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Cornell University
Library
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tine
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book
is in
restrictions in
text.
http://www.archive.org/details/cu31924022471134
^^^92T1" University
1650.C43 1894
irp
KD
^'''iiSiiiLiSli.aHS?* *"'
1893 :lncluding
THE
1893,
INCLUDING
THE FACTORS
.^
^'.
HIS
ey
LONDON:
FLEET STREET.
1894.
Library
Limited
134
LONDON
INTEODUCTION.
It
is difficult to
first
know whether
of the Sale of
It is a first edition
it is
a reproduction
my
alterations,
and
Now
position
is
The
reversed.
propositions
the
have become
sections in the Act, and the decided cases are only law
be none the
the Act.
far as the
law
is
to be reproduced in
still
in point as illustrations.
The
history of the
Act
is
as follows
The
Bill was
it in
by me
consultation with Lord Herschell, who kindly consented
originally drafted
in 1888.
I then settled
a 2
INTEODUGTION.
iv
to take charge of
it
in the
it.
criticisms
on
it.
proceeding with
it,
It
had
in
the
on
In the Lords
it.
Comby
criticised
friends,
and
memorandum
it
question arose as to
till
1892.
and extended
Lord Watson, who had
Professor
took an
it
It
was
Commons and
further amended.
E. Webster, Q.C.,
Solicitor-General),
Mr.
Some
of the
amendments
The
it
advice,
it
Exchange
its
its
intro-
return to
present form.
Bill.
On Lord Herschell's
So
far
as
England
is
INTRODUCTION.
These points
Roman
Scotch law
from English law mainly by adhering to the
law in matters where English law has developed
a rule of
its
own.
1855 reported on
this question,
Law Amendment
The
Acts of 1856.
was curious.
did not reproduce, the Scotch law, while other rules were
resembled, but
did
not
carried
It
is
may
accomplish
Legislation, too,
is
cheaper than
to alter
that.
common
litigation.
More-
stipulation.
Sale
is
down
clear
INTRODUCTION.
vi
no intention, or
As regards
expound or
failed to express
this
edition,
criticise
it.
for
I have only
of
Our
common law
and
is
law
is codified.
it is
founded.
is
of
the
Code
On
municipal law
is
its
I have also
made
Although published
more
it
than
is
still,
century ago
for
"
is
as
INTBOBVCTION.
of
justice
in this
vii
This
country."^
must
statement
it
only
is
Code Napoleon.
The references to the Civil Law need
comment.
little
and
There
it is
is
an
hardly
is
not
made
"
The Eoman
it
affords
if it
the
fruit of the
of
My task of reference
most of the countries of Europe."
facilitated
by Dr. Moyle's
much
been
has
this
edition
in
^
excellent
in the Civil
Law.
To
facilitate reference to
To the
list
of
M. D. Chalmers.
Birmingham,
1894.
'
Gox
Sank
V.
(1883),
Acton
V.
v.
Clydesdale
CONTENTS.
Introduction
....
PAGE
iii
XV
XXV
PAET
I,
....
SECT.
1. Sale
and agreement
to sell
Capacity of Parties.
2.
3.
Contract of
4.
5.
14
6.
17
7.
8.
Ascertainment of price
18
9.
Agreement
20
sell
how made
....
11
12
Subject-Matter of Contract.
after
agreement to
sell
18
The Price.
to sell at valuation
Conditions
and Warranties.
When
...
20
23
CONTENTS.
^"^^
SECT.
25
27
by
13. Sale
1^.
.'Sinla
description
15. Sale
oi caveat emptor.
fitness
by sample
28
...
32
PAET
II.
and Buyer.
36
when intended
to pass
20. Risk
^rimd/aae
Transfer of
21. Sale
22.
Title.
48
51
52
Market overt
23. Sale
under voidable
title
offender
37
38
44
46
...
PAET
53
54
55
55
III.
28.
Payment and
and buyer
....
wrong quantity
.....
57
58
59
62
63
64
66
66
CONTENTS.
XI
SECT.
PAGE
35. Acceptance
36.
37. Liability of
buyer
....
67
69
69
goods
PART
IV.
70
39.
71
73
Seller's Lien.
74
...
...
75
76
Stoppage in transitu.
44. Eight of stoppage in transitu
78
81
46.
How
stoppage in transitu
84
is effected
Re-sale hy
Buyer
or Seller.
....
by buyer
Sale not generally rescinded by lien or stoppage
PAET
in transitu
85
88
V.
Seller.
90
Damages
for
Remedies of
51.
Damages
Kemedy
54. Interest
the
Buyer.
93
for non-delivery
53.
92
non-acceptance
for breach of
and
special
warranty
damages
97
98
100
CONTENTS.
PAET
VI.
Supplementary.
PAGE
SECT.
a question of
58.
Auction
59.
Payment
by
fact
when breach
of warranty
107
107
108
109
116
116
117
60. Repeals
61. Savings
62. Interpretation of terms
Commencement
THE FACTORS
ACT, 1889
(52
&
53 Vict.
c.
118
119
123
128
131
45)
Preliminary (Definitions)
Dispositions
Dispositions
by mercantile agents
by sellers and buyers
Supplemental
Schedule of repeals
of goods
....
134
APPENDIX
2
&3
Phil.
31 Eliz.
29 Car.
9 Geo.
c.
& Mar.
c.
7 (Sale of Horses)
....
17 (Statute of Frauds)
2, c. 3, ss. 4,
s.
135
I. Statutes.
12 (Sale of Horses)
4, c. 14,
103
104
105
105
action
sales
alleged
63.
186
139
142
148
149
152
153
155
157
157
CONTENTS.
APPENDIX
xiii
II.Notes.
PAOE
Note A.
On
162
sale
and
Note C. Delivery to
judgments
carrier
and Blackburn
....
list
of terms and
of Lords
174
Cottenham
ISO
TABLE OF CASES
CITED.
A.
Acebal
v.
Acraman
Levy
Morrice
Aitkinson v. Maling
Alderson v. Maddison
Aldridge v. Johnson
Alewyn v. Pryor
v.
v.
Barnett,
164
40
175
4, 36,
Alexander
39
Barker v. Furlong
Barnard v. Faber
Barnes v. Toye
PAGE
18
Gardner
175, 176
Vanderzee
175
73
V. Cameron
98
V. Pink
22
Ancona v. Eogera
60, 156
Anderson v. Morioe
39, 46, 178
Andrews v. Belfleld
178
Anglo-Egyptian Navigation
Co. 0. Eennie
4
Angus V. MoLaohlan
78
Anthony v. Halstead
.
179
Appleby v. Myers
18
151
Argentina, The
177
Ashforth v. Redford
41
Atkinson v. Bell
V.
Allan
Allen
V.
Stein
..'...
....
...
.
....
...
....
....
...
....
Aze'mar
v.
Casella
Ex p.
...
...
...
Barr v. Gibson
Barrow, Ex p.
PAGE
100
171
9
51, 52
...
39
81
Arnaud
92, 94, 95
Bartholomew v. Markwiok
91
Bartlett v. Holmes
57, 176
V.
Bastin
v.
Bidwell
Batohelor
v.
Beaumont
V.
167
Vyse
49
41,141
.
Brengeri
Greathed
v.
91
6
Beckett v. Tower Assets Co.
Beer v. Walker
29,66
Behn v. Burness 23, 24, 98, 115, 173
53
Bentley v. Vilmont
Bergheim v. Blaenavon Iron
93
Co
Berndtson v. Strang
79, 82
Bethell v. Clark
79, 80, 81, 84
Beverley v. Lincoln Gas Co. 12, 40
105
Bexwell v. Christie
...
.
Nash
Biddlecombe v. Bond
Bianohi
v.
116
30, 32, 104
Bigge V. Parkinson
82
Bird V. Brown
142
Birkmyr v. Darnell
2,20
Bishop V. Shillito
156
Blandford, ^a; ^. .
74
Bloxam v. Morley
58, 69, 72, 74
V. Sanders .
Bolton V. Lancashire & York72, 77, 79, 81
shire Eailway Co.
Bonzi V. Stewart
Boone v. Byre
Borrowman v. Drayton
B.
Bagueley
Hawley
57
146
Bailey v. Sweeting
124
Baines v. Swainson
59
Baker v. Firminger
78, 144
Baldey v. Parker
58
Bankart v. Bowers
'.
45
Banner, Exp
Bannerman v. White 22, 24, 98, 173
151
Barber v. Meyerstein
v.
15,
...
...
.
....
82,83
127
167
27, 178
..
PAGE
Boswell
Boulton
Bourne
V.
Kilborn
V.
Jones
v.
Bright,
v.
Ex p.
Brinsmead
v.
Harrison
Bank
Bristol
....
....
Laurence
Wain ....
V.
Bridge
Seymour
Shand
Bowes V.
Brady v. Oastler
Brandt v. Bowlby
40
12
178
21, 27, 175
95
44
23, 175
100
39,
Midland
149
way Co.
Brown v. Byrne
11
Bryans
Hare
V.
MuUer
a Nix
12
177
Buokman v. Levi
Budd V. Fairmaner
.
Buddie
V.
Green
Parker .
V. Kobinson
Bunney v. Poyntz
Burdick v. Sewell
Busk V. Davis
Bussey v. Barnett
Bull
V.
115, 172
v.
Ex p.
Cockerell
58
121
& North
.
Aucompte
v.
100,179
69
58, 96
50, 120
65
42
20
160
17
65, 66
113
40
15
92,
144
68
Withers
41, 64
71,74
Speller
93
V.
Cbesterman v. Lamb
Chinery v. Viall .
City Bank v. Barrow
Clarke v. Hutchins
V. Spenoe
V. Westrope
Clayton v. Burtenshaw
Clifford V. Watts
Close,
V.
179
15, 57, 60
4
66
Rogers
Chapman v. Morton
Chaplin
Clough D. London
Western Ky. Co.
Cochrane v. Moore
22, 28,
Hopkins
v.
Eailway
Brogden v. Metropolitan Rail
V.
Chanter
52
37
63, 178
174, 177
.
4, 7,
Coddington v. Paleologo
Cole V. North Western Bank
50,
Ex
Collyer
v,
Colonial
p.
Ee Lees
Isaacs
Bank
v.
168
16
....
Whinney
48, 50,
112
Colonial Insurance Co. of New
Cooper,
Calcutta Co.
v.
De Mattes
38, 41,
v.
76,83
77
Couturier
50
116
32, 179
182
...
Sewell
Shepherd
8
Willomatt
48,97
Cornish v. Abington
.
9,12
Cort V. Ambergate Ey. Co.
92
Cory V. Thames Ironworks Co. 94, 96
Couston V. Chapman . 24, 35, 68,
Cammell
Exp.
B.Bill
V.
V.
98,
Hastie
...
105
17
Covas V. Bingham
178
Coventry v. Gladstone
81, 87
1).
Great Eastern
Eailway Co
9
Cowasjee v. Thompson
122, 177
Cox V. Todd
176
v.
TABLE OF OASES
Crane v. London Dock Co.
Cranston v. Marshall
Craven v. Eyder
Orawoour, Exp
Cross V. Eglin
Cundy v. Lindsay
48,
Cunliffe v. Harrison
PAGE
51
v.
V.
....
.
xvii
PAGE
Elmore
170
85
2
178
52, 53
62, 63
Cunningham, Be
121
Cusack V. Kobinaon
74, 78, 144
Cuthbert v. Cumming
178
Cutter V. Powell 58, 115, 167, 170
.
CITED.
Elphick
Kingsoote
Stone
18, 40,
Emanuel . Dane
Emmerson v. Heelis
Emmerton v. Matthews
.
60, 144
Barnes.
V.
145
46
4
105
32
...
Pairmaner v. Budd
Falk, Exp..
4
84,87
146
60
85
70
Farmeloe
Davis
Hedges
99
Dawson v. Collis
98
Derry v. Peek .
115, 116
Devaux v. Conolly
102
82
Dixon V. Baldwen.
.
62
.
V. Fletcher
V. Yates
36, 37, 39, 76, 85
Dodsley v. Varley
77,78
81
Dodson V. Wentworth
V.
Doe
V. Donston
Donald v. Suckling
49
113
8
Exp.
Drummond v. Van Ingen 29, 33, 104
167
Duke of St. Albans v. Shore
176
Duncan v. Topham
Drake,
Duncomhe
91
Brighton Club
Dunkirk Colliery Co. v. Lever 92,93
90
Danlop V. Grote
95
V. Higgins
v.
V.
Lambert
V.
Solomonson
64, 180
41,
64
E.
Eberle
Edan
v.
Jonas
Dudfleld
v.
....
....
.
Egerton . Mathews
Eichholz V. Bannister
Elbinger Action Gesellschafft
.
V.
Armstrong
Ellen
Ellis
Topp
Hunt
Thompson
...
V.
Fesaard v. Mugnier
Field V. Lelean
91
176
Fisohel v. Scott
175
Ford V. Yates .
59
Forsyth v. Jervis
4
Fragano v. Long
41,46
France v. Gaudet
97
Francis, Ex p.
81
Franklin v. Neate
113
Freeman v. Appleyard
112
V. Cooke
48
Freeth v. Burr.
64
Fuentes v. Montis
118, 124, 133
38, 39, 42
Furley v. Bates
12, 59, 75,
....
Gabarron
Gapp
145
25
Kreeft
v.
Bond
V.
Gibbes, ^a;j)
Gibson v. Carruthers
1).
Gillard
Holland
Brittan
v.
44
157
....
....
Gardiner v. Gray
Gardner v. Grout
Gattorno v. Adams
144
96, 100
V.
I).
Bain
v.
Wray
v.
....
....
Dutton
Feise
33
145
175
81
72, 79
145
.97
...
39
151
Gilmour
v.
Supple
Rose
23
60
Godts
59
Golding, Davis
V.
Godwin
v.
Francis
&
Co.,
176
Ex
p. 85,
87
OF GASES CITED.
TABLJ
XVlll
Goldshede
v.
Cottrell
v. Denton
Gordon v. Swan
Gore V. Gibson
GJompertz
PAQB
...
...
70
98
....
....
Gorrisaen
v.
Perrin
Greaves
v.
GrAert-Borgnis
v.
Nugent
69,
Baverstook
v.
105, 177
...
,
...
.
...
... 94
174, 176
... 16
Hadley v. Baxendale
Hale V. Bawson . 15,
Hallas V. Bobinson
Halliday v. Holgate
Hammond v.
Hanson
Bussey
Armitage
v.
V.
Hardman
Meyer
Booth
Hargreave v. Spink
Harman v. Beeve
Harnor v. Groves .
v.
Harris v, Niokerson
Harrison ti. Luke
Hart D.Mills .
Harvey, Exp.
Hastings v. Pearson
.
Hatfield
v.
Phillips
24,
113
65, 145
...
...
.
4,
.
39
130
51
13, 143, 144
22, 33, 68
106
4
62
3
120
125
.
52,
PACK
122
77
Heyworth
....
V.
v.
41
48
Wells
74
Kiohardson
Griffiths V. Perrv 70, 73, 74, 75, 77,
78, 79
Grigg v. National Guardian
157
Assurance Co
34, 69
Grimoldby v. "WeUs
6
Grissell v. Bristowe
Gunn V. Bolokow, Vaughan
&Oo
70,71,74,121
151
Gurney v. Behrend .
178
Gwillim V. Daniell
Grice
....
.
...
.
....
v.
Hutchinson
33, 34,
93, 96,
101
Green
Gregg
88
10
175, 177
...
...
...
Ashlin ...
...
v.
120
162, 164
Head v. TattersaU 6,42, 46, 68,179
Heilbutt V. Hiokson
2, 22, 24, 33,
34, 36, 39, 40, 67, 68, 98, 99, 171
Helby v. Matthews
130
Hellings v. Eussell
.
69, 120
Heywood'a Case
43
91
147
Lord Nugent
14
v. Musson
16
Grantham v. Hawley
.
23,24,92,175
Graves*. Legg
Gtoss V.
Graham
Laing
Hawes v. Watson
Hayman v. Flewker
Eaynes v. Haynes
Hathering
v. M'Morine
Haynes
Burton
Hibblewhite
Hickman
Higgons
v.
V.
14
95, 147
Kendal
& Co
v.
Marshall, Stevens
72, 80, 81, 82
Kennedy
v.
Panama Mail
Co.
12
Kiddell
Isherwood
& St.
.
Whitmore
v.
71
70, 178
67
...
...
Jackson
v. Allaway
James v. Griffin
Jay V. Eobinson
Jenkyns v. Brown
82,
....
V.
Jenner
Jewan
v.
Usborne
Smith
59
83
10
.113
71, 129
...
40
126
36,
"Whitworth .
.
Johnson v. Credit Lyonnais Co.
v.
98,
Bodgson
Lancashire
shire Ry. Co
v.
V.
Macdonald
Eaylton
V.
Stear
V.
Johnstone
Jonassohn
v.
v.
Be
Bowden
V.
Bright
V.
Gibbons
Gordon
146
97
175
30, 179
96
...
Marks ...
Young ...
V.
Jones,
& York7,
....
.
64
42
29
29,31,172
115
99
29
V.
145
V. Victoria Dock Co.
16
Joseph V. Lyons
27
Joaling V. Kingsford
.
19, 39, 41, 44
Joyce V. Swann
V.
V.
Just
Padgett
...
E.
Kaltenbaoh
v.
V.
Kemp
V.
Falk
Lewis
Mackenzie
.
126, 132
.
49
v.
Burnard
TABLE OF CASES
London & North 'Westem Ey.
....
....
...
....
....
Lucy Mouflet ....
Lunn Thornton ....
Lyons
Hoffnung
Lysney
Selby ....
Co.
81
Bartlett
V.
Lord V. Price
Lorymer v. Smith
Lucas V. Bristow
V. Dixon
88, 89
67
179
144, 145
68
15
V.
V.
v.
33,
80, 81
171
v.
CITED.
Be
Mody
33,34,104
99
Gregson
V.
Mondell
Monk
Longbottom
Macfarlane
Taylor
Maokay
179
33
25
....
Dick
11
Mackintosh v. Mitohison
.
Maclean v. Dunn
88, 93
126
Maonee v. Gorst
Maddison v. Alderson
14, 144
Mainprice v. Westley
105
.
Manders v. Williams
49
Marshall v. Green
112
Martin v. Eeid
49
Martindale v. Smith 20, 39, 70, 74, 88
Martineau v. Kitching
19, 46, 47
Marvin v. Wallace
.
.
144
M'Bain r. Wallace
38
v.
...
....
.
...
...
179
McConnell v. Murphy
.
63, 178
MoEwan v. Smith 61, 78, 85, 129
McLay v. Perry
178
Melrose v. Hastie
73
....
....
Merchant
Banking Co. a
Bessemer Steel
Phcenix
123
178
51, 136
75, 147
62
70
Moran v. Pitt
Morgan v. Bain
V. Gath
Moriaon v. Gray
.
Morley
Attenborougb 25 26,30
Leyison
v.
63,
Mortimer
Morton v.
V.
Bell
v.
178
113
106
58
Lamb
Tibbet
Moss V. Sweet
Moyce v. KTewington
40
Mullinger
v.
Murray
Mann
v.
51,53
113
98
Florence
.
Co
N.
Gilpin
Whittenbury
Moore v. Campbell
....
V.
McCoUin
V.
...
.
27, 30,
Steel
v.
Morritt, Be.
v.
pAGB
151
Morris
Maodonald
Navulshaw v. Brownrigg.
Neill V. Whitworth
New V. Swain
Newell V. Eadford.
.
176,
145, 146
...
Nichol V. Godts
Nicholson v. Bower
Noble
V.
Norman
"74
27, 35
145,
65,
62
147
145
Bradfleld Union
V.
Ward
v.
Phillips
124
177
v.
.
156
73, 76, 86
Meredith
Meigh
v.
65,
144
Oldfield
V.
Lowe
Miles, JSixp
82, 83
Ollivant
v.
Gorton
74, 76
Milgate v. Kebble
60, 88, 97, 113
Mirabita v. Imperial Ottoman
Orchard
v,
Bayley
Simpson
....
...
V.
Bank.
....
.
36,41,44,45
Ogg
Ogle
V.
V.
V.
Shuter
.
Atkinson
Earl Vane
Ormrod
v.
Oxendale
Huth
v.
Wetherell
37,44
41
95, 147
42
.
29
177
28
62
TABLE OF CASES
P.
Page
V.
Cowasjee
CITED.
XXll
PAGE
48
....
Lafone
SeweU V. Burdick .
Shardlow v. Ootterell
Sharman v. Brandt
Stone
V.
87, 113,
149
145
146
94
....
Sheldon
Cox
.... 4
Shepherd
Harrison.
37,45
Kain .... 178
Shipton
Casson ....
62
Shaw
Holland
V.
FAOB
39, 46, 48
Sweeting v. Turner
Syers . Jonas 12, 30,32, 33, 84, 98
.
T.
V.
v.
Sievewright
Simmons
o.
v.
Archibald
...
Swift
Simpson v. Crippin
Sims V. Marryat
Smeed v. Poord
Smith V. Baker
!). Blandy
. Chance
V. Green
147
89, 46
28, 64
25
93, 96
82
177
60
99
144, 145
.
....
...
....
...
....
V.
Hudson
Hughes
V.
Jeffryes
Lascelles
V.
Mercer
Myers
V.
V.
Snee
...
....
....
...
....
...
....
Prescot
Snowball, Exp
....
....
Insurance
....
South Australian
Co. . Eandell
Spartali
Spioer
3,4
87
75, 176
177
59,
....
Cooper
v.
75
19
26
v. OflScial
Tanored
v.
....
....
Staunton v. Wood
Steamship ' County of Lancaster
'
V.
Sharp
...
Stock
Inglis
Stoveld
Hughes
...
Blay ....
Stucley
Baily ...
Stewart
v.
Kennedy
V.
V.
Street
V.
Swain
v.
Shepherd
176
176
Kymer
V.
Smith
Telegrafo,
Thol
177
85
98, 172
22, 173
39 4.2
39,46
178
127
145
14, 144,
The
48
95
20
147
Henderson
V.
Thomas v. Predricks
Thompson v. Gardiner
V. Dominy
150
Thornett v. Haines
105, 106, 177
Thornton v. Kempster
145
Thurnell v. Balbiruie
.
20
Tigress, The
84, 85
Toulmin v. Hedley
67
Townley v. Crump
74
TregeUes v. Sewell
41
Tremoille v. Christie .
.
.
120
Tucker v. Humphrey
70, 73
Turner v. Liverpool Dooks .
44
Tyers v. Rosedale Co.
.
95, 147
.
'
...
...
...
.
T7.
Union Bank
v.
Munster
106
V.
v. Bank of England
117
Gibson 18, 19, 78, 81, 82
V. Oakeley .
.
74, 75, 95
Van Casteel v. Booker .
44 70
Vandenbergh v. Spooner .
145
Vickers v. Hertz
.
.
124, 133
Vagliano
Valpy
177
98
178
...
Macdonald
16
land .
.
Tansley v. Turner
TarUng v. Baxter
Taylor v. Bullen
Receiver
...
Ending
Benecke
t>.
v.
179
66
177
17, 176
84
124
Spalding
12
Tailby
Vilmont
Villars,
Vickers
o.
....
Bentley
Exp
51, 52,
20
53
26
..
TABLE OF CASES
CITED.
XXIU
W.
PACE
PAGE
177
Waokerbarth v. Masson . .
Wait V. Baker .
41, 43, 44, 64
Walker v. Matthews
.
52
.
V.
Mellor
V.
Nussey
Walton
Ward
V.
Warlow
V.
3
145
.
91
28, 103, 178
105, 107
.
Mascall
Hobbs
V.
Harrison
Warrangton v. Furbor
Watkins v. Bymill
Watson, Exp.
In re
Watts V. Friend
Webb V. Pairmaner
Wentworth v. Outhwaite
WestzinthuB, In re
.
12, 175
81,84
3
Whistler v. Forster
White, Exp., Re Nevill
.
V. Ghirden
V. Proctor
.
Whitehead
v.
Anderson
Wieler v. Schilizzi
Wigglesworth v. Dallison
Wilkinson v. Evans
V.
King
160
14,15
.
21
88
87
49
3
52
.
146
81,84
28
,
12, 104
146
.
Wilks V. Atkinson
Williams v. Beynolde
V. Wheeler
Wilson V. Glossop
Withers v. Eeynolds
Wood V. Baxter
58
95
144
11
64
57
120
179
60
56
85
42
V.
Eowoliffe
V.
Smith
V.
Tassell
Woodland v. Fuller
Woodley v. Coventry
Woods V. Bussell
.
Woolfe
V.
Home
23, 57,
177
X.
Xenos
Wickham
V.
41
Y.
51
Yates
V.
Young
Zagury
Pym
V.
v.
Matthews
Furnell
179
37, 38, 39
39
Alexander
&c.
v.
considered,
Aldridge
v.
Jbnneh
v.
Baines
(1875), L. R. 10 C. P- 354, at
p.
v.
373,
Ex. Ch.
Bmler
V.
East
Cas'.
Glyh
v.
of the Act.
SCh.App.
588.
Bethell v.
Bodger
v. Nichols (1872),
28 L. T. 441, considered.
Ward
Mody
v.
v.
v.
Hobbs
Cole
v.
(1875), L. E. 10 C. P. 354, at p.
xxvi
Barries
ETC.
v.
V.
0. A.
Wain
v.
v.
Aem-
B. 473, at p. 476.
v. Sew'eU (1884),
Hibblbwhitb
v.
v.
74.
Noeman
v.
Phillips
and Mobton
v.
Tibbett
V.
(1845), 14
M.
v.
0. P. 167, at p. 176.
Bushel
Ebuteb
v.
Johnson (1873), L. E. 8
Burdick
Elbingeb
STRON (1874), L. E. 9 Q.
Brown
A., explained,
& W.
277, at p. 283
Bussey
Burnett (1842), 9 M. & W. 312, dissented from, LittleV. Banks (1845), 7 Q. B., at p. 740.
v.
child
&
SwoRDBE
&
N. 828, at p. 834.
Castle V. Sworder (1860), 29 L. J. Ex. 235, reversed by Exchequer
Chamber (1861), 30 L. J. Ex. 310.
(1861), 6 H.
&
GrRiMOLDBT
V.
Wblls
Kendal
C. 423, questioned,
p. 366, C.
v.
A.
(1875), L. E. 10 C. P. 393.
Dixon
s.
V. Bovill (1856), 3
Macq. H. L. 1
see
now
1.
V.
Tates (1833), 5 B.
(1882), 7
653.
Dunlop
V.
V. Larribert (1839),
& P.
