THE

SCOTTISH LAW REVIEW.

VOL. IX.

SEPTEMBER, 1893.

No. 105.

There is scarcely a

A WORD FOR CODIFICATION. CODIFICATION is, always is, in the legal air. legal debating society which has not thrashed out the subject again and again; it has formed the subject of countless prize essays; and yet, as a practical matter, it seems little further advanced than it was in the days of Bentham. Of all classes of the community, lawyers seem the least able to propel the legislative machinery of the House of Commons. There is no group of enthusiasts or faddists who are unable, if not to get a measure passed to their minds, at least to secure a fixed day of discussion, but lawyers cannot. They are supposed by laymen to form a sort of close corporation, devoted entirely, or almost entirely, to class interests; yet, on any subject associated with their own profession, they show little sign of corporate vigour. There is, indeed, no apathy. No men are more keenly alive to the defects of the present laws than lawyers; no men would welcome more cordially a genuine reconstruction, modification, or codification of the law as it is known in practice; and yet they stand more or less impotently by, while tinkering legislation of the forcible-feeble sort is rushed before the public for consideration in speeches more adapted to tickle the ear of the groundlings than to convince men whose business it is to know the why and wherefore of each law. It may be said it is for the nation to make the laws: it is for the lawyers to administer them. No doubt; but it is also the duty of lawyers, as being men specially trained for the interpretation of laws, to lay before the nation (which seldom pretends to understand a measure when it has passed from being a Bill into an Act) the need which exists for dealing with some of the law which exists already. Three Edinburgh lawyers (though one has now winged his way to

U

arbitrators, broke away; and he and his colleague sincerely believed, without doubt, that the American case in this respect had been fully established. The more curious and interesting facts as to seal life before the commissioners were almost sufficient to lead the strongest opponent of property in the seals to say, "Though they cannot be property, and neither international law nor any analogy from municipal law can admit it, yet they ought to be."

66

Sir Charles Russell contended, indeed, that this theory had never been thought of until the United States had discovered the baselessness of their other contentions. But this is not accurate. The correspondence from the very beginning shows that it was in the mind of the American Secretary, and was asserted; only, undoubtedly, the claim upon jurisdictional grounds was emphasised more strongly at first than was possible after the discovery of the forgeries and interpolations of Petroff, who had been employed upon the translation of the documents in the archives handed over by Russia to America. These, as Sir Charles Russell said, were artistically composed and inserted to bolster the claims of jurisdiction, and when they were gone there was not much left. The American

counsel, thus deprived of their weapons in this respect, fell back upon the more theoretical contentions which had, indeed, been heard of long before, but which were not "played for all they were worth" until the tribunal was reached.

It was the only point where the merits were not overwhelmingly against the United States, and where its advocacy had a chance of success. Moreover, it was the only matter before the arbitrators of any importance in international law calling for an opinion, and we cannot help regretting that we have not been favoured officially or unofficially with the reasons for this particular decision.

GEO. H. KNOTT.

THE SALE OF GOODS BILL AS AMENDED. THE Select Committee of the House of Commons on the Sale of Goods Bill have completed their labours and presented their report. Considerable alterations have been made, and in one respect, at least, the Bill has been much improved. The Scottish part of clause 12 (now clause 11) has been entirely redrafted by Mr. Asher; and, whatever may be thought of the expediency of the additional remedy given to the buyer, it can, at least, be claimed for the clause as it now stands that it carries out its object in intelligible language.

In the SCOTTISH LAW REVIEW for June, 1892 (vol. viii., 149), I ventured to point out the unsatisfactory nature of clause 12

as it stood before Mr. Asher's amendment. My remarks were mainly directed to the inadequacy of the language employed to carry out the purpose intended. The professed object was to introduce into Scotland the actio quanti minoris, and, at the same time, to exclude the English rules as to warranties. But the actio quanti minoris as known in the civil law was confounded with the English remedy sometimes called by that name, and accordingly the Scottish sub-section was framed after the model, though not in the precise language, of the English provisions. The draftsmen desired to exclude the English rules as to warranties, but they overlooked the fact that the actio quanti minoris is only known in England as descriptive of the remedy applicable to a "warranty" in the special sense which that word has acquired in the English law of sale. In England, whether a buyer's remedy in the event of a breach of the contract of sale is one of repudiation (actio redhibitoria) or merely one of damages (actio quanti minoris) depends on whether the breach is that of a "condition" or that of a "warranty"; and this again "depends in each case on the construction of the contract." A certain degree of uniformity of construction has, in the course of time, been secured through common-law interpretation embodied in rules, and these rules form the English rules as to warranties which it was desired to exclude from Scotland. The present law of Scotland in this matter is essentially different. The actio quanti minoris is not unknown, but it is only applied where there is "a latent infirmity either in the title or the quality "of the subjects sold, discovered when matters are no longer "entire." In the ordinary case, a buyer who alleges a breach of the contract of sale must reject the goods if he intends to claim damages. If he keeps the goods his claim for damages is gone. His remedy does not depend, as in England, upon the construction which the Courts may put upon the contract, either with or without the aid of rules. Whether he has any remedy at all depends on his own action, not on the judgment of any Court. But by the Scottish sub-section as it appeared in the Bill, an alternative remedy, similar to the English one, was given to the buyer, and whether this remedy was available or not was made to "depend on the circumstances and equities of "each case." Obviously the "circumstances and equities" could not be left to be determined by the buyer himself. Judicial aid was necessary, and it follows that the Courts would sooner or later have adopted or formulated rules for determining what "circumstances and equities" would suffice to enable the buyer to sue an action of damages and yet to retain the goods. Had the sub-section as drafted been allowed

