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THE NATURE AND EFFECT, IN GENERAL, OF THE CONTRACT OF SALE, AS RECOG
NISED IN DIFFERENT COUNTRIES.
The term Sale, in a large sense, includes every agreement for the transferring of ownership ; whether immediate and direct, or to be completed afterwards. But the effect of the contract is different in these several circumstances.
By the Roman law, which at one time was almost universally followed in Europe, sale was not an immediate transmutation of property, but simply a contract of mutual and personal engagements for the transference of the thing on the one hand, and the payment of the price on the other, without regard to the time of performance on either part ; that being left to be regulated by the agreement of the parties, the seller being bound to deliver the thing in property to the buyer at the time and in the circumstances agreed on,—the buyer to pay the price in the manner settled between them..
The distinction was carefully observed in that system between the direct right of property (jus in re) conferred by delivery and possession of the thing sold, and the indirect right (jus ad rem) to demand of the seller delivery of the thing sold. There thus arose from the contract, while the thing sold was undelivered and the price unpaid, the double relation of debtor and creditor *—the seller being debtor, and the buyer creditor, for delivery ; the buyer debtor, and the seller creditor, for the price. Corresponding with these respective obligations, the contract afforded two actions, both personal and direct, as counterparts of each other; the one for payment of the price, the other for delivery of the thing; the claim for the price being absolute on delivery, or tender of the thing ; the demand for delivery being conditional-provided the thing had not in the mean time perished without fault of the seller.
According to this view, the principles and practical effects of the law of sale were correctly applicable to all possible circumstances in which goods were to be transferred,—whether the parties were dealing for the transference of a thing present, and at the disposal of the seller; or for a commodity to be measured or weighed out from the seller's warehouse ; or for supplies to be collected and delivered in future; or for an article to be manufactured and delivered at a day. In all these cases the contract was effectual, and the respective engagements of the parties were competent to be enforced specifically by counter-actions on the part of the seller, or of the buyer.
This regular system, on which the law of the contract of sale was settled in Roman jurisprudence, continued to prevail in all European nations who adopted the principles of the Roman law.
In France, previous to the Code Napoleon, the law is so laid down by Pothier.(a) Sale he defines as a contract by which “ the seller engages to the other that he shall give to him, with an unquestionable title of property, the
(a) Tr. du Contrat de Vente, Nos. 1 & 68.
thing bargained for, for a certain price in *money, which the buyer
dengages reciprocally to pay.” He afterwards says,—~ The contract is executed on the part of the seller, by tradition or delivery of the thing sold,” and “ the effect of the tradition is to pass into the person of the buyer the property of the thing sold, provided he has paid the price, or credit has been given for it.”(6)
In Holland, on the same principle, sale was held formerly as a personal contract, completed by consent, but until delivery of the thing sold, the property remained untransferred with the seller, the buyer having only a personal action to compel the transference.(C)
In Scotland, the law is precisely the same. Lord Stair says - These contracts of permutation, or barter and sale, agree in this, that both are perfected according to law and our custom, by sole consent, naked pactions being now efficacious; and though neither of the things exchanged be delivered, the agreement is valid.” Again, he says,— Sale being perfected, and the thing delivered, the property 'thereof becomes the buyer's, if it was the seller's.”(d) Erskine says,—Though the contract is entered into and perfected with a view of transferring the property to the buyer, it is not actually transferred, but remains with the seller or vender till the delivery of the subject.”(e) · Great deviations from this system (which regarded sale in all circumstances as a personal contract) have been made in England, America, modern France, and Holland. Sale, when relative to things in the seller's possession
10 and ready for delivery, is held to be itself a *transference or trans
*mutation of the property, not a personal contract merely; while an executory sale (that is, a sale to be completed at some future time, as a mere contract, is effectual to raise the counter obligations of delivery and of payment at the terms agreed on, the subject being afterwards procured or prepared, or manufactured for the occasion.
Blackstone defines sale as “ a transmutation of property from one man to another in consideration of some price or recompence in value.”(f)
In America the same law is adopted.(g)
In France, under the Code Civile,(h) the property is passed in law by the completion of the contract between the parties.
In Holland the doctrine, as adopted under the later French law, was followed, and does not seem to be altered by the modern Code de Commerce de Hollande.
The deviation thus introduced from the regular system of Roman jurisprudence has thrown into some confusion the doctrine of sale, and occasioned a degree of obscurity in the very use of terms. To those who have been accustomed to the writings of the Civilians, or of older French, or of Dutch,
(6) Pothier Tr. Cont. de Vente, Nos. 312 & 318. (c) Van der Linden, b. i. c. 15, $ 9.
