Protecting Prepaying Buyers of Unascertained Goods: Why ‘Pay before You Go’ May Be Bad for You

This paper shows that the traditional equitable doctrine, which protected the rights of a prepaid buyer of future or unascertained goods, was wrongly perceived as being overruled by the judgment of a single Court of Appeal judge. What followed, however, was considerable judicial reluctance by English courts to remedy this error. The article examines various legislative and judicial approaches from major common law jurisdictions around the world that purport to lessen the potential for injustice created by this judicial caution. Yet despite legislative intervention in England to provide limited remedies, there has been a marked reluctance elsewhere to produce the necessary radical reform suggested by the Law Reform Commission of Ontario. The position in Ireland is examined and the authors note that the time may be ripe for a reconsideration of the current statutory provisions in that jurisdiction.