Whose Cylinder Just Died?

By Tim Munyi Mugo, Advocate*

You buy a gas cylinder at a shop in Kongowea. You pay in full, the seller thanks you warmly, and a boda rider straps the cylinder to the carrier with a rubber strap that has clearly seen two administrations. Somewhere between the shop and your gate, the strap decides it has done enough for one lifetime. The cylinder meets the tarmac. A crowd forms within seconds, as crowds do in this country, to offer commentary rather than assistance.

You walk back to the shop. The seller is sympathetic but firm. The cylinder left his premises in perfect condition. You point out that you had not yet reached home. Both statements are true. Neither answers the only question that matters.

At the moment that strap gave way, whose cylinder was it?

This is one of the oldest questions in commercial law, and the Sale of Goods Act, Chapter 31, answers it with a principle that surprises almost everybody. Risk does not follow possession. Risk follows ownership. The Latin is res perit domino, the thing perishes with its owner. So the real question is not who was holding the cylinder. It is who owned it.

And here is the part that unsettles people. Under the Act, ownership can pass to you before you touch the goods, before you carry them anywhere, and in some cases before you have paid a shilling.

The Act sets out rules for working out when that moment arrives.

Where the goods are specific and ready for delivery, ownership passes when the contract is made. You point at that particular cylinder, the seller agrees to sell that particular cylinder, and the deal is done. Ownership moves at the counter. Payment and delivery are merely the choreography that follows. Which means the cylinder that hit the tarmac may well have been yours from the moment you pointed at it, and your loss to bear.

Where the seller still has something to do to the goods, ownership waits. If the cylinder had to be filled, or the timber cut to your measurements, or the sofa upholstered in the fabric you chose, then nothing passes until that work is finished. The seller who has not yet done his part cannot quietly transfer the risk of his own unfinished business to you.

Where the goods are unascertained, nothing passes until they are identified. You buy thirty bags of cement from a warehouse holding six hundred. Until thirty specific bags are set aside for your contract, with your agreement, no bag in that warehouse is yours. If the roof leaks and spoils fifty bags overnight, the seller has lost fifty bags of his own cement and still owes you thirty good ones.

Then there is the rider. Delivery to a carrier is generally treated as delivery to the buyer, which means that if you chose the boda man, he was carrying your goods as your agent, and his rubber strap was your rubber strap. If the shop offered its own delivery service as part of the sale, the analysis shifts considerably. The same accident, the same tarmac, a different outcome, decided entirely by who arranged the transport. Kenyans negotiate this point every day at shop counters without ever realizing they are settling a question of law.

The Act also keeps a hand on the scale. Whoever holds goods belonging to another must take reasonable care of them, and where delivery is delayed through the fault of one party, losses attributable to that delay sit with the party at fault. Ownership decides the ordinary case. Carelessness can override it.

Now come with me to the meter, because this is where the principle stops being a classroom exercise.

Your water meter is the most quietly important boundary in the sector. Water lost through a burst main on the road, before it reaches your meter, is the utility's water perishing in the utility's hands. Water lost through your own leaking cistern, after the meter, is your water, and it will greet you politely at the end of the month on your bill. One pipe, one leak, two completely different owners depending on which side of a small brass instrument the water escaped.

Read that again and you will understand why utilities lose sleep over non-revenue water. Every drop lost before the meter is not merely an operational inefficiency. It is the company's own goods perishing on the company's own watch, unbilled and unrecoverable. The law of sale has been describing that problem calmly for over a century.

And when the taps run dry and you order a tanker, the question returns in a bigger vehicle. Twenty thousand litres are coming to fill your tank. If the tanker overturns on the way, whose water spilled onto the road? It depends on whether that water had been set aside for your contract, and on whose carrier was driving. You may find that you have paid for water you never saw, or that the seller must simply send another tanker. The difference sits in details nobody discusses when placing the order.

I will leave that one steeping, as is the habit of this column.

What I will offer is this. Almost every ordinary dispute in Kenyan commerce, the phone that failed, the cement that spoiled, the cylinder on the tarmac, the water on the road, is an argument about a single invisible moment. The moment a thing stopped being theirs and became yours. Buyers and sellers argue passionately about that moment without ever naming it. The Act named it long ago.

Next in this series, we turn to the clock. How long do you have to complain about goods that disappoint you, and at what point does keeping quiet become, in the eyes of the law, saying yes?

Stay with me. The law you live is more interesting than the law you fear.

 

*The author is an Advocate of the High Court of Kenya and Co-Founder of the Veritas Governance Institute.

 

Connect on LinkedIn: linkedin.com/in/tim-munyi-mugo-8194b024 

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.