The SGA 1979, like s 2, uses "property in the goods" X. But this feels bizarre in ordinary lay English! Native English speakers say that they are buying goods, fuel and food — not they are buying property in the goods, property in the fuel, and property in the food? What does property in the mean here? Can you please demystify this?
2 Contract of sale.
(1) A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.
(2) There may be a contract of sale between one part owner and another.
(3) A contract of sale may be absolute or conditional.
(4) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale.
(5) Where under a contract of sale the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled the contract is called an agreement to sell.
(6) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
Burnett LJ (former) — now LCJ — also uses this syntax at the bottom of this quotation from Lee Roach, Commercial Law 2019 3rd edn, p 208.
After the Supreme Court’s ruling in PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another (The ‘Res Cogitans’)13 it may not always be that straightforward to be able to recognize a contract of sale of goods. Despite its initial appearance as a contract of sale, the Supreme Court held that a contract for the supply of fuel bunkers, which contained a retention of title clause and permitted the shipowner to consume the bunkers during the period allowed for credit, was not a contract of sale within the meaning of SGA 1979, s 2(1). The contract was silent as to whether property in the consumed bunkers passed to the owners before or at the point of consumption. Lord Mance rejected an argument that property in the fuel must have been transferred a nanosecond before it was consumed and concluded that title in the consumed bunkers never passed to the owners. This case will be discussed in greater detail at pp 257–59.
An unsuccessful attempt to extend the principles in The Res Cogitans to a case involving a claim for food poisoning at an all-inclusive catering holiday was made in Wood v TUI Travel plc, t/a First Choice,14 where the tour operator sought to rely upon the case in support of the contention that there was no intention to transfer any property in the food until the precise moment it was placed in the customer’s mouth and thereby destroyed. Burnett LJ was unconvinced by the reliance on The Res Cogitans, stating:
The conclusion reached by the Supreme Court depended upon the relationship between the retention of title clause and the liberty nonetheless to consume fuel in which property had not already passed. The problem would not have arisen but for the retention of title clause. If the contract had been a straightforward one for the sale of fuel oil with no such clause, property in the bunkers would have passed on delivery, assuming the seller itself had property in them.15