The rule in Section 7, Scale of Goods Act, may be based either on the ground of mutual mistaken, or on the ground of impossibility of performance. It is confined to the case of specific goods. Generic goods, that is to say, goods defined by description only, come within the maxim genus numquam perit [Thoronett and Fehr and Yuills, (1921) 1 KB 219]. The impossibility theory is wrong [66 TLR 203].
As, in the case contemplated by Section 7, Sale of Goods Act, the contract is void. The price, if paid, can be recovered back. [Srickland v. Turner, (1852) 7 Exch 208].
As regards unascertained goods the maxim genus numquam would apply. The “specific” includes the unascertained product of what is specific, and is not confined to actually existing goods. [Howell v. Coupland, (1876) 1 QBD 258 CA] (future crop of particular land), is still law. [25 Halsbury 121-122; See criticism of this case by Atkin, L.J. in Re, Wait (1927) 1 Ch. 606, where it was held that it might be covered by Section 5(2) [our Section 6(2)]. AIR (1949) Nag 178, which takes the same view as in Howel v. Coupland, (1876) 1 QBD 258 (CA), may therefore require reconstruction. Mere fact that goods are capable of identification does not mean they are specific goods. [AIR (1959) AP 30]. [Section 3, Sale of Goods Act].