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CHAPTER V.-SECTION III.

THE CONTRACT OF SALE.

The contract of sale was defined by the old writers as a contract whereby the property in goods is transmuted from one man to another for a price (a). For if the commutation be goods for goods, it is more properly an exchange ; but if it be a transferring of goods for money, it is called a sale, which is a method of exchange introduced for the convenience of mankind (b).

What is a sale ?—The law of sale of goods is now regulated and codified by the Sale of Goods Act, 1893. By that Act (sect. 1) a contract of sale of goods is defined as “a contract whereby the seller transfers or agrees to “ transfer the property in goods to the buyer for a “ money consideration called the price.” For it is to be understood that every contract of sale implies a bargain or mutual agreement between the parties as to terms; and if the vendor says the price of the goods is £4, and the vendee says he will give £4, the bargain is struck.

The term “goods” as defined by the Act (sect. 62) comprises “all chattels personal other than things in " action and money,” including “emblements, industrial “ growing crops, and things attached to or forming part “ of the land, which are agreed to be severed before sale, “ or under the contract of sale.”

When the property vests in purchaser.--The rules as to when the property in the goods sold is transferred to the buyer are stated in ss. 16 to 20 of the Act. They may be shortly summarized as follows : (a) The property in

(a) Noy. Max. 42.

(b) Gen. ch. xxii. v. 16.

unascertained goods does not pass to the buyer until the goods are ascertained. Goods in bulk (e.g., so many hundredweight of sugar) are for this purpose “ascertained," if and when they (i.e., the agreed quantity) have been set apart and unconditionally appropriated to the buyer. (b) The property in specific or ascertained goods passes when the parties agree it shall pass ; but in the absence of special agreement the following rules govern. (c) If specific goods ready for delivery are sold under an unconditional contract, the property vests in the purchaser as soon as the contract is made ; but if something remains to be done to such goods to render them deliverable, the property does not pass until this is done and the buyer has notice of the fact. (d) Where specific goods are sold in a deliverable state, but subject to their being weighed, measured, or tested for the purpose of ascertaining the price (e.g., if A. sells to B. all the sugar of unascertained amount in a particular warehouse at so much per hundredweight), the property does not pass until the price is so ascertained, and the buyer has notice of it. (e) If goods are delivered “on sale or return” the property passes to the buyer as soon as he either signifies his acceptance, or retains the goods without notice of rejection beyond the time limited for their return, or for an unreasonable time. (f) If the seller in any case, notwithstanding delivery, reserves the right of disposal of the goods until some condition is fulfilled, the property does not pass until such condition is in fact fulfilled. The question of when the property vests in the purchaser is very material, as determining who sball bear the loss in case the goods are accidentally destroyed after the contract of sale, but before delivery to the purchaser.

It must be borne in mind, however, that there is a great distinction between the vesting of the property in goods and the vesting of the right to the possession thereof ; for in the case of a sale of specific and finished goods for ready money, the purchaser cannot take the goods until he pays or tenders the whole price agreed on (c). But if he tenders the money to the vendor, and the latter refuses it, the purchaser may have an action against the vendor for detaining the goods.

Form of contract. By section 4 of the Sale of Goods Act, 1893, re-enacting, with slight alterations, section 17 of the Statute of Frauds (29 Car. 2, c. 3), it is provided that no contract for the sale of any goods of the value of 101. or upwards shall be enforceable by action, unless the buyer shall either (1) accept part of the goods, and actually receive the same (d); or (2) give something in earnest to bind the bargain, or in part payment (e) ; or (3) unless some memorandum or note in writing of the bargain be made and signed by the party to be charged, or his agent in that behalf. And it has been further specifically provided, by section 4 (2) of the Sale of Goods Act, 1893, repealing but re-enacting the like provision contained in the 7th section of the Statute of Frauds Amendment Act, 1828 (“ Lord Tenterden's Act”), that the requisites above stated shall apply to every contract for the sale of goods of the value aforesaid, notwithstanding that the goods may be intended to be delivered at some future time, or may not, at the time of the contract, be actually made, procured, or provided, or fit or ready for delivery, or that some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. And we will here observe, that where the contracting parties rely on the memorandum or note in writing, such memorandum or note must be of the same kind as required in the case of the like memorandum or note under the 4th section of the Statute of Frauds, and must contain all the terms of the contract ($). On a sale of goods by auction, the auctioneer may in general sign as agent for the buyer

(c) Act, 1893, s. 28.

