« EelmineJätka »
by the Chancellor was not for plaintiffs who could not | bespoken ; and it seems that in such cases further comshow substantial merit as well as legal claims. The munication—unless expressly requested—is not necessary singular position of promises made by deed is best left as matter of law, however prudent and desirable it may out of account in considering the general doctrine of the be. Where a promise and not an act is sought (as where formation of contracts; and as to interpretation there is a tradesman writes a letter offering goods for sale on no difference. In what follows, therefore, it will be need credit), it must be communicated in the absence of less, as a rule, to distinguish between "parol” or “simple” special direction letter post or telegraph may be used; contracts, that is, contracts not made by deed, and obliga- and, further, the acceptor having done his part when his tions undertaken by deed.
answer is committed to the post, English courts now From the conception of a promise being valid only hold (after much discussion and doubt) that any delay when given in return for something accepted in considera or miscarriage in course of post is at the proposer's risk, tion of the promise, it follows that the giving of the so that a man may be bound by an acceptance he never promise and of the consideration must be simultaneous. received. It is generally thought — though there is Words of promise uttered before there is a consideration no English decision--that, in conformity with this last for them can be no more than an offer ; and, on the other rule, a revocation by telegraph of an acceptance already hand, the obligation declared in words, or inferred from posted would be inoperative. Much more elaborate rules acts and conduct, on the acceptance of a consideration, is than the English rules are laid down in some Continental fixed at that time, and cannot be varied by subsequent codes. It seems doubtful whether their complication declaration, though such declarations may be material as achieves any gain of substantial justice worth the price. admissions. It was a long while, however, before this ! At first sight it looks easy to solve some of the difficulties consequence was clearly perceived. In the 18th cen- by admitting an interval during which one party is bound tury it was attempted, and for a time with considerable and the other not. But, apart from the risk of starting success, to extend the range of enforceable promises fresh problems as hard as the old ones, English principles, without regard to what the principles of the law would l as above said, require a contract to be concluded between bear, in order to satisfy a sense of natural justice. This the parties at one point of time, and any exception to movement was checked only within living memory, and this would have to be justified by very strong grounds of traces of it remain in certain apparently anomalous rules 'expediency. We have already assumed, but it should be which are indeed of little practical importance, but which specifically stated, that neither offers nor acceptances are private writers, at any rate, cannot safely treat as obsolete. 'confined to communications made in spoken or written However, the question of "past consideration ” is too 'words. Acts or signs may and constantly do signify minute and technical to be pursued here. The general proposal and assent. One does not in terms request a. result is that a binding contract is regularly constituted ferryman to put one across the river. Stepping into the by the acceptance of an offer, and at the moment when | boat is an offer to pay the usual fare for being ferried it is accepted ; and, however complicated the transaction over, and the ferryman accepts it by putting off. This is may be, there must always, in the theory of English law, be a very simple case, but the principle is the same in all such a moment in every case where a contract is formed.
Acts fitted to convey to a reasonable man the It also follows that an offer before acceptance creates no duty proposal of an agreement, or the acceptance of a proposal of any kind (“ A revocable promise is unknown to our law” he has made, are as good in law as equivalent express -Anson); which is by no means necessarily the case in words. The term “implied contract” is current in this systems where the English rule of consideration is unknown. 'connexion, but it is unfortunately ambiguous. It someThe question what amounts to final acceptance of an offer times means a contract concluded by acts, not words, of is, on the other hand, a question ultimately depending on one or both parties, but still a real agreement; sometimes common sense, and must be treated on similar lines in all an obligation imposed by law where there is not any civilized countries where the business of life is carried on : agreement in fact. in a generally similar way. The rules that an offer is The obligation of contract is an obligation created and understood to be made only for a reasonable time, accord determined by the will of the parties. Herein is the ing to the nature of the case, and lapses if not accepted characteristic difference of contract from all in due time; that an expressed revocation of an offer can other branches of law. The business of the law,
Interpretake effect only if communicated to the other party before therefore, is to give effect so far as possible to he has accepted; that acceptance of an offer must be the intention of the parties, and all the rules for interpretaccording to its terms, and a conditional or qualified ing contracts go back to this fundamental principle and acceptance is only a new proposal, and the like, may be are controlled by it. Every one knows that its application regarded as standing on general convenience as much as is not always obvious. Parties often express themselves on any technical ground.
