Kursell v Timber Operators and Contractors Ltd

Goods are not specific, so that property can pass on the making of the contract, unless they are identified and agreed on at that time.

Citation
[1927] 1 KB 298
Court
Court of Appeal
Year
1927
Subject
Commercial Law
Topic
Passing of property and risk

Facts

Mr Kursell agreed to sell to the defendants all the merchantable timber in a forest in Latvia that met certain measurements, which the buyers were to cut within 15 years. Before much of the timber had been cut, the Latvian government nationalised the forest. The question was whether property in the timber had passed to the buyers, so that they bore the loss.

Legal principle

The Court of Appeal held that the property had not passed, because the timber was not specific goods. Scrutton LJ said that specific goods means goods identified and agreed on at the time the contract is made, and that it was not possible to identify which trees met the description of merchantable timber of the required size until they were measured and cut. The timber was therefore unascertained, and property could not pass until it was ascertained. The risk of the nationalisation therefore remained with the seller.

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