When It All Goes Wrong, What Can You Actually Get

 

The Law You Live, Part Five

By Tim Munyi Mugo, Advocate*

Four instalments ago we left a young man on Luthuli Avenue holding a phone that had died overnight, being shown a laminated sign about goods once sold. Since then we have watched a gas cylinder meet the tarmac, a tanker of brown water disappears into an underground tank, a pair of shoes lose the right to be returned, and a length of stolen pipe change hands at dusk.

Every one of those stories ends in the same place. Somebody wants something back. This final instalment is about what the law is actually willing to hand over, because a right you cannot enforce is a hobby, not a remedy.

Start with the seller, who is not always the villain of these columns.

A seller who has not been paid is not helpless, even after the goods are sold. While he still holds them, he has a lien, which is the right to keep them until payment. This is the hardware shop that will happily show you the cement but declines to let it leave the yard, an instinct older than the statute that protects it.

If the goods have already left but are still in transit, and the buyer becomes insolvent, the seller may stop them in transit and take them back before delivery is complete. And where the goods are perishable, or the seller has reserved the right, he may resell them and claim any shortfall from the original buyer. The unpaid seller, in short, has three moves: hold, intercept, or resell and chase the difference.

Now the buyer, which is where most readers live.

Where the seller simply fails to deliver, you may claim damages for non-delivery. The measure is not sentimental. The law asks what it cost you to obtain the same goods elsewhere. If the price had risen, you recover the difference. If the price had fallen, you may find you lost nothing at all, however furious you feel. Courts compensate loss, not indignation.

Where the goods arrive but breach the contract, and you still hold the right to reject, you may return them and recover your money. Where that right has been lost, as we saw in Part Three, you claim the difference between what the goods were worth as delivered and what they should have been worth. The gap is your remedy.

Then there is the category people miss entirely. Consequential loss. Where the seller knew the purpose the goods were meant to serve, the damage flowing naturally from the breach may be recovered too. Sell a butchery a fridge that fails, knowing it is for meat, and the claim is not merely the price of a fridge. It includes the meat.

But the law attaches a duty to that generosity. You must mitigate. You cannot watch your loss grow comfortably and present the total later. The butcher who leaves the meat in a dead fridge for a week, taking photographs each day, is documenting his own failure to act rather than building his case.

There is also specific performance, an order compelling delivery of the actual goods rather than money. It is rare, and reserved for goods that are unique or genuinely irreplaceable. For anything you can buy elsewhere, the courts will hand you damages and expect you to go shopping.

Water, for the last time in this series, and it makes the point about mitigation better than any butchery.

A utility contracts for chlorine. The consignment arrives below specification. The utility can reject it, and if the market price of compliant chlorine has risen, it can recover the difference. If treatment is disrupted and the utility incurs the cost of emergency supply, that flows from the breach and is recoverable, provided the supplier knew what the chlorine was for, which he plainly did.

What the utility cannot do is nothing. It cannot dose the water with substandard chemical, wait for the regulator's finding, and then present the entire consequence to the supplier as a bill. The duty to mitigate is also, in that setting, a duty to the public. Which is the quiet lesson this series has been circling all along. The law of sale is not only a private arrangement between two people arguing over a receipt. When the buyer is an institution holding a public trust, ordinary commercial diligence becomes something closer to a duty of care owed to everyone downstream of the meter.

And there is a clock over all of it. Contract claims generally must be brought within six years. Long before that, though, evidence fades, witnesses relocate urgently, and the shop with the laminated sign has become a barbershop.

So we end where we began, on that street, with that young man and that phone.

He was never powerless. He simply did not know that a statute drafted in 1893 was standing beside him, quietly holding a set of tools he had never been shown. That the sign behind the counter carried a silent footnote. That the moment goods become yours is decided by rules, not by who is holding the bag. That silence, kept politely for too long, eventually speaks against you. That a price too good to be true is usually a statement about title. And that when things fail, the law measures your loss rather than your outrage.

None of this requires a law degree. It requires only the habit of asking, at the counter rather than at the courthouse, three plain questions. Whose is it now? What did you promise me? And how quickly must I speak if this disappoints me?

Chapter 31 has been answering those questions patiently for over a century, in a country that mostly has not been listening. Now you have.

Next in this series we leave goods behind entirely and turn to something you never agreed to sell, yet which is being traded every day: your personal data. The betting message that found you, the shop that wants your number before selling you socks, and the Data Protection Act 2019, which has rather more to say about all of it than anyone lets on.

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.