obscurely; still oftener they leave large parts of their Great difficulties have arisen, and in other systems as intention unexpressed, or (which for the law is the same well as in the English, as to the completion of contracts thing) have not formed any intention at all as to what is
between persons at a distance. There must be to be done in certain events. But even where the law Correspond
some rule, and yet any rule that can be framed has to fill up gaps by judicial conjecture, the guiding
must seem arbitrary in some cases. On the principle still is, or ought to be, the consideration of what whole our modern doctrine is to some such effect as the either party has given the other reasonable cause to expect followiny :
of him. The court aims not at imposing terms on the The proposer of a contract can prescribe or authorize parties, but at fixing the terms left blank as the parties any mode, or at least any reasonable mode, of acceptance, would or reasonably might have fixed them if all the and if he specifies none he is deemed to authorize the use possibilities had been clearly before their minds. For
reasonable mode in common use, and especially the this purpose resort must be had to various tests: the post. Acceptance in words is not always required; an court may look to the analogy of what the parties have offer may be well accepted by an act clearly referable to expressly provided for other specified events, to the conthe proposed agreement, and constituting the whole or stant or general usage of persons engaged in like business, part of the performance asked for-say the despatch of and, at need, ultimately to the court's own sense of what goods in answer to an order by post, or the doing of work is just and expedient. All auxiliary rules of this kind
are subject to the actual will of the parties, and are applied There may be legal offence, it must be remembered, not only for want of sufficient declaration of it by the parties only in acts commonly recognized as criminal, disloyal, or themselves. A rule which can take effect against the immoral, but in the breach or non-observance of positive judicially known will of the parties is not a rule of con- regulations made by the Legislature, or persons having struction or interpretation, but a positive rule of law. statutory authority, for a great variety of purposes. It However artificial some rules of construction may seem, would be useless to give details on the subject here. this test will always hold. In modern times the courts Again, there are cases where an agreement may be made have avoided laying down new rules of construction, and performed without offending the law, but on grounds preferring to keep a free hand and deal with each case on of “public policy” it is not thought right that the perits merits as a whole.
formance should be a matter of legal obligation, even if There are certain rules of evidence which to some extent the ordinary conditions of an enforceable contract are guide or restrain interpretation. In particular, oral testi- satisfied. A man may bet, in private at any rate, if he
mony is not allowed to vary the terms of an agree likes, and pay or receive as the event may be; but for
ment reduced to writing. This is really in aid many years the winner has had no right of action against of the parties' deliberate intention, for the object of redu- the loser. Unfortunate timidity on the part of the judges, cing terms to writing is to make them certain. There are who attempted to draw distinctions instead of saying apparent exceptions to the rule, of which the most con- boldly that they would not entertain actions on wagers of spicuous is the admission of evidence to show that words any kind, threw this topic into the domain of legislation; and were used in a special meaning current in the place or the laudable desire of Parliament to discourage gambling, trade in question. But they are reducible, it will be so far as might be, without attempting impossible prohibifound, to applications (perhaps over-subtle in some cases) tions, has brought the law to a state of ludicrous comof the still more general principles that, before giving legal plexity in both civil and criminal jurisdiction. But what force to a document, we must know that it is really what is really important under this doctrine of public policy it purports to be, and that when we do give effect to it is the confinement of “contracts in restraint of trade according to its terms we must be sure of what its terms within special limits. In the Middle Ages and down to
The rules of evidence here spoken of are modern times there was a strong feeling—not merely an modern, and have nothing to do with the archaic rule artificial legal doctrine — against monopolies and everyalready mentioned as to the effect of a deed.
