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referred to a standard by which it may be *ascertained, without [*19]
further negociation between the parties. So it may be referred to the list of current prices in the market on a particular day; or the award of an umpire; or the opinion of a broker or other person of skill. This is law in all commercial countries.(6)
The price may be either a sum for the whole subject sold, or rateably at so much per ton, or pipe, or hogshead, or quarter of grain ; and then the only question that can be raised will relate either to the denomination of money specified, or to the rate of exchange between one country and another, or to the measurement of the goods to which the stipulated rate of payment is applicable ; but the degree of uncertainty depending on these circumstances does not unfix the price, or enable the party to withdraw from the contract.(C)
But although the general rule be that the price must be fixed, and that the parties will not be bound, if it be not so, yet, where the contract has been conclusively settled by delivery of the goods sold, the parties will be presumed in law to have had in contemplation the reasonable value of the thing sold. This has been held in England, and he who has got the goods into his possession is not allowed to keep them without payment of that reasonable value. (d). Tindal, Chief-Justice, after having laid it down that a contract for the sale of a commodity, in which the price is left uncertain, is in law a
contract for what the goods shall be found to be *reasonably worth, [ *20]
and referring to Blackstone, Book ii. chap. 30, p. 433, for the doctrine of implied agreement, adds, “ What is implied in law is as strong to bind the parties as if it were under their hand. This is a contract in which the parties are silent as to price, and therefore leave it to the law to ascertain what the commodity contracted for is reasonably worth."
In Scotland, also, it has been held, that where nothing has been said as to the price in a sale conclusively settled between the parties, merchants are presumed to contract according to the current prices of the country.(e)
The biddings at an auction fix the price, provided no unfair means be taken to enhance it on the one hand, or to depress it on the other.
Where the price is fixed by the parties, but the term of payment left uncertain, it is presumed to be a ready money bargain; for although the custom of trade may allow a credit in that particular commodity, that always proceeds on the supposition of the seller's reliance on the solvency of the buyer, and to admit such credit without express agreement would be to imply the seller's consent to trust to the solvency of the buyer. Accordingly, in England it has been settled, “ If a man agree for goods at such a price, the bargain shall be void, if the money be not paid immediately.”(f) And Blackstone says, “ It is no sale without payment, unless the contrary be expressly agreed.”(8)
(b) 2 Pardessus, p. 283, No. 275, et seq.; 1 Stair, 14, 1; 3 Ersk. 3, 4; 2 Kent, Com. 477; 2 Blacks. 446; Pothier Cont. de Vente, No. 24.
(c) Graham v. Jackson, 1811 ; 14 East, 498. (d) Acebal v. Levy; 10 Bing. 382; Hoadly v. M'Laine, 1834; 10 Bing. 482 ; 1 Bell's Illus. p. 95.
(e) Leslie v. Miller, 27th January, 1714; Mor. 14197; 1 Bell's Illus. p. 95. (f) Comyn's Dig. " Agreement;" B. 3.
(g) 2 Blacks. 447. Mason v. Lickbarrow; 1 Hen. Blackst. 363. Morton 6. Lamb, 1797; 7 T. Rep. 125; 1 Bell's Illus. p. 96; Rawson v. Johnson, 1801; 1 East, 203; 1
Bell's Illus. p. 96.
*In Scotland the same rule has been recognised in a case(h) where a quantity of malt having been sold at so much per boll, it (* 21 ] was held to be the rule, that the sale was for ready money, unless it could be proved that credit was given.
2d, As the price must be certain, so it must be just and reasonable, not merely nominal; for then, instead of sale, the dealing between the parties would be of the nature of donation, the effect of which would depend on other principles. But although this be law, as in a question with creditors or third parties, yet between the parties themselves or their representatives, such a price as the seller has declared himself satisfied to receive for his goods will be sufficient. “Every price” (says Erskine, and the principle seems to be applicable in all countries as well as in Scotland,) " which the parties have agreed upon, is in the judgment of the law just, if they have not been drawn into the contract by fraud or deceit.”(*) This is law in England and America, (k) as well as in France, Scotland, and Holland.
