actual, symbolic or constructive.
Galbraith and Grant v. Block: delivering at the agreed place in the ordinary course discharges the seller's duty.
Delivery and payment are concurrent conditions unless otherwise agreed.
Part delivery passes property in the whole unless it was intended to sever.
The place is where the goods are, the time reasonable, the hour reasonable, and the cost of putting goods into a deliverable state the seller's.
Startup v. Macdonald: a tender late in the evening of the last day was still at a reasonable hour.
Wrong quantity and instalment deliveries have their own rules in Sections 37 and 38.
Delivery is neither ownership nor acceptance, and each is governed by a different group of sections.