thing tending to monopoly. Agreements to keep up Every contracting party is bound to perform his promise prices or not to compete were regarded as criminal. according to its terms, and in case of any doubt in the Gradually it was found that some kind of limited security
sense in which the other party would reasonably against competition must be allowed if such transactions understand the promise. Where the performance as the sale of a going concern with its goodwill
, or the on one or both sides extends over an appreciable retirement of partners from a continuing firm, or the emtime, continuously or by instalments, questions may arise ployment of confidential servants in matters involving as to the right of either party to refuse or suspend trade secrets, were to be carried on to the satisfaction of further performance on the ground of some default on the the parties. Attempts to lay down fixed rules in these other side. Attempts to lay down hard and fast rules on matters were made from time to time, but they were finally such questions are now discouraged, the aim of the courts discredited by the decision of the House of Lords in the being to give effect to the true substance and intent of the Maxim-Nordenfelt Company's case in 1894. Contracts contract in every case. Nor will the court hold one part“ in restraint of trade” will now be held valid, provided of the terms deliberately agreed to more or less material that they are made for valuable consideration (this even if than another in modern business dealings. “In the they are made by deed), and do not go beyond what can be contracts of merchants time is of the essence,” as the thought reasonable for the protection of the interests conSupreme Court of the United States has said in our own cerned, and are not injurious to the public. (The Indian day. Certain ancient rules restraining the apparent literal Contract Act, passed in 1872, has unfortunately embodied effect of common provisions in mortgages and other instru- views now obsolete, and remains unamended.) All that ments were in truth controlling rules of policy. New rules remains of the old rules in England is the necessity of of this kind can be made only by legislation. Whether valuable consideration, whatever be the form of the conthe parties did or did not in fact intend the obligation of tract, and a strong presumption—but not an absolute rule a contract to be subject to unexpressed conditions is, how- of law—that an unqualified agreement not to carry on a ever, a possible and not uncommon question of interpreta- particular business is not reasonable. tion. One class of cases giving rise to such questions is Where there is no reason in the nature of the contract that in which performance becomes impossible by some for not enforcing it, the consent of a contracting party external cause not due to the promisor's own fault. As to may still not be binding on him because not
Fraud. promises obviously absurd or impossible from the first, given with due knowledge, or, if he is in a relathey are unenforceable only on the ground that the parties tion of dependence to the other party, with independent cannot have seriously meant to create a liability. For judgment. Inducing a man by deceit to enter into a precisely the same reason, supported by the general usage contract may always be treated by the deceived party and understanding of mankind, common social engage as a ground for avoiding his obligation, if he does so ments, though they often fulfil all other requisites of a within a reasonable time after discovering the truth, and, contract, have never been treated as binding in law. in particular, before any innocent third person has acquired
In all matters of contract, as we have said, the ascertained rights for value on the faith of the contract (see FRAUD). will of the parties prevails. But this means a will both Coercion would be treated on principle in the same way
lawful and free. Hence there are limits to the as fraud, but such cases hardly occur in modern times. Illegality force of the general rule, fixed partly by the law There is a kind of moral domination, however
our of the land, which is above individual will and interests, courts watch with the utmost jealousy, and repress under partly by the need of securing good faith and justice the name of “undue influence” when it is used to obtain between the parties themselves against fraud or mis- pecuniary advantage. Persons in a position of legal or adventure. Agreements cannot be enforced when their practical authority — guardians, confidential advisers, performance would involve an offence against the law. I spiritual directors, and the like-must not abuse their
authority for selfish ends. They are not forbidden | parties who have really agreed, or rather their advisers, to take benefits from those who depend on them or fail to express their intention correctly. Here, if the put their trust in them; but if they do, and the givers original true intention is fully proved—as to which the repent of their bounty, the whole burden of proof court is rightly cautious—the faulty document can be is on the takers to show that the gift was in the judicially rectified. first instance made freely and with understanding. Large By the common law an infant (i.e., a person less than voluntary gifts or beneficial contracts, outside the limits twenty-one years old) was bound by contracts made for W in which natural affection and common practice justify “necessaries,” i.e., such commodities as a jury
Disability. them, are indeed not encouraged in any system of civilized holds, and the court thinks they may reasonlaw. Professional money-lenders were formerly checked ably hold, suitable and required for the person's condiby the usury laws : now that no rate of interest is in tion; also by contracts otherwise clearly for his benefit ; itself unlawful, courts and juries have shown a certain all other contracts he might confirm or avoid after coming astuteness in applying the rules of law as to fraud and of age. An extremely ill-drawn Act of 1874 absolutely undue influence—the latter with certain special features, deprived infants of the power of contracting loans, conto transactions with needy “expectant heirs” and other tracting for the supply of goods other than necessaries, improvident persons which seem on the whole unconscion- and stating an account so as to bind themselves ; it also able. In the case of both fraud and undue influence, the disabled them from binding themselves by ratification. person entitled to avoid a contract may, if so advised, The liability for necessaries is now declared by legislative ratify it afterwards; and ratification, if made with full authority in the Sale of Goods Act, 1893. Practically, knowledge and free judgment, is irrevocable. A contract people who give credit to an infant do so at their peril, made with a person deprived by unsound mind or intoxi- except in cases of obvious urgency. cation of the capacity to form a rational judgment is on Married women were incapable by the common law of the same footing as a contract obtained by fraud, if the contracting in their own names. At this day they can hold want of capacity is apparent to the other party.