As to the conditions sometimes annexed to the payment of the price, relative either to the term of credit or the description of bill, see below, - Of Express Conditions," p. 110.
II. The Subject.
The most important requisite in sale is, that it shall be a lawful subject of traffic.
Whatever may be the true principle of legislation as to interference in the free traffic of commodities, there can *be no doubt that each independent State has full power to impose such duties as may be
[ *22] required for its revenue, or such prohibitions or impediments as may be thought necessary for the protection of particular branches of trade or industry. The breach of all such regulations is unlawful, and no contract for the accomplishment of such breach of the law is a legitimate ground of action. The principle on which the administration of justice in such cases is regulated is, that no court shall lend its aid to an action grounded on an illegal contract, and the maxim of law laid down for such cases is Potior est conditio possidentis vel defendentis.
Two branches in this department of national policy may be distinguished; one including the regulations of the duties of customs on exportation and importation; the other relating to the war policy of the country.
SMUGGLING CONTRACTS.—In Great Britain many rules relative to importation and exportation duties have been established, the breach of which is smuggling or contraband trade.(1)
The result of all the cases on this subject seems to be,
(1.) That no contract for importing or exporting goods in order to defeat the revenue laws, can be enforced, whether the person so acting be a native or a foreigner.
(2.) That the mere sale by a merchant abroad, whether a native of this country or a foreigner, of goods which the buyer afterwards smuggles into
(h) Arnott v. Watt, 12th May, 1825; 4 S. 4; 1 Bell's Illus. p. 105. (i) 3 Ersk. 3, 4.
(k) 2 Kent, 476. (1) 6th Geo. IV., c. 107 and 108; 3d and 4th Will. IV., c. 52, 53. 56; and 4th and 5th Will. IV., c. 89. See also 5th and 6th Vict., c. 47.
(*23 ] the seller.(m)
this country, *is not illegal, nor is action denied upon the contract to
(3.) That every one participant in the attempt to evade the revenue laws, by furnishing the means of facilitating the intention to smuggle, is to be held a party to the illegal contract, and action is denied to him.(n)
(4.) That in the balancing of evidence, the circumstance of the seller being a native gives a bias against him.(0)
(5.) That, on a sale of goods prohibited to be imported, or known to be smuggled, action will not be sustained for the price on the one hand, or for the delivery of the goods on the other.(P)
(6). That the purchase in bona fide of goods not prohibited, but which have been smuggled, is effectual.(9)
CONTRACTS INCONSISTENT WITH War Policy.—The general principle which, according to the approved doctrines of international law, regulates
the whole of this * department, is, that war is an instrument of na[ *24]
tional policy under the guidance of the governing power of the State for the attainment of public good, and that on no pretence of distress or annoyance to individuals can this course of policy be interrupted. All traffic between the traders of the belligerent countries is forbidden, and no contract, therefore, which counteracts this course of national policy can be sustained as a ground of action ; and ships, and goods found engaged in traffic with the enemy, are forfeited, as the best and most natural
repressing the attempts of speculators in such traffic. These principles are recognised in Great Britain, France and America.
The administration of this department of jurisprudence by Lord Stowell is illustrated in the series of reports cited below ;(r) and the principles now stated prevail throughout the whole series, and have been almost universally approved of in commercial nations.(8)
But it is not merely on a contract made during war with the belligerent country that action is refused. Even where the contract has been made during peace, war intervening before the action has been brought, suspends the demand for the price, or for the goods till the return of peace, on the principle that without express license of the government the hand of the enemy is not to be strengthened by funds derived from the belligerent country.(1)
*But although there can be no legitimate traffic between the tra
ders of the belligerent countries without express license by govern(m) Hollman v. Johnston, 1775; Cowper, 341; 1 Bell's Illus. p. 69. Cullen and Co. v. Phillips, May, 15, 1793; Mor. 9554; 1 Bell's Illus. p. 68.
