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Sales on trial

on conditional

sale.

finds them insufficient, and gives notice to that effect to the seller, the latter is bound to take them away, and they remain at his risk (a).

Where goods are sold on trial, there is no sale till the buyer confirms the purchase (b). Where goods are sold " on sale and return," that is, to be paid for at a certain rate, if sold again by the vendee, and if not sold to be returned, the goods should be returned in a reasonable time, and if they are not so returned, they are held as sold (c).

Delivery of immovables.

Delivery of movables.

Delivery of incorporeal rights.

The vendor

may refuse the delivery till

the payment of the price.

FOREIGN LAWS.

France.-Delivery is the transfer of the thing sold into the power and possession of the buyer. The obligation to deliver immovables is fulfilled on the part of the vendor, when he has given up the keys, if they consist of a building, or when he has delivered up the title deeds of the ownership. Delivery of movables is effected:-Either by actual delivery; or by delivering the keys of the building containing them; or even by the sole consent of the parties, if the transfer cannot be made of them at the time of sale; or if the buyer had them already in his possession by another title. Delivery of incorporeal rights is effected either by giving up the title deeds, or by the use which the buyer makes of them, with the consent of the vendor. The expenses of the delivery are at the charge of the vendor, and those of the taking away at the charge of the buyer, if there has been no stipulation to the contrary. Delivery must be made at the place where the thing which formed the object of the sale was at the time of sale, if it has not been otherwise agreed. If the vendor does not effect the delivery within the time agreed upon between the parties, the buyer may at his option request him either to cancel the sale, or to deliver the article, if the delay arises from the sole act of the vendor. In all cases the vendor is liable to damages, if the buyer is injured from the nondelivery at the time agreed. The vendor is not bound to deliver the thing if the buyer does not pay its price, unless the vendor has granted him time for the payment. Neither is he

(a) Okell v. Smith, 1 Stark. 109.
(6) Ellis v. Mortimer, 1 N. R. 257;
Andrews v. Belfield, 2 C. B. N. S.

779.

(c) Bailey v. Goldsmith, Park, 56.

bound to deliver even where he has granted credit, if subsequent to the sale the buyer has stopped payment, or has failed, so that the vendor is in imminent danger of losing the price, unless the buyer is prepared to give him security for payment at the time agreed. The thing must be delivered in the state in which it was at the moment of the sale. The obligation to deliver a thing comprises also its accessories, and all that is adapted to its continuous use. The vendor is bound to deliver the contents such as they are set forth in the contract, under the modifications hereafter expressed. If the sale of an immovable has been made with a statement of its contents, at the rate of so much the measure, the vendor is obliged to deliver to the purchaser, if he require it, the quantity set forth in the contract. And if the thing is not possible, or if the purchaser does not require it, the vendor is obliged to allow a proportional diminution of the price. If, on the contrary, in such a case, there happen to be a larger quantity than what is expressed in the contract, the purchaser has the option of paying a supplemental price or of abandoning the contract, if the excess be of a twentieth beyond the contents set forth. In all other cases, whether the sale be made of a thing certain and limited, whether it have for object distinct and separate articles, whether it commences by the measure or by designating the thing sold followed by a measurement, the setting forth of such measure gives no ground for an additional amount in favour of the seller for the excess of measure, nor in favour of the purchaser for any diminution of price for less measure, so long as the difference of the real measure from that expressed in the contract is of a twentieth more or less, regard being had to the whole of the things sold, if there be no stipulation to the contrary. Where, according to the preceding article, there is room for augmentation of price for excess of measure, the purchaser has the option either of abandoning the contract or of paying the supplemental price, with interest upon it if he has kept the inmovable. In all cases where the purchaser has the right of giving the contract, the vendor is bound to refund to him beyond the price, if he has received it, the expenses of the contract.

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The action for the additional price on the part of the vendor, and for diminution of price, or for cancelling the contract on the part of the purchaser, must be brought within one year,

title.

reckoning from the day of the contract, under penalty of prescription. If two articles have been sold by the same contract, and for one and the same price, with a statement of the measure of each, and there be found less contents in the one, and greater in the other, compensation is made between them so as to make up the true amount; and the action either for supplement or for diminution of price has ground only according to the rules above laid down.

The vendor owes to the purchaser the warranty first, of the peaceable possession of the things sold, and, second, against the Warranty of concealed defects of such things, or redhibitory faults. Although at the time of the sale there has been no stipulation about warranty, the vendor is bound to warrant the purchaser against the eviction he may suffer in the whole or in part of the thing sold, or for the charges claimed upon such things and not declared at the time of the sale. The parties may, by particular agreements, add to such legal obligation or diminish its effects; they may even agree that the vendor shall not be subjected to any warranty. But although it may be said that the vendor shall not be subject to any warranty, he is still liable for such as may result from an act personal to himself; and any agreement to the contrary is null. In case of a stipulation for nonwarranty, the vendor, in case of eviction, is bound to restore the price, unless the purchaser knew at the time of sale the danger of eviction, or bought it at his peril and risk.