separate property and bind themselves to the extent of that There are many cases in which a statement made by property—not personally—by contract. The law before one party to the other about a material fact will enable the Married Women's Property Acts (1882 and 1893, and the other to avoid the contract if he has relied on it, and earlier Acts now superseded and repealed) was a very it was in fact untrue, though it may have been made at peculiar creature of the Court of Chancery ; the number the time with honest belief in its truth. This is so wher- of cases in which it is necessary to go back to it is of ever, according to the common course of business, it is one course decreasing year by year. But a married woman party's business to know the facts, and the other practi- can still be restrained from anticipating the income of her cally must, or reasonably may, take the facts from him. separate property, and the restriction is still commonly In some classes of cases even inadvertent omission to dis- inserted in marriage settlements. close any material fact is treated as a misrepresentation. There is a great deal of philosophical interest about Contracts of insurance are the most important; here the the nature and capacities of corporations, but for modern insurer very seldom has the means of making any effective practical purposes it may be said that the legal powers inquiry of his own. Misdescription of real property on a of British corporations are directly or indirectly detersale, without fraud, may according to its importance be mined by Acts of Parliament. For companies under the a matter for compensation or for setting aside the con- Companies Acts the controlling instrument or written contract. Promoters of companies are under special duties stitution is the memorandum of association. Company as to good faith and disclosure which have been worked draftsmen, taught by experience, nowadays frame this in out at great length in the modern decisions. But company the most comprehensive terms. Questions of either perlaw has become so complex within the present generation sonal or corporate disability are less frequent than they that, so far from throwing much light on larger principles, were. In any case, they stand apart from the general it is hardly intelligible without some previous grasp of principles which characterize our law of contract. them. Sometimes it is said that misrepresentation (apart
AUTHORITIES.—History : AMES. "The History of Assumpsit,” from fraud) of any material fact will serve to avoid any
Farrard Law Rev. ii. 1, 53. Cambridge, Mass., 1889.–POLLOCK and every kind of contract. It is submitted that this is and MAITLAND. History of English Law, 2d ed., ii. 184-239. certainly not the law as to the sale of goods or as to the Cambridge, 1898. Modern : POLLOCK, article “Contract” in contract to marry, and therefore the alleged universal rule Encyclopadia of the Lau's of England, vol. iii., London, 1897, a does not exist. But it must be remembered that parties English Law of Contract, is now in a ninth edition, 1899; HARRI
technical summary of the modern law. Of the text-books, Anson, can, if they please, and not necessarily by the express MAN, Law of Contracts, in a second, 1901 ; POLLOCK, Principles terms of the contract itself, make the validity of their of Contract, in a seventh, 1902.—O. W. HOLMES (afterwards Chief contract conditional on the existence of any matter of fact Justice of Massachusetts), The Common Law, Boston, Mass., 1881,
is illuminating on contract as on other legal topics, though the whatever, including the correctness of any particular present writer cannot accept all the learned judge's historical statement. If they have done this, and the fact is not so, conjectures.
(F. PO.) the contract has no force ; not because there has been a misrepresentation, but because the parties agreed to be Conveyancing is the art or science of effecting bound if the fact was so and not otherwise.
It is a
the transfer of property, or modifying interests in relation question of interpretation whether in a given case there to property, by means of written documents. was any such condition.
In early legal systems the main element in the transfer Mistake is said to be a ground for avoiding contracts, of property was the change, generally accompanied by some and there are cases which it is practically convenient to publicceremony, in the actual physical possession:
History. group under this head. On principle they seem to be the function of documents, where used, being mostly reducible to failure of the acceptance to correspond merely the preservation of evidence. Thus, in Great Britain with the offer, or absence of any real consideration for the in the feudal period, the common mode of conveying an promise. In such cases, whether there be fraud or not, immediate freehold was by feoff'ment with livery of seisin no contract is ever formed, and therefore there is nothing —a proceeding in which the transferee was publicly which can be ratified —á distinction which may have invested with the feudal possession or seisin, usually important effects. Relief against mistake is given where through the medium of some symbolic act performed in
the presence of witnesses upon the land itself.
