CHAPTER X. CONTRACT OF SALE. SECTION I. NATURE AND REQUISITES OF THE CONTRACT. BRITISH LAW. SALE is a contract by which one transfers or undertakes to transfer, and another receives or undertakes to receive and to pay for, certain articles at a certain price. The distinction between sale and barter is this: in sale the consideration consists of some price or recompence in value, in barter there is only a commutation or an exchange of goods, and no lapse of time will turn a contract of barter into a contract of sale (a). Three things are requisite to a contract of sale, viz., the consent of the contracting parties, a lawful and existing subject matter, and the price; whilst in this, as in all other contracts, the transaction must be founded on good faith, the established principle being that fraud gives to either parties a right to avoid the contract (b). Sale as disbarter. tinct from There is no sale till the terms of the contract are mutually The consent. and finally agreed upon (c). And till that is attained, either party may retract a contract of sale. There may be an offer on the one side, and an acceptance on the other, but it is only where both meet together and a mutual and simultaneous consent is obtained that a contract is complete (d). The consent is not valid if given under error, by violence, or by fraud. That an error be sufficient to annul a contract, it must be upon the subject matter itself, and not upon any of its incidents. error committed as to the quality of the article is not sufficient to annul the contract. So a consent extracted by violence is (a) Harrison v. Luke, 14 M. & W. 139. (b) Stevenson v. Newham, 13 C. B. 285. (c) Jackson v. Galloway, 6 Scott, 192. (d) Routledge v. Grant, 1 M. & P. 717. Sale by letters. Subject matter must be lawful. invalid and void. No person can be forced to do any business. A consent given upon a fraudulent misrepresentation is invalid, but fraud only gives a right to avoid a purchase (a). In sales by auction, the blow of the hammer is held to be a sufficient sign of mutual consent (b). Where goods are offered by letters, circulars, or catalogues, and time elapses before the acceptance can be obtained, the party offering undertakes no continuous obligation to deliver the goods, and on the receipt of the acceptance he is at liberty to change his mind and refuse to sell. When, however, an offer is made to sell certain goods, receiving an answer by return of post, the party offering is considered in law as making, every instant the letter is travelling, the same identical offer; and the moment the offer is accepted, it entitles the buyer to recover in an action for not completing the contract (c). In order to constitute an agreement by letter, the answer to the written proposal must be a simple acceptance of the terms proposed, without the introduction of new and different terms. If either party, previous to the acceptance being given, introduces new terms, there would be no contract (d). The consent be given verbally, or in writing, and may also be implied by the act of the party. may Every species of property, whether real or incorporeal, present or future, may be sold and purchased, provided it be not the subject of statutory restriction. Thus, sales of public offices, and matters touching the administration of justice, or the collection of the revenue, or of any office in the gift of the Crown, are void, though sales of commissions in the army at regulated prices are allowed (e). Sales of spirituous liquors are prohibited, unless delivered in quantities amounting to more than twenty shillings at one time (f). Sales of objects contrary to public policy and morality are also void (g). And sales of goods made abroad for the express purpose of being smuggled into this country, the (a) White . Garden, 10 C. B. 919; 681. (d) Holland v. Eyre, 2 Sim. & Stu. 194; Honeyman v. Marriatt, 21 Beav. 14; Heyworth v. Barnes, 23 L. T. 68. (e) 5 & 6 Edw. 6, c. 16, s. 23, extended to Scotland by 49 Geo. 3, c. 126; Barwick v. Reade, 1 H. B. 627; Lidderdale v. The Duke of Montrose, 4 T. R. 248. (f) 24 Geo. 2, c. 40, s. 12. (g) Bowry v. Bennet, 1 Camp. 348; Fores v. Johnes, 4 Esp. 97. vendor being accessory to the smuggling, cannot be enforced (a). When, however, the contract and delivery of goods are complete abroad, and the seller does not assist in smuggling them into this country, the contract is valid (b). made on Contracts by illegal weights and measures. All sales of goods made on Sundays are void, and no action Contracts can be maintained for the price of goods sold on a Sunday in Sundays the ordinary course of trade and business of the vendor. But void. the mere inception of a contract on a Sunday will not avoid it if it be completed the next day (c). In Scotland bargains and sales made on a Sunday are not null (d). All contracts by any denomination of weight or measure other than one of the standard or imperial weight or measure, or some multiple or aliquot part thereof, are void (e). Sales of coal, culm, and cannel by measure, and not by weight, are prohibited. So sales of game by persons not having either a licence to deal in game, or a game certificate (f). Sales of butter not properly marked. and branded with the name of the seller, and the weight and tare of the vessel, are also prohibited (g). All contracts expressly or by implication forbidden by the common or statute law are void. Though the statute inflicts a penalty only, the contract is void, because such a penalty implies a prohibition (h). The subject of sale must be certain and existing. The sale of a thing which, without the knowledge of the parties, had perished, is null (). If part only of the thing sold has perished, it is at the option of the purchaser to rescind the sale altogether, or to accept the part preserved at a valuation. The subject matter must be certain and existing. There can be no sale without a price or a valuable considera- The price. tion. The contract would be complete and binding, though silent as to price, but in that case such silence is equivalent to a stipulation for a reasonable price (j). The price must be in money, or what passes as such, and not in any security or goods, (a) Waymell v. Read, 5.T. R. 599; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Pellecat v. Angell, 2 C. M. & R. 311. (b) Holman v. Johnson, Cowp. 341. (c) 29 Car. 2, c. 7, s. 1; Bloxome v. Williams, 3 B. & C. 233; Smith v. Sparrow, 4 Bing. 84; Drury v. Defontaine, 1 Taunt. 