(n) Clugas v. Penaluna, 4 T. Rep. 466; 1 Bell's Illus. p. 70; Waymell v. Reed, 5 T. Rep. 599. MacClure & M'Cree v. Paterson, Nov. 3, 1775; and Feb. 26, 1778; Mor. 9546 ; 5 Br. Sup. 532; 1 Bell's Illus. p. 67. Stoddart v. M‘Queen, Jan. 28, 1779; 5 Br. Sup. 533; 1 Bell's Illus. p. 68. Nisbett's Creditors v. Robertson, Jan. 1791; Mor. 9554 ; Bell's Cases, 349; 1 Bell's Illus. p. 68.
(0) Cantly v. Robertson, Feb. 11, 1790 ; Mor. 9550; 1 Bell's Illus. p. 68.
(p) Scougal v. Gilchrist, Nov. 16, 1736; Mor. 9536; 1 Bell's Illus. p. 67. Biggs v. Lawrence, 3 T. Rep. 454; 1 Bell's Illus. p. 69.
(9) MʻLean v. Sword, Dec. 5, 1788; Mor. 9549; 1 Bell's Illus. p. 67. (r) Robinson's Admiralty Reports, 1798-1808; Edwards, 1808.1811; Dodson, 18111822.
(8) 3 Vattel, 5, sec. 70; 2 Stair, 2; 1 Kent, Com. 55. (t) In America this maxim has been carried a great deal further, an immediate confiscation of all property or debts belonging or owing to subjects of a country at war with the United States has been judicially sanctioned by the American Courts of Law, leaving redress to be obtained from Congress, according to its discretion in the circumstances. Brown v. The United States, 8 Čranch, 110. Ware v. Hyton ; 3 Dallas, 199; 1 Kent, Com. 56.
ment, there is no hindrance to the trade of neutrals with either belligerent, or even between the belligerent countries.(u)
The prohibition of direct trade between the belligerents may be removed by license. The granting of such license is an act of the supreme power of government, according to the discretion or views of policy which it may entertain. In all former wars, licenses granted by the government of Great Britain were interpreted very strictly by the Court of Admiralty, but in the extraordinary state in which Europe remained for some time during the reign of Napoleon, Government granted licenses more freely, and the judicial construction of them was greatly relaxed in strictness.(v)
Assuming that there is no illegality in the transaction, and referring to the distinctions which have been already noticed generally,(w) we shall now inquire into them more particularly.
1. Sale of a Specific Subject.—Both by the Roman law, and that of every modern nation, if the parties have bargained for the sale of a commodity, supposed to exist at the time, but which has perished, *the contract is void; as where a sale is made of a quantity of sugar, or of corn,
[ *26] warehoused in a certain place, and the corn or sugar has been consumed by fire some days before the sale.(x)
But there may be a sale of a contingency, of that which by possibility the seller may acquire,—as by the cast of a net, or by a fishing or Greenland voyage. Here it is not the commodity, but the spes, which is the subject of the bargain.(y) The goodwill of a shop, tavern, &c. has, in England, been held a legitimate subject of sale ; and even a confidential employment of law-agent has been so held.(2)
The peculiar view which has in England and America been taken of sale, as an immediate transmutation of the subject of it, has led to a remarkable difference of doctrine as to the sale of things not in the power or possession of the seller at the time.
In those systems of law in which the distinction is preserved between sale as a transference, and sale as a contract, it is held that even a thing which belongs to another may be the subject of sale. In the civil law, the former law of France, the law of Holland, and that of Scotland, such sale is held effectual as a contract, binding the seller to acquire the thing bargained for, and make it good to the buyer, in fulfilment of his contract, or to pay damages for any loss sustained by the failure.(a)
In England and America, and in modern France, *sale, being not a contract merely, but a transmutation of the subject, cannot take place
[ *27] as to property not belonging to the seller at the time.() As to France, this doctrine must be taken with some qualification, in so far as applicable to
(u) 3 Vattel, 4, sec. 63; 1 Emerigon, 567.