A deed or
statute upon the legal estate in such circumstances, it charter of feoffment was commonly executed at the same is usual in all conveyances, whether for value or not, to time by way of record, but formed no essential part of the declare a use in favour of the party to whom the grant is conveyance. In the language of the old rule of the made. common law, the immediate freehold in corporeal heredita In its popular usage the word “conveyance” signifies ments lay in livery, whereas reversions and remainders the document employed to carry out a purchase of land. and all incorporeal hereditaments lay in grant, i.e., passed But the term “conveyancing” is of much wider import, by the delivery of the deed of conveyance or grant without and comprises the preparation and completion of all kinds any further ceremony. The process by which this distinc- of legal instruments. A well-known branch of the tion was broken down and the present uniform system of conveyancer's business is the investigation of title—an private conveyancing by simple deed was established, con- important function in the case of purchases or mortgages stitutes a long chapter in English legal history.
of real estate. With personal estate (other than leasehold)
Chattels are usually The land of a feudal owner was subject to the risk of forfeiture he has perhaps not so much concern. for treason, and to military and other burdens. The common law transferred by delivery, and stocks or shares by means of did not allow him to dispose of it by will. By the law of mort- printed instruments which can be bought at a law-stationer's. main religious houses were prohibited from acquiring it. The
The common settlements and wills, however, deal wholly desire to escape from these burdens and limitations gave rise to the practice of making feoffments to the use of, or upon trust for,
or mainly with personal property; and an interest in persons other than those to whom the seisin or legal possession
settled personalty is frequently the subject of a mortgage. was delivered. The common law recognized only the legal tenant; Of late years, also, there has been an enormous increase in but the cestui que use or beneficial owner gradually secured for his wishes and directions concerning the profits of the land the strong limited joint-stock companies.
the volume of conveyancing business in connexion with protection of the chancellors as exercising the equitable jurisdiction of the king. The resulting loss to the Crown and the great
In the preparation of legal documents the practitioner is lords of the feudal dues and privileges, coupled with the public much assisted by the use of precedents. These are outdisadvantages arising from ownership of land which, in an in lines or models of instruments of all kinds, exhibiting creasing degree, was merely nominal, brought about the passing in
in accepted legal phraseology their usual form and conthe year 1535 of the famous Statute of Uses, the object of which was to destroy altogether the system of uses and equitable estates
tents with additions and variations adapted to particular It enacted, in substance, that whoever should have a use or trust
circumstances. Collections of them have been in use from in any hereditaments should be deemed to have the legal seisin, early times, certainly since printing became common. The estate, and possession for the same interest that he had in the use;
modern precedent is, upon the whole, concise and businessin other words, that he should become in effect the feudal tenant
like. without actual delivery of possession to him by the actual feoffee
The prolixity which formerly characterized most to uses or trustee. In its result the statute was a fiasco. It was legal documents has largely disappeared, mainly through solemnly decided that the Act transferred the legal possession to the operation of recent statutes which enable many clauses the use once only, and that in the case of a conveyance to A to previously inserted at great length to be, in some cases, the use of B to the use of or upon trust for C, it gave the legal cstate to B, and left C with an interest in the position of the use
e.g., covenants for title, incorporated by the use of a few before the statute. Thus was completed the foundation of the prescribed words, and in others safely omitted altogether. modern system of trusts fastened upon legal estates and protected The Solicitors' Remuneration Act, 1881, has also assisted by the equitable doctrines and practice of the judicature.
the process of curtailment, for there is now little or no But the statute not only failed to abolish uses : it also opened the way to the evasion of the public ceremony of “livery
connexion between the length of a deed and the cost of its of seisin,” and the avoidance of all notoriety in conveyances.
