S agrees to sell a quantity of goods to B. S delivers an excess quantity to B. When does property pass in all or part of the goods?

Deliveries of too much or too little are not uncommon. Such mistakes were once costly because, where the contract was an entire one, the buyer had an automatic right to reject.1 The buyer could use the fact of an over or under delivery as an excuse to escape from a bad bargain. Where an excess was delivered, the buyer’s right to reject was justified on the basis that the seller was attempting to impose an obligation on the buyer to select the contract amount from a larger quantity and thereby “seeks to impose a burden on the buyer which he is not entitled to impose”.2 The courts’ attention was therefore directed towards assessing the personal obligations of the parties and, in particular, whether the seller had done what he had promised.3 Consequently, the courts would consider whether the discrepancy was de minimis, and could therefore be ignored.4 The seller might also plead that custom or the contract itself provided for a degree of latitude in performance.5 The buyer’s right to reject has now been restricted by changes to the Sale of Goods Act. It is provided that a commercial buyer should not reject the contract goods where the excess or shortfall is so slight that it would be unreasonable to reject.6 The uncertainty created by this reform is unsatisfactory; in practice, however, it may well encourage traders down the road of negotiation and deal making.