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This question is based on the exceptions to the common law principle of nemo dat
quod non habet that is, one cannot give what he has not. However, there are many
instances in law where a seller of goods can give the buyer a better title thereto than he
himself has, for example:
(a) Estoppel.
Under section 23 (1) of the Sale of Goods Act the buyer gets a better title if the
owner is by his conduct precluded from denying the seller's authority to
sell. that is, the owner has represented some other person as the owner. He cannot
deny the apparent ownership. However, the requirements of estoppel must exist.
(b) Sale by mercantile agent or factor.
Under the provisions of the factors Act 1889, which applies in Kenya as a statute of
general application, (Kapadia V. Laxmidar) a sale by factor passes a good title if:
(i) The agent has possession with the principal's consent.
(ii) The agent sells in his capacity as mercantile agent.
(iii) The agent sells in the ordinary course of business as a mercantile agent.
(iv) The buyer takes in good faith and for value.
(c) Sale under voidable title.
Under section 24 of the Act if the seller's title is voidable but he sells the
goods to a bona fide purchaser who takes without notice of the seller's
defective title, before the title is avoided, he passes a good title, as was the case in
Phillips V. Brooks Ltd. and in Lewis V. Avery. In Phillips V. Brooks Ltd.though Mrs
North's title to the ring was avoidable for fraudulent misrepresentation, he pledged it
to Brooks Ltd before his title was avoided and hence Brooks Ltd. got good title.
(d) Resale by seller in possession.
Under section 26 (1) of the Act, if a seller who has already sold goods but retains
their possession or documents of title disposes them off to a bona fide purchaser
for value without notice of the previous sale, he passes a good title.
Other exceptions include:
(i) Sale by buyer in possession.
(ii) Sale under statutory power.
(iii) Sale by court order.
(iv) Sale under common law power.
maurice.mutuku answered the question on April 28, 2018 at 06:31
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