CHAPTER V. EXCHANGE. As many of the principles which govern the contract of sale and purchase are equally applicable to that of exchange, these two contracts, notwithstanding some particulars in which they are essentially distinguished, are usually considered in connection with each other. The civil law also regarded partition as a species of sale. "Divisionem prædiorum vicem emptionis obtinere placuit. (a) From the mode in which it takes place, under certain codes, when the joint owners are either unable or unwilling to effect it by amicable agreement, it becomes subject to many of the rules which govern sales by auction and by judicial sentence. judicial sentence. It is proposed therefore in the following chapter to treat of exchange and partition. (a) Cod. lib. 3, tit. 38, 1. 1. SECTION I. EXCHANGE. In what respect distinguished from sale.-Mere consent to exchange not followed by delivery, or secured by stipulation, did not by the civil law give a right of action.-This doctrine not adopted by the law of Holland, Spain, France, England, or Scotland.-If the one party cannot give a valid title, the other may refuse to proceed with the contract.-Enormis lasio would be a ground for rescinding it by the civil law, and other codes founded on it, but not by the Code Civil.-Exchange by the law of England. The Colonies.-United States.-Scotland. EXCHANGE is described as an innominate contract in which datur res, ut vicissim res detur. (a) Sale is a nominate contract, in which pecunia datur, ut res recipiatur. The sale was perfect when the consent of the parties to it had been given, and each might be compelled to perform his part of the contract. But the consent of the parties to an exchange, if it were not followed by one of the parties delivering the subject, unless it were secured by a stipulation, did not give a right of action to either party. "Ex placito permutationis, nullâ re secutâ, constat nemini actionem competere; nisi stipulatio subjecta, ex verborum obligatione quæsierit partibus actionem." (b) This strictness of the civil law in not recognizing the mere consent to exchange, has not been followed by the law of Holland. Quin et ex conventione de re dandà ut vicissim res alia detur, efficacem dare actionem, (a) Perez. ad Cod. lib. 4, tit. 64, n. 1. (b) Cod. lib. 4, tit. 64, 1. 3. etsi necdum ex alterutro latere traditio intercesserit, dum ex nudis etiam pactis actiones hodie nasci constat." (a) Neither was it adopted by the law of France. “Parmi nous, la convention d'échange, dès avant qu'elle ait reçu aucune exécution, et aussitôt que le consentement des parties est intervenu, produit de part et d'autre une obligation civile, et elle est un contrat consensuel, de même que le contrat de vente." (b) The Code Civil has expressly declared that, "l'échange s'opère par le seul consentement, de la même manière que la vente." (c) It also was the foundation of an action by the law of Spain. (d) When the one party had delivered his property, the civil law and the codes founded on it gave him that which is termed an innominate action. The contract derived its effect, and gave to the party a right to compel its performance, not upon the mere consent alone, but on the delivery of his property to the person with whom he had entered into the contract. "Permutatio ex re traditâ initium obligationi præbet." (e) By the law of England (f) and Scotland, the contract of exchange is fully perfected by consent alone, without any interventus rei. (g) It has been seen that by the civil law, the sale was perfect although the vendor had not a title to the property which he sold. His obligation was to deliver the possession, "ut rem emptori habere liceat, non etiam ut ejus faciat," An exchange, however, was null, unless the party had a valid title to the property which he de (a) Van Leeuwen, Cens. For. part 1, lib. 4, c. 13, n. 7, in fine. Voet, lib. 19, tit. 4, n. 3. (b) Pothier, Tr. du Cont. de Vente, part 7, n. 622. (c) Art. 1703. (d) Nov. Recop. lib. 10, tit. 1, 1. 1. Febrero, lib. 2, tit. 4, c. 15. (e) Dig. lib. 19, tit. 4, § 2. (g) Ersk. b. 3, tit. 3, § 2, 13. (f) 4 Cruise's Dig. 81. livered to the person with whom he contracted. "Ut permutationis contractus perficiatur, non sufficit ut ex alterâ parte nuda rei traditio facta sit. Oportet ut hujus rei dominium translatum sit.” "Ideoque Pedius ait alienam rem dantem, nullam contrahere permutationem." (a) When, therefore, the party who has received the property discovers that it does not belong to him from whom he received it, although he may not have been disturbed in his possession, yet it is competent for him to withhold the property which he was to deliver in exchange. (b) In all other respects, the rules by which sales are governed are applicable to exchange. (c) The property which the one is to deliver in exchange to the other is at the risk of the latter, in the same manner as if he had sold it. (c) The rescission of the contract, on account of enormis læsio, was, by the civil law, admitted in exchange, as well as in sale. (d) The Code Civil expressly declares that it shall not take place. "La recision pour cause de lésion n'a pas lieu dans le contrat d'échange." (e) According to the doctrine of the law of England, an exchange is a mutual grant of equal interests, the one in consideration of the other. "As if," says Littleton, there be two men, and each of them is seised of one quantity of land in one county, and the one granteth his land to the other, in exchange for the one which the other hath; and in like manner, the other granteth his land to the first grantor, in exchange for the land which the first grantor hath." (ƒ) (a) Pothier, ad Pand. lib. 19, tit. 4, § 3. Dig. lib. 19, tit. 4, § 3. (b) Pothier, Tr. du Cont. de Vente, p. 5, n. 622. Voet, lib. 19, tit. 4, n. 2. Code Civil, art. 1704, 1707. (c) Ib. (d) Rebuffe, in Tract. de Rescind. Contr. Art. Unic. Gloss. 15, n. 9. Arrêt du Parlement de Toulouse, Dec. 10th, 1595. Despeisses, part 1, tit. 12, § 7. Répertoire de Jurisprudence v. Echange, § 4. in note 2, p. 521, 522. (f) Co. Litt. 51, a. (e) Art. 1706. Duvergier, It is only necessary that there should be an equality in the quantity of the estates exchanged; as an estate in fee for an estate in fee; an estate for life for an estate for life; and not in the value, quality, or manner of the estate. An estate in joint-tenancy may be, therefore, exchanged for an estate in common. So lands may be exchanged for rents, commons, or any other inheritance concerning lands. An estate in reversion, expectant on an estate for life, may be given in exchange for land in possession. (a) An estate in tail may be exchanged for an estate in fee, which will continue good till avoided by the issue in tail. A base fee may be exchanged for an estate in fee simple. A man may give an estate for the life of the donee in exchange for an estate for another's life; since the estates are equal, both being estates of freehold. An estate for three lives may be given in exchange for an estate for one life, for both are estates of freehold, and so equal; and it has been stated that an exchange between a tenant in tail, after possibility of issue extinct, and a bare tenant for life, is good, for with respect to duration their estates were equal. (b) An exchange must still be executed by entry in the lifetime of the parties, for as livery of seisin is not necessary, the parties have no freehold in deed or in law in them, till entry. Therefore, if both the parties die before the entry of either, the exchange is void; for the heir of one cannot enter and take it as a purchaser, because he is named only to take it by way of limitation of estate, in course of descent. But if one enters, and the other dies before entry, his heir may enter. Since the statute of frauds, every exchange must be by deed in writing; and where an exchange is made by lease and release, containing mutual conveyances to the (a) Bustard's Case, 4 Rep. 122. (b) 4 Cruise's Dig. 81. VOL. II. X X |