This is a sale of a chance, which is different from future goods mainly through the construction of the terms used by the courts. It arises where a potential buyer agrees to buy future goods from a particular source and agrees to take the risk of the goods never coming into existence e.g. I agree to buy whatever crop is produced from plot ‘A’ of your land in Kitale Town at a thousand shillings per bag. The buyer has offered to buy whatever crop is grown on that land and is taking a chance because the crop might never get grown. It looks like a gamble and in a gamble one party stands to lose and one party stands to gain. The buyer takes the risk and undertakes to pay the price of the non-existent goods. The seller undertakes to produce and deliver the crop come rain come shine. So there is no winner and no loser. If the goods do not get produced on that piece of land, the seller is bound to deliver and he might have to go out and buy the goods elsewhere because he must deliver. The buyer by undertaking to pay 1000 still has to pay 1000 even if the crop price was to drop to 200 per bag because he has undertaken to do the same.
It is a risk by both parties, the seller undertaking the risk that the goods might never be produced and the buyer taking the risk that the price might depreciate in the meantime.
There are 3 categories of goods
Existing goods – goods that actually exist when the contract is entered into, future goods - goods yet to be produced or grown and don’t necessarily exist and are not in the possession of the seller and A spes- here each party chances or gambles