6 CI.
600, discussed,
Calcutta Co.
De Mattos (1863),
Elmore
v.
32 L. J. Q. B. 322, at p. 328.
Stone (1809), 1 Taunt. 458, doubted, Howe
(1820), 3 B.
&
Aid., at p.
v.
v.
Palmer
Wallace
xxvii
Farmeloe
1889,
Bain
v.
s.
now
Factors Act,
9.
Goebissen
v.
Qmllim
V.
Meigh
Cole
v.
&
(1875), L. K. 10 C. P.
Dbummond
v.
Natlok
Holroyd
V.
v.
Hughes
xxviii
Howes
Ball (1827), 7 B.
V.
& C.
Sweet
Jenhyns
v. TJsborne
1889,
M.
(1844), 7
&
Grr.
678
see
now
Factors Act,
s. 9.
Jeudwine
Power
v.
Macnee
v.
v.
Babham
(1836), 4 Ad.
& E.
473.
Bukdick
v.
Sewell
481, explained,
74, at p. 95.
explained,
v.
see
now
s. 8.
M.
& W.
Dbummond
v.
Van
p. 299.
431, distinguished.
Ex p. Coopbe
Drummond
v.
Mody
v.
Gebgson
Langridge
v.
Levy (1837), 2 M.
337, questioned,
Heaven
v.
& W.
Pender
M. and W.
(1883), 11 Q. B. D. 503,
at p. 511, G. A.
v. Mason (1794), 6 East, 21, considered, Sewell v.
BuRDicK (1884), 10 App. Gas. 74, at p. 100.
Lorymer v. Smith (1822), 1 B. & 0. 1, dictum of Abbott, G.J.,
disapproved, Hibblewhite v. M'Moeine (1839), 5 M. and W.
Licklarrow
462, at
Lyons
p.
466.
v.
Marshall
La very
v.
v.
xxix
see
by Factors Acts,
1889,
s.
M'Oombie
Cole
v.
9.
(1875), L. E. 10 0. P. 354, at
Ex. Ch.
p. 364,
Mertens
ETC.
v. AdcocJc (1803),
Lamokd
v.
Davall
Maheiot (1851), 17 Q.
Bannister (1864), 34 L.
B.
J. C. P. 105, at p.
107
v.
Benjamin on
Morton
Taylor
Page v. Morgan
v. Smith (1893),
2 Q. B. 65, 0. A.
Moyce
v.
v.
ViLMONT
Noble
Y.
Haynes
v.
Haynes
Hickman
Ogg
now
sect.
Parkinson
v.
L. E. 4 Ex. 49, at
p.
criticised,
Mody
54, disapproved,
v.
Jones v. Bright
Gregson (1868),
Eandall
v.
Newson
Paterson
v.
Cole
v.
p. 370,
Phillips V.
Cole
Ex. Gh.
(1840), 6 M. & W. 572, overeidden by Factors Acts,
North Western Bank (1875), L. E. 10 C. P. 354,
Huth
v.
v.
XXX
Richard
Moore (1878), 38 L. T.
v.
Morgan
841, discussed.
n.b.
Page
v.
(1885), 15 Q. B. D. 228.
Rodger
v.
Leask
from,
Roper V.
MiiiUNG (1886), 16 Q. B. D. 460, at p. 471, C. A.
Ryder v. Wombwell (1868), L. K. 3 Ex. 90, and L. K. 4 Ex.
32, dissented from, Johnstone v. Makes (1887), 19 Q. B. D.
509.
M.
4th
&
650, explained,
Gti,
Benjamin on
ed., p. 683.
Shepherd
V.
Sluley V.
at p. 784.
Bl.
504, distinguished,
Ex
Green
Spalding
p.
v.
v.
Ruding
(1843),
Kemp
Falk
approved,
v.
12
L.
J.
Ch. 503,
discussed
and
Field
'
v.
distinguished,
Taylor
v.
Cole
Db Mattos
Tripp
H.
&
V.
v.
Moore
Chamber
Valpy
V.
Ex
p.
Chalmers
Wait
V.
Bank
Warlow
V.
price
1,
distinguished,
Harrison (1858), 28 L.
V.
Westley
(1865),
Mirabita
v.
Ottoman
A.
J. Q. B. 18, distinguished.
34 L.
J. Q. B. 229.
Main-
xxxi
Ex p. Watson
Falk
2 M.
&
S.
397, at p.
404, and
Benjamin on
Sale,
4th
ed.,
p. 313.
v. King (1809), 2 Camp.
Western Bank (1875), L. E. 10
Wilkinson
North
point,
An Act
&
57 ViOT.
Law
Be
it
a. d. 1893.
ACT, 1893.
0. 71.)
Goods.
\^Note.
was applied
when
in this present
Parliament
PAET
I.
(1.)
is
a contract whereby
Sale and
There
may be
(2.)
part
''^''"-
;;
2
Sect.
1.
Where under
(3.)
SaiT^d
*^ goods
agreement
contract
is
is
Called a sale
is
subject to
contract
called an
is
An
(4.)
1893.
''
agreement to
agreement to
to be fulfilled the
sell."
sell
is
subject to
fulfilled
to be transferred.^
By
p. 109,
time or
sell as
well as a sale
and " sale " includes a bargain and sale as well as a sale and delivery
and " property " means the general property in goods and not merely
Nature of
sale.
8 and
Ill
post, p. 113.
See
9, post, p. 18.
The
Sub-sect. 1.
essence of sale
is
it,
and as
man
that
if
non
is
Hence
no
emerit?
sale.
it
sell to
rule
distress
he
may
cf.
Pegg (1861), 30 L.
CONTRACT OF SALE.
man may in good faith sell a thing which is not his own, and if this
be so the buyer cannot complain until his possession is disturbed. The
Sect. 1.
he says, merely contracts with the buyer, " de lui faire avoir
librement, a titre de propri^taire, une chose pour le prix d'une certaine
seller,
somme
d'argent."
ieneiur ut
for,
the contract
sold.
The purport of
that the seller divests himself of all proprietary right
is
The framers
Whether a given
is
''
The
work and
as a contract of sale or
as a contract of sale or a
'
materials.^
is
of
in writing
Lee
it
'
and No. 48
Bx p.
White,
v.
Lee
V. Griffin
art. 59.
Be Nevill (1870),
the con-
A to B an
if
Ee Watson
(1890), 25
(1861), 30 L. J. Q. B. 252.
B 2
in whicli
article
1893.
a contract of
is
it
sale.'
Where
Gift.
Where a
gift of
goods
is
it is
incomplete and
The
between
and gift in
cussed by Lord Bowen.^
Exchange
of goods
sale
Where
is
no
of
The
avail.
distinction
is
not
if
the
or barter.
a contract of
sale,
but
is
money,
it
When
is
Stamp
Act),
it
its
and exchanges.
special purpose,
and partly of
a contract of sale.*
But
Sect.
it
5 of Factors
draws a distinction
it seems that
The
'
Benjamin on
Sale,
2nd
ed., p.
84
;
cf.
mutatis
Code,
art.
1702.
3 B.
Aldridge
&
Stark
437; Bull v. Parker (1842), 12 L. J. Q. B. 93; Sarman v. Reeve (1856),'
25 L. J. C. P. 257 South Australian Lis. Co. v. Randell (1869)
L R 3
P. C. 101 (alternative consideration).
;
Cf Fairmaner v. Budd
(1831), 7 Biug. 574 Emanuel v. Dane
(1812)
3 Camp. 299 (warranty); La Neuuille v. Nourse (1813), 3 Camp
350
(caveat emptor); Pothier, Contrat de Vente, No. 620, citing
;
mutatio vioina
est
arts.
1702-1707
CONTRACT OF
mutandis
to exchanges,
SALE.'
Commons
Seot. 1.
Select Committee.
The
Its effects in
by imperial
it
was eventually
rescripts.^
they belong
and
their respective
and
if after
whole price
the contract
shall be in
money
is
changes his mind and agrees to take goods in lieu of the purchase
money, it remains sale, and does not become exchange.^
Pothier points out that the contract of sale
'
is
consensual, bilateral
all contracts of
incidentally, deals
principles of
all other
In part it is governed by
and in part by principles common to
to.
expressly saved
by
Relation of
s^le to
''*'''
^'
sale,
in
common with
But they
its scope.
are
The
present
contract of
avoided for
matters as
is
referred to general
Contract.
Sub-sect. 2.
may
As
is
consensual,
it
follows that
may
please.
it
The
Conditional
"""'^^'S
OX SA16*
'
Pothier, Conirat de Vente, No. 620, and see arts. 1702-1707 of the
Civil Code, which now regulate the matter.
Moyle's Sale in the Civil Law, pp. 3-5 Moyle's Justinian, p. 420.
Moyle's Justinian, p. 420. By art. 1703 of the French Civil Code,
French
^
'
As to the origin
is made consensual like sale.
how the two contracts were differentiated, see
1, 1.
the Civil
Law, pp.
1-3.
1803.
1.
by the
parties
or conditions subsequent.
to a
"suspensive"
or
.suspensive
is
distinction
between an agreement
division of
mark
terms
those
because
convenient,
resolutive
The
condition.^
"resolutive"
become an
and an actual
the buyer, but subject to defeasance on
which
for sale
is
to
When
and
conditions,
if
by
suspensive
measuring are
constitutes a suspensive condition (see sect. 18, post, pp. 39, 40).
But
if
re-sold
re-sale to
may be
is
Cave, J., has pointed out that a sale with a condition for
resolutive.^
Sale and
a"
if
Sub-sect. 3.
The term
may
agreement
agreements
to sell dis-
for sale.
An
agreement to
sell, or,
as
between
it is
often
tinguished.
called,
an executory contract of
whereas a
I
of sale,
is
sale, is
By
an executed contract
an agreement to sell
may
broken, the
If
an agreement
to sell be
broken by the
seller.
been a
sale,
who may
and the
seller
seller,
if
But
French
Civil Code,
Law, p. 165.
if
there has
arts.
1583, 1584;
seller,
but also
cf.
'
cf.
(2).
CONTRACT OF SALE.
Sect.
1.
his possession.
Sub-sect. 4.
bargain and
Civil
By
sect.
and delivery .1
According to the
Law
Scotland before the Act, the property in the goods sold did not pass
to the
rejected the
objective test of delivery, and has adopted the rule that the property
in the goods
intend.'
may
The
no
parties
may make
effect to
it.
difficulty arises.
itself if
the parties so
contract
may
sect.
18
the old distinction between the action for goods bargained and
for goods sold and delivered, see BuUen and Leake,
Free, of Plead., 3rd ed., pp. 8, 9.
2 ^eepost, p. 38, and Moyle's Sale in the Civil Law, p. 110.
' See Blackburn on Sale, pp. 187-197, who finds traces of the rule as
The history of the question is treated
far back as the time of Edward 4.
exhaustively in the judgment in Cochrane v. Moore (1890), 25 Q. B. D.
As
'
sold
to
A.
See Blackburn on Sale,
57, C.
*
W.
=
Agreement
to sell
p.
167
Johnson
v.
Macdomld
(1842), 9
M. &
600.
Viollet, Bistoire
du Droit Franfais,
pp. 515-523.
into sale.
THE SALE OF GOODS ACT,
Sect.
1893.
Quasi-Contracts of Sale.
1.
The Act
But
Where
(1.)
Satisfied
in
judgment
ful detention of goods the plaintiff recovers the full value of the
in trover,
trespass, or
detinue.
goods
The
to the defendant.
plaintiff
is
If he does not get that value then he does not lose his property in the
goods."
It has
of relation
An
law.
Sale in-
(2.)
is
is satisfied
the defendant's
title relates
unsatisfied
Again,
it
duced by
by the
fraud.
such third person has afterwards obtained the goods himself, the
plaintiff may waive the tort, and treat the transaction as a sale to
by
estoppel.
sells specific
may
be a sale by estoppel.
Suppose a defendant
title to the
goods to another person, he would be liable to both, though a doubt
might arise as to which person would be entitled to the goods. So
^^
'
As
"
to quasi-contracts, see
B. 226, 15 L. J. C. P. 237
Brinsmead
tlie
maxim
Shepherd (1846), 3 C.
JJarrison (1871), L. E. 6 C. P.
Cooper
v.
ed., p. 357.
v.
;
Ex p. Drake (1877), 5 Ch. D.
866, 0. A., as to detinue; cf. Mherle v. Jonas (1887), 18 Q. B. D., at p.
468.
Ex p. Drake
CAPACITY OF PARTIES.
may
be
liable as
Sect. 1.
Capacity
such.^
Cajaacity of Parties.
2.
to
the sale
is
contract,
life
incompetent to
therefor.^
mean goods
Capacity to
contract
suitable to
at the time of
authority to
authority
is
is
Capacity
is
As
On
referred to general
The
section
out,
when
is
probably declaratory.
He
As
them
who
is
incompetent to
it is
'
As to property by
Cornish v. AUngton (1859), 28 L. J. Ex. 262.
estoppel see Blackburn on Sale, 2nd ed., p. 190 Coventry v. Great Eastern
Railway Co. (1883), II Q. B. D. 776 (two delivery orders for same goods).
^ See Pollock on Contracts, 4th ed., pp. 49-94; Benjamin on Sale, 4th
;
ed., pp.
23-41,
Ryder
Ibid.
v.
19 Q. B. D. 509. 0. A.
'
He Rhodes
^""^
'"u^"^
10
Sect. 2.
lie
should have them, and the law therefore will see that they are
The
As
Lunatic.
1893.
obligatioa to
pay
arises re
insane,
to be
liable
Drunken
man.
made by
contract
rule, voidable
a drunken man,
By
minor.
"
all
and
saries,
is,
as a
"
when
is liable
38 Vict.
c.
62),
for
all
The language
might be
&
sect, 1
contracts
saries,
to be drunkj
known
of that
liable
liable for
breach of contract
declaratory.
his benefit,
may have
price he
Under
Married
woman.
the Married
75), a married
woman
has
full
As
same rights
to.''
& 46
Vict.
c.
is
as a
her in so far as she has separate estate free from restraint on anticipation.
Moreover, it must be shown that she had available separate
estate at the time she
see
'
made the
contract.^
But
0. A. (necessaries); Imp.
ed., p.
Loan
501
Ee Wiodes
(56
& 57 Vict, c,
63).
Q. B, 599, 0.
A..
(oontraot).
'
Gore
The term
V.
infant,
'
As
p. 466.
' PalUser v. Gurney
Leak
(1887), 19 Q. B. D. 519
24 Q. B. D. 98 Leake on Contracts, 3rd ed., p. 480.
BuffieU (1890),
to debts contracted before marriage, see Jay v. BoMnson (1890), 25 Q. B. D. 467,
As
to liability after husband's death for debts contracted during marriage,
see Pelton v, Earrison (1891), 2 Q. B. 422.
;
v.
As
11
*"*^ *
husband,
delegated, not an inherent authority the wife can bind her husband
only as agent, and a party seeking to charge him with a contract of
'
The
cohabitation, during
authority
may
is
be referred
presumptively
authorised to
necessity, caused
wife."i
When
a wife
is
separated
from her husband, through his misconduct, and he does not make
proper provision for her maintenance, she has,
authority to bind
The master
him
by
implication of law,
for necessaries.^
of a ship has an
impUed authority
to bind the
owner Master of
ship.
for
The
section, it is to
may be made
''
may be
by word
by word of
of mouth,^
3rd
ed., p. 448.
See next section reproducing the Statute of Frauds, and see the
Merchant Shipping Act, 1854 (17 & 18 Vict. o. 104), ss. 55-65, transfer
of British ships and shares therein by bill of sale only and Atkinson v.
Moling (1788), 2 T. E. 462. As to sale of sculpture with copyright, see
54 Geo. 3, c. 56.
* BlacKburn on Sale, pp. 43-45
Benjamin on Sale, 4th ed., p. 180
LocJieU V. Nieklin (1848), 2 Exch. 98, 19 L. J. Ex. 403.
Srogden v. Metropolitan By. Co. (1877), 2 App. Oas. 666, H. L.; ef.
*
contract of
^*^^'
^^
made.
12
1893.
Sect. 3.
written offer to
versd.^
is
If,
such evidence
annex incidents
Oral evidence
thereto.^
is
In some cases by
common
all.^
by instrument under
by
seal.*
statute,
The
a corpora-
proviso saves
this rule.
Contract of
lo;. and
upwards
0. 3. s. 17.
and 9 Geo.
7.]
4.
(1.)
SO sold,
unless
contract be
The
(2.)
Beverley v. Lincoln
(1859), 28 L. J.
Gas
Co. (1837), 6
A.
&
E. 829
Cornish
v.
Abington
Ex. 262.
Kennedy
Boulton
v.
Panama
As
to mistake, see
13
fit
Sect. 4.
.9
Z^^
c. 14. s. 7.]
There
is
contract of
sale
The
not.^
Scotland.
This section reproduces the provisions of the Statute of Frauds.
criticised in
Sub-sect. (1.)
Statute of Frauds
'
in
somewhat
made (a)
t"he Act
to
altered language.
make
it
sect,
The
of the
alterations
of its terms.
post, p. 143,
As
regards alterations
is
substituted
for
effect to cases
section,
Page
v.
Morgan
(1885), 15 Q. B. D. 228, C. A.
vol.
i.
p. 1,
Printed as
Earman
v.
sect.
Benjamin on
Sale,
Sir F. Pollock.
'
Statute of
^"^s.
14
Sect. 4.
unenforceable.!
in line
7-
is
1893.
substituted for the
" because
it is
clear since
it
is
consequential.^
Sub-sect. (2.) This sub-section reproduces the repealed sect. 7 of
make
to
it
4,
c.
reproduced by
ance"
it,
given
is
by
sect.
Bowen
p. 67.
The
sub-section
in
Subject-matter of Contraet.
^^ S^^ ^^^^
^~'(^-)
w'futrae
goods,
tract of sale
may be
possessed by the
seller, or
owned or
goods to be manufactured or
There
may
Maddison
p. 144.
2
'.
Tlie
Beuss
V.
C. A.
Smith (1892), 2 Q. B. 62, at p. 71, 0. A.
' Watts V. Friend (1830), 10 B. & 0. 446 (crop not yet sown)
Eibblewhite V. M'Morine (1839), 5 M. & W. 452 (goods which seller can only
acquire by purchase) Pothier, Contrat de Vente, No. 5.
=
Taylor
v.
SUBJECT-MATTER OF CONTRACT.
acquisition of which
by the
seller
15
Sect. 5.
tingency which
(3.)
effect
purports to
as an agreement to
the goods.^
sell
"
specific
Sub-sect. (1.)
to sell
sale,
but
it is
is
long
The term
after-
Une
de vente."
"No
doubt,"
There
is
filet
c'est
pourquoi,
very
little
says Martin,
B.,
c'est
si
un
meme
on vend
3.
vrai contrat
the chance of
obtaining goods," but he then goes on to say that in the case he was
dealing with the plaintiff bought the goods themselves.^ Perhaps the
doubtful case of Bagueley v. Hawley may be explained on the ground
that the plaintiff there bought another man's bargain at an auction
for what it was worth, and not the goods themselves.^
The purchase
of a chance
Civil
Law
as emptio
spei.
emptio spei simplicis. If it is, that it shall not be paid unless something at any rate is forthcoming, or shall only be paid in proportion
'
to what the purchaser actually gets, it is termed emptio rei speratce."
Benjamin on Sale, 4th ed., p. 87 Pothier, Contrat de Vente, Nos. 6-9
Bale v.
V. Friend (1830), 10 B. & C. 446 (crop not yet sown)
Eawson (1858), 27 L. J. 0. P. 189 (goods to arrive by ship).
' Benjamin on Sale, 4th ed., p. 82
Lunn v. Thornton (1845), 1 C. B.
'
cf.
Watts
by sheriff and
Law, p. 30.
Moyle's Sale in
ilie
Civil
sub-sale).
Emptio
^P^'*
;
;
16
Swb-secU (3.)
Sect. 5.
The
conditions under
1893.
to sell becomes a sale are dealt with in sect. 1, and sects. 16-20, post.
Assign-
"
qniied
property.
p_ gg_
g^j.
takes possession of
done that which ought to be done, fastens upon that property, and
the contract to assign thus becomes a complete assignment."^ It
is only the e(iuitable interest which passes to the buyer by the
contract, hence his rights are liable to be defeated,
if,
before he gets
the legal property in the goods, the seller disposes of them to a second
purchaser without notice,
who
thus
first
There was one case in which it was supposed at common law that
future goods could be assigned. It was said that a man might sell
future goods which had a " potential existence," and that then the legal
them would
property in
actual existence.
sell 'plus
Langton
'
Congreve
v.
v.
Roman
lawyers.
SUBJECT-MATTER OF OONTBAGT.
looked
Where
6.
there
is
it.i
The
sub-section
17
may
therefore be
By
mean goods
identified
and agreed
The
rule
may
by
made,
upon
is
is void.^
of performance.
It is confined to the
is to
description only,
Alt. 1601 of
the buyer may either rescind the contract or have the price
reduced by valuation. English law recognises no such rule. The
only question is whether the article has been so far destroyed as no
loss,
Thus where a
it
Suppose a
section.
man
contracts to sell to
my cellar,"
in
'
Langton
v.
ed., p.
4th
81
ed., p.
370
art.
1601
Pollock's
;
Law
Couturier
v.
Hastie, supra.
of Contract,
Moyle's Sale in
Sect. 5.
ship).
tlie
Civil
perfshed^''^
TEE SALE OF 00 OB 8 ACT,
18
7.
Sect. 7.
Goods
perisMng
liefore sale
but after
agreement
Where
there
is
an agreement to
1893.
sell specific
goods,
to sell.
is
agreement
is
thereby avoided.^
The definitiou
11.
grown on a particular farm, and the crops failed, Mellish, L.J., said
" This is not like the case of a contract to deliver so many goods of a
Here there
particular kind, where no specific goods are to be sold.
was an agreement to sell and buy 200 tons out of a crop to be grown
on specific land, so that it is an agreement to sell what will be, and
:
may
is liable if
the
agreement goods
may
See
By
special
he-
The Price.
Ascertain-
ment of
price.
8.
(1.)
The
left to
may
be fixed
be fixed in manner
may be determined by
the course of
Where
the price
is
reasonabk
price.*
What
is
a reasonable
price
is
"
Howell
V.
'
Acebal
v.
Coupland, suprk
Levy (1834), 10 Bing. 376 Hoadly v. M'Laine (1884), 10
Bing. 482 Yalpy v. Gibson (1847), 4 0. B. 837, 864.
* Aca>al V. Levy (1831), 10 Bing. 376, at
p. 383, per Tindal, C. J.
Such
price may or may not be the market price according to circumstances.
;
THE PBIQE.
An
19
" Goods
Sect. 8.
may
them
what
to
is
left to
The
clause originally
Blackburn,
clearly
as
reasonable price.
The
The
mode
price, or the
Pretium autem
of fixing
it,
rule of
must be expressed
constitui oportet,
nam
that the
is
prepaid by
The money so
the contract
is
The return
way
prepaid
of security,
is
when
called a deposit.
is
usually a
As
is forfeited if
off
fault.^
Eourhe
(1836),
v.
SBing.N.
of.
Brogden
v.
Marriott
C. 88.
not sale.
Howe
V.
C 2
Deposit,
20
Sect. 9.
9.
(1.)
Where
there
an agreement to
is
1893.
is
to be fixed
sell
goods on
by the valuation
Ag^ent
tlie
to sell at
make such
not
provided that
if
is
avoided;^
Where such
(2,)
third party
is
may
said,
is
ille
qui nominatus
pro nihilo
esse
est vel
non potuerit
vel
pretio statuto."
In some cases the party in fault might be restrained from preSee " fault " defined by
sect. 62,
post, p. 114.
Conditions
tionTM't
time of
paymen
^^'
^^'^
and Warranties.
^^^^
deemed
to
sale.*"
but
'
by
Gf.
Thomas
sect. 62.
v.
See Fry
Martindale v. Smith (1841), 1 Q. B. 389, see at p. 395, nonpayment
on apfjointed day cf. sect. 31, post, p. 63 and Mersey Steel and
Iron
Co. v. Naylor (1884), 9 App. Cas. 434, at p. 444.
As to time of payment
being essential, see Bishop v. Shilleto (1829), 2 B. & Aid. 329;
Benjamin
on Sale, 4th ed., pp. 290, 304.
''
WABB AN TIES.
CONDITIONS AND
Whether any other
stipulation as to time
is
21
of the essence
Sect. lo.
'
calendar month.^
As
payment, time
is
mercantile transactions.^
and particulars
to
name
for the
bill
of
rules of Courts of
all
contracts though the time fixed therein for completion had passed.
This was in the case of contracts, such as purchases and sales of land
where, unless a contrary intention could be collected from the contract,
the Court presumed that time was not an essential condition. To
apply this to mercantile contracts would be dangerous and unreason-
We
able.
must
therefore
The
present subdivision of the Act deals with conditions and war- Conditions
ranties peculiar to the law of sale.
But the Act must be regarded as and wara single chapter in the general law of contract, and it therefore does ties in
whole
to the
field of contract.
by
considerations
In so far as sale
is
No
common
regulated
by
sect.
by the
61
(2),
matter
is
defined
are really conditions precedent, and have always been given effect to
as such.
as defined
By
See
sect.
11 (1),
or warranty
may
be
s.
Wehh
V.
of.
15
& 46
Vict.
o.
61,
14 (4).
'
Bowes
V.
4.'55,
S^era
THE SALE OF GOODS ACT,
22
As
Sect. 10.
A
stipulations.
may be
may
warranty
Where
Exprees
1893.
a warranty
is
is
may
completed.^
noted
sale,' or
completed,
is
it
In Scotland,
contract.
is
it is
part of the
may amount
intended as such
contract.*
If,
that
is
to say, if it
A representation,
admissible.*
though
stitute a warranty,^
if
made
Eepresentationa
classified.
it
would not be
may
fraudulently.
Eepresentations
kinds
a warranty
to
intended to form
is
made during a
contract of sale
may
be of four
2.
3.
description of the
then a con-
It is
Bopltins
'
V.
Bannerman
cf.
J. 0. P.
v.
v.
162
Baily{l%&i),
31 L. J. Ex. 483.
Boscorla
'
v.
Thomas
(1842), 3 Q. B. 234;
ef.
Seilbutt
v.
Eickeon
(1872), L. R. 7 C. P. 438.
Boscorla
'
v.
Thomas
(1842), 3 Q. B. 234
Benjamin on
p. 608.
Pasle^j V.
'
p. 87,
Freeman
per BuUer,
J.
Earnor v.
mere memorandum of the contract; Allen v. Pink (1838), 4. M. & W. 140.