131. (d) Oliphant, Feb. 2, 1662; Phillips, VOL. I. May 19, 1835; reversed Feb. 20, 1837; (e) 5 Geo. 4, c. 74; 6 Geo. 4, c. 12; (f) 1 & 2 Wm. 4, c. 32, s. 17. (i) Hastie v. Couturier, 9 Exch. 102. as otherwise it would be barter, not sale. The price must be just and reasonable, not nominal or illusory. If it be grossly inadequate, or merely colorable, it would invalidate the sale. There must also be a mutual consent as to the price; if there be a material error upon it, there would be no sale. The price must be certain or ascertainable by reference to some criterion by which it may be fixed. When it is left uncertain, the parties are held to have contracted for what the goods shall be found to be reasonably worth (a). The price may also be left to be decided by arbitrators appointed by both parties (b). When, however, the contract is executory, and the goods still remain in the possession or under the control of the seller, such presumption does not exist (c). INTRODUC- SECTION II. FORM OF THE CONTRACT. The Royal Commissioners appointed to inquire and ascertain how the mercantile laws in the different parts of the United Kingdom of Great Britain and Ireland may be advantageously assimilated, reported in favour of the repeal of the statute of frauds. "We are of opinion," they said, "that no party to a contract of sale of goods should be entitled to withdraw from the bargain merely because it has not been accompanied or followed by writing, or some other ceremony. For obvious reasons the important business of buying and selling ought not to be trammelled with unnecessary solemnities; and such transactions, if they be satisfactorily proved by legal evidence of any kind, ought to be binding. While it appears from all the evidence we have received from Scotland that no inconvenience is experienced in that country from the extensive class of transactions being thus left untrammelled, the evidence as to the practical working of the English and Irish rule is of a different tendency. The general contravention of the rule of the laws of England and Ireland in the practice of the great commercial emporiums of these countries, whereby most of the innumerable sales which are there daily taking place are left out of the (a) Valpy v. Gibson, 4 C. B. 837. (b) Cannan v. Fowler, 14 C. B. 181. (c) Acebal v. Levy, 10 Bing. 376. protection of the law, indicates that the requirements of the seventeenth section of the English statute of frauds, and the corresponding section of the Irish statute, are not now adapted to the practical management of commercial business. We therefore recommend that that portion of those Acts should be repealed, and that the laws of England and Ireland should in this respect be assimilated to the simpler rule of the common law observed in Scotland." In conformity with the recommendations of the commissioners, a Bill to amend the laws of England and Ireland affecting trade and commerce, introduced in 1856, contained a clause abolishing the said provision of the statute of frauds. The Bill passed the House of Commons in its integrity. But the House of Lords struck out the clause. We have already seen that in foreign countries the law generally gives a discretionary power to the judges to admit parol evidence on sale of goods. And in Scotland a contract for sale of goods, with the exception of ships, is effectual without writing, and may be established by oral or other legal evidence, whether the goods are or are not specific, or ready for delivery, or whether they are to be delivered immediately, or at a future day. Sale unaffected by the statute of frauds. A contract of sale may be by parol, by letter, or by deed. Thus a sale of goods for an amount below £10 may be by parol. Shares in a joint-stock company, railway shares, or consols, are not good wares and merchandise, and may therefore be bought and sold by parol (a). Some kinds of property, such as ships, land, &c., can only be sold by deed or by bill of sale; and where Sale by deed. such or any other property is so sold, the property passes out of the vendor's into the vendee's hands by the execution and delivery of the deed (b). Provided, however, that to render such sales valid in case of bankruptcy or insolvency of the vendor as against the assignees or against any subsequent assignment or an execution, where the goods remain in the vendor's actual or apparent ownership, the instrument, or a copy of it, must be filed within twenty-one days of the making of the bill, together with an affidavit of the time of such a bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same (c). (a) Humble v. Mitchell, 11 A. & E. 203; Bowlby v. Bell, 3 C. B. 284; Watson v. Spratley, 10 Ex. 220. (b) Gale v. Burnell, 7 Q. B. 850. (c) 17 & 18 Vict. c. 36; Allen v. Thompson, 1 H. & N. 15; Hatton v. English, 7 E. & B. 94. |