(d) 1 Stair, 14, 1. (e) Ersk. 3, 2.
f) 2 Blackst. 446. I do not find in the works of English Lawyers any explanation of the grounds of their departure from the system of the Roman law in this matter. It may have arisen from the separation of the jurisdiction in law and equity, the Common Law Courts having no machiney by which to enforce specific performance of obligations under the action of assumpsit, and being induced to bring the seller's engagement within the reach of an action of trover by fixing the property to have passed by the mere contract. (g) 2 Kent, Com. 492,
(h) Code Civile, $ 1583.
or Scottish Jurists, it is a *startling proposition to read in an English-* law-book that a bargain for the purchase of goods expected by a cer- L tain ship is no sale. The English lawyer, accustomed to understand as sale only the immediate transmutation of a specific article, is startled in his turn when he reads in a Scotch law-book that a sale may take place of the things not yet prepared or collected by the seller—the produce of a fishing voyage, or the cast of a net.
And yet this deviation is not productive of any essential practical consequence except in two respects.
1. The effect of the obligation by the seller to deliver the specific thing sold, is, according to the law of personal obligations in Scotland, to throw the risk of the thing perishing without the seller's fault, on the buyer; and so is precisely the same with the effect which, in the English law and other laws mentioned, is produced by the fiction, that the property is vested in the buyer though still in the possession of the seller. But an important point of difference is this, that on the bankruptcy of the seller with the thing still in his possession, his creditors, by the English system of law, have only a lien for the unpaid price, the property being held as already transferred to the buyer; while, in the Scottish, the creditors are entitled to consider the property as still untransferred from the seller, leaving the buyer to claim as a personal creditor for the price, if paid or settled by a bill discounted, or for damages for nondelivery. This is an unhappy and unjust consequence of the general principle of the Scottish law, against which a man can guard himself only by vigilance and precaution ; and it has seemed sufficient to the legislators of France, America, and Holland, to make them adopt the anomalous rule of *English law belonging to a system of jurispru- -*1 dence different from their own.
2. The other remarkable difference is this, that in England and America, though the thing be still in the possession of the seller, yet the property being passed, the remedy of the buyer, in case it shall be found, on coming to his possession, not to answer to the implied or express warranty, is only to claim indemnification for the difference in value of the thing purchased : But in Scotland, the property not being passed, and the parties remaining still under the obligations of the personal contract, the buyer is entitled to reject the thing if it do not answer to the warranty, as not being that which the seller is under an obligation to deliver. .
In the inquiry into the difference thus observable in different countries, it will be proper to consider the several cases of sale, 1. Where certain specific goods are ready for delivery; 2. Where something still remains to be done, as weighing or measuring ; 3. Where the agreement is prospective, as relative to goods to be, afterwards collected and furnished ; and, 4. Where the thing to be transferred is to be manufactured, or otherwise prepared for the purchaser.
1. Sale of specific goods ready for delivery.-From what has been already explained, the doctrine, according to the law of all the countries referred to, applicable to a sale where goods ready for delivery are intended to be immediately transferred to the buyer, may be laid down in the following propositions :
ist. Where the parties are conclusively agreed, the one to sell, the other to buy, and delivery accordingly is made, the property is passed : as when
one enters the *shop of a jeweller and buys, pays for, and carries off
[ *15 ) a ring.
2d. Where delivery is not made, but at the request of the buyer, or for the convenience of the parties, the thing sold is left with the buyer, the property is, in England, America, France, and Holland, passed ; and the seller is a mere custodier for the buyer, with a lien for the price, the buyer having his remedy by assumpsit for damages, if the thing does not answer to the warranty. But in Scotland the real right of property is with the seller till delivery, and the buyer has only a personal right, or jus ad rem specificam, entitling him to an action for delivery, and to refuse acceptance of the thing does not answer to the warranty; and, on the other hand (there being nothing but an obligation on the seller to delivery) the risk is with the buyer, if, by accident, the thing perish before delivery.
2. Sale of a quantity of goods to be separated from a mass.-Where a bargain is made for a quantity of goods to be separated from a general mass, as for 100 quarters of grain to be delivered from a larger quantity in the seller's granary, this is a proper contract of sale in Scotland. But in England it is not sale,—it is merely an agreement which will ground a personal action of assumpsit.
