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Remedies for the Breach of a Commercial Contract for the Sale of Goods: A Remedies for the Breach of a Commercial Contract for the Sale of Goods: A Comparative Analysis between the English Sale of Goods Act 1979 and the Contract of Sale of Goods in Saudi Law Supervisor: Mrs. Tikus Little Head of Law Presented By Abdulwahab Alkhadhari ID: 1827137 A thesis submitted in partial fulfillment of the requirements for the Degree of Doctor of Philosophy University of Stirling United Kingdom May 2018 Declaration I hereby declare that this thesis is my own work and that it has not been submitted anywhere for any award. Where other sources of information have been used, they have been acknowledged. Name: Abdulwahab Alkhadhari Date: 31/05/2018 II Dedication This work is dedicated to the souls of my late Father and Mother who contributed a lot to bringing me up and inspiring my life with their love and patience. It is dedicated, too, to my Wife (Ibtisam) and Children (Mohamed and Tamim). III Acknowledgements This study would have never been possible and would have not sent the light without the encouragement and help of a number of people. My special thanks go to Professor Fraser Davidson, supervisor of this study, whose enthusiasm and remarkable constructive comments and contributions have played a significant role in facilitating the task of producing this work. I must thank him for his pleasantness; inspiration; patience; and wisdom. I am grateful, again, to Mrs. Tikus Little, Head of Law and Dr David McArdle My gratitude is due, also, to the Library staff, at Stirling University, for their facilities. My thanks go, also, to Dr. Mufleh bin Rabian Al-Qahtanimy Head of College of Law and Political Science and to my brother Abdul-Majeed as well for his support and encouragement during my study. My deepest appreciation is dedicated to my wife and my two lovely boys, Mohamed and Tamim. Finally, I thank everyone who provided me with any kind of assistance necessary to help me go through this work; I know it is an endless list but thank you all. IV Abstract: This thesis focuses on remedies for a breach of the Contract of Sale of Goods under English and Saudi law, wherever the Contract is in the course of business. The primary aim of the thesis is to describe and analyse those remedies and how each of the above legal regimes has dealt with breaches. For this purpose, the remedies must be analysed to identify differences and similarities between the two regimes, while at the same time highlighting the weaknesses and strengths of each. In addition, the reasons why the two legal systems have adopted their respective approaches in favouring specific remedies will be considered, in order to determine whether there are any differences in the underlying legal principles affecting the de facto results for the Buyer and Seller. In so doing, the aim is to provide a detailed and ingenious analysis, which may be of assistance in understanding each regime. V Contents Abstract: ........................................................................................................................... V Contents .......................................................................................................................... VI Chapter 1: Introduction to the Thesis ................................................................................ 1 1.1. Introduction: ........................................................................................................................ 1 1.2. The Aim and Objectives of the Thesis: .................................................................................. 3 1.3. Scope and Limitations of the Thesis: .................................................................................... 4 1.4. Review of the Literature: ..................................................................................................... 5 1.5. The Methodology of the Thesis: ......................................................................................... 10 1.6. Structure of the Thesis: ...................................................................................................... 13 Chapter 2: Sources of the Contract for the Sale of Goods in English and Saudi Law .......... 16 2.1. Introducing the Sources: .................................................................................................... 16 2.2. Sources of the Contract for the Sale of Goods in English Law: ............................................. 17 2.2.1. The Sale of Goods Act 1979: ............................................................................................... 18 2.2.2. Related Laws: ..................................................................................................................... 20 2.2.3. Case Law: ............................................................................................................................ 25 2.2.4. General Common Law Rules for the Law of Contract: ....................................................... 25 2.2.5. Fundamental Principles of Contract Law: ........................................................................... 26 2.3. Sources of the Contract for the Sale of Goods in Saudi Law: ............................................... 30 2.3.1. Sources of Islamic Law: ....................................................................................................... 31 2.3.2. Related Laws: ..................................................................................................................... 37 2.3.3. Case Law in the Saudi Judiciary: ......................................................................................... 39 2.3.4. The Principles of the Contract in Saudi Law: ...................................................................... 40 2.4. Conclusion: ........................................................................................................................ 47 VI Chapter 3: The Essential Requirements of the Contract for the Sale of Goods .................. 49 3.1. Introduction: ...................................................................................................................... 49 3.2. Definition of the Contract for the Sale of Goods: ................................................................ 50 3.2.1. Contracts for the Sale of Goods in English Law: ................................................................. 50 3.2.2. Contract for the Sale of Goods in Saudi Law: ..................................................................... 52 3.2.3. The Goods Constituting the Subject Matter of a Contract of Sale: .................................... 54 3.2.4. The Consideration Paid for Goods Should be Monetary: ................................................... 65 3.2.5. The Transfer of Property in Goods from the Seller to the Buyer: ...................................... 66 3.3. The Mechanics of Forming a Contract for the Sale of Goods: .............................................. 72 3.4. Conclusion: ........................................................................................................................ 74 Chapter 4: Obligations of the Parties to a Contract for the Sale of Goods ......................... 77 4.1. Introduction: ...................................................................................................................... 77 4.2. The Nature of Obligation in a Contract of Sale: ................................................................... 78 4.3. Obligations of the Parties under a Contract for the Sale of Goods: ..................................... 80 4.3.1. Obligations of the Seller and Buyer under English Law: ..................................................... 80 4.3.2. Obligations of the Seller and Buyer under Saudi Law: ....................................................... 81 4.3.3. Obligations of the Seller in the Contract for the Sale of Goods: ........................................ 85 4.3.4. Obligations of the Buyer in the Contract for the Sale of Goods: ...................................... 109 4.4. The Role of Good Faith in the Performance of the Contract for the Sale of Goods: ........... 121 4.4.1. Definition of ‘Good Faith’: ................................................................................................ 121 4.4.2. The Position of English Law on Good Faith in the Performance of the Contract for the Sale of Goods: .................................................................................................................................... 124 4.4.3. The Position of Saudi Law on Good Faith in the Performance of the Contract for the Sale of Goods: .................................................................................................................................... 131 4.5. Conclusion: ...................................................................................................................... 134 VII Chapter 5: The Seller’s Remedies for a Breach of the Contract for the Sale of Goods ..... 136 5.1. Introduction: .................................................................................................................... 136 5.2. Breach of the Contract for the Sale of Goods: ................................................................... 137 5.2.1. In English Law: .................................................................................................................. 137 5.2.2. In Saudi Law: ..................................................................................................................... 138 5.3. The Seller’s Remedies
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