(v) See the administration of this department well explained and illustrated in the Goede Hoop, Edw. Ad. Rep. 327.
(w) Ante, p. 10, et seq. (x) 18 Dig. t. 1, 1. 57: Pothier, Cont.de Vente, No. 4. See also Hitchcock v. Giddings, 4 Price's Rep. 135 ; 2 Kent, Com. 468.
(y) Pothier, Con. de Vente, No. 5; 3 Ersk. 3, § 3. (z) Bunn v. Guy, 1803; 4 East, 190.
(a) 18 Dig. tit 1, 1. 57; Pothier, 'Tr. de Vente, No. 7, and Tr. des Oblig. No. 138; 1 Stair, 10. 13 (Thirdly.)
(b) Code Civil, No. 1599 ; Duvergier, vol. 16, p. 205, et seq.; 2 Kent, Com. 468.
goods and merchandise; even as respects immovable property, the contract is null as as a transference, but it still exists as an obligation entitling the buyer to damages ;(c) as to merchandise which can be purchased in the market, the seller is held bound to fulfil the contract.(d)
2. Sale of a quantity to be taken from a larger.-In the sale of articles indefinitely to be taken from a heap, the effect is very different from that which attends the sale of a specific and identified subject. In this case, the property does not pass either according to the law of England, America, or France: nor is the risk on the buyer according to the law of Scotland and Holland. The questions which may naturally arise, will depend upon the criterion by which the subject is to be identified, and made specific to the buyer, and the time at which this change will take place.
The identity is in general proved by a sample taken from the heap, and sealed up, to be opened at the time of delivery; where the quantity from which a part is to be taken is not thus identified, but assurance given of a certain quality of goods, samples are sometimes drawn and delivered to the buyer, not to prove the identity of the bulk when delivered, but to serve as a test of the quality of the goods intended to be purchased.
*The ascertainment of the subject, so as to complete the contract [ *28]
and change the risk or pass the property, as if the bargain had been originally for a specific subject, is accomplished by the separation and setting apart of the subject for the buyer, with notice to him that it is so set apart. Where the portion is to be separated from a heap, cargo, or larger quantity,
as a number of quarters from the corn in a granary; or the measuring out of a liquid ; or of a portion from a web of manufactured cloth ; or the weighing of the proposed quantity of goods sold by weight,—this operation is materially affected by the laws relative to weights and measures, which of late years
have been in Great Britain placed on a new footing. By the 5th Geo. IV., c. 74, § 15, and 6th Geo. IV. c. 12, it was enacted, that after the 1st January, 1826, work to be done, or goods, wares, merchandise, or other things to be sold by weight or measure, where no special agreement was made to the contrary, should be held to be according to the standards ascertained by that act ; and that where any special agreement was made with reference to any weight or measure established by local custom, the rate or proportion which such local weight or measure should bear to the standard should be expressed, declared and specified in the agreement, otherwise it should be null and void. Under this act great negligence was committed in preparing standard weights and measures, and much looseness of proceeding and consequent litigation arose under the permission to use the old standard, provided the ratio were stated. A new act was therefore passed, 5th and 6th Wm. IV. c, 63, repealing the former acts, and introducing new provisions ; and, [ 29 ] (1.) *Provisions are made for verifying and adjusting the standard
. (2.) The Winchester bushel, Scotch ell, and all other local and customary measures, are abolished.
(3.) Heaped measures are abolished, as liable to great variations. (4.) The stone weight is regulated at fourteen standard pounds avoirdupois ;
(c) Duvergier ut supra, No. 217.
(d) Code Civ. No. 1617; 16 Duvergier, 271.