Eopkins v. Tanqueray
(1854); 15 C. B. 130; 23 L. J. C. P. 162; but
see Bannerman v. White (1861), 31 L. J. C. P. 28, where the representation constituted the basis on which the parties subsequently entered into
the contract.
473
9th
V.
Benjamin on
cf.
avoid
Charidelor v.
ed., p.
may
CONDITIONS AND WARRANTIES.
4.
The
even if
it
23
Sect. 10.
avoided according to the rule Fraus omnia viiiat,^ and the person who
makes it may be liable to exemplary damages in some cases even
when the party damnified was not a party to the contract.'
11.
(1.)
In England or Ireland
Where
(a.)
a contract of sale
to be fulfilled
by the
condition, or
may
is
seller,
subject to
the buyer
ground
Whether a
(&.)
may
give rise to a
may
give
rise to
a claim
for
and
depends in
may be
Where a
coatract of sale
is
is for specific
any
and
Q.
J).
As
63.
B. 14
Brandt
v.
con-
ditiontobe
24
condition to be fulfilled
Sect. 11.
by the
1893.
seller
can only be
(2.)
which
entitles the
seller to
is
perform any
a breach of contract,
which
may
(3.)
of
by
sect. 62,
post, p. 114.
so far as it relates to
"
writers.
As used in the Act, " condition " is the equivalent
of the old term " dependent covenant," while " warranty " is equiva-
and text
warranties,
England.
This right
actio quanti
the buyer could returu the goods he has not been allowed to keep-
p.
Graves
231
v.
Behn
v.
V. Hiclcson,
'
Couston
suprk.
v.
p. 185.
'
for
sect.
party
benefit.!
25
may
ijjje I.^lg jg
Where
12.
In a contract of
circumstances of the
An
is
An
is
sell
to pass
^
:
An
sell,
in favour of
known
As
made.
is
sect.
to the distinction
any
buyer
to the
62
and as
and
sect. 11,
eaten
up the
rule
"
;
'
is
after
'
* Ibid.
Contract Act, 1872, 109.
' Per Parke, B., in Morley v. Attenborough (1849), 3 Exch. 500, at
512 18 L. J. Ex. 148, at p. 152 (auction sale of forfeited pledges).
Sims V. Marryat (1851), 17 Q. B. 281, at p. 291 (sale of copyright).
;
p.
implied
taking as
tootle, &c.
26
On
Sect. 12.
1893.
warranty of
implied
title
and by
sect. 7 of
the Conveyancing
Law
which
c.
it
is
and
to he
title
and
is
sheriff selling
as to
A
selling such right as he might have in the goods.
an execution debtor's goods gives no implied undertaking
was only
seller
He
title.2
is
only responsible
if he
to
seU.3
Eoman
an implied
contract that the vendor has the right to dispose of the subject
he
French and
seller in
of (a)
which
sells."*
an obligation
Civil
Law
to deliver
is
not a warranty of
and
(5)
title.
It consists
title.''
freedom
from
Ttie
Act
Before the Act there was probably an implied warranty on the part
Qf
(.jjg
the time of
sale,
'
at p. 337.
"
27
I,
C'est pourquoi
1,
cette obligation.
<;re'ancier
si
la
13.
Where
Law, and
there
is
He
then proceeds
be by sample, as well
by
as
and
description,
the sale
if
it
is
not
sufficient that
the sample
if
description.*
The
is a universal one.
Si oes pro auro veneat, non
Thus, where there was a contract to purchase rice to be
principle
valet.^
^ April,
it
the
is different
sale of
'
in
'
to the guarantee,
after inspection
Mody
v.
Oregson
A. Bowes v. Shand (1877), 2 App. Cas. 455 ; Pollocli ore Con4th ed., p. 436.
* Nichol V. Oodts (1854),
10 Exch. 191 (foreign refined rape oil);
23 L. J. Ex. 314; Az^mar v. Casella (1867), L. E. 2 C. P. 677, Ex. Ch.
see at p. 678 (long staple Salem cotton).
5 Cited from Digest, in Kennedy v. Panama Co. (1867), L. E. 2 Q. B.,
at p. 588 (shares).
" Bowes V. Shand (1877), 2 App. Cas. 455, at p. 480 (rice).
p. 109, C.
tracts,
Sect. 12.
Sale by de-
^""p''""-
28
Sect. 13.
1893.
tendered were to consist of rum, could the allowance clause be applied?" and lie proceeds to show that the same rule must apply to
cotton of a different kind (not quality) from the sample.^
Where
and condition.^
there was
said,
J.,
a.
contract for
which would be
market as Calcutta linseed. If he got an article so
adulterated as not reasonably to answer that description, he did not
get what he bargained for. As if a man buys an article as gold, which
right to expect, not a perfect article, but an article
saleable in the
knows
every one
to get 'gold' if
requires a certain
he gets an
amount of
article
Where
it
alloy,
he cannot be said
so depreciated in quality as to
^
in the contract
may be
sect. 14,
non
which supplements
nocet.^
it
by
14.
laveat
emptor.
(1.)
onditions
.s
Where
mates known
to
'
Wieler
Budd
32 L.
Ward
(1856), 17 C. B. 819
25 L. J. 0. P. 89.
Hopkins
v. Schilizzi
V.
cf.
v.
v. HitchcocTc
Hobhs
(1863),
c. 63).
"
Benjamin on
W. 390
Chanter
v.
29
seller's business to
he be the manufacturer or
in
is
it
supply (whether
an implied
not), there is
fit
for
such purpose,^ provided that in the case of a contract for the sale of a specified article under its
Where goods
(2.)
seller
who
no implied
is
^
:
deals
goods
in
of
that
description
not), there is
provided that
if
the buyer
An
^
:
may be annexed
Jones
Jones
V.
mond
V.
Van Ingen
(1887),
12 App.
Cas.
Drum-
Cf.
Lord
Sect. i4.
quaiitTor
fitness,
30
Sect. 14.
(4.)
An
1893.
by this Act
by
sect.
or warranty implied
History
of section.
by
As
to negativing a condition
Com-
and finally settled by the Law Lords in its present form. Subsect. (2) was originally confined to cases where the buyer "had noopportunity of examining the goods." The present narrower proviso
was inserted in the Commons, and agreed to by the Lords with a
verbal amendment.
The clause originally provided in addition that where there was a
contract for the sale of goods by a manufacturer, as such, there was an
mittee,
seller's
own manufacture.
This provision
was cut out by the Lords' Select Committee, perhaps on the ground
that the Merchandise Marks Act, 1887, gave sufficient protection topurchasers.
The
rule of caveat
its origin
market overt.*
property passes, the law does not, in the absence of fraud, imply any
warranty of the good quality or condition of the chattel so sold." *
847; cf. Syerg v. Jonas (1848), 2 Exch. Ill (tobacco); Indian Contract
Act, 1872, 110.
' Bigge v. Parkinson
(1862), 31 L. J. Ex. 301; if. Mody v. Gregson
(1868), L. B. 4 Ex., at p. 53 (grey shirtings).
"
Johnson
v.
dissenting.
=
*
'
Sarr
v. Giftsom
(1838), 3
M. & W.
390, at p. 399
but
may apply to
now
the implied
specific goods.
a subsequent case Lord Blackburn gives the following illus" Where a horse is bought Under the belief that it is sound,
in
tration
3L
buy by a fraudulent
representation as
may
If
be rescinded.
it
Sect. 14.
was
must
pay the whole price unless there was a warranty and even if there
was a warranty he cannot return the horse and claim back the whole
price unless there was a condition to that effect in the contract." ^
In Jones v. Just, in 1868, where the previous cases were reviewed and
" We are aware of no case in which the
classified, the Court say
maxim caveat emptor has been applied where there has been no
opportunity of inspection or where that opportunity has not been
;
waived."
down
" It
is
it
first
In the
commodity
who
pose.
If
he
sells it for
fit
it,
is
it
commercial
is
that
say, shall
Kennedy
Jones
v.
...
' Jones V.
fraud negatived and warramty implied).
Exceptions
to caveat
^"^
'"^'
TEE SALE OF GOODS ACT,
32
Sect. 14.
be that
If the subject-matter be
merchantable.
article, saleable or
1893.
an
the defect in
it is
distinction
fit
for food,^
but
it
if
Law Amendment
it
know
it
was provided
quality, the goods, with all faults, should be at the risk of the pur-
chaser unless there was an express warranty or unless the goods were
was intended
to assimilate Scottish to
Now
down
for
This enactment
it
down
laid
a uniform rule
both countries.
is laid
'
Sale hj Sample.
15.
(1.)
contract of sale
is
is
effect.
(2.)
(a.)
There
'
Bell's Prine.
Law
French
Oivil
Code
1641-1644.
arts.
Parker
Syers
v.
SALE BY SAMPLE.
33
(i.)
Sect. 15.
(e.)
There
be
is
free
merchantable, which
Svi-sect. (1.)
is
On
the
on the point.*
the other hand, the exhibition of a sample during the making of
contract does not necessarily
make
it
silent
Sale by-
sample.
by
sample.*
" The
office of
the eye the real meaning and intention of the parties with regard to
Sub-sect. (2.)
'
state or condition.
post, p. 103.
As
In Parhinson
v. Lee,' it
seller,
who
(1868), L. E. 1 Sc.
Parhinson
v.
Implied
conditions.
34
Sect. 16.
Implied
conditions
on
sale
sample.
by
1893.
was a merchant and not the manufacturer, was not responsible for
a latent defect which examination of the sample failed to disclose.
case
was no longer
e
i.
law,i
by
Should
it
be any answer
Text writers
as to
is
when
is
the contract
is
is
buyer
may
Mr. Benjamin,
after reviewing
if
the
the bulk
do not correspond with the sample, unless (1) he has finally accepted
them, or (2) the contract relates to specific goods the property in
which has passed to him." The Act adopts this view by describing
the term as a condition and not a warranty.
See
sect.
11 (1)
(c),
ante, p. 23.
Prima
But
this
is
presumption
may
be rebutted,
and Lord Esher has expressed the opinion that "such a contract
always contains an implied term that the goods may under certain
circumstances be returned, that such term necessarily contains certain
varying or alternative applications, and amongst others the following,
that if the time of inspection as agreed
upon be subsequent
if
to the time
Sandall
'
Mody
v.
v.
PerMns
v.
Bell (1893), 1 Q. B.
19.3,
C.
(barley).
SALE BY SAMPLE.
35
When the
ante, p. 27.
oil,
Thus where
there
foreign
>
V.
See
foreign
D 2
Sect. 15.
'
36
PAET
1893.
II.
Goods
must be
16.
Where
there
is
is
transferred
ascer-
tained.
" In the case of executory contracts," says Bovill, C. J., " where the
to the purchaser
by
where certain
and have been
seller,
approved and assented to by the buyer, then the case stands as to the
vesting of the property very
much
in the
same
position as
upon a
contract for the sale of goods which are ascertained at the time of the
bargain."
Generic
goods.
description only,
'
"
Seilbutt
C.J.,
V.
and Byles,
J.
TRANSFER OF PROPERTY.
Soutlidown sheep
now
by delivering any
others,
in
37
Sect. 16.
parties so intended.
An
agreement
Roman law
17.
was known in
as emptio generis}
(1.)
Where
there
is
Property
specific or ascertained
parties,
The very
contract.
appropriation of
the chattel
is
equivalent to
deUvery by the vendor, and the assent of the vendee to take the
specific chattel and to pay the price is equivalent to his accepting
possession.
The
effect
of
By the
Civil
a contract of
is
Whether
undoubted, and
until
is
to
vest the
by
virtue of Foreign
Traditionibus
being
are discussed.
' Seath V. Moore (1886), 11 App. Cas. 350, at
and at p. 880, per Ld. Watson ; cf. Shepherd
5H.
is
et
p. 370,
v.
Ogg
V.
p.
162
cf.
Young
v.
Matthews
(1866), L. E. 2 C. P. 127.
*
'
mission, 3855, pp. 9, 42; Blaclthurn on Sale, pp. 187-197; and for its
history, see Cochrane v.
Moore (1890), 25 Q. B. D.
57, C.
A.
rules.
38
Sect, 17.
usucapionibus
But
1893.
pactis,
transferuntur.^
though, the property did not pass, as soon as the parties were
when
the price.
The
effect
in
France and Italy have also departed from the principle of the Civil
Law, and have adopted a rule substantially the same as that of
English law.'
Rules for
jg_
ascertain-
ing inten-
tion.
as to the time at
is
to
Bule
1.
Where there
is
an unconditional ^ contract
is
raade,
and
it
is
immaterial
the
for
state,
time
of
"
(1886), 11
App.
p.
618
Seath
v.
Moore
187-197.
=
art.
515-523.
' Blaelthum on Sale,
pp. 147, 167 ; Calcutta Co. v. De Mattes (1863), 32
L. J. Q. B., at p. 329 Furl^ v. Bates (1863), 33 L. J. Ex. 53 Young v.
Matthews (1866), L. B. 2 C. P. 127.
As to contracts which are in terms conditional, see ante,
pp. 1 and 5.
;
"
Deliverable state
hurn on Sale,
'
p. 152,
state in
and
which buyer
is
bound
to accept.
Blach-
Benjamin on
Sale,
4th
ed., p.
277
TBANSFEB OF PROPERTY.
39
specific
Btde
3.
Where
specific
is
goods in a deliverable
bound
is
there
state,
but the
seller
some other
4.
When
seller, or
Tarling
and
v.
to the
C. 360
ed., p. 308,
Tansky
v.
Sect. 18.
40
Sect. 18.
(6.)
1893.
ascertain-
lira!"
if
able time
Bule
5.
is
(1.)
What
a reason-
is
a question of fact.^
Where
there
is
by the
property in the
buyer.^
thereupon
passes to the
or
Where,
made
buyer or not)
for the
named by the
'
V.
v. Ba/rker (1879),
v.
Banes
(1880), 5 0. P. D. 321.
' For statement of principle, see Blaehhum
on Sale, p. 127 ; Benjamin
on Sale, 4th ed., p. 318 Heilbutt v. Hiehson (1872), L. R. 7 0. P., at
See, In illustration, Busk v. Davis (1814), 2 M. & S. 397; Bohde
p. 449.
V. Thwaites ;(1827), 6 B. & 0. 388, see at p. 393
Aldrid^e v. Johnson
(1857), 26 L. J. Q. B. 296 Langton v. Higgins (1859), 28 L. J. Ex. 252 ;
BosweU V. Kittorn (1862), 15 Moore, P. G. 309 ; 8 Jur. 443.
' Campbell v. Mersey Doeks
(1863), 14 0. B. N.s. 412, at p. 415, per
Willes, J. cf. Godts v. Rose (1855), 17 0. B. 229, at p. 237 Aldridge v.
Johnson (1857), 26 L. J. Q. B. 296 Jenner v. Smith (1869), L. E. 4 C. P.
;
270.
TRANSFER OF PBOPERTT.
41
he
by
is
Sect. is.
As
109.
As
for
either formed
Rule
1.
no intention on the
where the
See note to
The
The words, " and the buyer has notice
last section, ante, p. 37.
moment
parties
first
have
it.
three rules
Rule 2.
final
thereof," were Specific
added in Committee on a suggestion from Scotland that it was unfair S^^that the risk should be transferred to the buyer without notice. It
is to be noted that this rule is negative.
The case of an article, which
the seller
is sometimes treated as
comes under Rule 5. If a
man orders a watch to be specially made for him, it is clear that the
watchmaker may, if he likes, make two such watches, and that he
is
coming under
An
article
have so
may
far agreed
upon
the property in
it
Eoman
it
article,
The
seller
but there
its
is
may
lawyers
may
completion.^
Unless a different
7,
42
Sect. 18.
which the
seller is to
delivery and
is
mate
is
1893.
state.^
At one time
for
by
work progressed
House
of Lords
it
seller,
law, where
by the
Kule
ale or
jturn, etc.
seller.*
2.
Sule 4. This rule, like the others, is merely a primS, facie rule. In
some trades the usage is that when goods are delivered on fourteen
days' approval, the property does not pass to the buyer
tion of that time, but the seller at
any time
on the expira-
days can
on the buyer either to take or to return the goods at once. When
goods are sent on trial, or on approval, or on sale or return, the clear
after the fourteen
call
general rule
is
it is
till
the buyer
agree that the property shall pass to the buyer on delivery, but that,
if
he does not approve the goods, the property shall then revest in
seller.^
To use the language of the continental lawyers, the
the
'
Clarice v.
Spence (1836), 4 A.
&
cases.
see
(1847), 5 C. B. 301.
" Woods V. Bmsell
(1822), 5 B. & Aid. 942; Ex p. lambton (1875),
L. R. 10 Oh. App., at p. 414.
' Seath V. Moore
(1886), 11 App. Cas., at pp. 370, 380 Story on Sale,
316a.
;
'
Furley
v.
Sale, p. 152.
Swain
v.
Morrell, at p. 197
TBANSFEB OF PB0PERT7.
condition on which the goods are delivered
may
43
be either suspensive
Sect. 18.
or resolutive.
Bute 5.
and goods
of
be made by the
be acquired Generic
the formation of the contract goods-
seller after
sale.
Bule
to
2.
When
there
is
when
arises
the seller
note to
p. 16.
by the
makes the
;
and
if
selected
The
difficulty arises.
selection pursuant to
by the
difficulty
an authority
it is
seller
who
is
by the agreement
to do the
is
first act,
which from its nature cannot be done tUl the election is determined,
has authority to make the choice in order that he may perform his
part of the agreement
him
till
that time to
make
one.
term
till
his choice."
then he
agreement
by
In the
is
It
may mean
mean
still
by
it
delivering
may, and
them
In the second
to the buyer.^
found that in
every case where the property has been held to pass, there has been an
actual or constructive delivery of the goods to the buyer. If the term
" delivery " had been substituted for " appropriation," probably less
place, if the decisions be carefully examined, it will be
it is said
Cf.
=
BanMn
Wait
v.
PotUr (1873), L. R. 6 H.
V. Bdleer (1848),
2 Exoh., at
L., at p. 119.
p. 8,
per Parke, B.
44
Sect. 18.
1893.
authority to so deliver them, and the seller does not reserve the right
of disposal, " the
moment
carrier,
the carrier
by such
is
19.
(1.)
is
10
Where
or upwards.
there
is
right of
specific
disposai.
by the terms
of
the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled.
In such
goods
for the
in the goods does not pass to the buyer until the con-
imposed by the
ditions
Where goods
(2.)
are shipped,
and by the
of
bill
Where the
seller of
'
L. J. 0. P. 61.
As
TBANSFEB OF PROPERTY.
45
payment of the
bill of
bound
is
to
exchange, and
if
bill of
lading
may
retain a
jus disponendi, even when the property has passed to the buyer but
Cotton, L. J., sums up the law as follows : " In the case of such a
;
contract
delivery
(i.e.
by the vendor
the shipment
on board a ship
of,
common
to a
is restricted
by the terms
If,
the effect of
an appropriation
the articles which he intends to deliver under the contract, takes the
bill of
lading to his
own
owier,
and does
so not as agent, or
consequently there
is
it is
on behalf
...
till
is
bill of
^
does not pass to the purchaser."
With reference to Lord Bramwell's doubt,
it
to
may
be reserved.^
Shepherd
Lord
=
v.
Earriem
Cairns.
p. 170,
^
p. 335.
"^
Sect. 19.
46
KiSK prima
facie passes
'^erty''"
remain at the
Sect. 20.
^.
1893.
therein
the property
x
x
transferred to
is
./
when
is
transferred
whether
made
or not.^
any
loss
which might
nothing
in
section
this
shall
as
other
party.*
" Custodier "
is
first
"
was substituted
law maxim,
is
maxim
whom
the property
is.
It
fault.
The expression
" would not have
shifts the
for
J.,
If,
the loss
is
and shew that the risk attached to one person or the other, it is a very
strong argument for shewing that the property was meant to be in
By the Civil law it was
him, but the two are not inseparable.
always considered that if there was any weighing, or anything of the
.
(1872), L.
burn, J.
*
Assumed
in such cases as
Head
v. Tattersall
and Mphich
v.
Barnes,
TRANSFER OF PROPERTY.
47
which prevented the contract from being perfecla emptio, whenby one of the parties being in mord, and it
was his default, he shall bear the risk just as if there was emptio
That is good sense and justice, though not necessary to the
perfecta.
sort
The
damnosa.
make
the loss
falls
When
perty in
the
seller
to the buyer, or
when
goods on
trial, it
is
in each case
a,
to be
By Eoman
did not pass until delivery, but as soon as the parties were agreed on
the specific article, and the price, there was an emptio perfecta. The
did not.
Cum
MaHineau
Sect. 20.
48
Sect. 20.
Thus by
1893.
different routes
down a uniform
lays
This section
and 33,
(2) (3)
English and
is
sects.
32
post, p. 65,
to transit.
Accessories.
The converse
property in
"
it.
domino
fruits or increase of
Any
and any
who has
the
is
any
benefit to
them
is
his benefit,
Transfer of
Sale by
the owner,
21.
Title.
(1.)
is
sell
or with
of the goods
the
seller's
is
by
authority to
(2.)
from denying
sell.*
in this
Act
shall
affect
Bell's
Pnn. Law
Turner (1871), L. K. 7 Q. B. 310, at p. 313, per Blackburn, J. French Civil Code, arts. 1614, 1615 Dig. 19, 1, 13.
' See sects. 22 to 25, post, p. 51.
'
Sweeting
v.
For
28 L.
J.
19 Q. B. D. 68, C. A.
TRANSFEB OF
(a.)
The
49
TITLE.
any
or
thereof ;
(6.)
The
validity of
common
special
any contract of
law, or statutory,
sale
under any
power of
sale,
The general
Nemo
title
than he himself
haibet." ^
common law
J.,
says
"
At
another, either
by
sale or
To
he himself had.
by
pledge,
any
was an exception of
sales
title defeasible
rule
was
on account of fraud
that, to
make
(sect. 23,
either a sale or
it must
had authority from the owner to
as the case might be. If the owner of the goods had
seller or pledger
to
or pledge, he
'
See the Factors Act, 1889, post, p. 118 and the Factors (Scotland)
Act, pott, p. 135 and see the Bills of Lading Act (18 & 19 Vict. 0. Ill)
the Bankruptcy Act, 1883, s. 44 (reputed owuership), and for certain
purposes the Bills of Sale Act, 1878 cf. Indian Contract Act, 1872, s.
;
108.
As to pawnee, see MaHinv. Reid (1862), 31 L. J. 0. P. 126, at p. 128,
per Willes, J. ; Pigot v. Oubley (1864), 33 L. J. C. P. 134. As to distrainor,
see Woodfall's Landlord and Tenant, 13th ed., pp. 479-481. As to sheriff,
see Doe v. Donston (1818), 1 B. & Aid. 230 (sale after expiration of office)
Sc. 552 (excessive sale) Manders v.
cf. Batchelor v. Vyse (1834), 4 M. &
Williams (1849), 4 Exoh. 339 18 L. J. Ex. 437 (goods on sale or return).
;
As to master
40
& 41
'
Vict. c. 38.
Whistler v. Forster (1863), L. J. 0. P. 162, at p. 164.
Sect. 21.
50
Sect. 21.
from denying that he had given such an authority, and the result as
But there was no
to them was the same as if he had really given it.
was
Sale
1893,
limited."
The
by
person not
common
the owner.
habet
Nemo
law.
plus jwris in
aUum
transferre potest
quam
ipse
it,
Vente,
By
7.
art.
always protected.
Special
power.
Sub-sect. (2).
One person
is
may sell
cargo.
(6),
ante, p. 49.
An
Conflict
of laws
where the
is
that
if
by the law
everywhere.
of the country
it is,
that disposition
is
binding
cargo
a good
application.
Joint
owners.
By
sect.
108 (2) of the Indian Contract Act, 1872, " If one of several
person
of such joint-owner in
Roman and
CammeU
v.
TRANSFER OF TITLE.
51
Sect. 21.
22.
Where goods
(1.)
are
sold
in
market
overt, Market
on
seller.^
Nothing in
(2.)
title
this
section
shall
affect
the
law
The
(3)
do not apply to
Scotland.
The
rules of
States,
transactions.
and a
sale
whole transaction
man
Ms
in
Cf.
Ex p.
Barnett,
Re Tamplin
As
to partners,
322, at p. 331.
& Mar.
also
Moran
v. Pitt (1873),
Hargreave
'
Cf.
^"''
E 2
Horses.
52
Sect.
Sect. 22.
24
is
tion.
1893.
sold in
so, again,
the buyer
who
is
keep
ol
them
in the
title
own
till
original owner.^
23,
Sale under
^
title*
When
the
sale,
title
to the goods,
Many
of the
title,
But
if
property
by
election."
>
in,
Em-wood
V.
who
18 Q. B. D. 322, at
cf.
Vilmont
v.
Sentky
(1886),.
p. 331.
Polloclc
TRANSFER OF
title,
matter
title to
suspense.
is in
53
TITLE.
Sect. 23.
come
aside."
it
24.
(1.)
IS
so
stolen revests
in
m
.
the person
^
the goods
Revesting
^ property
in stolen,
&c., goods
on convictionof
^"g"^
by
25 vict.
sale in
(2.)
by fraud or other
The
Scotland.
The rule, that on tlie conviction of the thief the property in stolen
goods revested in the original owner, is as old as the 21 Hen. VIII.
The effect of sect. 100 of the
c. 11, which was perhaps declaratory.
Vict.
&
25
c.
1861
(24
96), was to extend the rule to
Larceny Act,
The operation of the extended rule to
all offences under that Act.
cases where goods had been obtained by false pretences, but under a
de facto contract, was anomalous, and was regretted by the Lords in
Sub-sect. (2) was accordingly introduced as
Bentley v. Vilmont?
ed.,
19 L. J. Q. B. 447.
Bentley (1886), 18 Q. B. D. 322, C. A.
Vilmont
v.
affirmed Bentley
v.
^"
^^
post, p.
162.]
54
Sect. 24.
1893.
an amendment in Committee.
Jts effect is to restore the old state
of the law and to override sect. 100 of the Larceny Act, 1861, so
far as it relates to offences other than offences amounting to larceny.
100 of the Larceny Act, 1861 {post, p. 152), enables the conmake an order for restitution but, as the effect of the
statute is to revest the property, the original owner has his ordinary
Sect.
victing Court to
down
strictly
owner by
through several
hands, intermediate
Hence,
revests in the
it
if
parties are
not
guilty of a
conversion.
By
art.
lost or stolen
goods
may be
recovered by the true owner at any time within three years, but
art.