preparation. So long as the draftsman adheres to recogOther ways, besides an actual feoffment to uses, of creating a nized legal phraseology and to the well-settled methods of use had been in vogue before the statute. If A bargained with B, carrying out legal operations, there is no reason why modern in writing or not, for the sale of land, and B paid the price, but A
instruments should not be made as terse and businesslike remained in legal possession, the Court of Chancery enforced the use or equitable interest in favour of B. The effect of a “bargain
as possible. and sale” (as such a transaction was called) after the statute was It is not usual for land to be sold without a formal to give B the legal interest without any "livery of seisin.” agreement in writing being entered into. This precaution This fresh danger was met in the very year of the statute itself by an enactment that a bargain and sale of an estate of inheritance which ' renders a contract for the sale of land
is due, partly to the Statute of Frauds (S 4),
Contracts or freehold should be made by deed publicly enrolled. But the Statute of Enrolments was in terms limited to estates of freehold. unenforceable by action “unless the agreement It was allowed that a bargain and sale for a term, say, of one year, upon
which such action shall be brought, or must transfer the seisin to the bargainee without enrolment. And
memorandum or note thereof, shall be in writing and since what remained in the bargainor was merely a reversion which "lay in grant," it was an easy matter to release this by deed the
signed by the party to be charged therewith or some day after. By this ingenious device was the publicity of feoffment other person thereunto by him lawfully authorized,” and or enrolment avoided, and the lease and release, as the process was partly to the fact that there are few titles which can with called, remained the usual mode of conveying a freehold in prudence be exposed to all the requisitions that a purpossession down to the 19th century.
chaser under an “open contract” is entitled by law to It was not until 1845 that the modern system of transfer make. Such a purchaser may, for example, require a by a single deed was finally established. By the Real forty years' title (Vendor and Purchaser Act, 1874). Property Act of that year it was enacted that all corporeal Under an open contract a vendor is presumed to be hereditaments should, as regards the immediate freehold, selling the fee-simple in possession, free from any incumbe deemed to lie in grant as well as in livery. Since this brance, or liability, or restriction as to user or otherwise ; Act the ancient modes of conveyance, though not abolished and if he cannot deduce a title of the statutory length, or by it, have in practice become obsolete. Traces of the old procure an incumbrance or restriction to be removed, the learning connected with them remain, however, embedded purchaser may repudiate the contract. The preparation of in the modern conveyance. Many a purchase-deed recites an agreement for sale involves accordingly an examination that the vendor is seised in fee-simple of the property of the vendor's title, and the exercise of skill and judgment It is the practice, moreover, to convey not only “to” but in deciding how the vendor may be protected against also “to the use of” a purchaser. For before the Statute trouble and expense without prejudice to the sale. Upon of Uses, a conveyance made without any consideration a sale by auction the agreement is made up of (1) the or declaration of uses was deemed to be made to the use particulars, which describe the property ; (2) the conditions of the party conveying. In view of the operation of the of sale, which state the terms upon which it is offered ; and
(3) the memorandum or formal contract at the foot of the and of which the following are the most important : conditions, which incorporates by reference the particulars (1) Recitals, statements, and descriptions of facts, and conditions, names or sufficiently refers to the vendor, matters, and parties contained in instruments twenty and is signed by the purchaser after the sale. The object years old at the date of the contract are, unless proved of the agreement, whether the sale is by private contract inaccurate, to be taken as sufficient evidence of the or by auction, is to define accurately what is sold, to truth of such facts, matters, and descriptions; (2) a provide for the length of title and the evidence in support purchaser cannot require the production of, or make any of or in connexion with the title which is to be required requisition or objection in respect of, any document dated except so far as it is intended that the general law shall before the commencement of the title; (3) the cost of obtainregulate the rights of the parties, and to fix the times at ing evidence and information not in the vendor's possession which the principal steps in the transaction are to be taken. must be borne by the purchaser. The possibility of the It is also usual to provide for the payment of interest at a rescission clause now commonly found in contracts for the prescribed rate upon the purchase money if the completion sale of real estate being exercised in order to avoid comshall be delayed beyond the day fixed for any cause other pliance with an onerous requisition, is also an important than the vendor's wilful default, and also that the vendor factor in the situation. The requisitions are in due course shall be at liberty to rescind the contract without paying replied to, and further requisitions may arise out of the costs or compensation if the purchaser insists upon any
A summary method of obtaining a judicial requisition or objection which the vendor is unable or, determination of questions connected with the contract, upon the ground of expense or other reasonable ground, is but not affecting its validity, is provided by the V. and P. unwilling to comply with or remove. Upon a sale by Act, 1874. Before completion it is usual for the purchaser auction it is the rule to require a deposit to be paid by to cause searches to be made in various official registers for way of security to the vendor against default on the matters required to be entered therein, such as judgments, part of the purchaser.
