Section 59 of the Customs and Excise Act 1964 provides that the seller of goods may recover the amount of duty paid on the goods in addition to the contract price ‘in the absence of agreement to the contrary’. The fact that the sale in Starways Trading v Pearl Island Trading was said to be ‘ex-warehouse’ was not a provision to the contrary.
The effect of section 59 is to impose implied terms in relation to the purchase price unless they are specifically excluded.
The meaning of ‘ex-warehouse’ is out of or in front of the warehouse and is used simply to indicate where delivery takes place. There was therefore no agreement to the contrary and the purchaser had to pay the duty.
The term ‘ex-warehouse’ has nothing to do with risk. Risk is a disadvantage which overtakes a thing sold including the attachment of a burden on the goods (such as the imposition of excise duty or expropriation).
Even if the expression ‘ex-warehouse’ altered the incidence of risk to some degree, South African law applied to the contract and the obligation to pay the import duty therefore rested on the purchaser.