Where a warranty has been promised, and nothing has been stipulated upon the subject, if the purchaser be evicted, he has the right of demanding against the vendor. 1st. Restitution of the price. 2nd. That part of the profits which he is bound to yield to the owner who evicts. 3rd. The expenses caused by the suit in warranty of the purchaser, and those caused by the original plaintiff. 4th. Lastly, damages, as well as the expenses and legal costs of the contract. Should, at the time of eviction, the thing sold be diminished in value, or considerably deteriorated, either by the negligence of the buyer, or by accidents occasioned by superior force, the vendor is not the less bound to refund the whole of the price. But if the purchaser has derived a profit through the deterioration committed by himself, the vendor has the right of retaining from the price a sum equal to such profit. If, on the contrary, the thing sold happen to be

augmented in value at the time of the eviction, independently even of the act of the purchaser, the vendor is bound to pay him what it is worth beyond the price of sale.

The vendor is bound to reimburse or to cause the purchaser to be reimbursed, by the party who shall evict, of all the repairs and useful ameliorations which he shall have done to the property. If the vendor has sold the property of another in bad faith, he is bound to reimburse the purchaser of all the expenses which the latter shall have laid out upon the property. If the purchaser be evicted of a part only of the thing, and it be of such consequence relatively to the whole, that the purchaser would not have purchased it without the part of which he has been evicted, he may cause the sale to be avoided. If in the case of eviction from part of the property sold, the sale has not been avoided, the value of the part from which the purchaser happens to be evicted is to be refunded to him according to its value at the time of the eviction, and not in proportion to the total price of the sale, whether the thing sold be augmented or decreased in value.

If the heritage sold turn out to be encumbered with burdens non-apparent, without any intimation having been given of them, and they are of such importance that there is ground for presuming the purchaser would not have purchased if he had been informed of it, he may demand to annul the contract, unless he prefers contenting himself with an indemnity.

The warranty for cause of eviction ceases when the purchaser, without summoning his vendor, allows himself to be condemned by a judgment in the last resort, or from which an appeal is no longer receivable, provided the vendor prove that there existed sufficient grounds for causing the demand to be set aside.

The vendor is bound to warranty against any concealed de- Warranty against defects in the thing sold which renders it unfit for the use to which fects. it is destined, or which diminish such use so far, that the buyer would not have purchased it, or would have given a less price had he known them.

The vendor is not liable for such defects as are apparent, and which the buyer might have found out himself. He is liable for concealed faults, even where he did not know them, unless he has stipulated that he shall not be bound to any warranty. In such cases the buyer has the choice of returning the thing

Warranty against defects.

on being refunded the price, or of keeping the thing on being refunded a part of the price, such as shall be awarded by experienced persons. If the vendor was acquainted with the faults of the thing, he is bound, besides restitution of the price he has received, to pay to the buyer all the damages he has incurred. If the vendor was ignorant of the faults, he is only bound to refund the price, and to reimburse the purchaser of the expenses occasioned by the sale. If the thing which was faulty has perished in consequence of its bad quality, the loss falls upon the vendor, who shall be holden towards the buyer for restitution of the price, and to the other losses explained in the two preceding articles. But any loss occasioned by accident shall be borne by the buyer (a).

Austria.-In Austria the seller of a thing for a valuable consideration is held to guarantee the purchaser that the thing is of the quality agreed, or of that supposed to be so by usage, and to guarantee also that it is capable of being used for the purpose required and according to agreement. To describe a thing of a quality other than it is, to conceal its defects or its ordinary burdens, to sell a thing which does not exist, or a thing which does not belong to himself, to declare that a thing is fit for a certain use, and that it is exempted from a certain defect, whilst the vendor knows the contrary, these are fraudulent acts, for which the seller is responsible. When an animal, within twentyfour hours after delivery, becomes ill and dies, there is a presumption that it had such illness before the delivery. The same presumption exists when it is discovered within eight days of the delivery that there is pimple or measle among pigs, rottenness or scab among calves; when within two months these animals suffer from pulmonary worm or hepatitis, and within thirty days horned cattle have the glands; and when within fifteen days horses and beasts of burden are found to be affected by botch, or glanders, or worms, or restiveness, or amaurosis, or nyctalopia. The purchaser loses the privilege of this presumption if he neglects to notify to the seller the defect of the thing as soon as he discovers it. When the purchaser neglects this precaution, he becomes bound to prove that the animal was vicious before the conclusion of the contract. The seller is

(a) French Civil Code, §§ 1604 to 1647.

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