to stand, one or other of two results must have followed. Either the English rules as to warranties would have been unwittingly introduced into Scotland, or the English actio quanti minoris would have been introduced without rules, leaving the Scottish Courts to formulate rules for themselves, and thus depriving Scotland of the benefit of English precedents.

The new provision as to Scotland, now forming sub-section 4 of clause 11, is in the following terms:-" In Scotland, failure by "the seller to perform any material part of a contract of sale is a "breach of contract which entitles the buyer, either within a "reasonable time after delivery to reject the goods and treat the "contract as repudiated, or to retain the goods and treat the "failure to perform such material part as a breach which may "give rise to a claim for compensation or damages." This is clear enough. The buyer is himself to exercise the option of bringing into operation either the actio redhibitoria or the actio quanti minoris. He has no occasion to refer to any Court or to any rules in order to fix the alternative. Such a power is exceptional and has never yet been exercised either in England or Scotland. It may, however, be said in its favour that it is in accordance with the rule of the civil law which gave a similar option to the buyer within a specified period of time. At first sight it might appear as if the buyer's rights had been increased, while corresponding rights of the seller, known in the civil law and presently exercised in Scotland, had been taken away. At present the law of Scotland gives the seller, in the event of the buyer's breach of contract, an option of either suing for the price of the goods, conditional on his being prepared to give delivery, or of keeping the goods and suing for damages. The law of England, however, only gives the seller a right to sue for the price in certain specified circumstances, and it is proposed to assimilate the law of Scotland by making the clauses embodying the English law applicable to both countries. Clause 49 provides that on a breach of contract by the buyer the seller may maintain an action for the price as distinguished from an action for damages, (1) where the property in the goods has passed, and (2) even where the property has not passed, if by the contract the price is payable on a day certain, irrespective of delivery. In all other executory sales the seller's remedy in England is not for the contract price, but for damages in respect of the buyer's breach. It might be inferred from this that the seller's option in Scotland is being curtailed by the Bill. If, however, we consider the effect of the introduction into Scotland of the English rule as to passing the property, it will be seen that the seller's remedy is not really affected. The only cases not covered by the

English provision as to suing for the price are executory sales where the property has not passed because the goods have not been appropriated to the contract. But even in executory sales the goods are, by English law, appropriated to the contract by the very fact of their being ready for delivery, and as soon as they are so appropriated the property passes and the price may be sued for. A seller in Scotland has no additional privilege. He could not sue for the price without offering delivery, and the fact that he is in a position to offer delivery shows that the goods would, according to English law, have been appropriated to the contract. If, as contemplated by the Bill, the laws of the two countries, in regard to passing the property, are assimilated, goods so appropriated to the contract will pass to the buyer, in Scotland as well as in England, and the seller may sue for the price.

The Bill, though amended and improved by the Select Committee, is not perfect, and it may not yet be too late to direct further attention to certain of the clauses in their order.

Clause 6.-The Select Committee have substituted "perished" for " ceased to exist," but the words "ceased to exist" still remain in the rubric.

Clause 11.-The first three sub-sections are intended to apply to England and Ireland but not to Scotland. It is only, however, in the first sub-section that the words "in England or Ireland" are used. It might be contended that sub-sections (2) and (3) are applicable to Scotland though covering the same ground as sub-section (4).

Clause 12.-In the 2nd and 3rd sub-sections the word "warranty" is used and is applied to Scotland as well as to England. But "warranty" in the English law of sale has an entirely different meaning from that attached to "warranty" in Scotland. Accordingly, in the interpretation clause of the Bill as amended (clause 62), the definition given is expressly stated to be applicable only to England and Ireland. It is true that the Committee have added to clause 62 the following words:"As regards Scotland a breach of warranty shall be deemed to be a failure to perform a material part of the contract." This, however, is not satisfactory. We cannot look upon a specification of the characteristics of a breach of warranty as a definition of "warranty" itself. We may, indeed, get indirectly at what is meant. On mathematical principles we may subtract the equal terms "breach" and "failure to perform," and equals are left, viz., "warranty is a material part of a contract." But would not the same result have been reached by the simple statement that "in Scotland warranty means a condition"?