In Scotland, the jus ad rem specificam is not conferred, and, of course, the risk remains with the seller.(i) In England, neither the property nor the risk is transferred, while any thing remains to be done by the seller,(k) and
*no direct action of trover for the goods, as if transferred, can be [*16] maintained by the buyer.
Where, under such an agreement, the separation of the goods for the buyer is made, and notice given of it, the sale is complete, as of a definite subject; and the risk is then passed, both in Scotland and England ; but in the latter the property is vested in the buyer--the right of possession being still with the seller.(1)
The law of America agrees in these respects with the law of England. (m)
3. Sale of goods to be collected and furnished.-Where the contract is for goods to be collected and furnished to the buyer, it is not in England regarded as a sale, nor is there any transmutation of property or risk even after the articles engaged to be provided are collected, and in the contractor's possession. Neither is there in Scotland any jus ad rem specificam, or change of risk, where the goods are collected but still undelivered. Thus, a contract for supplying a regiment, or an hospital, with provisions, is a good contract of sale, according to the sense of the Scottish law, the counterparts of the contract being quite consistent with the recognised principles of sale both in the Roman and in the Scottish law. But it does not accord with the notion
y of sale in England, and no action would lie on such a contract if [*17
* *the seller had not the goods at the time, but intended to go into
(0) 3 Ersk. 3, 7.
(k) Hanson v. Meyer, 6 East, 614; 1 Bell's Illus, p. 90; Simmons v. Swift, 5 Barn. and Cress. 857; 1 Bell's Illus. p. 90..
(1) Rhode v, Thwaites, 6 Barn, and Cress. 392. I should be inclined to doubt whether the words reported to have been used by Mr. Justice Bayley in that case were really used by him. May they not be regarded as too absolute, that “as soon as the seller appropriates part for the benefit of the vendee, the property of the article sold passes to the ven. dee.” Is it not necessary that he should also send notice of such appropriation ? In the case in which the judgment was given, such notice was sent and acquiesced in.
(m) 2 Kent, Com. 491, et seq.
the market and buy them.(n) The same rule seems to be held in America.(0)
4. Sale of goods to be manufactured or prepared.—Where one bargains with a manufacturer for the making and delivering of certain goods, to be ready at a certain term, this is another kind of agreement, combining the obligations of a contract of sale with those of the contract of locatio operis. Here the appropriation does not take place by the commencement or progress of the work, so as, in England or Scotland, to pass either property or risk ; and the consequence in England is, that the property not being passed as in proper sale, the buyer has it in his power to reject the thing when proffered for delivery, if it do not answer to the order given, and is not compelled to be satisfied with a claim of indemnification for the difference of value.
But a case has occurred in which special acts of appropriation have had the effect, in both countries, of a proper sale in passing the property. In a case of ship-building, where the carpenter was to receive instalments of the price at appointed stages of the work, one at laying the keel, another at planking to the top of the gunwale, and certain instalments had been paid when a bankruptcy of the carpenter occurred, the property was held as passed by the appropriation of the parts paid for.(P)
It is indispensable to the contract of sale that there shall be, 1st, a price in money to be paid by the buyer to the seller; and, 2d, a legitimate commodity to be sold by the one party, and purchased by the other. In these respects there is little difference in the laws of the several commercial nations, -England, Scotland, America, France, and Holland. ,
In the requisite of a money price, the proper contract of sale is distinguishable from barter or exchange in which one commodity is given for another. But in no other respect is this distinction of any practical importance.
The price is an essential part of the contract; and in price lawyers have distinguished two requisites, 1st, that it shall be certain, or at least capable of being immediately ascertained ; and, 2d, that it shall not be illusory.
1st, The price must either be fixed, as a certain sum of money,(a) or
(n) Bryan v. Lewis ; Ryan and Moody, 386; 1 Bell's Illus. p. 113.
) 2 Kent, Com. 468, foot-note. (0) Simpson v. Duncanson, 2d Aug. 1786 ; Mor. 14204; 1 Bell's Illus, p. 384. Woods v. Russel, 1822; 5 Barn. & Ald. 942; 1 Bell's Illus. p. 385.
(a) See for England, Elmore v. Kingcote; 5 Barn, and Cress. 583. For Scotland, 1 Stair, 14, 1; and 3 Ersk, 3, 4. For America, 2 Kent, Comm. 477. For France, Pothier Tr. de Vente, No. 18; Davergier (continuation of Toullier), vol. xvi. p. 167 ; Pardessus, Cours de Droit Commercial, vol. ii, p. 280, No. 273.