land charges, and pending actions, which may affect the The signature of the agreement is followed by the vendor's title to sell, or amount to an incumbrance upon delivery to the purchaser or his solicitor of the abstract the property.
of title, which is an epitome of the various in When the title has been approved, or so soon as it Abstract
struments and events under and in consequence appears reasonably certain that it will be accepted, the
of which the vendor derives his title. A pur- draft conveyance is prepared and submitted to chaser is entitled to an abstract at the vendor's expense
the vendor. This is commonly done by and at unless otherwise stipulated. It begins with the instrument the expense of the purchaser, who is entitled to fixed by the contract for the commencement of the title, or, determine the form of the conveyance, provided that the if there has been no agreement upon the subject, with an vendor is not thereby prejudiced, or put to additional instrument of such character and date as is prescribed by expense. The common mode of conveying a freehold is the law in the absence of stipulation between the parties. now, as already mentioned, by ordinary deed, called in this From its commencement as so determined the abstract, if case an indenture, from the old practice, where a deed properly prepared, shows the history of the title down to was made between two or more parties, of writing copies the sale ; every instrument, marriage, birth, death, or other upon the same parchment and then dividing it by an fact or event constituting a link in the chain of title, being indented or toothed line. Indenting is, however, not sufficiently set forth in its proper order. The next step is necessary, and in modern practice is disused. A deed the verification of the abstract on the purchaser's behalf derives its efficacy from its being sealed and delivered. It by a comparison of it with the originals of the deeds, the is still a matter of doubt whether signing is essential. probates of the wills, and office copies of the instruments It is not necessary that its execution should be attested of record through which the title is traced. The vendor is except in special circumstances, as, e.g., where made under a bound to produce the original documents, except such as power requiring the instrument exercising it to be attested. are of record or have been lost or destroyed, but, unless But in practice conveyances are not only sealed, but also otherwise stipulated, the expense of producing those which signed, and attested by one or two witnesses. The details are not in his possession falls upon the purchaser (C. A., of a conveyance in any particular case depend upon the 1881). After being thus verified, the abstract is perused subject-matter and terms of the sale, and the state of the by the purchaser's advisers with the object of seeing title as appearing by the abstract. The framework, howwhether a title to the property sold is decluced according ever, of an ordinary purchase-deed consists of (1) the date to the contract, and what evidence, information, or objec- and parties, (2) the recitals, (3) the testatum or witnessingtion, in respect of matters appearing or arising upon the part, containing the statement of the consideration for abstract, ought to be called for or taken. For this the sale, the words incorporating covenants for title, and purpose it is necessary to consider the legal effect of the the operative words, () the parcels or description of the abstracted instruments, whether they have been properly property, (5) the habendum, showing the estate or interest completed, whether incumbrances, adverse interests, defects, to be taken by the purchaser, and (6) any provisos or liabilities in respect of duties, or any other burdens or covenants that may be required. A few words will restrictions disclosed by the abstract, have been already illustrate the object and effect of these component parts. got rid of or satisfied, or remain to be dealt with before (1) The parties are the persons from whom the property, the completion of the sale. The result of the considera or some estate or interest in or in relation to it, is to pass
tion of these matters is embodied in “requisitions to the purchaser, or whose concurrence is rendered necesRequisi
upon title,” which are delivered to the vendor's sary by the state of the title in order to give the pur
solicitors within a time usually fixed for the purchaser the full benefit of his contract and to complete it pose by the contract. In making or insisting upon according to law. It is often necessary that other persons requisitions regard is had, among other things, to any besides the actual vendor should join in the conveyance, special conditions in the contract dealing with points e.g., a mortgagee who is to be paid off and convey his as to which evidence or objection might otherwise have estate, a trustee of an outstanding legal estate, a person been required or taken, and to a variety of provisions con entitled to some charge or restriction who is to release it, tained in the V. and P. Act, 1874, and the Conveyancing or trustees who are to receive the purchase-money where a Act, 1881, which apply, except so far as otherwise agreed, I limited owner is selling under a power (p.9., a tenant for life