2280,
by a
if
Seller in
possession
after sale.
[62
&
Vict.
53
c.
45.
(1.)
hy
Where
sum he gave
owner can
for
them.
or
s. 8.]
making the
in
possession.
[52 & 53
Vict. c. 45,
s.
9.]
(2.)
Where
buy
by that
title to
person, or
by a mercantile
v.
title,
Newington (1878),
"
TEANSFEB OF
under any
sale,
55
TITLE.
faith
Sect. 25.
and without
original seller in
By sect. 62, post, p. Ill, " Factors Acts " mean the Factors Act,
1889, and the Factors (Scotland) Act, 1890, whicli are set out, post,
p. 118, and " document of title " has the same meaning as in those
Acts. For definitions of " document of title " and " mercantile agent
by the Factors
considered.
As
was
reproduced, but they were omitted from the repeals at a late stage
for consultation with the draftsman of the Factors Act.
wanted they can be repealed by a Statute Law Revision Act.
26.
(1.)
writ of
fieri
If
not
the
sheriff,
to endorse
it shall
when the
;
writ
be the duty of
title to
sfeect of
^g'j^jj
[29 Car.
''"
"
^'
2,
'^
56
Sect. 26.
ri9"&To
Vict. c. 97.
1893.
such writ
the
sheriff.
(2.)
officer
charged
with
the
enforcement
of
a writ
of
execution,
(3.)
The
Scotland.
The
first
'
sect.
15 of the Statute
is
hour on the writ, but this accords with the practice. The second
paragraph reproduces sect. 1 of the Mercantile Law Amendment Act,
1856. Both these enactments are now repealed.
Sect. 1 of the Mercantile
Vict, c, 97),
of Frauds.!
Mercantile
Law Amendment
&
20
was
Law
It has been held that the words, " shall bind the property
in the
goods," do not prevent the property from passing by the sale,
but
constitute the execution a charge upon the goods.^
Compare the definition of sheriff given by sect. 168 of the Bankruptcy Act, 1883, and see the saving for the bankruptcy
Isms,. vast
p. 108.
'
'
Sect. 15 of the
Woodland
v.
Bevised Edition
is
Fuller (1840), 11 A.
commonly
&
E. 849
57
PART
III.
27. It is
for
Sect. 27.
sale.^
seller
and
buyer.
See " delivery " defined, post, p. 109. " In every contract of sale,"
says Watson, B., " there is involved a contract on the one side to
" If," says Martin, B., in the
accept, and on the other to deliver."
case, "
same
reasonable time.
it is
party,
...
If I
buy a horse
if
of
you
in another man's
field,
it."
The
may
up
to the
<J.
MulUr
*
(1881),
Bartlett v.
7 Q. B. D., at p. 103,
Eolmes (1853), 22 L.
lams (1841), 2 M.
&
Bagueley
v.
p.
683
authority.
0.
A.
J. 0.
P. 182
Wool-
58
Sect. 27.
Law, puts a
1893.
on the
interpretation
stricter
seller
Payment
and delivery are
concnrrent
conditions.
28.
is bound to
non etiam ut
liceat,
general!
Whether the
deliver.
Hacte-
ejusfctciat.
is
to give
price,
to deliver
...
of the goods
till
and nothing
is-
is.
he pays the
price.
on
credit,
But the
to be defeated
it is liable
if
right
of
he becomes
sales
Evidence.
note to the section shews that payment and delivery have alwaysbeen considered concurrent conditions.
In an action for non-delivery, it seems the buyer need not give
evidence that he was ready and willing to pay, till the seller shews he
was ready to deliver.* Conversely, in an action for non-acceptance.
'
1603,.
et seq.
" Morton v. Lamb (1797), 7 T. R. 125 iBawsmi v. Johnson (1801), 1 East,.
201; Wilhi v. Atkinson (1815), 1 Marshall, 412; Fickford v. Grand
Junction BaiVway (1841), 8 M. & W., at p. 378 ; cf. Bussey v. Bamett
(1842), 9 M. & W. 312; Bankart v. Bowers (1866), L. E. 1 C. P. 484;.
Faynter v. James (1867), L. R. 2 C. P.
' Bloxam v. Sanders (1825), 4 B. & C. 941, at
p. 948
Viall (1860), 29 L. J. Ex., at p. 183, as to credit sales.
cf.
Qiinery
v..
plaintiffs readiness
his part."
Notes to Cutter
v.
It is
59
enough
to
Sect. 28.
Where
a future day,
rest.
29.
Whether
(1.)
it is for
them
buyer
to the
is
Apart
and
be
is
the
seller's
if not, his
place of business,
residence
of the parties
when the
bound
Where under
which
contract
is
is
he have one,
if
Provided that,
the contract
if
to the
made
some
sending them
knowledge
are in
is fixed,
the seller
is
bound
no time
to send
is
for
them
Where
to
buyer
unless and
until
is
no delivery by
such
third
person
Jackson
(1859), 28 L. J.
^
Field
V.
usage, Spartali
10 C. B. 212; 19 L. J. 0. P. 293.
Gr. 549, as explained, LqcTcett v. NicTcUn
v. SeTiecke (1850),
Ellis V.
son, B.
Thompion (1838), 3 M.
& W.
Euies as to
^^''^^""y-
60
Sect. 29.
1893.
the operation of
document of title
(4.)
Demand
to goods.^
or tender of delivery
ineffectual unless
made
a reasonable hour
is
(5.)
treated as
at a reasonable hour.*
a question of
Unless otherwise
may be
What
is
fact.
and
seller.
See " delivery " defined by sect. &2,post, p. 109, and " specific goods,"
and " deliverable state," post, p. 116. As to negativing
post, p. 114,
The
delivery of the
iehvery.
Sub-sect. (1.)
the
mode
As
regards
The
first
much
mode
of delivery there
for
It
seems a pity that a more definite prima facie rule has not been laid
of delivery, there
was no authority in
point,
and
61
text writers seem to Lave followed Potliier, who says, "S'il n'y
a
point de lieu exprim^, la livraison doit se faire au lieu oil est la
chose;
c'est a I'acheteur de I'envoyer chercher." i
The Act adopts a rule
which
more
is
substance
is
in accordance
Sect. 29.
down by
mercial Code.
In a contract
Sub-sect. (2.)
the buyer
must
notice.
contract
is silent
"No
it is to be performed
within a reasonable time but there is another maxim of law, viz.,
that every reasonable condition is also implied, and it seems to me
reasonable that the party who seeks to put an end to a contract,
;
because the other party has not, within a reasonable time, required
to deliver the goods, should in the first instance inquire of the
him
latter
Sub-sect. (3.)
As
The lawful
ments.
regards documents of
title,
bills of
the
to
Goods la
possession
of third
person.
But the
transfer
common law
is
who
is
it
rule.
If,
and
stoppage in transitu are thereby defeated (see Factors Act, 1889, post,
118, and sects. 25 and 47 of this Act).
p.
the question
what
is
law in so
far as it
fact.
It
formerly a question of law, and some highly technical rules for deter-
mining
it
Sub-sect. (5.)
Jones
Startup
V.
V.
Macdonald (1843), 6 M.
&
62
Sect. 29.
1893.
by
The
delivery." ^
frais
de
By
la d^livranoe sont
art.
1608 of
charge du
la
s'il
n'y a
eu stipulation contraire."
30.
Delivery of
Tuantlty.
(1.)
Where
Where the
(2.)
he contracted to
buyer a quantity
sell,
the buyer
may
he may
rest, or
them
(3.)
Where
he contracted to
sell
different
may
and
(4.)
The
he may
fulfil
'
V.
by delivering a less
conversely, " if a man contracts
his contract
sell, so,
Wetherell (1829), i
Man &
to
lie is
not at liberty to
call for
63
a small
portion
When
the
delivers a
seller
larger
presumably,
is
Sect. 30.
new
contract.^
This,
he
or so
many
31.
more
(1.)
or less,"
margin.^
is
tons "
Where
(2.)
there
to be delivered
by
is
is
separately paid
for,
and
the
it
depending on the terms of the contract, and the circumstances of the case, whether the breach of contract
is
it is
a
a
repudiated.^
Lord Bramwell, " a
Kingdom
v.
Cox (1848), 5
4 for the
coat,
man
for
orders
the trousers,
girders).
' Ounliffe v. Barrison (1851), 6 Exoh., at
hogsheads of claret).
p. 906,
Mwrphy
instalment
"'enes.
64
Sect. 31.
and 1
they were
iirst ?
all to
ACT,
1893.
shew that
this cannot
On
be."^
may be such
the
that an
"In many
a fixed period the whole quantity cannot, from the very nature of the
case,
for the
which
has been held that the refusal to deliver, accept, or pay for a par-
it
ticular instalment, is
must be judged on
its
own
part of
it
consideration for
32.
Delivery to
earner.
(1.)
the seller
my
is
'
it
am
merits.
performance
is
defeated
is
my
sale,
prima
facie
deemed
to be a delivery
H(mck
'
V.
See Withers
(1859), 29 L. J.
*
3 B.
&
P. 582 (carrier
by land)
v.
(2.)
seller
65
Sect. 32.
of the
case.
or
damaged
may
decline to
or
may
(3.)
it is
seller
do
seller fails to
so,
fade
if
The
th.&t
him
EfEect of
is
the
seller's
abode,
post, p.
carrier
was intended
Ex
p.
care and
diligence is
sufficient
to
(Scotland), p. 86.
Clarke
v.
3 Camp. 414
Seller's
duty.
66
Sect. 32.
Sea
transit.
1893.
As
Sub-sect. (3.)
There appears to be no
is good sense and has
it
Bisk where
goods are
delivered
at distant
33^
Where
at his
are
place.
A manufacturer,"
manufactured
article at
any extraordinary
"who
or unusual deterioration
contracts to deliver a
if
is
bound
it
is
the other."
'
is it
Beer v. Walker,^ where the buyer was held entitled to reject rabbits
which arrived in Brighton in an unsaleable condition, though they
were saleable when sent off from London. In the case of goods such
as rabbits, they are not really merchantable
seller unless
reasonable time.
Buyers
examining
the goods,
34.
(1.)
when
sent off
by the
As
for a
Where goods
are
^
*
Bull
'
J.
Law
of Sale, p. 89.
Ex. 165
Benjamin on
;:
67
Sect. 34.
the contract.^
(2.)
is
seller tenders
bound, on request,
am
it,
Those goods have not been accepted and received by me ;' they have
been as much as it was possible, unless I had chosen to be there to
make objection. So, on the other hand, if I go to a shop for an article
I have previously ordered, and it is delivered to me, wrapped up,
'
though I cannot
see
what
it is,
the contract." *
As
if
them afterwards,
if
is
prima
Lorymer
Smith (1822), 1 B.
&
& K.
0.
p.
v.
cf.
Hunt
v.
312.
2
Pettm
V.
Mitchell (1842), 4
M.
& Gr.
819.
PerMns
Saunders
v.
p. 610,
J.
p. 350,
and
Cf. Startup
per Eolfo, B.
Ex. 285, at
See S.C. 30
p. 238.
by sample).
v.
F 2
Accept^"''^"
68
Sect. 35.
relation to
1893.
them which
incon-
is
when, after
the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.^
The question of acceptance is only material where there is a right to
Most of the numerous decisions relating to acceptance have
arisen on the construction of the Statute of Frauds.^ They must be
reject.
looked at
critically,
because
it is
there
is
may
be an
not an accept-
may
Frauds."
The
may
reject
It
seems
call
if
if
he
the
a " resolutive
A re-sale
condition.'
but
may
by the buyer
is
not be conclusive.
Parlter v.
11 M.
& W.
ed., pp.
Sale, 4tb
140-150.
Morton
"
Couston
v.
V.
Chapman (1872), L. E. 2 So. App., at p. 254. For resolnLamond v. Davall (1847), 9 Q. B. 1030; Head v.
Tattersall (1871), L. E.
7 Ex. 7.
Lucy V. Mouflet (1860), 29 L.
L. E. 7 0. P. 438.
'
"
J.
v.
Hickson (1872),
"^
Unless otherwise
agreed, where
and he
69
Sect. 36.
to accept
r them, ^
Buyer not
having the right so to do, he is not bound to return bound to
them to the seller, but it is sufficient if he intimates ^^'"
refuses
'
f 616Cb6Cl
goods, or offer to
if
them by
it
essential.
is
shewing that he
37.
It
sufficient if
is
is
suflBcient to
form
goods.
No
particular
rejects them.'
When
the seller
is
Liability of
^"^j^"^
or refusing
^a^^
seller for
any
loss occasioned
to the
is liable
is
contract.*
in default in
making
delivery,
damages
When
for
the
any
loss occasioned
seller holds
he cannot charge
by the
and the
may
recover
for expenses of
lien,
p. 75.
QrimoUby
ed., p.
V.Lamb
*
(1834), 2 A.
& E.
129.
Naylor
&
Co. (1884),
9 App. Cas., at
p. 443.
^^
TEE SALE OF GOODS AOT,
70
PAET
1893.
IV.
Sect. 38.
Unpaid
''
seller
(a.)
defined.
The
(1.)
When
.
meaning
deemed to be an
Act
of this
'
tendered ;
(b.)
of goods is
seller
unpaid
When
bill
of
it
was received
In this part of this Act the term " seller " includes
as, for
Hod^gson
93, at p. 102
is
of
bill
who
v.
;
Exp. Chalmers
(1873), L. E. 8 Oh.
Feise v.
Wray
v.
(1802), 3 East, 93
JRiaHTS
71
Sub-sect. (1.) In a case where tte seller had discounted the buyer's
acceptances, but the latter failed before the bills matured, it was held
that the seller was unpaid, and Mellish, L.J., says, "If the bill is
Sect. 38.
dishonoured before delivery of the goods has been made, then the
vendor's lien revives, or, if the purchaser becomes openly insolvent
before the delivery actually takes place, then the law does not compel
the vendor to deliver to an insolvent purchaser."
Sub-sect. (2.)
39.
(1.)
of
may
A lien
is
in possession of
them
(c)
(2.)
Wbere
'
Gunn
V.
Esher
Usborne (1844), 7 M.
had contracted to buy goods)
v.
&
Lord
Gr. 678,
Imperial
by party who
Katharine Book Co. (1877), 5 Oh. D. 195 (surety who
has paid the price) ; Benjamin on Sale 4th ed., p. 847.
^ See sect.
47, post, p. 85, and the Factors Act, post, p. 130.
at p. 698 (re-sale
Bank
v.
Lond.
&
St.
rigMa.^
72
By
Sect. 39.
Bill
tion.
was extended
1893.
right to retain
As
to Scotland.
"
them
sect. 55.
Sub-sect.
doubtful.
The
(1.)
origin
is
is
The
It is probably founded
haps come nearer to the rights of a pawnee with^a power of sale than
to
rights."
Many
of the cases
fail
'
But
it is
from
distinct, because,
respects governed
insolvent.
buyer
is
The
insolvent.
gone, for
it
Moreover,
it
when
the
seller's lien is
transitu, the
for
Common Law." *
The
decisions on the
'
at p. 340.
'
Blaclihv/rn
on Sale,
p.
308;
cf.
Bolton
v.
Lane.
&
Torks. Bailway
0. A.
73
is
The
decisions
now must be
Sect. 39.
them with
is
in a very
read subject to
the Act.
The
seller's
than the
seller's lien in
the right to retain the goods not only for the price, but also for any
other debt due from the buyer even
As
which is modified in
574-576 of the Code de Commerce, and
Sub-sect. (2)
terms to speak of a
enactment
40.
man
it
As
to India,
would be a contradiction
in
The
is declaratory.*
In Scotland a
while in his
may
same
Attach-
or possession
by arrestment or
^
seller in
seller of
own hands
goods
attach the
'
(1882), 7
App.
p. 519.
'
v.
p.
220 (ease
of seller's lien).
2 Mercantile Law Commission, 1855, 2nd Bep., pp. 8, 9, 44; Melrose v.
Hastie (1851), 13 Sess. Oas. 880.
' Bell's Principles, 9th ed., 1307
Allan v. Stein (1790), M. 4949.
*
Ex p. Chalmers
Griffiths V. Perry (1859), 28 L. J. Q. B. 204, at p. 208
;
(1873), L. E. 8 Ch.
App
at p. 292.
f*y
Scotland.
TEE SALE OF GOODS ACT,
74
Sect. 40.
This section
is
taken from
sect. 3 of
;
;
1893.
tte Mercantile
It is probably restrained
Unpaid
SeUer's
seller of
Seller's Lien.
goods who
is
them is
payment or
in possession of
them
until
Where
stipulation as to credit
(6.)
Where
^
;
(2.)
withstanding that he
is
^
;
insolvent.^
his right
of lien
not-
As to the term " unpaid seller," see sect. 38, ante, p. 70 ; and as to
the term " insolvent,'' see post, p. 116. By sect. 62, post, " bailee " in
Scotland includes custodier, and " lien " includes right of retention.
'
Benjamin on
C. 941, at p. 948
'
Benjamin
at Nisi Prius,
Bunney
v.
75
and not
for
Sect 41.
the goods, for they are kept against the buyer's wilL*
A sale on credit excludes the lien during the currency of the credit,^
unless there he a trade usage to the contrary.'
As r^ards
notwithstanding he
may have
seller,
not hound to deliver any more goods under the contract until
is
debt
is
due to him
for
any more
to deliver
is
tendered to
till
he
is
him
if
if
is
would be strange
and
entitled to refuse
less
who had
...
It
agreed to deliver
who had
sold
specific goods." *
Even
if
the seller has broken his contract to deliver while the buyer
buyer's trustee
is
dam^es
for the
was above
Where
lien,
may
sub-purchaser also
is
42.
Where an unpaid
seller
has
made
Somet
V.
'
p. 578,
"
76
Sect. 42.
of the goods, he
may
1893.
By
sect. 62,
it
is sufficient
the whole.
it is
intend
but
if either
it
them
dissents,
then
it
is
Severable
contract.
by
if,
first
be
made
paid
for,
may
till
for,
the seller
for
for
must be
delivered,
bankrupt.*
Tennina-
43.
(1.)
The unpaid
seller of
When
Dixon
V.
(1834), 2 Or.
(stoppage in transitu).
' Kemp V. Falk
(1882), 7 App. Oas. 573, at p. 586, citing for the position,
Bixon V. Tates, suprk, which was a case of seller's lien.
' Ex p. Chalmers
(1873), L. E. 8 Ch. App. 289 (buyer insolvent Qu. if
buyer was not insolvent ?).
* Merchant Sanlcing Co. v. Phoenix Bessemer Steel Co.
(1877), 5 Ch D
205.
of the goods
(6.)
When
(2.)
By
77
^
;
waiver thereof.*
The unpaid
seller of goods,
As
to the
70 ; and as to
The
When
effects,
receipt
by the vendee
an actual
of the seller so as to preserve his lien. But though the goods remain
in the personal possession of the vendor, yet if it is agreed between the
vendor and vendee that the possession shall thenceforth be kept, not
'
Benjamin on
Co. (1866), L.
E.
in Committee.
Sale, 4th ed., pp. 808, 812, and see note, post, p. 78.
Desanges (1 818), 2 Start. 337 Scrivener v. Great Northern
Bailway (1871), 19 W. B. 388. (Qm. if lien extends only to price or also
to costs on the judgment ?)
*
Benjamin on
'
Houlditch
V.
Sect. 43.
78
Sect. 43.
1893.
as vendor, but as bailee for the purchaser, the right of lien is gone,
then there
is sufficient
receipt to
But
and
this
not divested
till
the buyer.*
Again, the
seller
may
them
'
on such terms
the seller has rather a special property in the goods arising out of the
special agreement, than a lien properly so called.*
The
Waiver of
right of lien
also be
is
It follows that it
sect. 39.
lien.
may
waived by implication.
by
But it may
may reserve an express lien
he may take a bill for the price
be waived expressly.
The
seller
lien
if
Stoppage in transitu.
44. Subject to the provisions of this Act,^
Eight of
'"
transUn!
when the
who
seller
has parted with the possession of the goods has the right
'
Cusack V. EoMnem (1861), 30 L. J. Q. B., at p. 261r; cf. Baldey v.
Parker (1823), 2 B. & C, at p. 44, per Holroyd, J.
* McEwan v. Smith (1849), 2 H. of L. Oas. 309, and ante,
p. 61.
' Benjamin on Sale, 4th ed., p. 812.
*
Cf. Dodiley v. Varley (1840), 12 A. & E. 632, at p. 634, per Lord
Demnan.
' Be Leith's
Knights
v.
p. 85.
'
See
sects.
45 to 47.
STOPPAOE IN TRANSITU.
of stopping
them
79
he may
may
as long as
retain
them
Sect. 44.
they are in
until
payment
or
had a right
The
doctrine of
vend or." 2
is a right against the goods them" If they arrive injured and damaged in bulk or quality the
The
selves.
agreement which
is
entitles the
is
no contract or
which they arrive, and to claim moneys which have been paid
by the underwriters to the purchasers of the goods in respect of their
loss by the non-arrival of their property." ^
The term stoppage in transitu only applies in strictness to cases
where the property in the goods has passed to the buyer.* If the
property has not passed, the seller's rights depend upon his so-called
right of lien or upon a reservation oi the jus disponendi? But it is
state in
now
In order to form a
itus,"
them
left
(1)
for transmission.
may have
hands they
It
is
passed through
immaterial
if
whom
transitu
the seller
how many
agents'
LicklarrovD
p. 737,
on Possession, pp.
^
'
Berndfson
Cairns
*
cf.
Gibson
Bolton
PollooJt
v.
v.
Carruthers (1841), 8
Lane.
&
Yorks.
M. & W.
321.
Bailway (1866), L. E.
Willes, J.
'
See
sect.
89
Exp. Chalmers
(2),
and
Griffiths \.
Perry (1859), 28 L.
J.
Q. B., at p. 208
transitu.
80
Sect. 44.
"~~
1893.
(2)
are
term
deemed
also
when they
of the
" Goods
are in
any
person
who
carrying
is
them
by the
for
who
is
to hold
them
them accordingly."
deal with
vendee's servant,
still
in the possession of a
an intermediary, who has not yet by attornment, usage, or otherwise, agreed to hold them exclusively for the
carrier or other person, as
vendee." 5
When
them
First, the
the seller
in that case the seller preserves his lien, and the right of
in medio.
The
arise.
may
hold
them
may
be
in his character
as such, and not exclusively as the agent of either the seller or buyer.
may
exists.
Thirdly, the
In that case
Bethell v. Clark
(1888), 20 Q. B. D., at p. 619, per Fry, L. J., approved
Lyons v. Mnffnung (1890), 15 App. Cas. 391 P. 0.
^ Blaekhurn on Sale, p. 244.
^ Schotsman v. Lane. & Yorks. Bailway
(1867), L. E. 2 Ch. App., at
p. 338.
*
Kendal
C. A.
'
v.
Marshall, Stevens
&
Co. (1883), 11 Q. B.
cf.
D. 356, at
p. 364.
STOPPAGE IN TRANSITU.
there either has been no right of stoppage or
'
The
Sect. 44.
81
determined.
difficulties
45.
it is
(1.)
them from
is
at an end.^
,'
For
For
illustrations see
Whitehead
to deliver
when
E. 1 O.P.,
v.
Anderson
satisfied as to
freight, transit not ended) ; Dodson v. Wentworth (1842), 4 M. & Gtr. 1080
(goods delivered by carrier to warehouse to await orders, transit ended)
Vcdpy V. Oibeon (1847), 4 0. B. 837 (goods delivered to shipping agent of
Schotsmans
v.
(1867),
I/.
K.
2 Ch. App. 332 (goods delivered to general ship owned by buyer, transit
ended) Coventry v. Gladstone (1868), L. E. 6 Eq. 44 (overside orders
given by mate to holder of bill of lading, transit not ended); JExp. Gibbea
;
(1875), 1 Ch. D. 101 (goods shipped to Liverpool and then put on railway
for buyer, transit ended) ; Ex p. Watson (1877), 5 Ch. D. 35 (ineffectual
Ex p. Barrow (1877), 6 Ch. D. 783 (goods warehoused by carrier as forwarding agent, transit not ended) (?); Ex p.
Bosevear China Clay Co. (1879), 11 Ch. D. 560 (goods shipped on ship
hired by buyer, destination not stated, transit not ended) Kemp v. FalJc
(1882), 7 App. Cas. 573, see at p. 584 (goods on ship, cash receipts instead
of delivery orders given to buyer, transit not ended) ; Ex p. Francis
(1887), 4 Morrell, 146 (goods shipped in vessel of buyer's agent, transit
ended); Bethell v. Clark (1888), 20 Q. B. D. 615 C. A. (goods ordered to
be delivered to the " Darling Downs " to Melbourne, transit not ended
by shipment) followed Lyons v. Hoffnung (1890), 15 App. Cas. 391 P. C.
interruption of transit)
&
^"
82
Sect. 46.
18<J3.
them
the transit
at an end,
is
and
it is
immaterial that a
indicated
by the buyer.^
If the goods are rejected
(4.)
even
if
(5.)
deemed
to
When
the buyer
be at an end,
them
back.^
it is
of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer.*
(6.)
Where
deemed
to
be
at
an end.*
(7.)
Where
made
of the goods
may be
as to
see
865,
of stoppage ;
'
Bolton
V. Griffin
V.
Ex p.
Lane.
(1837), 2
Miles (1885), 15 Q. B. D. 39 C. A.
& Yorlcs.
M. & W.
Railway (1866), L. E.
1 0. P.
431
c/.
James
623.
carrier refused
STOPPAGE IN TRANSITU.
83
Sect. 45.
the goods.^
The term " custodier
''
is
follows that it
may
As
As
by
be waived by the
the
it
103.
regards the term " destination," Lord Esher says that " it
means
who
is
to
Destination.
Where
^
'
assent.
if
is
If the carrier
do not assent to
no attornment.^
unpaid is strong, though not conclusive
evidence that the carrier is in possession of the goods, as such, and not
holding them, there
The
is
J.,
who
says, "
Bolton
V. Lcmc. and Torks. Bailway (1866), L. E. 1 C. P., at p. 440,
per WiUes, J. ; Ex p. Cooper (1879), 11 Ch. D. 68 0. A. Kerr^ v. PalJc
(1882), 7 App. Cas., at p. 586, per Lord Blackburn cf. sect. 42, ante, p.
;
'
Kemp
V.
p. 248.
Cas., at p. 584.
*'" }
*'^*^'
84
Sect. 45.
How
46.
stop-
traDsitnis
effected.
The
to the vendor.
principles."
difficulty in
each case
1893.
in applying these
lies
(1.)