(d) Taylor v. Smith, [1893] 2 Q. B 65; Abbott v. Wolsey, [1895] 2 Q. B. 97.

(e) Walker v. Nussey (1847), 16 M. & W. 302.

(f) See above, p. 66.

as well as for the seller, where such sales are (as they usually are) evidenced by a memorandum or note in writing. And upon such sales, just as upon the sale of land by auction (g), unless the right to bid is reserved, it is fraudulent on the seller's part to employ anyone to bid on his behalf; but under such reserved right, the seller, or any one agent on his behalf, may now bid at the auction (1).

Lien and stoppage in transitu.-If the vendor of goods transmit them to the vendee, without receiving payment of the price, and afterwards becomes apprised that the vendee is insolvent, the law allows the vendor the privilege of stoppage in transitu ; that is to say, the law entitles the vendor, while the goods are still in their transit, and not yet delivered to the vendee, to reclaim them, and to determine (or at least to suspend the performance of) the contract of sale (i). The question as to when exactly goods are deemed to be in transitu depends on the circumstances of each case. The chief rules on the point are laid down in s. 45 of the Act of 1893. The right of stoppage will not be affected by the vendor having consigned the goods to the vendee under a bill of lading (k); but if the vendee or consignee under such a bill has indorsed the bill to a third party for valuable consideration, and the indorsee has received the bill without notice that the consignee was insolvent and the consignor unpaid, his claim, as assignee of the bill of lading, is paramount to the consignor's right of stoppage in transitu (I). Such an indorsement must (in order to have that effect) be absolute ; and if it be by way of pledge or charge only, the right of the unpaid vendor is not defeated thereby,

(g) Sale of Land by Auction Act, 1867.

(h) Sale of Goods Act, 1893, s. 58.

(i) Act of 1893, s. 44; Went. worth v. Outhwaite (1842), 10 M. & W. 436.

(k) The Bills of Lading Act, 1855, s. 2.

(1) Act 1893, s. 47; Lickbarroio v. Mason (1788), 2 T. R. 63.

but (subject to the pledge or charge) remains (m). And generally the exercise by the vendor of his right of stoppage in transitu does not operate of itself to rescind the contract, unless the seller resells the goods ; as, in certain cases, he is entitled to do (n).

Transfer of title.Though, in general, it is only from the owner that any property in goods can be derived, yet goods may, in certain cases, be effectually transferred to a purchaser by one who has himself no title to them ; for a sale in market overt is not only good between the parties, but also is binding on all those that have any right of property in the thing sold therein (0). [“ Market overt," in the country, is a market held on the special days provided as market days, for particular towns, by charter or prescription ; but in the city of London every day, except Sunday, is a market day (p). The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt ; but in London every shop in which goods are exposed publicly for sale is a market overt, though only for such things as the owner ordinarily trades in there (9). But to the general rule as to the binding effect of a sale in market overt, there are certain exceptions,—that is to say : First, if the goods be Crown property, such a sale will not bind the Crown. Secondly, if the sale is not bona fide,-e.g., if the buyer knows the property not to be in the seller; or if he knows the seller to be an infant or under other disability ; or if the sale be not originally and wholly made in the market, or not at the usual hours (r), -in any of these cases, the sale is not binding. Thirdly, if the man buy his own goods in a market, the sale shall not bind him, unless the property

(m) Act 1893, s. 47 ; "Serrell v. Burdick (1885), L. R. 10 App. Ca. 74.

(n) Act 1893, s. 48. (0) Ibid., s. 22.

(p) Taylor v. Chambers (1605), Cro. Jac. 68.

(g) 5 Rep. 83; Hargreave v. Spink, [1892] I Q. B. 25.

(r) 2 Inst. 713, 714.

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