The unpaid
seller
may
by giving notice of
whose possession
Such notice may be given either to the
may communicate
it
When
is
given by
must
of,
the
seller.^
is clearly settled,"
by the
The
ex-
seller.
vendor has a right to retake the goods before they have arrived at the
destination originally contemplated by the purchaser, unless in the
own
may
Whitehead
v.
5 Oh. D. 35 0. A.;
RESALE BY BUYER OR
The
own
peril,
and
it is
85
seller,
in transitu at his
unless he
SELLER.
Sect. 46.
is satisfied it is
If after notice,
he
is
The
a remedy by injunction,'
of a ship,
by
or, if
seller
In case
has also
there
Re-sale hy
47.
Bvyer or
Seller.
Act,''
the unpaid
stoppage in transitu
is
unless the
'
TU
T,.
J.
Adm.
97, at p. 101.
J.
Adm.,
at p. 102
Tigress (1863), 32
of.
Litt
v.
Cowley (1816),
Taunt., at p. 170.
Schotsmans
'
effect of these
documents.
Blackburn on Sale, p. 224; Stoveld v. Hughes (1811), 14 Bast. 308
Pearson v. Dawson (1858), 27 L. J. Q. B. 248 Woodley v. Coventry (1863),
'
Effect of
pjgjg^
^'"yer-
\^
THE SALE OF GOODS ACT,
86
Sect. 47.
rcf~52&
53 Vict.
c.
^^^T^
1893.
title to
goods has
ment
to a person
and
for
who
valuable
consideration,
then,
if
such
last-
seller's
or other
the unpaid
is
by way
stoppage in transitu
the
transferee.
The
1889,^08*, p. 130, which puts all documents of title on the same footmg
as a bill of lading.
See " document of title " and " lien," defined by
sect. 62, post, p. 110.
The
effect of this
law
appears to be as follows
Transfer
of bill of
^'
(1.)
seller,
that
is
parties to the contract, the indorsement of the bill of lading does not
affect the right of stoppage,
buyer
antecedent debt
(2.)
That
if
may
bill
seller's
who pays
the
Banking
p. 582,
87
bill
of lading
may compel the incumbrancer to resort to other goods pledged with him by his debtor,
if such there be, before resorting to the goods covered by the bill of
to rights of the incumbrancer, and, further, he
lading.'
(4.)
the
of lading
bill
is
is
is
wholly paid.3
(5.)
bill
of lading
is
transferred to a sub-purchaser
is
is
money which
unpaid.
is
out in the
when the
name
In
Ex
Oo.,
the buyer
of lading
was made
p. Golding Davis
the
bill
ifc
It
was held,
that the original seller was entitled to stop the goods for the original
must be decided
name of the
original purchasers and had then been assigned by them to their subpurchasers." < The decision was followed a few months afterwards in
Ex p. Falh, and Lord Bramwell, referring to the cases where bills of
lading had been pledged, said, " What difference is there in principle
between the case of a man selling goods on credit for 500 and their
being re-sold for 600, and the case of the purchaser pledging the
goods for 600 with a right of sale by the pledgee ? " ^ But when
Ex p. Folk was taken to the House of Lords it was found to turn on
wholly different considerations. Lord Selborne seemed to doubt the
purchase-money.
"as
if
the
bill
made out
in the
rule laid
Sewell
Re
V.
Westzinthus (1833), 5 B.
;
Sect. 47.
88
Sect. 47.
1893.
them to their
any opinion on the point.i
further the Bills of Lading Act, 1855, and
The
vendor."
As
48.
(1.)
rescinded
Contract of sale
by
g^^
lien or
is
stoppage
in transitu,
unpaid
stoppage in transitu.^
(2.)
Where an unpaid
seller
who has
exercised his
thereto as
title
intention to re-sell,
buyer of
his
may
re-sell
original buyer
the
damages
goods and
for
any
recover from
loss occasioned
by
the
his
breach of contract.*
(4.)
Where the
seller
Kemp V.
'
Greaves
Blackburn.
Milgate v. Kebble (1841), 3 M. & Gr. 100;
cf. Lord v. Price (1874),
L. E. 9 Ex. 54 and see sect. 8 of the Factors Act, 1889.
* Notes to Lickharrow v. Mason, 1 Smith, Lead. Cas., 9th ed.,
p. 798
;
cf.
Maclean
v.
Dunn
a refusal to accept.
=
Pa^e
V.
Cmnasjee (1866), L. E. 1 P.
Ex p.
BE- SALE
contract of sale
is
BY BUTEB OB
By
sect.
may
By
retention.
89
SELLEB.
have
Sect. 48.
for damages.^
fact.
As long as the buyer is in default he is not entitled to the immediate possession of the goods, and therefore cannot maintain an
action for conversion even against a wrong-doer in possession.^
In
Ex p.
Stapleton,
it
was
said that
when
the price within a reasonable time, and nothing was said about notice.
But as a
gave
fair
to re-seU.3
if
the
seller
left
them
into the
sect.
25 (1) of
this Act, protects the second purchaser if either the goods themselves
See "unpaid
(3) is governed
who has
seller," defined
by
sub-sect. (1).
It only applies to
Sub-sect.
an unpaid
seller
Lanumd
v.
DavaU
Exp.StapUbm
Langton
v.
Gredit.
seller,
90
PAET
1893.
V.
Seller.
the pro-
Sect. 49.
49.
Action for
V^^J
price.
(1.)
sale,
may
may
price,"
the property in the goods has not passed, and the goods
Nothing in
'
Scott V.
(1807), 1
England (1844), 2 D.
(1835), 1 Bing.
'
Dunlop
p. 167.
&
L. 520;
N. C. 671 (goods
Orote (1845), 2 0.
Kymer
cf.
transitu)
may
v.
Alexander
be.
Sawercropp
v. Gardner
lost at sea).
&
K. 153
ed.,
is that,
91
in the absence of
any
different
Sect. 49.
agreement,
and tender
Before the Judicature Acts the price of goods sold could be recovered
delivery
See
delivery.
The
IM.
must be wrongful.
It does
not
necessarily follow that because the property has passed the price
forthwith payable.
may be made
Where
The
sale
to depend on
there
some
is
payment
specified contingency.'
an agreement
is
credit, or
for
payment of the
bill is
by a bill Payment
cannot sue by bill,
price
seller
till
the
that time
by
Where a
is
bill is
bill
as conditional payment.
The
either
when
on the
is
is
that
it
operates
is
bill or
on the consideration.^
for
the price of
not recoverable."
payment
& 4 Will.
4, c. 42,
s.
28.'
'
Cf. Walton V. Mascall (1844), 13 M. & W., at
Mugnier (1865), 34 L. J. 0. P. 126.
2 Bulleu & Leake's Free, of Pleading, 3rd ed., pp.
Paul
v.
Dod
De Mattos
'
Fessard
v.
38, 39.
Gordon
2 0. B, 494.
' Mayne on Damages, 4th
L. E. 10 Q. B. 371.
458
(1846), 2 0. B. 800
(1868), 33 L. J. 0. P. 145,
p.
ed., p.
146 ; Buncombe
v.
v.
Greathed (1846),
92
Sect. 49.
In Scotland
seller
may
price
and
The Act
Damages
Acceptance,
it
1893.
50.
interest,
(1.)
refuses to accept
and pay
him
neglects
the seller
damages
for
or
may
for non-
acceptance.^
(2.)
The measure
directly
damages
of
and naturally
is
Where
in question
there is an available
the measure of
market
damage
is
prima
facie to be
damage.
sect.
53 as to non-delivery, and
sect.
54 as to
(53),
remedy
special
is
an action
for non-acceptance.'
Where the
where the
seller's
only
property has
"
passed he
'
93
acceptance.
As
damages
to
Sect. 50.
for buyer's
ante, p. 69.
In some cases where the sell'er has re-sold, the re-sale price has been
assumed to furnish the correct measure of damages."
Bemedies of
51.
(1.)
Where
the
the Buyer.
seller
wrongfully
neglects
or Damages
may
The measure
directly
of
and naturally
damages
is
Where
in question
there
is
an available market
is
for the
prima
goods
facie to
be
Unless he has re-sold, in which case he must sue for damages, Lamond
Bavall (1847), 9 Q. B. 1030.
2 Maclean v. Dunn (1828), 4 Bing. 722
Ex p. Staplefon (1879), 10
Ch. D. 586, 0. A.
^ Bullen & Leake's Free, of Pleading, 3rd ed., p. 241 ; Bamsden v. Gray
(1849), 7 0. B. 961 cf. Jones v. Gibbons (1853), 8 Exoh. 920 (not delivering goods agreed to be delivered " as required ") ; Levyis v. Clifton (1854),
14 C. B. 245 (refusal to permit growing timber, which had been sold by
'
V.
Smeed
v.
Or^b^rt-Borgnis
^^i^^
94
Sect. 51.
or, if
no time was
fixed,
1893.
deliver.^
Eules as
loss
when
and not
breach
its
is
The question
is
is
parties
The
rule as to
it.^
As
market price
is clearly
goods
is
100.
in general
is
money
when
the contract
in his hands
may
is
broken, because
and buy. So, if a contract to accept and pay for goods is broken, the
same rule may be properly applied, for the seller may take his goods
into the market and obtain the current price for them." *
Hence, if
in an action for non-delivery no difference between the contract price
'
W.
'
9th
*
169
Shaw
v.
Holland (1846), 15 M.
&
Hadley
v.
ed., p. 594.
Cf.
Cory
Hammond
*
ed., p.
136, 146.
v.
Barrow
v.
20 Q. B. D., at p. 100, 0. A.
Arnaud (1846), 8 Q. B., at p. 609, Ex. Ch.
v. Biiseey (1887),
and
is
shown, the
95
Sect. 51.
nominal damages.^
The
apply
vidual
But
rule is so convenient
it
whenever
cases.''
even where
many
there are
inapplicable.
possible,
If it
cases in
is
it
is
is
price.
In that case he is
market price of the goods on the
day when they ought to have been delivered, together with interest
on the money he has been kept out of.*
(2.) The exact sort of goods the buyer has contracted for may not
be obtainable, but if it is reasonable for him to buy in similar goods
he may charge the seller with the difference in price.^
(3.) The seller may have repudiated his contract before the time for
delivery arrives. In such case the buyer may either hold him to his
(1.)
full
till
may
be
had
to the
time.'
test
may
This
Baxendale.
'
Talpy
"
Brady
delivery)
is
is
no market
for
the goods
V.
v.
re-sale excluded)
Thol
v.
by buyer).
Biggins (1848), 1 H. of L. Gas. 381 see at p. 403.
Cortazzi (1835), 2 0. M. & E. 165 ; cf. Barrow v. Arnaud
(1846), 8 Q. B., at p. 610 ; and see Mayne on Damages, 4th ed., p. 175.
Einde v. Uddell (1875), L. E. 10 Q. B. 265.
Roper v. Johnson (1873), L. E. 8 C. P. 167, see at p. 181 ; Mayne on
Damages, 4th ed., p. 164.
' Ogle V. Earl Vane (1868), L. E. 3 Q. B. 272, (non-delivery), Ex. Ch.
Hickman v. Haynes (1875), L. E. 10 C. P. 598 (non-acceptance) ; cf. Tyers
V. Bosedale Co. (1875), L. E. 10 Ex. 195, Ex. Oh.
'
Bunlop
V.
Startup
V.
delivery.
'
96
Sect. 61.
;
;
1893.
in question at the time and place appointed for delivery,^ as where the
manu&ctured
for
him.
circumstances, and
is
Each
article
case
or
articles
then tarns
usually complicated
by
to be expressly
on
its
particular
questions of special
damage.'
Delay in
delivery.
delivered."
Trover or
detinue.
1889
(now reproduced in
under a contract of
sale,
sects.
may
in possession
who has
v.
p. 476.
^ Sydraulie Co. v. MeHaff,e (1878), 4 Q. B. D.' 670, C. A. (machine
ordered "as soon as possible"); Gr^ert Borgnis v. Nugent (1885), 15
Q. B. D. 85, C. A. (goods made to order).
' Smeed v. Foord (1859), 28 L. J. Q. B. 178 (steam thrashing-maohino)
Cory V. Tliames Iron Worlcs Go. (1868), L. E. 3 Q. B. 181 (steam derrick).
As to damages against a carrier for delay in delivering ordinary goods
Parana
As
to detinue, see
Langton
v.
97
version
Sect. 51.
is
When, a man has sold goods to one person, a mere contract to sell
them to another is not a conversion,' but a delivery of them in
pursuance of that contract
much
restricted
hy sects. 8 and 9
liability
has been
In any action
62.
for
specific or ascertained
fit,
by
plaintiff,
if it
thinks
judgment
its
ment
[or decree]
payment
may be
of damages.
The judg-
price,
may
just,
and
be made at any
The
specific
See "
defined
for
to,
specific
by
=
*
to be
the right of
goods " and " plaintiff" and " defendant " and " action "
112, 114.
is
judgment.
sect.
2 of the Mercantile
of,
implement in Scotland.
deemed
supplementary
Law Amendment
but see Johnson
v.
L. J. Ex. 190.
specific
PBrform[19
&
20
J'2' an/^'
Jud. Act,
;;
98
Sect. 62.
1893.
Act, 1856, as modified by the Judicature Acts and Eules which enable
a Judge to try a case without a jury and give a defendant the right
to claim any relief by counterclaim which he could have sought if he
action,
and enable
all
courts to administer
remedies.
Sect.
Vict.
0.
Law Amendment Act extended the proCommon Law Procedure Act, 1854 (17 & 18
of the Mercantile
visions of sect.
78 of the
that execution should issue for the return of the chattel detained
without giving the defendant the option of retaining the chattel upon
The enactment seems to have been passed
Law
Commission,
In Scotland
53.
for breach
of
warranty.
seller,^
treat
(1.)
Where
implement,
it
can be
by the
is
but he
may
(a) set
up against the
seller the
breach of warranty in
or
V.
Ibid.,
and
Street v.
Benton (1832),
1 Or.
Blay (1831), 2 B.
& M.
Street v.
&
M., at
99
(J)
for
damages
The measure
(2.)
of
damages
for
breach of warranty
is
warranty.^
(3.)
prima
loss is
if
warranty.'
The
(4.)
if
damage.*
Nothing in
(5.)
is
See " quality " and " warranty " defined, post, p. 113. This seetion
the complement to sect. 11, ante, p. 23. Sect. 11 shews when
840
see
Mmdel v.
PoulUm
v.
may pay
made
for carriage)
Hammond
v.
Bussey
damage).
'
ed., p.
180
Loder
v.
KelmUClSST), 27 L.
of.
Heilbutt
v.
J.
Hiokson
(1841), 8
858 ;
M. & W.
Sect, 53.
100
Sect. 53,
goods
may
1893.
for
them
may
reject
seems to be
position
certain goods,
fbr fraud or
He
this.
has contracted
for
seller, therefore,
the supply of
The
to him.
for non-delivery
should on
by
was
killed,
no fault of the buyer, before the time for return had elapsed,
it
held that the buyer could sue for breach of warranty, though he could
not return the horse.'
In Scotland
hitherto
for
may
damages
and secondly,
if
he can
the rule has been that where the buyer can reject the goods but has
not done
so,
he cannot sue
for
damages.
The
Interest
damagesr
54.
^uyer or the
by
but now
sect. 59.
by law
interest or special
damages
damages may
'
101
As
As
payment
"
of
it
has failed.
contract of sale.
Each
case
must be determined on
its
own
merits,
by the
parties
attaching to
it,
pay damages
for
such special
says Cotton, L.J., in an action for non-delivery of a gun, " that the
plaintiffs are only to
was
is
and
subject to the
loss
which
action
'
the contingency of there being such a breach ?
The liability to pay damages for breach of contract
is an obligation
annexed by law independently of the volition of the parties, and the
criterion is necessarily an objective one. What the parties themselves
may have
reasonable
contemplated
man
with their
same
>
Sect. 64.
if
it.
The
BydrauUc Engineering
defended).
Special
damage,
102
Sect. 54.
parties
be wholly eliminated.
which naturally
a contract
parties,
special circumstances,
loss
1893.
arises
made under
is
the
Given
knowledge of both
then the special damages are those which naturally arise from
'^*'
As
contract of sale.
tion.
usually be recovered as
for
'
See
175 tons of
terra japonica,
common money
counts.'
and cases
there collected.
^ Devaux v. ConoUy (1849), 8 C. B. 640 ; but of. CovaB v. Bingham
(1853) 2 E. B. 836, where by the contract the bill of lading was made
conclusive.
103'
PAET
VI.
SUPPLEMENTAEY.
55.
Where any
would
arise
sale,
if
contract.
This section
pressum fwAt
As
is
cessare taciturn,
and Modus
may
is
et
la
vente
commerciale qu'on pent dire qu'elle pent se plier k toutes les modality, sans autres exceptions que celles qui r^sulteraient d'une disposition de la loi prohibitive, ou des exigeances de I'ordre de la morale ou
In estimating the
'
See,
e.g..
Ward
v.
effect
it
1,
181, 306.
De Mattoe
(1863), 32 L. J. Q. B., at
passage cited at length, post, pp. 180-182.
Honek v. Muller (1881), 7 Q. B. D., at
p. 103, C. A.
" Des Achats et Ventes,
226.
must be borne
of an express stipulation,
p.
Sect. 55.
Excinaion
* implied
conditions.
104
Sect. 65.
1893.
an express
which the
French law
for the benefit of the buyer." ^
goes further, and art. 1602 of the Civil Code provides that, where a
stipulation in a contract of sale is ambiguous, it is to be construed in
have been superadded
And
this
In eontrahenda
rule.
est.'
Westbury says
" Lien is not the result of an express contract it is given by implicaIf, therefore, a mercantile transaction which might
tion of law.
Eeferring to a consignee's lien for advances, Lord
;
involve a lien
is
the result of the dealings in that relation, the express stipulation and
agreement of the parties for security exclude lien, and limit their
by the extent
rights
As
Usage.
it is
to be noted that
is
illegality or unreasonableness
For a
list of
relies
at liberty to
in fact, it formed
no
Reasonable
time a
56.
Where, by
this Act,
any reference
question of
fact.
IS
a question of
>
Mody
V.
Drummond
made
to a
a reasonable time
fact.
law or a question of
is
is
fact, or
is
a question of
fact.^
The
v.
Hersohell.
Cf. Bigge v. Parkinson (1862), 31 L. J. Ex. 301, Ex. Oh.
(sale of provisions for troopship with warranty that they should pass
inspection).
' In English law occasional effect is given to the maxim Verba fortius
acdpiunter contra proferentem; see notes to Boe v. Tranmar, 2 Smith,
Lead. Gas., 7th ed., p. 525.
'
Be
569 ; and as to usage to bind both parties, i.e. that it must be known
taken to be known to both, see BoUnson v. Mollet (1875), L. E. 7
ed., p.
or
H. L. 802.
Tcvylor
on Evidence, 30.
AUCTION SALES.
Act
question of
Compare
fact.
sect.
29
105
by making
it
in all cases a
Sect. 56.
hours.
Where any
57.
by
vided, be enforced
This section
any contravention of
provisions
its
a misdemeanour.^-
Act pro-
Where goods
lots,
each lot
is
punishable as
is
its
is
completion by the
(3.)
is
a sale by auction
fall of
the hammer,
Where
Auction
by auction
sale
announces
ment
^
:
seller, it
to
this rule
may
Any
sale contravening
'
48,
action.
are put
^^
common
(1.)
(2.)
this
action.
to its provisions,
58.
by
is
when
law, that
this Act, it
cf.
30
&
31 Vict.
s. 5.
Haines (1846), 15 M.
& W.
'g
"^Jj^
p- 153.]
'
106
Sect. 58.
(4.)
rcf 30cSi3i
Vict. c. 48.
by auction may be
sale
may
by or on behalf of
Where a
right to bid
may
Nature of
notified to be subject
the seller.^
p. 154.]
auction
1893.
is
his behalf,
Sub-sect. (2.)
much
^.jjg
Bale.
tract
discussed
offer.
it
As
the
offer
may be
if
An auctioneer who
sells
that,
when
&
31 Vict.
c.
The
Sales of
Land by Auction
It
first
bids
cf.
by person
p. 480.
107
REPEAL8.
it
is
sect. 58.
post, p. 153.
An
agreement
common
As to
8
&
for
law.
auctioneer's duty to put
9 Vict.
c.
15,
up
his
name,
etc.,
during
sale, see
s. 7.
59.
rise to
||5oia(,
seller
alleged.
actio quanti
It
by
Scotland,
Now
60.
set
up agamst the
Act
extended to
it is
price
is
sects.
this provision.
and then
as from the
commencement of
title,
affect
anything
or interest acquired
legal proceeding or
'
list
Cicero,
De
28 L. J, Q. B.
19.
cited in
Warhui
v.
ffanison (1858),
Bepeais.
108
Sect, 61.
Sav^
in
rules
1893.
The
(2.)
common
rules of the
rules
and
Nothing in
(3.)
Act or
this
in
sale,
which
(4.)
is
bills of
The
provisions of this
is
Nothing
in this
Act
in Scotland.
(46
&
47 Vict.
52).
c.
in force is the
See in particular
sect.
Sub-sect. (3.)
The
Bills of Sale
and 1891.
The Act
App.
11.,
post, p.
by
this Act.
As
to the
Act
of 1878, see
l.'JS.
DEFINITIONS.
62.
(1.)
109
Sect. 62.
t ^
Interpreta-
in tionof
Action.
Bailee.
Buyer,
goods.
sell as
of sale "
Contract
* ^*'^"
well as a sale.
is
17th
Probably a similar object is aimed at
1589 of the French Civil Code : " La promesse de
;
by the obscure
art.
"Defendant" includes
in Scotland
defender, respon-
Defendant,
Delivery.
^g yj^j
0.
p.
It
is effectual for
one purpose
is ineffectual for
by the
that right.
Sir F. Pollock defines delivery as " voluntary dispossession in favour
of another," and proceeds to say that, " in all cases the essence of
delivery
is
deliveree in the
same
that act."
Delivery
may
be actual or constructive.
'
Delivery
ed., p. 677.
is
constructive
61,
a. 3,]
no
Sect. 62.
when
effected without
it is
any change
Delivery by attornment
delivery.
cases.
he may
sale
may
may be
seller.
by attornment or symbolic
the
may
his bailee.
for
1893.
may
bailee.^
by giving the buyer the key of the place where the goods
stored.
He shews that the key is not the symbol of the goods,
delivery "
are
but that the transaction " consists of such a transfer of control in fact
as the nature of the case admits, and as will practically suffice for
causing the
But the
new
which represents them. The transfer of the bill of lading has the
same effect as a delivery of the goods themselves.
Where goods are taken possession of by the buyer under a license
to seize, the transaction is equivalent to a delivery by the seller,^ and
should perhaps be regarded as a case of actual delivery.
A delivery by mistake may be inoperative.'
It is to be noted that the Act makes no attempt to define " posses-
But a
sion."
Acts
The
is
given by
in ihe
Common LawJ
"Document
Document
sect.
of title to
'
'
Sanders
Congreve
v.
v.
Ill
DEFINITIONS.
By
sion
'
sect.
1 (4) of the Factors Act, 1889, post, p. 121, " The exprestitle shall include any bill of lading, dock warrant,
document of
'
Sect. 62.
'
by endorsement
or delivery, the
goods
thereby
represented."
(Scotland)
Act,
amending or substituted
and
1890,
for the
Act, 1889
any
the
Factors
enactment
same.
See these Acts set out and noted, post, pp. 118, 135.
Fault.
See
it.
mean goods
to be manufactured or Future
^^^'
of sale.
"See sect. 5, ante, p. 14,
and note
thereto,
and
p. 43,
and
post, p. 114.
personal other
all
than
cor-
emblements [industrial
sale.
The term
Scrip and
as freely as the term " possession " and as its equivalent (Law Quan
'
Review, vol. i.).
Cf. Blacltburn on Sale, pp. 6 and 9,
Goods.
112
Sect, 62.
1893.
bills,
notes,
and
cheques.'^
Most
performance.
See^os^,
p.
142.
the 17th
count
sects.,*
and
fall
fixtures could
be recovered on a
delivered.
As
seller
how
who
to sever
is
by the
If the buyer
it
is
to take
them
contract that they are intended to remain in the land for the advan-
sect.
If not,
and reproduced in
sect.
sect.*
Lien.
"Plaintiff" includes
Plaintiff.
down by
[pursuer,
complainer, claimant
[or defender]
counter claiming.
The terms
HvmUe
v. Mitchell (1839),
(1886), 11
4th
*
ed., p. 117.
Marshall
v.
p. 42,
But
to be cleared
away
in two months.
113
DEFINITIONS.
" Property "
in goods,
and
Sect. 62.
Pro^y.
The
special property,
by Lord Bowen.^
may be
a special property in
them
is
pledge where the pledgee has only a special property, the general
may
The
another.^
The
may be
may be
in another,
by the
is
a sale of
may
Again, goods
price is paid.
specific
seller
may
till
the
till
who has no
property in
may
sects.
merchantable.
Bmdick
v.
Cas., at p. 93.
2
SalUday
and 10 App.
v.
Broim (1849),
Franklin v.
14 Q. B. 496. See a lien distinguished from a pledge, Donald v. Suckling
(1866), L. K. 1 Q. B., at p. 612; cf. Howes v. Ball (1827), 7 B. & C. 481
(hypothecation) ; a pledge distinguished froto a mortgage, Fx p. Eubhard
Be Morritt (1886), 18 Q. B. D., at p. 232
(1886), 17 Q. B. D., at p. 698
a pledge distinguished from a sale, Sewell v. Burdick (1884), 10 App.
5
Oas. 74.
*
Mulliner
v.
Quality.
114
Sect. 62.
sai~
and
1893.
^^^ delivery.
This definition follows from the definition of sale given by
See notes to that section and to
Seller.
sect. 1.
who
agrees to sell
sells or
goods.
mean goods
"Specific goods"
goods.
Where
or unascertained goods.
fulfil
the seller
fulfils his
sale is
by
made.
his contract
contract
and agreed
When
identified
there
by
is
delivering
any
It is clear
come
within the definition of specific goods, but for most purposes would be
subject to the
The
mixed
definition is only a
case,
unascertained portion
of a
larger
ascertained quantity
Suppose a
man having
champagne
of that brand
" now in
of
goods.
my
cellar."
champagne
it
Warrauty.
main
As regards
115
DEFINITIONS.
deemed
Sect. 62.
contract.
W.
though part of the contract yet collateral to the express object of it."
The Act, in accordance with this view, draws throughout a distinction between the terms " condition precedent " and " warranty.''
See sect. 11, ante, p. 23, and sects. 12 to 14, and 53, ante, p. 98.
(2.)
thing
deemed
is
The House
it
to
be done negligently or
of Lords in
Berry
v.
Peek
'
not.^
is
no
tertium quid between good faith on the one hand, and bad faith or
fraud on the other.
" First," says Lord Herschell, " in order to sustain an action of What conmust be proof of fraud, and nothing short of that will stitutea
deceit, there
suffice.
Secondly, fraud
is
proved when
made
it
shewn that a
is
false
'
==
Amon
on Contracts, 5th
Chanter
v.
SopMns
ed., p. 309.
(1838), 4
M, &
See, too,
Behn
s.
90)
*
cf.
Berry
Jones
v.
f''*"'^-
116
Sect. 62,
lent, there
And
alleges
that which
Thirdly,
if
false,
for
one
its truth,
who knowingly
belief.
it is
(3.)
is
whole ground ;
immaterial.
Insolvent.
1893.
whom
person
meaning of
this
is
deemed
Act who
pay
his
an act
By
sect.
96 of the Indian
them."
Deliverable state.
(4,)
Goods are
meaning of
this
in
within the
Commencement.
Short
64. This
title.
as
the Sale
of Goods
Act, 1893.
Canon of
The canon
for construing
construc-
House
tion.
of Lords in a case
on the
is
examine the language of the statute, and to see what is its natural
meaning, uninfluenced by any considerations derived from the previous
to
'
ENACTMENTS REPEALED.
and not
to
start
117
it
to
an interpretation in conformity
any provision be of doubtful import
resort to the previous state of the law would be perfectly legitimate.^
The provisions of this Act must be read with and subject to the
provisions of the Interpretation Act, 1889, which apply to all Acts
leave
unaltered, to see
it
But
if it
will bear
of course
if
SCHEDULE.
This schedule
is to
Law
the Statute
Committee.
Enactments Eepbaled.
Session and Chapter.
1 Jac. 1.
29 Cha.
C.
Title of
21
..
..
An
..
..
An Act
2. c.
In part;
fifteen
Geo. 4.
c.
14
An Act
..
that
and
is
to say, sections
sixteen.^
memorandum
19
& 20 Vict.
c.
60
Act, 1856.
;
that is to say, sections
one, two, three, four, and five.
In part
19
&
20 Vict.
c.
97
In part; that
one and two.
Vagliano
v.
Commonly
Bank
of England (1891), A.
is
C,
Act, 1856.
to say, sections
at p. 145.
Sect. 64.
118
THE PACTOES
(52
An Act
to
&
amend and
1889.
ACT,
53 Vict.
c.
1889.
45.)
Be
The present Act is the result of a long struggle between the mercantile
community on the one hand and the principles of common law on the
other.
The general rule of the common law was, Nemo dot quod non
habet,^ and it was held that the mere fact that a person was in
possession of goods or documents of title to goods did not enable him
to dispose of those goods in contravention of his instructions with
respect to them.
interests of
of goods or
commerce,
if
documents of
is
that, in the
the possession
left in
is
and any one who attempts to follow and understand the law merchant
will soon find himself lost if he begins by assuming that merchants
conduct their business on the basis of attempting to insure themselves
against fraudulent dealing.
'
See
The contrary
and Fuentes
v.
is
the case
credit,
not
Montis (18G8), L. E. 3 0. P.
119
1889.
Sect. 1.
consists principally in
few things in
many
They
words.
documents of
title to
summed up by
Blackburn,
he proceeds to say
Vished to give to
overt.
by another
deceived
he bears the
loss,
The
(p.
372)
sales
all
"
We
and pledges
in the ordinary
common law
gives to sales in
into believing he
may
is,
legislature
is
unless he can
The
carefully
(1875),
After reviewing the history and policy
market
is
Bank
to
act of
make
the law that, where a third person has intrusted goods or the docu-
ments of title
sells or
to goods to
who lona
him without
notice that he
makes a
was not
dealt with a
new
subject-matter.
After
it
proceeded to deal with the case, not of agents, but of buyers or sellers
The present
possession of the documents of title to goods.
Act reproduces and somewhat extends the effect of the four above-
left in
mentioned Acts.]
Frdiminary.
1.
"mercantile
purpose of
money on the
This definition
sell
sale, or
buy goods, or
is
new, but
is
mainly declaratory.
Sanders
to raise
security of goods
v.
it
It extends the
applies to agents
at p. 343, C. A.
Definitions.
Mercantile
agent.
120
Sect. 1.
"
buy
to
1889.
goods,"
agents.i
who had
name."
to that of
on Sale, 78-118.
On the other hand,
it
who
ordinarily carried
the Acts.'
(2.)
PosseBBion.
Qu.
Bank
2
v.
person shall be
how
'
(1880;, 5
Wood
Lamb
to be in possession of
and
City
678.
33 L. T.
App. Cas. 664, are affected ?
Barrow
per Blackburn, J.
'
deemed
cf.
V.
v.
v.
380,
City
'
N.s.
Pearson (1893), 1 Q. B. 62
373,
cf.
Eayman v. Flewker
insurance agent to
sell
121
1889.
title to
Sect. i.
him
or
on his behalf:
This definition is taken from words used in sect. 4 of the Act of
1842 (5 & 6 Vict. c. 39), but it is generalised by the substitution of
the word " person " for the word " agent." The probable object of
this change is to make
agency sections.
The
(3.)
it
apply to
sects.
merchandise
in the 17th sect, of the Statute of Frauds is " goods,
and merchandise." This definition, therefore, probably incorporates the numerous decisions on the meaning of those words in
that Act, which are reproduced in the definition of " goods " given by
wares,
sect.
(4.)
any
of
bill
lading,
certificate,
goods,^
of
by endorsement
either
purporting to authorise,
by
or
or
document to transfer
the
or
receive
goods
thereby
represented
&
6
is taken from sect. 4 of the Taotors Act, 1842 (5
39), with the addition of the " warehouse-keeper's certificate.''
This definition
Vict.
c.
The Act
of 1825 (6 Geo. 4,
certificates,
c.
94,
s.
2)
included warehouse-keepers'
the Lord Justices held that these documents were not documents
of
'
title."
As
to
Ex
p. Close (188.5), 54 L. J. Q.
B. 43
491.
'
^'
122
Sect
Cash
1.
'
1889.
documents
of title.i
Ordinarily,
when
the
title
to goods depends
but by
bill
sect.
any
document to
by endorsement
thereby represented."
Vict.
c.
35),
c.
53), as
As
to the
mode
of transferring
documents of
title,
post, p. 131,
Pledge,
(5.)
shall include
any con-
This definition
mortgage, that
is
is,
The words " any pecuniary liability " are very wide, and are
probably intended to meet cases such as the granting of a letter of
credit to be operated
on by
bills of
The language
used in
(^0
Person.
sect,
&
6 Vict,
c.
39),
shall include
any body
As
165
Kemp V. Folk (1882), 7 App. Cas. 573, at p. 585, per Lord Blackburn.
to mate's receipts, see Cowasjee v. Thompeon
(1845), 11 Moore, P. C.
;
Hathering
v.
92.
123
1889.
(1.)
documents of
is,
Sect. 2.
title to goods,
any
sale,
pledge, or other
acting in
as if
goods to
make
the same.
See the terms " mercantile agent," " document of
defined
by
title,"
was intended
if it
new Act
is
alteration of
intrusted with goods in some other capacity, he could not sell or pledge
them contrary
to instructions,
were
he
let furnished to
sell
it is
more
clearly emmciated.^
Suppose a house
title to
Could
the buyers ?
Surely not.
It
was held under the repealed Acts that the mercantile agenfs
by a
him
>
single transaction.
bill of
As
it
(flour factor
Monk
and wharfinger);
v.
Whittenbury (1831), 2 B.
Bank
& Ad.
484
(1875), L. E.
Powers of
^"^^th
respect to
of goods.
124
Sect. 2.
It
was
1889.
Acts extended
to
no doubt, are
As
good law.
still
debts or
Notice.
126
and
125.
that
is
means
actual,
though
Eevocation
of consent.
(2.)
of goods or of the
documents of
disposition,
had continued,
& 41
Vict. c. 39),
(3.)
Where a
documents.
Fortalis v. Tetley (1867), L. E. 5 Eq. 140.
Cole V. North Western Sanh (1875), L. E. 10 C. P., at p. 373, citing
Baines v. Swainson (1863), 32 L. J. Q. B. 281, and VicJcers v. Hertz (1871),
L. B. 2Sc. App. Cas. 113.
'
'
unknown
of
title to
125
1889.
Sects. 2-4.
or having been, with the consent of the owner, in possession of the goods represented thereby, or of
documents of
this Act, be
title to
documents
first-mentioned
deemed
shall,
Hatfield v. Phillips?-
intrusted with a
mentioned in
it,
bill
was
the purposes
for
of
somewhat
was intended to
any other
diiferent
&
6 Vict.
it
language a
c.
v.
39),
which
Eufh, and
him
to obtain the
dock
warrant.
(4.)
of this
Presump'""'
the contrary.
This sub-section reproduces in somewhat different language the
concluding paragraph of
3.
sect.
title to
goods shall
Effect of
dictmenfs
of
This section
Act, 1842 (5
title.
is
&
ante, p. 122.
4.
for
Where
pledge.
See Cole
v.
P., at p. 370,
v.
for
antecedent
126
1889.
Sects. 4, 5.
sect.
39).
The
&6
Vict,
cedent debt"
is
The use
material.!
" liability."
due from or
The
The
liability incurred
by," &c.
draw a marked
distinction
Eights ac-
may be
5.
The
e^Lnge
of goods or
of this Act,
may be
either a
payment
in cash, or the
document
of
valuable consideration
document of
title to
when
sect.
provided, inter
dlioL,
that "
by
defined.
122.
of the
section
reproduces in somewhat
'
For cases on the repealed sections, see Jewan v. Whitworth (1866),
L. K. 2 Eq. 692 Macnee v. Gont (1867), L. B. i Eq. 315 ; Kaltenbach v.
Lewis (1885), 10 App. Cas. 617.
;
127
1889.
Sects. 5-7.
6. For the purposes of this Act an agreement made Agreewith a mercantile agent through a clerk or other person aiongh
authorised in the ordinary course of business to make clerks, &e
deemed
is
(1.)
Where
& 6 Vict.
c.
sect.
4 of
39).
Provisions
name
is
made
lien
on the goods as
may
if
same
transfer
any such
lien to another
person.
(2.)
Nothing in
by a mercantile
agent.
The first
128
Sects. 7, 8.
1889.
wliere the consignee has not notice that the consignor is not the
light of sect. 5,
ante, p. 126.
The second
Sect.
factors
As to a
Dispositions hy Sellers
Disposition
iJinaininff
in posses8ion,
8.
^^'
Where
of
class.
title
under any
disposition thereof, or
pledge, or other
for
documents of
by that
sale,
pledge, or other
disposition
title
person, or
thereof,
to
any
sale
person
if
the
make the
same.
to
documents of
title.
The present
The Act
of
section extends
documents of
'
'
title.
C.
A.
129
1889.
Sects. 8, 9.
but the provisions of sect. 4 (pledge for antecedent debt) appear only to apply when the pledge is effected through
;
a mercantile agent.
The Sale of Goods Bill originally proposed to repeal this and the Non-retwo following sections but the repeal was afterwards omitted, in peal,
;
left
Law
and
Eevision
Act.
9.
Where
delivery or transfer,
agent acting
under any
for
by that person
or by a mercantile
title,
same
effect as if the
person
making the
have the
delivery or
goods or documents of
title
owner.
This section, which is now reproduced by sect. 25 (2) of the Sale of
Goods Act, was substituted for sect. 4 of the Factors Act, 1877 (40 &
41 Vict. c. 39). The latter enactment applied only to documents of
title.
The
to
stated
by Blackburn,
J.
Cf.
Jenhyns
(1849), 2
H. L.
v.
is
Ushome
(1844),
bill
And
it
McEwan
C. 309.
may
v.
be
Smith
DiapoBitioii
obtaining
possession.
130
Sects. 9, 10,
observed that in
1889.
title,
any
So
difference.
it
goods or documents of
title are
when
either the
fraud, but
by some
till
defeated,
'
The
purchase agreement.
Effect of
10.
Where a document
of title
to
transfer of
documents
on seller's
lien or
right of
stoppage in
transitu.
effect for
&
41 Vict.
mentioned in
c. 39).
the
common law
on the
documents of
rules relating
seller's right of
Coh
V.
But
seotion.
131
1889.
sect.
Sects. 10l^*
of the seller's lien or other rights, because it applies to cases where the
buyer has obtained the goods or documents under a contract voidable
on the ground of fraud. The present section omits the requirement as
to absence of notice.
make
it
seller's
As
by the Sale
Goods
of
11.
or,
12.
(1.)
^n^^documents.
by delivery.
39),
of
title
This section
is
taken
Nothing in
this
Act
shall authorise
c.
an agent
Saving for
As
goods or documents of
(2.)
78, 79,
owner of
ing the claim for which the goods were pledged, and
if
in
132
Sects. 12,
_:!
1889.
by law be
documents of
entitled to
title thereto, or
As
a general
rule,
lien.
goods or documents of
title,
held
by an agent
for
(3.)
Nothing in
this
Act
owner of
As
Saving lor
common
law powers
of agent,
Act
shall be construed in
-,
eroiseable
This section
is
new.
It recognises,
pointed out, that the Factors Acts are partly declaratory and partly
enacting.!
where a man may convey a better title to goods than he himself had
is where an agent, who carries on a public business, deals with the
goods in the ordinary course of it, though he has received secret
instructions from his principal to deal with them contrary to the
ordinary course of that trade.
In that case he has an ostensible
authority to deal in such a way with the goods as agents ordinarily
'
See Cole
et seq.
v.
P., at p. 360,
if
133
1889.
17.
14.
this
Sects. 13-
Repeal.
any right
^*-
and Ninety.
16.
Extent of
Act.
The
is,
that the
apply to Scotland.
still
continued
act,
were of English
common
law.'
17.
This Act
may
Short
title.
134
1889.
SCHEDULE.!
Enactments Eepealed.
Section 14.
4 Geo. IV.
83
c.
Extent of Bepeal.
Title.
The whole
Act.
6 Geo. IV.
c.
94
An Act
to alter
an Act
and amend
&
6 Vict.
0.
39
An
The whole
Act.
The whole
Act.
40
& 41
Vict. c. 39.
An
Act to
Factors Acts.
amend
the
135
&
54 Vict.
ACT,
o. 40).
[14tll
Be
it
1890.
August 1890.]
53
&
54
right of retention
shall
mean and
&T3 Vi
c.
45 to
"
the expression " vendor's lien
include
any right
of
retention
compensation.
(2.)
made
sideration.
2.
This Act
Act, 1890.
may be
title.
i36
APPENDIX I. STATUTES.
AN ACT AGAINST THE BUYING OP STOLEN
HORSES
(2
The former
misuse in
sale of
stolen
horses.
In what
manner
horses shall
be sold in
Forasmuch as
(1555).!
c. 7.)
and
geldings,
by
thieves and
parliament,
ruler,
bailiff,
this realm,
fairs or
other the Queen's dominions, shall before the feast of Easter next,
markets.
so yearly, appoint
and
and
and
colts
(1873), 42 L. J. Q. B. 47,
eifect of the Acts is to take horses out of the category of things which
can be sold in market overt. In Committee of the whole House, however, the rules as to market overt were reinstated, but the schedule was
not reinstated. Consequently it became necessary to remove these Acts
irom the
list
of repeals.
137
STATUTES.
which said certain and open place, as is aforesaid, there 2 & 3 Phil,
by the said ruler or keeper of the said fair or market, put in & Mar. c. 7.
and appointed one sufficient person or more, to take toll and keep the
same place from ten of the clock before noon until sunset of every day 'T^ji^v^
of the aforesaid fair and market, upon pain to lose and forfeit for every
appointed
default forty shillings; (3) and that every toll-gatherer, his deputy or for a horsedeputies, shall, during the time of every the said fairs and markets, fair, and
take their due and lawful tolls for every such horse, mare, gelding, or ^^^ ^ '^^'
colt, at the said open place to be appointed as is aforesaid, and betwixt
the hours of ten of the clock in the morning and sunset of the same "^6'
day, if it be tendred, and not at any other time or place
(4) and
_{jj,m
shall have presently before him or them, at the taking of the same toll for
overt
(2) in
shall be,
toll,
away
horse, mare,
(5)
gift, contract, or
same
away;
and
and
gelding,
colt
book to be kept
^^ taken,
all
the
and
for
and the
colour,
Sect. 3.
fair or
shall,
A note
of
^^^
bailiff,
mark
thereunto;
therein, to lose
(2)
and
who
shall
upon pain
forfeit for
to
him
that shall
make
default
answer the party grieved by reason of the same his negligence in every
behalf.
Sect. 4.
That the
And
be
sale, gift,
fair
mare, gelding, or
colt,
that
is
or
shall
mare, gelding, or colt shall be in the time of the said fair or market away,
wherein the same shall be so sold, given, exchanged, or put away,
openly ridden,
led,
APPENDIX
138
I.
& 3 Phil. one hour together at the least, betwixt ten of the clock in the morning
& Mar. c. 7. and the sun-setting, in the open place of the fair or market wherein
horses are commonly used to be sold, and not within any house, yard,
2
and unless
the bargain,
all
the parties to
place
and one
places, in
colour or colours,
special
colts, in
where no
due, as
toll is
is aforesaid,
penny
if
and
also
for
him that
same
in the said
book.
Recovery
of stolen
And
Sect. 5.
if
any
said
last
day of
horses.
and
may by
away
of
any such
any
colt,
sale, gift,
or
have an action of
exchange, or putting
Application of
penalties.
Sect. 6.
all
which
forfeitures to
them that
same
him
or
any
by
bill,
which
suits
no
protection,
7*".
oeace^shall
Sect. 7.
And be
it
enacted
by the
authority aforesaid.
That the
liberties as
before them.
139
STATUTES.
Sect. 8.
any
toll is
fair or
market where
ife
3 Phil.
c.7.
"^^^ '"7'
the book touching the execution of this '^
present Act,' shall take nor
ance or the
,
,
exact but one penny upon and for every contract, for his labour in keeper of
,
is
the book
where no
before declared.
toll is due.
c.
(1589).i
12.)
is grown
common, as neither in pastures, or closes, nor hardly in stables, the
same are to be in safety from stealing, which ensueth by the ready
buying of the same by horse-coursers and others, in some open fairs or
markets far distant from the owner, and with such speed as the owner
cannot by pursuit possibly help the same (2) and sundry good
ordinances have heretofore been made,' touching
o the manner of selling
&
and tolling of horses, mares, geldings, and colts in fairs and markets,
which have not wrought so good effect for the repressing or avoiding of
horse stealing, as was expected
so
Sellers of
5^^ '
markets
must be
known
to
"'^ *^^"
_ other
_
gome
,,
.^yju,
-^m
avouch the
sale which
shall be
Sect. 2.
Now,
That no person
for a further
remedy
in that behalf,
be
it
enacted, &c.,
parliament, shall
away any
or (where
no
toll is
filly,
bailiff,
all
the
same, his knowledge, into a book there kept for sale of horses ; (2) or
else, that he so selling or offering to sell, give, exchange, or put away
any
filly,
same
shall bring
fair or
unto the
toll-taker,
officer.
&
^j^g ^^^i-
twenty days next after the end of this session of book, &c.
in any fair or market sell, give, exchange, or put
after
& Mar.,
ante, p. 136.
APPENDIX
140
31 Eliz.
c, 12.
A suScient
I.
horse, mare, gelding, colt, or filly, and his true name, surname, mystery,
and dwelling-place, and there enter or cause to be entered in the book
of the said toll-taker or oBcer, as well the true christian name, surname,
and credi-
ble peison
shall
filly,
avouch the
hoTse
seller.
The
price
of the horse
shall
be
entered
into the
toller's
book.
away such
him
that so selleth,
same person ;
of
him and
(5)
mare, gelding,
colt, or filly,
unless he
and
so selleth,
of his dwelling or resiancy, or the party that shall and will testify
away such
the dwelling or resiancy of the same person, and also the true price
or value that shall be bond fide taken or
had
for
any such
horse, mare,
A note
in writing
shall be
given to
the buyer.
The
perfect note in writing of all the full contents of the same, subscribed
with his hand ; (7) on pain that every person that so shall sell, give,
away any horse, mare, gelding, colt, or filly, without
exchange, or put
being
known
penalty of
the person
offending
aforesaid,
in
any of
the cases
aforesaid.
and every person making any untrue testimony or avouchand every toll-taker, book-keeper, or
other ofBcer of fair or market aforesaid, offending in the premises
contrary to the true meaning aforesaid, shall forfeit for every such
ment
141
STATUTES.
sum
default the
other putting
or
31 Eliz.
c. 12.
said, shall
in
record,
by
bill,
plaint,
be allowed.
Sect. 3.
^And the
justices of
'^
within the limits of their authority and commission, to enquire, hear, P^""
and determine
all offences
may
do any determine
the offences
aforesaid.
be used in
all
open
fair or
the sale of any such horse, mare, gelding, colt, or filly, within six
months next after the felony done, shall not take away the property
of the owner from whom the same was stolen, so as claim be made The owner
'^"
within six months by the party from whom the same was stolen, or '""y
by his executors or administrators,' or by any other by any of their j^
appointment, at or in the town or parish where the same horse, mare, gtolen from
gelding, colt, or filly shall be found, before the mayor or other head him within
six months
ofiicer of the same town or parish, if the same horse, mare, gelding,
M'e'i Paycolt, or filly shall happen to be found in any town, corporate, or market
town, or else before any justice of peace of that county near to the pjfgg_
place where such horse, mare, gelding, colt, or filly shall be found, if
it be out of a town corporate or market town
(2) and so as proof be
made within forty days, then next ensuing by two suflScient witnesses,
to be produced and deposed before such head officer or justice (who,
by virtue of this Act, shall have authority to minister an oath in that
behalf), that the property of the same horse, mare, gelding, colt, or
;
may
fair
APPENDIX
142
I.
31 Eliz.
made, have property and power to have, take again and enjoy the said
u. 12.
to
An
acces-
sary to a
Sect. 5.
^And that
horse
stealer
twenty days
after
after the
end of
this session of
parliament, not only all accessaries before such felony done, but also
all accessaries after
shall not
have his
or ought to be.
by
statute heretofore
all
made
is
clergy.
An
Promises
and agreements by
parol.
2, 0. 3.)
Sect. 4.
And from and after the said four and twentieth day of
June [1677] no action shall be brought whereby to charge any
executor or administrator upon any special promise, to answer
damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or
(3) or to charge
shall be brought, or
be in writing, and signed by
Note.
myr
The cases on
v. Da/rnell, 1
'
Smith, L. C, 9th
ed., p.
334.
It
is
inserted for
STATUTES.
the sake of comparison with
by the
Sale of
Goods Act,
sect. 17,
which
143
is
ante, p. 12.
29 Car.
2,
c. 3.
And from and after the said four and twentieth day of Contracts
Sect. 17.
June [1677] no contract for the sale of any goods, wares, and mer- ^^ ^"^^ *
chandises, for the price of ten pounds sterling or upwards, shall be f '
,
allowed to be good, except the buyer shall accept part of the goods so or more,
sold, and actually receive the same, or give something in earnest to
bind the bargain, or in part payment, or that some note or memoran- [Repealed.]
in writing of the said bargain be made and signed by the parties
dum
to
authorised.
Note.
repealed
is
by the
sect.
It
sect.
4 of that Act,
ante, p. 12.
Benjamin on Sales, 4th ed., pp. 93 to 241. They are also digested
and the policy of the enactment is questioned in an article in the Law
Quarterly Eeview (1885), vol. i. p. 1, by Mr. Justice Stephen and Sir
P. Pollock.
may
iVrnPriMs, 15th
ed.,
pp. 469-479.
The
be noted.
Contract
* ^*1^-
p. 148,
of the section .2
The term "goods, wares, and merchandise" (and its equivalent Goods,
" goods " in the amendiog Act), include all moveable tangible pro- ^ares, and
perty.
which by
and for the purposes of the contract are treated as goods, such as
emblements, and in some cases growing timber.^
The effect of the construction of the 9 Geo. 4, c. 14, s. 7, with the
17th sect, of the Statute of Frauds, is to substitute the word " value "
'
'
'
Law
p.
vol.
i.
p. 11.
257, at p. 259.
ed., p. 469.
ed., pp.
115-129;
^'^<''i*"
Price or
^*'"^-
APPENDIX
144
29 Car.
2,
c. 3.
for the
ment
I.
Allowed
to be
good.
The
enact-
10
is
is
or more.^
The
to be
them unenforceable
The
provision therefore
pretty nearly equivalent to the provision in the 4th sect., which is,
that " no action shall be brought" on agreements outside it.* It seems
is
must be regarded
lex fori.*
An
Acceptance.
artificial
It is
now
well
need not be an acceptance in performance of the contract. Any dealing with the goods
which recognises a pre-existing contract of sale constitutes an acceptance for this purpose.* The acceptance need not be contemporaneous
an acceptance to
settled that
The
It
may
precede or follow
The two
it.
them
shall
be both
bailee,' or if
Williams
v. Wlieeler
4th
ed., p. 149.
;
p. 14.
As
L.
J.
Mmme
'
V. Stone (1809), 1 Taunt. 458 ; Marvin v. WaUace (1856), 25
L. J. Q. B. 369 ; Castle v. Sworder (1861), 30 L. J. Ex. 310, Ex. Ch.
145
STATUTES.
who
of a third persou
though he
29 Car.
2,
c- 3-
is
goods
and so
may
bulk sample
receipt of a
may
satisfy the
Part of the
goods,
Earnest consists of any coin or thing of value given in token of the Earnest,
which
bargain, but
An
price
is not,
agreement to set
may amount
The note
off
to part payment.*
memorandum must
or
directly or
charged.io
Oral evidence
is
by name
or
make up a memorandum.^'^
The note or memorandum need not be contemporaneous with
gether to
contract ; but
it
Law
'
It
may
may
i.
p.
12
It
the
may
cf.
Qodtn
which
is
verbally
Rose (1855), 17 C. B.
v.
229, at p. 235.
(1845), 14
M. & W.
302, at p. 305
Benjamin on
'
316
4th
ed., p. 204.
for
an implied reasonable
price,
Hoadly
v.
M'Laine
Egerton
" Lucas
V.
" Gibson
'*
Jones
v.
(1889), 22 Q. B. D. 357, 0. A.
Holland (1865), L. E. 1 C. P. 1.
Victoria Dock Co. (1877), 2 Q. B. D. 314 (on
Dixon
v.
V.
Note or
sect. 4).
dum.
146
29 Car. 2,
c. 3.
APPENDIX
I.
but repudiating
Signature
is
Signature.
purpose of authenticating
place
it is
by mark,
Signature
If the
it.
own name,
for
stamp
initials, or
'
it
was intended as a
The
is sufficient.*
an agent
then evidence
signature.'
signature to
in his
is
memorandum
note or
Nevertheless
memorandum
is
it
parties
it suffices if
the
is
Agents to
by " the
to be charged."
It follows that
may
one party
be bound
not.
is
but
it
may
parties.
Auctioneer.
An
settle
be an agent to
buyer at an auction ;
'
Mems
Bailey
V.
may
though he
are distinct.
for the
sign,
'
by the
an agent to sign
seller is
v.
Wilkinson
v.
Evans
Johnson
v.
(1867), L. E. 2
*
"
Dodgson (1837), 2 M.
H. L. 127.
& W.
653, at p. 659
v.
Caton
v.
Caton
Radford (1867),
L. E. 3 C. P. 52.
'
4th
Beuss
Benjamin on
Sale,
V.
V. Picksley (1866),
ed., p. 231.
p. 246.
147
STATUTES.
rised, is not.^
When
an auctioneer
by
private contract he
is
29 Car.
2,
c. 3.
So again,
sells
seller.^
both
and
seller
signs
it,
and buyer.
the statute
he duly
If
Broker,
satisfied.^
is
variance."
A contract of
sale in writing, or of
which there
is
memorandum
Eescission
must be
in writing
'
mode
new
contract,
for
of performance* or
affect
the contract,
The acceptance of a
a mere forbearance to make
substituted
for it.*
require
or
Feirce
'
Mews
v.
V.
signed contract.
" Parton v. Orofts (1864), 83 L. J. 0. P. 189 ; Thompson
(1876), 1 C. P. D. 777.
Goes V. Lord Nugent (1833), 5 B. & Ad. 58, at pp. 65, 66
V. Bain (1874), L. K. 10 0. P. 15.
' Plevins v. Downing (1876), 1 C. P. D. 220.
v.
Gardiner
cf.
Morgan
of route).
'
Ogle
V.
Hiekman
Eaynes
Tyers
Eosedale
v.
.Co.
L 2
v.
cf.
"
148
APPENDIX
I.
An
o.
14.)
[29 Car. 2,
c. 3.]
Sect. 7.
to the
and engagements.
ninth year of the reign of King Charles the Second, intituled an Act
for
it is,
among
other things,
enacted that from and after the 24th day of June, 1677, no contract,
for the sale of
for
the price of
the buyer shall accept part of the goods so sold, and actually receive
the same, or give something in earnest to bind the bargain, or in
part of payment, or that
by such
And
[Irish Act,
7
W.
3,
>;.
12.]
contract,
made and
or their agents
is
And
whereas
it
not extend to certain executory contracts for the sale of goods, which
nevertheless are within the mischief thereby intended to be remedied
and
it is
contracts
liecited
Acts extended to
Be
it
enacted,
contracts
for goods
at
of
10 or
upwards,
although
the deli-
very be not
made.
shall
may
extend to
pounds
all
sterling
con-
and
be intended to be delivered
fit
or completing thereof
v.
p. 12.
149
STATUTES.
An
Act
to
amend
&
the
19 Vict.
Law
c.
ACT,
1855.
111.)
it is
bill
in the goods
all
of lading
may
thereby
the hands of a tend fide holder for value, should not be questioned by
the master or other person signing the same on the ground of the
Be it therefore enacted
by and with the advice and
consent of the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, as
by
follows :
Sect. 1.
every endorsee of a
bill
named
whom
of lading to
ment
or endorsement, shall
in a bill of lading,
and
by reason
of such consign-
such goods as
made with
Sect. 2.
if
liabilities in respect of
bill of
lading
bills
of lading
^'^
consignee
^^ endorsee.
had been
himself.
Nothing
dorsee,
Eig^ltg
by reason
any
afeeot right
of stoppage
or in consequence of his being such consignee or " transitu
by reason
or in consequence ^
t!?^\,i
for freight.
As
Sewdl
V.
Sect. 3.
Every
bill
Bill of
j^'^lnain
APPENDIX
150
18
&
Tict.
I.
19
111.
ment
c.
clusive
bill of
may
not have
had actual notice at the time of receiving the same that the goods
had not been in fact laden on board provided, that the master or
;
evidence of
the ship-
ment
as
may
misrepresentation
against
on his
master, &c.
or
part,
whom
bill of lading,
a writing signed
is
them
be mentioned in the
bill
is
of lading "
bill
railway companies."
may
of lading." ^
It
seems doubtful
by
how
made
several shipowners or
far the
Act
applies to
At common law
bill
Bowen,
L.J.,
bill of
the
lading
" A cargo at
is
sea," says
and voyage,
bill
of lading
ever
it is
just as
by
bill
when-
more
or
"
where the
Dominy
see
Law
effect of these
instruments
& W.
Thompson
v.
Sanders
v.
made out
in three
parts,
(1845), 14
M.
is
ed., p. 239.
y.
p. 424,
aud
fully discussed.
403.
p. 341.
STATUTES.
others being handed to the shipper.
The
rise to frauds.
on
decisions
151
of lading
may
be noted.
(1.)
The voyage
is
bill of lading to be
on behalf of the master under a
lien for freight, even though they have been landed."(2.) When two or more parts of a bill of lading are transferred to
two or more different hand fide transferees for value, the property in
may
safely deliver
lading
.(or
them
to
is
complied with by
delivering one part, though the others are not accounted for.*
(5.)
Escept
for
no better
had.
rather
right of stoppage
title to
In this respect a
it
bill
of lading differs
resembles an overdue
negociated subject to
the transfer of a
see ante, p. 86.
Where laws
bill
of lading acquires
all equities
bill of
As
bill of
from a
bill of
exchange, or
attaching to
it.^
As
to the effect of
conflict, stipulations in
bill of
lading
must be construed
>
'
Sarher
Barber
v.
v.
was entered
is
the law
into.^
Glyn, Mills & Co. v. East & West India Docks (1882), 7 App. Caa. 591.
Sanders v. Maclean (1883), 11 Q. B. D. 327, 0. A.
* Anson on Contracts, 5th ed., p. 239
Gurney v. Behrend (1854), 3 E. &
B. 622. As to fraud, however, see The Argentina (1867), L. E. 1 Adm.
370, and Scrutton on Charter Parties, 2nd ed., p. 149.
Be Missouri Steamship Co. (1889), 42 Oh. D. 321, at p. 328, 0. A.
'
*
18
Vict.
&
c.
19
'
111.
APPENDIX
152
THE LAECENT
(24
An
Act
to consolidate
& 25
Vict.
and amend
I.
ACT,
c.
1861.
96.)
the Statute
Law
of England and
As
Revesting
of property
on convic-
Sect.
100.
meanour
If
and
receiving
any
chattel,
money, valuable
security, or
of
of Sale
Goods
Act, ante,
p. .^3.]
negotiable
securities.
by
other property
or on the behalf
whom any
before
as to
misde-
tion thereof in a
Proviso
or
tion of
offender.
to restitution
offences.
any award
^o<e. See B.
for
v. Justices of Central
this Act.
314, C. A., as to proceeds of stolen goods, and sect. 24, ante, p. 53^ and
notes thereto.
153
STATUTES.
An
& 31
Vict.
Law
the
c.
ACT,
1867.1
48.)
of Auctions of Estates.
[IStli July, 1867.]
Sect. 1.
This Act may be
Land by Auction Act, 1867."
Sect. 2.
This Act
shall
effect
on the
first
of August, 1867.
"Auctioneer"
Sect. 3.
title.
day Commencement of
Act.
shall
selling
by public
Interpreta-
''"'' *
auction any land, whether in lots or otherwise
" Land " shall mean any interest in any messuages, lands, tenements, *^'^-
solicitor,
seller
to bid
owner.
Sect. 4.
And
whereas there
is
no right of
bidding on behalf of the owner was reserved, the Courts of law holding
that all such sales are absolutely illegal, and the Courts of equity
under some circumstances giving
effect to
And
|"^^
invalid
"i^^*""'^
j^ gqity.
whereas
is
unsettled
as well as at law.
And whereas as
many of such sales
Sect. 5.
ducted
sales of land
by auction
are
now
con-
Rule
respecting
sale with-
This Act
and
in the
'
APPENDIX
154
30&31
Vict. c. 48.
both
it is
seller
Be
it
I.
sales
should be so conducted as
therefore enacted
by the authority
reserved
if it is
Eale
respecting
sale subject
to right of
seller to
bid.
Practice of
Sect. 6.
sale
by auction
on
seller or
may
think proper.
Sect. 7.
And whereas
it is
opening
biddings,
by Order of
Chancery,
except on
from such
Be
ground of
fraud, to
be discon-
much
tinued.
Chancery
shall,
from and
by
it
by the authority
further enacted
after the
time appointed
for
High Court
of
the commence-
ment
such
sale,
the
reserved
(if
sum
management of the sale, upon the appliany person interested in the land (such application to be
made to the Court or Judge before the Chief Clerk's certificate of the
result of the sale shall have become binding), either open the
cation of
Court of
Chancery,
&c., in
other
respects
Sect. 8.
affect
to costs or
fit.
Except as
any
bound by
sale of land
High Court
aforesaid,
made under
or
by
in Ireland, or of the
any
High Court
virtue of
order of the
of Chancery
155
STATUTES.
Chancery in
tlie
County Palatine
of Lancaster, or of
any county or
Sect. 9.
This Act
shall not
&
30
^^''*''
extend to Scotland.
31
''
excepted
Not
to
extend to
Scotland.
An
Act
Vict.
and amend
to consolidate
upon Creditors hy
& 42
the
c.
1878.
31.)
Law
Sect. 4.
In this Act the following words and expressions shall
have the meanings in this section assigned to them respectively,
unless there be something in the subject or context repugnant to
such construction (that is to say)
Interpreta-
ti"^ "*
'^'^'"^
defined,
also
or
any ship
or vessel or
any share
thereof, transfers of
bills
by endorsement
or
The
not include chattel interests in real estate nor fixtures (except trade
free-
Personal
chattels,
APPENDIX
156
41
&
Vict.
42
c.
31.
afJSxed,
in the land
when
I.
any Government,
funds, or securities of
any
interest
in the stock,
by
virtue of
any
bill
of sale
"
Personal chattels shall be deemed to be in the " apparent possession
Apparent
'^
of this Act.
Note.
bills of sale
by way of security,
The
affect sales
tions themselves.^
When
of them, and the buyer has to base his title or right to possession on
it
by the
sheriff
who
drawn up by the
bill of sale.'
delivery
p. 207.
Re Boherts (1887), 36 Oh. D. 196 (auctioneer)
(1893), 10 Morrell, 231 (sheriff).
Ex
p. Blandford
STATUTES.
order for furniture
is
not a
157
nor
bill of sale.i
is
an unregistered transfer
of a ship or vessel.'
(50
An
Act
&
41
Vict.
51 Vict.
and amend
Marks on Merchandise.
to consolidate
the
ACT,
42
t. 31.
1887.
28.)
o.
Law
relating to Fraudulent
On the sale or in the contract for the sale of any goods to Implied
which a trademark, or mark, or trade description has been applied, T^arranty
the vendor shall be deemed to warrant that the mark is a genuine
,
trademark and not forged or falsely applied, or that the trade goods,
Sect. 17.
is
meaning
of this
behalf of the vendor, and delivered at the time of the sale or contract
to
See
sect.
14
which saves
An
Act
to consolidate
this section.
1891.
(54
&
the
55 Vict.
c.
39.)
to the
Agreements.
SI ve
Bills of Lading.
stamp.
^^Z^f'
p. IdU.J
Sect. 40.
(1.)
bill
of lading
is
lading.
execution thereof.
'
Grigg
v.
Gapp
V.
bill
of lading not
Bond
Bills of
[See;5osi,
P'
-'
p. 123.
APPENDIX
158
Delivery Orders.
54&55
Vict.
c. 39.
Provisions
as to duty
on delivery
order.
[See post,
p. 160.]
I.
Sect. 69.
(1.) For the purposes of this .Act " delivery order " means
any document or writing entitling, or intended to entitle, any person
therein named, or his assigns, or the holder thereof, to the delivery of
any goods, wares, or merchandise of the value of forty shillings or
upwards, lying in any dock or port, or in any warehouse in which
goods are stored or deposited on rent or hire, or upon any wharf, such
document or writing being signed by or on behalf of the owner of such
goods, wares, or merchandise, upon the sale or transfer of the property
therein.
(2.)
A delivery order
to be
is
deemed
to
is
expressly
stated therein.
(3.)
stamp, which
is
Penalty
Sect. 70.
for use of
(a.)
unstamped
(1.) If
Untruly
any person
knowingly allows
states, or
it
to be untruly stated, in
or untrue
it
order.
of forty shillings
(J.)
Makes,
or
signs, or issues
is
not,
is
By whom
duty on
delivery
order to be
paid.
Sect. 71.
from
whom
by the person to
is,
in the absence of
any
is given.
~
is
159
STATUTES.
required
is
may
refuse to give
it,
64
&
Vict.
paid to him.
55
c. 39.
Receipts.
Sect.
(1.)
is
paid, or
of the
amount
of
two pounds
been
the
(2.)
before he delivers
it
Sect. 102.
receipt given without being stamped may be stamped Terms
upon which
with an impressed stamp upon the terms following; that is to say,
^
Sect. 103.
If any person
Penalty for
(1.)
ofEenoes in
reference
(2.)
liable to
duty refuses to
to receipts.
Upon a payment
a receipt
for
or
or
upwards gives
or divides the
he
to the
(1.) For the purposes of this Act the expression " warrant Provisions
for goods '' means any document or writing, being evidence of the title as to
warrant for
of any person therein named, or his assigns, or the holder thereof, to
goods,
.1
J
1.
Jany warewares, or merchandise lymg
the property
any goods,
house or dock, or upon any wharf, and signed or certified by or on
Sect. 111.
merchandise.
APPENDIX
160
54
&
Vict.
55
c. 39.
(2.)
instrument
(3.)
is
is
I.
goods
for
to be cancelled
may
be denoted by an
by the person by
whom
the
takes by
fine of
twenty pounds.
SCHEDULE.
s.
d.
Exemptions.
(1.)
Agreement
is
(2.)
or
memorandum
Agreement or memorandum
labourer, artificer,
for
manufacturer, or menial
servant.
(3.)
Agreement,
letter, or
memorandum made
for or
or
merchandise.!
Bill of LAniNO of or
effects to
And
for
Delivery Order
Dock Warrant. See Waebant foe Goods.
Receipt given for, or upon the payment of, money amount.
ing to 2 or upwards
.
p. 46,
161
STATUTES.
*****
Exemptions.
upon a
bill of
54
s.
d.
exchange or pro-
bill or
note of tte
Bank
upon
or
consideration
money,
interest, or
money therein
any principal
or therein mentioned.
Exemptions.
(1.)
Any document
carrier
conveyed by such
(2.)
carrier.
And
&
55
ct. t. 39.
162
APPENDIX
Note A.
On the Use
II. NOTES.
Condition, and
Warranty.
Contract.
I.
Contract.
Frauds).
e.g.
They
all
have certain
legal consequences.
They
are cog-
vague
for
scientific definition.
Having regard
" A contract
1.
is
2.
a particular thing."
Fry on
sufficient consideration to
v.
is
27.
See
ii., s.
ii.,
do or not to do
by
p.
433.
163
NOTES.
" A
side,
"
'
Contract
equivalent to
'
ch. 5.
ii.
'
is
convention ' or
'
Used loosely, it
Taken in the largest
agreement.'
which can be given to it correctly, it denotes a convenagreement which the courts of justice will enforce. That is to
signification
tion or
Roman jurisconsults."
5.
" Un contrat
est
to it originally
ii.
by the
1015.
p.
une convention
it
faire
ou ne pas k
Obligations, 3, adopted in
faire
quelque chose."
Addison on Contracts.
6.
is an
" A ' contract
agreement enforceable at law, made
between two or more persons, by which rights are acquired by one
or more to acts or forbearances on the part of the other or others."
Anson on Contracts, 6th ed., p. 9.
'
7.
contract."
8.
contract."
is
Contract Act,
9.
by law
is
ed., p. 1.
s.
Indian
2.
" A contract
is
and
New
York Draft
Civil
Code, 744-745.
10.
" Le
quelque chose."
faire
French
3.
donner,
Civil Code,
art.
h,
faire,
ou ne pas
h,
" Le contrat
est I'accord de
art.
1098, translated
elles
then,
and not
un
lien juridique."
Italian
Civil
by Hue.
same thing, and each communimutual engagement to carry it into
till
Contract,
APPENDIX
164
two
constituted."
is
Per
II.
Haynes
Kindersley, V.C., in
Haynes
v.
enforce,
all
ties
Per Stephen,
J.,
at p. 297.
Condition.
II.
Conditions.
mean
unsatisfactory.
The
^if
my
and negative
(e.g.
if
my
is
cross-division.
is
to say, conditions
which must be
any
is dissolved.
This
rate,
codes,
between suspensive
and concurrent
conditions.
condition
is
con-
same time.
shews that he was ready and willing to perform his part, although he
did not actually perform
it.
NOTES.
1-65
casual,
in Scotland
and by the
till
In the
both parties
day be
rise
Citations.
1.
" A condition
is
no
it
uncertain whether
it, it is
it
a modus, a quality
annexed by him that hath estate, interest, or right to the land, etc.,
whereby an estate, etc., may either be created, defeated, or enlarged
upon an uncertain event. And this doth differ from a limitation,
which is the boimds or compass of an estate, or the time how long an
estate shall continue,"
2.
"By
is
real estate,
enlarged, or created
by
virtue of
Conditions,
APPENDIX
166
Conditions,
whom
own
II.
lest
by
of
agreement contained in a
deed whereby either party stipulates for the truth of certain facts or
binds himself to perform or forbear doing something to the other.
relief
676.
" An obligation is conditional when the rights or duties
any party thereto depend upon the occurrence of an uncertain
3.
of
event.
or subsequent.
677.
is
is
fulfilled before
performed.
fulfilled at
referring
is
''A
may
or
depend.
condition
may
is
marry.
may
or
negative condition
may
is
may
is
made
to
be suspended are
as,
where something that may or may not happen shall not happen as, if
I do not marry. Conditions are also distinguished into potestative,
casual, and mixed.
A potestative condition is that which is in the
power of the person in whose favour the obligation is contracted as, if
:
'
I engage to give
my
neighbour a
sum
of
money
down
in case he cuts
is
safe.
mixed condition
is
as, if
that which
167
NOTES.
depends upon the concurrence of the will of the creditor and of a third
person : as, if you marry my cousin.
" Resolutory conditions are those which are added not to suspend
the obligation until their accomplishment, but to make it cease when
Law
5.
is
of Scotland, 9th
ed.,
pp. 47-50.
is
not
"
" Conditions
6.
whether
When
to be a condition, then,
then a condition
it
from his
liabilities
is
ascertained
it
"
is
subsequent."
whom
it is
made
Anson on
"
It
is
open to the
parties, if so
for instance, as
one
buyer
may
and
if
their delivery,
on
its
is
Notes
and
to be null
if
the affirmation
is
is
the whole of the consideration on both sides they are mutual con-
part,
Duhe of
St.
Albans
v.
p. 245.
cf.
Conditions,
APPENDIX
168
Conditions.
II.
9.
" There are three kinds of covenants
1. Such as are called
mutual and independent, where either party may recover damages from
the other for the injury he may have received by a breach of the covenant in his favour, and where it is no excuse for the defendant to allege
a breach of the covenants on the part of the plaintiff. 2. There are
:
covenants which are conditions and dependent, in which the performance of one depends on the prior performance of another, and, therefore, till this prior
condition
is
is
not liable
in these,
one party was ready and offered to perform his part and the
if
has
offered
fulfilled his
A condition
is
defeated;
inherent
it is
charged by it.
it is
subsequent when,
when
In every case
it
if it is
the estate
is
is qualified, restrained, or
affects
Ee
Exp.
of sale case).
III.
Warranty.
Wakranty.
to
grantee
if
by the grantor
he should be evicted.
or promises.
169
NOTES.
The chief controversy over the proper meaning of the term Warranty.
" warranty " has arisen in the law of sale, and the ambiguity of its
use appears to result from the want of clear distinction in English law
between sale i.e. the transfer of property in a thing and the contract
by which that
transfer
The term
is effected.
is
First, the
the goods and treat the contract as repudiated. This is the meaning
which, after much consideration, has been adopted by the Act. The
objection to this use of the term appears to be that
the whole
is
of independent stipulations.
field
it
ticular instalment
may
would not
it
of,
goods contracted
may
give
rise either to
may
is
that
dition precedent
term in the
it
does not
and a
mark the
collateral
first sense, it is
distinction
to be noted that
between a con-
promise or undertaking.
(i.e.
many
1.
"A
by
much
Using the
which
stipulations
may become
and
this
rise to.
Citations.
warranty (concerning
freeholds
and inheritances)
is
real
chartce to
else it
and
see
and
title,
ed., p.
ed.,
513.
170
Warranty.
APPENDIX
" A warranty
2.'
is
II.
an engagement by which a
seller assures to a
A warranty, properly so
called,
is
ment
877.
is
a collateral engage-
that the specific thing so sold possesses certain qualities, but the
property passing
by the
cannot entitle the vendor to rescind the contract, and re-vest the
property in the vendor without his consent. .
.
But when the sub.
it shall,
when
existing or
which
is
the vendee under the contract, because the existence of those qualities,
its
identity,
" A warranty
is
"
A condition may be
may
not avail
under the contract, or, at any rate, to act as though it were still in
In such a case this condition sinks to the level of a warranty,
operation.
and the breach of it being waived as a discharge, can only give a right
damage sustained." Anson on Contracts, 6 th ed., pp.
" An
express warranty
is
the face of the policy, upon the literal truth or fulfilment of which the
time, or previous to
for the
acts.
and
in
the
Insurance, 6th
latter
ed., p.
promissory
599 ; Cranston
warranty."
v.
Arnould's Marine
NOTES.
171
at p. 402
"When
it
in part, that
7-
"From
(i.e.
representations
distinct collateral
if
and conditions)
agreement that a
so
it
prove, shall in
This, at
&st
when the
as a condition
he has a
if
there
sale is
that
if
is
it
seller if
buyer should demand the price, and the seller should set the price,
and then the buyer should take time for two or three days to consider,
and then should come and give the seller his price, though the warranty
here was before the sale yet this will be well, because the warranty
is the ground of the treaty, and this is warrantizando vendidit."
Lysney
9.
v.
"It
Sdby
(1703), 2 Ld.
Kaym. 1118.
C.J.,
Pasley
v.
Freeman
(1789), 3 T. E.,
c. 1, p.
67.
Per BuUer,
Warranty.
APPENDIX
172
Warranty.
10.
F., a
II.
parties, intro-
duced them to each other, he said, ' Mr. J. is in want of copper sheathing for a vessel,' and one of the defendants answered, ' We will supply
him
As
well.'
at p. 543.
11.
" Although
warranty,
may
it,
is
certain quality, or
as
is
fit
who
and the
article sent is
&
such
Per Lord
it."
case).
12.
Two
made
of the
word
'
warra/nty'
A warranty is an express
part of a contract
fulfil,
as if a
man
offers to
buy peas
of another,
and he sends him beans, he does not perform his contract but that is
not a warranty there is no warranty that he should sell hiin peas
the contract is to sell peas, and if he sends him anything else in their
stead, it is a non-performance of it."
Per Lord Abinger, in Ghanter
V. EopUns (1838), 4 M. & W. 399, at p. 404.
;
" We
senses,
'
'
and
if it
had not
NOTES.
173
been given, the defendants would not have gone on with the treaty Warranty.
which resulted in the sale. In this sense it was the condition upon
by this
it
if
in the
may
the sale
Erie, C.J.,
14.
V.
Bannerman
v.
White (1861), 31 L.
Tanqueray.
Crowder,
that conversation
made with an
'
J.,
say in
Hophms
constitute a warranty,
must be shewn
to
representation to
Per Martin,
and Crowder,
J.,
J., says, in
J. C. P. 28, at p. 32.
B., in
at
p. 489.
15.
the subject-matter of
it,
by
doctrine established
or of
is
that
in a contract descriptive of
to say, a condition
on the
it is
to be regarded as a warranty,
failure or
non-performance of which
toto,
and be so relieved from performing his part of it, provided it has not
been partially executed in his favour. If, indeed, he has received the
whole, or any substantial part, of the consideration for the promise on
his part, the warranty loses the character of a condition, or, to speak
more properly, perhaps, ceases to be available as a condition, and
becomes a warranty in the narrow sense of the word, namely, a
stipulation by way of agreement for the breach of which a compensation
must be sought
in damages."
Per
such a clause
condition
may
'
when the
is
is
is
v.
it
Now
may
be a
any goods,
the essence of the contract but
contract
is
is
a condition going to
contract
Behn
such a clause
Williams, J., in
p. 206.
as to
only collateral to
APPENDIX
174
Here there
of damages.
is,
II.
Per Blackburn,
NOTB
Construetionof contracts of
sale.
There
is
B.
CONSTBUOTION
sale.
In
" delivering on April 17th ; complete 8th May," Kelly, C.B., says :
" The rule of construction applicable in general to all written contracts
that they are to be construed according to the real intention of the
is,
parties, to be collected
that effect
is
But
to
some contradiction
or absurdity.
word would
would leave the contract indeterminate and
uncertain. And such is the case with the contract in question, which
I think is to be Construed according to what we can collect to have
its
either be impracticable or
The
common
which
and payment is
an agreement to deliver
on the part
"
Where
there
is
is
absolute
own
heedlessness
contract." 2
Some
'
V.
Bale
arrive
by
v.
it is
to perform
it
by
his
Coddington
Mtdhr
'
And
if
by Stephen,
J., for
the construction of
cf.
Bonch
(1881), 7 Q. B.
v.
Bawson
ship).
'
175
NOTES.
conditions incorporated by reference into contracts of sale in
V.
Wathins
at p. 188.
is
and
this
mean
by which they
known
usages.^
The
judicially construed,
among
have been
others,
namely
Terms as
to shipment,
i.e.
" The names of the vessels to be declared as soon as the wools are Stipulations
shipped."2
bill
To be shipped during
As
"Oa
to
the months of
March
April."
"
i.e.
arrival."'
" Payment,
bill
at
Madras.""*
" 100 bales cotton
arrive at
now on
Button
6
'
'
Fischel
'>
Gorrissen
v.
C. 671.
600.
(1854), 15 C. B. 69.
Perrin
(J
857), 27 L. J. C. P. 29.
v.
""
'"*
'
APPENDIX
]76
Stipula-
tions
judicially
construed.
II.
Precu/rsor." ^
As
" Payment,
to
priority of delivery
and payment.
the contract."
we engage
to deliver on presentation of
document." '
Payment
to be
made
in net cash in
As
to
oil to
all
i.e.
April or sooner."
last
Goods
i"
^^
time of delivery,
" 10 tons of
London
14 days of March."
^^
"
27 L. J. 0. P. 189.
by Ex. Ch.
(1866), L. R. 1 C. P. 684.
'
v.
Lelean
Godts
Calcutta Co.
V.
Jones
V.
''
NOTES.
" Delivering on April 17th, complete
177
8tli
May."
Stipula-
sale at the
judicially
purchaser's expense." ^
"
To be
construed.
As
to cost of delivery.
The
I.
'
As
" 2^ per cent, discount
"Market value.""
" Terms net cash,
hereof."
to price.
for cash,
i"
12
tions
'^
"
As
" 18 pockets Kent hops."
" 1000 bales of gambler."
'*
to quantity.
i'
"
'
'=>
APPENDIX
178
Stipulations
judicially
II.
"Cargo." I
"
full and complete cargo of sugar and molasses." ^
"
small cargo of lath-wood (specifying lengths), in
A
A
construed.
"
A cargo of
petroleum."
all
about 60
cubic fathoms."
(seller's
option) American
at
We
"The whole
we understand
As
With
of lading."
'^
Forth Bridge.
estimated quantity
"
bill
to be 30,000 tons,
more
or less."
The
"
my
i^
v.
'
Deeming
v.
Cmas
Bingham
V.
"
Moore
v.
Cockerell v.
"
179
NOTES.
" Soott and Co.'s mess pork."
Stipula-
tioiia
"Ware
judicially
'='**potatoes."*
oil
wet and
inferior oil, if
any, at a
fair
allowance."
"Seed barley." 6
" 413 bales of wool guaranteed about
broker's possession."
'
be made."
'
o'clock
PoweU
"
Canaletti."
v.
"
ef.
Johnson
v.
Baylton
(1881), 7 Q. B. D. 438, C. A.
2
Macdonald
MeCollin
=
*
=
'
c/.
v.
'
Azmar
Bead
v.
v.
TattersaTl (1871), L. E.
7 Ex. 7;
cf.
Chapman
v.
Withers
(1888), 20 Q. B. D. 824.
" Kiddell
" Wood
V.
" Budd
V.
37 L. T. N.s. 433.
" Power V. Barham (1886), 4 A.
&
Anthony
v.
Halstead (1877),
B. 473.
N 2
180
APPENDIX
Note
^Delivery
to Cakeiek.
Frequent reference has been made to the rule that delivery of goods
prima facie a delivery to the buyer, a performance of
Delivery
to carrier,
C.
II.
to a carrier is
the
seller's
contract which passes both the property and the risk to the
buyer.
buyer or consignee
is
The most
judgment of the
risk is after
is
carrier,
is
if,
the delivery to
And it
is still
more strongly
if
so
This
by the
consignee himself, for such carrier then becomes his special agent.
all establish
by
any
particular
mode
If a particular contract
be proved between the consignor and the consignee, and the circumstance of the
payment of the
freight
contract,
is
is
and insurance
is
not alone a
And
again,
though in general
the following the directions of the consignee, and delivering the goods
to a particular carrier, will relieve the consignor
make such
from the
risk,
he
may
carrier specially
him
of the parties."
This passage
ment
in
^
is
discussed
'
Burilop
V.
v.
by Blackburn,
De
LambeH
J.,
in an instructive judg-
(1839), 6 01.
&
He
says
NOTES.
181
There
is effectual.
nation.
by a
Such
is
is,
if
the
common
when he has
at
is effectual
their
destination,
but he
price,
is liable for
goods perish in
whatever damage
But the
they
and
have
damages
fulfilled his
for
destination
may
parties
may
intend an
that,
so,
he
a breach of contract
if
or part of the
They may
bargain that the property shall vest in the purchaser, as owner, as soon
price (in
they pleased, contract that the price should not be payable unless a
but without any contract on the vendor's part in
the one case to procure the goods to arrive, or in the other to cause the
tree to
fall.
Where
the contract
is
yet no freight
is
is
excused
if
Delivery
* carrier
'f*^^^^.
property.
APPENDIX
182
Delivery
vered.
to carrier
a payment
to pass
property.
made
also,
II.
is
arises,
whether
arises
>
Ccdctdta Co. v. Be Mattos (1863), 32 L. J. Q. B. 322, at p. 328. See
the cases as to pre-payment of freight ooUeoted in M'Laohlan on Shipping,
p. 443.
INDEX.
"ABOUT,"
as affecting quantity of goods, 63, 178
ACCEPTANCE,
under Statute of Frauds, 13, 14, 144
in performance of contract, 67
delivered, 62
23
98
Btjteb.
ACCESSOEIBS, 48
ACT.
See
ACTION,
defined,
109
provisions of
breach of warranty of
title,
26, 98
when
92
93
96
96
damages on
loss
by
re-sale, 88,
89
for
not giving
by
assignee of
bill
91
ACTUAL RECEIPT,
12,
144
184
INDEX.
APTEE-ACQUIEBD PROPERTY,
43
AGENCY,
application of general law, 9, 11, 108
AGREEMENT TO
defined,
SELL,
when
converted into a
See
sale, 2, 7,
143
"ALL FAULTS,"
sale with,
178
ANTECEDENT DEBT,
transfer of hill of lading for,
pledge of document of
86
title for,
125
APPARENT OWNERSHIP,
does not give
APPARENT POSSESSION,
49
156
APPROPRIATION,
of goods to contract, 40, 43
APPROVAL,
sale on, 39, 40,
42
ARRIVAL,
sale of goods
ASSENT,
to appropriation of goods to contract, 40, 43
of seller to suh-sale, 85
ASSIGNMENT,
of future goods, 15, 16, 41, 43
of
document
of
title,
131
INDEX.
ATTACHMENT IN SCOTLAND,
185
73
ATTORNMENT,
delivery effected by, 59, 110
of carrier, to end stoppage
in transitu, 82
AUCTION,
rules as to sales by, 105
auctioneer agent to sign, 146
sale of land by, 153
BAILEE,
includes custodier in Scotland, 109
delivery
by attornment
buyer or
seller's lien,
when he
of,
110
the other, 46, 48
See Carrier.
BAILMENT,
distinguished from sale, S
BANKEUPTCT.
See Insolvency.
of,
108
BAEGAIN,
sale of, distinguished
BAETEE,
distinguished from sale, 4
BILL OP EXCHANGE,
as conditional payment, 70
bill
of lading to be exchanged
for, 44,
45
91
BILL OF LADING,
general note on, 150
BILL OP SALE,
defined,
155
title,
on stoppage in transitu, 86
44
61
186
INDEX.
SALE
BILL OP
must be
mercantile documents of
to,
title
108
BREACH OP GONTEAGT.
fee
Action; Damages.
BROKER,
agent to sign, 147
BUYER,
what the term
includes,
109
duty
and pay,
57, 58
to accept
when bound
carrier is
agent
59
180
on delivery, 66, 67
an acceptance by, 67
right of examination
what
is
mode
of rejecting goods, 69
90
And
see
Actiok.
effect
may
be bailee for
when
seller, 46,
110
46
66
CAPACITY,
to
buy and
sell, 9,
10
CARGO,
sale of,
178
CARRIER,
agent to receive, but not to accept, 65
delivery to, to pass property and risk, 40, 43, 64
reservation oijus disponendi on delivery to, 44
delivery to, as performance of seller's contract, 64
INDEX.
187
CARRIERm<me<Z.
stoppage in transitu of goods in possession
duties o^
when
of,
81
84
who
CHARTER PARTY,
effect
on stoppage
CIVIL LAW.
m transitu, 82
CODE NAPOLEON,
object of citing, Introd., p. vi.
property
7,
38
17
vaut
50
titre,
50
place of delivery, 61
obligation to deliver, 57, 58
stoppage in transitu, 73
COERCION, 108
FOR), 108
CONCURRENT CONDITIONS,
168
CONDITION OP GOODS,
defined,
113
on
sale
by sample, 33
may be
subject to, 1, 2, 5
suspensive or resolutive,
6,
167
INDEX.
188
how
negatived, 103
waiver
wben
of,
by
opposite party, 25
23, 25
23
to be treated as warranty,
construction of express,
list
74
implied, on sale
by
description,
27
implied, as to quality, 29
implied, on sale
by sample, 32
25
payment and delivery usually concurrent, 58
stipulations as to time, 20
implied, as to
title,
conditional acceptance, 68
44
174
impossibility of performance,
all
when
called warranties,
See also
23
Pekfoemanoe
Waeranty.
CONDUCT,
See Estoppel.
CONFLICT OF LAWS,
50,
151
107
116, 117
CONSTRUCTION OF CONTRACT,
with reference to usage, 62, 103, 175
rule, when in writing, 174
stipulations as to time, 20, 21
whether stipulation
express terms
may
is
a condition or warranty, 23
effect of representations,
22
presumption against
30
58
143-147
credit,
as to Statute of Frauds,
189
INDEX.
CONSTRUCTION OF CONTRACTcoBiierf.
effect of
reasonable price, 18
reasonable time, 104
59,
109
CONTRACT,
note on definition
162
of,
of, 5,
108
CONTRACT OF SALE,
defined,
109
may
is
materials, &c., 3,
include a conveyance, 6
how
sell, 1, 2,
work and
57
5,
created, 11
restrictions on,
subject-matter
by Statute of Frauds,
14
12,
143
of,
the consideration
for, or price,
18
36
incidence of risk, 46
48
performance by
seller
and buyer, 57
buyer's remedies
by
105
See CoNBTEUCTiON
Maxims.
CONVERSION OP GOODS,
8,
96
CONVEYANCE,
included in sale, 6
satisfied
CORPORATIONS,
saving for law as
to,
12
as,
190
INDEX.
on
effect of,
how
seller's lien,
74
if
agreement to give
effect of
list
bill
of exchange, 91
CUSTODIER,
109.
CUSTOM OF TRADE,
103, 175.
DAMAGES (MEASURE
See
Usage
OF),
title,
26,
53
DECREE,
97
DEPENDANT,
defined,
109
DELAY,
in taking delivery, 69
in
making
delivery,
96
DELIVERABLE STATE,
meaning
of,
116
DELIVERY,
definition,
109
110
symbolic, 110
by mistake, 110
property
may
pass without, 7, 37
INDEX.
191
D'ELnTESYcontinued.
reservation of yws disponendi, 44
duty of
how
seller as to,
57
60
effected, 59,
wrong quantity of
goods, 62
instalment deliveries, 63
wten
risk
at distant place, 66
damages
damages
69
See
construction of stipulations as
list
to,
96
Part Delivery.
174, 181
anticipation of, 81
as required, 61
to carrier, 64.
See Caerier.
DELIVERY OEDEB,
a document of title. 111, 121
stamp on, 158, 160
common law effect of, 61
under Factors Act, 121. See Factors Act.
is
DEPOSIT,
nature and effect
of,
19
DESCRIPTION,
sale of goods by,
errors in,
27,29
28
DESTINATION,
meaning
of,
83
agreement to
sell,
in other cases, 46
in hands of carrier, 65, 66
DETINUE,
effect of satisfied
judgment
in,
action
for,
96
192
INDEX.
DISPOSAL,
reservation of right of, 44
DIVISIBLE CONTEACT,
warranties, or conditions, 23, 63
instalment deliveries, 63
seller's lien, 75,
76
damages, 92, 93
lots at
an auction, 105
DOCK WAEEANT,
definition of,
common law
effect,
Is
a document of
eflfect
61
title.
111, 112
DOCUMENT OF
TITLE,
defined. 111,
121
common law
effect,
effect of
61
provisions of
DEUNKEN MAN,
sale
by
DUEBSS,
or to,
10
108
EAENEST,
143, 145
ELECTION,
to appropriate goods to contract,
43
EMBLEMENTS,
treated as goods, 111, 112
EMPTIO
SPEI, 15
EQUITABLE ASSIGNMENT,
16
ESTOPPEL,
against owner where goods sold
by
86
11
another, 48,
49
INBEX.
193
EVIDENCE,
to explain or annex incidents to sale, 12, 103, 175
to avoid contract, 12, 147
in mitigation of damages, 95
of readiness to deliver or pay, 58, 59
to connect documents, inadmissible, 145
OF),
in general, 66, 67
on
sale
effect
by
on
sample, 33
29
EXCHANGE OF GOODS, 4
EXECUTED AND EXECUTOEY CONTEACTS,
EXECUTION CEEDITOE,
title as
EXPECTANCY,
sale of, 15
FACTOES ACT,
1889,
documents of
title,
by mercantile
agent, 123
clerks,
127
132
of agent saved, 132
commencement, 133
194
INDEX.
1890, 135
FAILURE OF CONSIDERATION,
101, 102
FALSE PRETENCES,
goods obtained by, 8, 52, 53
FAULT,
defined.
111
FI-FA,
effect of writ
on buyer's
right, 55,
56
FIXTURES,
are not goods, 112
FORBEARANCE,
to
make
or require delivery,
147
FRAUD,
what
constitutes,
115
sale
knowing he has no
under voidable
title,
title,
'
100
26
52
FRAUDS (STATUTE
repeal of
s.
17, 13,
OF),
117
general effect
(s.
17), 13
143
" allowed to be good," 144
price or value,
INDEX.
PEAUDS (STATUTE
195
Qi) continued.
144
actual receipt, 144
acceptance,
145
earnest,
note or
memorandum, 145
signature, 146
146
auctioneers, 146
and
contracts, 147
execution
FREE ON BOABD,
(s.
(s.
4),
16), 55,
142
56
177
PEEIGHT,
effect of lien for,
151
FUTUEE GOODS,
definition of, 14,
when
111
of,
GENEEIC GOODS,
43,
114
GIFT, 4
GOOD FAITH,
meaning
of,
115
GOODS,
what included in term. 111, 121
specific and general goods, 114
existing and future, or after-acquired goods, 15-18
re-sale of perishable,
destruction
of,
88
of, 4,
126
INDEX,
196
GUARANTEE FOR
111, 112
PRICE,
n.
HIRE-PURCHASE AGREEMENTS,
130
HORSES,
Acts relating to sale
51
of,
representations as tp, 31
61
IMPLIED TERMS,
how
negatived, 103
as to title,
25
and
as to quality
fitness, 29,
33
IMPOSSIBILITY,
as excusing performance of contract, 17, 174
rule for test of,
174
INDEPENDENT AGREEMENTS,
See also
168
Wakeanty.
INFANT,
liability for necessaries, 9,
10
INNKEEPER,
power to
sell
goods
left
with, 49, n.
INSOLVENCY,
what
constitutes,
seller's lien
116
when buyer
insolvent,
89
of,
75
INSPECTION (RIGHT
OP), 66,
67.
See
INSTALMENTS,
breach of contract for delivery by, 63
Examination.
INDEX.
INSURANCE,
seller's
duty as
66
to, 65,
when
clear,
37
38
INTEREST,
when
recoverahle as damages, 91
to, 90,
100
JOINT OWNEES,
sale
by one
to another,
1,
JUS,
in personam, 6
ad rem,
38, 41, 47
in rem, 6
JU8 DISPONENDI,
reservation
44
of,
KEY,
delivery of goods
by
giving, 60,
110
KNOCK OUT,
at auction sale, 107
LAND,
111
142
Sale of Land by Auction Act, 153
sale of things attached to.
agreements relating
LARCENY ACT,
to,
1861,
amendment
of,
53,
54
See Usage.
LICENSE TO SEIZE,
taking under
is
197
198
INDEX.
LIEN,
arises
by
LOSS OF GOODS,
LUNATIC,
See Risk.
46.
10
MAKER OR MANUFACTURER.
See
Manufactueed Article.
MANUFACTURED ARTICLE,
implied warranty of fitness for pui-pose, 29
warranty of merchantable quality, 29
warranty that it is seller's own make, 30
warranty as to trade mark, 28, n., 157
MARKET OVERT,
rules as to sales in,
51
MARKET
when
PRICE,
measure of damage
for non-acceptance,
measure of damage
MARRIED WOMAN,
power to contract, 10
authority to bind husband, 11
MASTER OP
SHIP,
power of
sale
for necessaries,
11
by, 49, n.
when agent
92
95
53
INDEX.
199
MAXIMS,
Altenus circumventio
alio
Caveat emptor, 30
every reasonable condition
implied, 61
Modus
Nemo
MEASURE OP DAMAGES.
MEASUREMENT,
when
See
Damages.
MEMORANDUM
IN WRITING,
on verbal warranty, 22
MERCANTILE AGENT,
defined
by
effect of dispositions
acting in
two
capacities,
MERCANTILE
120
of,
127
LAW AMENDMENT,
Commission of 1855,
Introd., p. v.,
MERCHANTABLENBSS,
implied condition, 29, 31
MINOR,
liability for necessaries, 9,
10
56
n.
200
INDEX.
MISREPRESENTATIONS,
MISTAKE,
delivery by, 110
contract induced by, 12, 108
MONTH,
means calendar month, 21
MORTGAQE,
act does not extend to, 108
NECESSARIES,
meaning of term, 9
supply of to infant,
9,
10
9,
10
NOTE IN WRITING,
under Statute of Frauds, 12, 145.
See
Memorandum.
NOTICE,
of stoppage in transitu,
meaning
of,
84
of intention to re-sell, 88
OVERRULED,
OWNER
sale
&o.,
CASES
(Table oQ,
P-
xxv.
(TRUE),
without consent
of,
48, 49
OWNERSHIP,
transferred
by
sale,
given to apparent,
by
See Pkopbbtt.
PART ACCEPTANCE,
when wrong quantity delivered, 62,
when right quantity tendered, 63
63, 178
INDEX.
PART DELIVERY,
instalment contracts, 63
tender of wrong quantity, 64
effect
effect
PART DESTRUCTION,
PART OWNER,
17, 18
50
1, 2,
PART PAYMENT,
does not divest lien or right of stoppage, 70
satisfies Statute of Frauds, 12, 145
"PARTIES TO BE CHARGED,"
PATENT DEFECT,
PAWN.
146
29, 32
See Pledge.
PAYMENT,
duty of buyer, 57
usually concurrent condition with delivery, 58
action for non-payment, 90
refusal to accept
conditional,
by
and pay,
90,
92
negotiable instrument, 91
stipulations as to time
of,
20,
176
instalment contracts, 63
part
effect of deposit,
19
instalment contracts, 63
delivery to carrier,
64
acceptance by buyer, 67
mode
of rejecting goods, 69
may
be decreed, 97
201
202
INDEX.
PERISHABLE GOODS,
re-sale
on buyer's
88
default,
PLACE OF DELIVERY,
PLACE OF PAYMENT,
59, 60
91
PLAINTIFF,
112
defined,
PLEDGE,
distinguished from sale, mortgage and lien, 113, n,
definition
effect of
125
power of
seller or
128
of bill of lading,
unpaid
effect
87
compared to, 72
on stoppage in transiiu, 86
seller's lien
PLEDGEE,
power of
POSSESSION,
actual or constructive, 109, 110.
See Dblivebt.
118
defined by Factor's Act, 120, 121
titre," 50,
POTHIEB,
as
p. vi.
PRICE,
rules for ascertaining, 18,
19
agreement
for valuation
10 and upwards,
statement
of,
action
by
for,
13,
19
third party, 20
143
in note or
seller,
by
memorandum, 145
90
on paying, 75, 87
106
And
see
Payment.
INDEX.
203
PROPERTY,
defined,
113
when
it
See Transfee.
PUFFER,
at auction sales, 106,
107
QUALITY,
includes condition of goods, 113
caveat emptor, and
sales
by sample,
its
exceptions, 28, 29
32, 33
QUANTITY,
delivery of
list
wrong quantity, 62
QUASI-CONTRACTS OF SALE,
8,
READINESS,
to
pay or
deliver,
how
proved, 58, 59
READY MONEY,
presumption that
sale is for,
58
REASONABLE,
hours, 60, 61
time, 104
price, 18,
20
RECEIPT,
" actual receipt " in Statute of Frauds, 12, 144
for
money paid,
159, 160
REJECTION,
right of for breach of condition, 23
23, 24, 98
204
INDEX.
EEPBALS,
by
by
Sale of
EEPRESENTATIONS,
different kinds
and their
effect,
False Pketbnces
See also
22, 115
;
Fraud.
46
RE-SALE,
by seller, 54, 88, 89
by buyer, 54, 85
EBSOISSION OF CONTRACT,
by mutual consent, 147
by consent when buyer insolvent, 75
if
on exercise of
88
non-performance of instalment-contract, 63
in case of fraud, 23, 100, 105
RESOLUTIVE CONDITIONS,
RETENTION (RIGHT
6, 42,
164, 167
OF),
RETURN OF GOODS,
not necessary on rejection, 69
RISK,
general incidence
of,
46
ROMAN LAW,
weight
of, in
England, Introd.,
p. vii.
till
delivery, 3, 37,
15
38
INDEX.
205
warranty of
26
title,
46
title
obligation to deliver, 3
pufBng at auction
sales,
107
SALE,
defined, 1,
114
general nature
of,
absolute or conditional, 1,
5,
sell,
where agreement to
sell
becomes, 7
1,
109
of,
14
by sample, 32
by auction, 106
on
42
See also
Contkaot of Sale.
Short
title,
See Introd., p.
iii.
116
Commencement, 116
Savings, 108
Repeals, 107, 117
canon
SALE OR RETURN,
39,
42
SAMPLE,
nature and function
of,
33
117
114
206
INDEX.
QAMPL'Elcontinued.
34
SAVINGS,
under Sale of Goods Act, 108
under Factors Act, 131, 132
SCOTCH LAW,
differs
from English,
Introd., p. v.
warranty of
title, etc.,
till
delivery,
38
26
seller's
own make, 30
consignation or
no
rule of
stoppage in tra/nsitu, 73
recovery of interest on price, 90, 92
damages
for non-delivery,
95
SEA TRANSIT,
109-116
65
SELLER,
defined,
114
duty
to deliver, 57,
mode
of delivery by, 59
duty
of,
58
in delivering to carrier, 65
liability, if
remedies by action, 90
actions against, 93.
may
be bailee
See Action.
77
See
Warranty.
128
INDEX.
207
SELLER'S LIEN,
who is an unpaid
seller, 70
and nature of lien, 71, 73
origin
when it arises, 74
how if contract is
executory, 71
how
76
terminated, 76
effect of sub-sale
by
buyer, 85, 86
SEVERABLE CONTRACT.
SHARES,
are things in action, 111, 112
SHERIFF,
power of
title,
on subsequent
sale, 55,
56
26
SHIP,
transferred
by bUl
of sale, 11, n.
n.
SHIPMENT,
as appropriation of goods to contract, 40, 41, 44
duty of
when
seller
on making, 65
list
bill
of lading as evidence
of,
149, 150
SPECIAL DAMAGES,
saving
for,
100
See
Damages.
SPECIFIC GOODS,
definition discussed,
114
property in,
may
pass
rules to determine
of,
30, 31
36, 37
mi>EX.
208
SPECIFIC PERPOBMANCE, 97
STAMP DUTY,
biUsoflading, 157, 160
delivery orders, 158, 160
receipts for
exemption of contracts of
STATUTE OP FRAUDS,
sale,
160
See Frauds.
STATUTES CITED,
2
&3
Phil,
31 Eliz.
29 Car.
4 Geo.
c.
c.
2, c.
4,
0.
6 Geo. 4,
c.
9 Geo.
and Mar.
4, 0.
13,
148
32,
19
&
20 Vict.
97,
24
30
37
37
c.
97 (Mercantile
Law Amendment,
& 25 Vict. c. 96
& 31 Vict. c. 48
& 38 Vict. c. 51
& 38 Vict. c. 62
Land by Auction),
106, 153
56
&
England), 56,
117
57 Vict.
c.
63 (Married Women), 10
INDEX.
STOLEN GOODS,
209
51, 53
STOPPAGE IN TRANSITU,
origin of right, 71
nature of transit, 78
duration of transit, 81
how
stoppage effected, 84
is
executory, 71
UB-SALE,
effect of,
by buyer,
54, 55, 85
SUSPENSIVE CONDITION,
6, 42,
164
TENDER,
of delivery, 58, 60
of price, 91
construed, 175
TIME,
construction of stipulations as
to,
20
TITLE,
implied undertakings as
to,
25
transfer of,
TRADE MARK,
implied warranty as
157
TRANSFER,
of document of title, 131.
of bill of lading, 86,
See
Document op
150
goods must be
and buyer
Title.
ascertained, 36
property passes
when intended
to pass,
6,
37
39
state,
39
210
iJ^PiEX.
TRANSFER cowimtteei.
when
price to be ascertained
by
seller's act,
39
made
43
44
with property, 46
(h) of titlesale
common law
market
overt, 51
sale
under voidable
ineffectual,
or statutory powers,
title,
48
49
52
55
TRANSIT,
what
TROVER,
8, 96.
TRUSTEE
(IN
may
may
See Convbesion.
BANKRUPTCY),
affirm contract, 75
UNASCERTAINED GOODS,
property passes by appropriation, 36, 40
UNPAID SELLER,
who deemed
remedies
of,
to be,
70
Stoppage in tkansitit.
USAGE OF TRADE,
to explain or
INDEX.
211
VALUATION,
agreement to
sell
goods
at,
20
VALUE,
of 10 and upwards under Statute of Frauds,
what constitutes, under Factors Act, 126
as
12, 143
VARIATION OF CONTRACT,
VENDOR'S LIEN.
147
WAGER,
when
19
WAIVER,
of condition precedent, 23, 25
of right of inspection, 31
of seller's lien, 77
WARRANT FOR
GOODS,
159.
See
Document of Title.
WARRANTY,
defined, 23,
114
operate as, 22
23
and freedom from
annexed by .usage of trade, 29, 33, 104
to he treated as,
implied warranty of
title,
lien,
25
on
sale
special warranties
own make,
30, 157
33, 34
by sample,
by
157
measure of damage
list
100
Scotch law as
payment
107
114
when breach
"212
INDEX.
WEIGHING GOODS,
when
WITHOUT RESERVE,"
WORK AND
178
106, 177
MATERIALS,
construed, 175
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