return it. It died within that time without his fault, and it was held that the property had not passed and the seller could not sue for the price.

To sum up on the question as to when the property in goods passes, it may be taken as a general rule that "the property will pass where there is a valid and complete contract, provided that the goods are in existence, and no act remains to be done to them, or the buyer has acquired possession of the goods." (e)

The Price.

The price may be fixed by the contract of sale, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties or, if not so determined, the buyer must pay a reasonable price, and what that will be is of course a question of fact dependent on the particular circumstances. But if there is an agreement to sell goods in the terms that the price is to be fixed by the valuation of a third party who does not or cannot make such valuation, the agreement is avoided. If, however, the goods or part thereof have been delivered to and appropriated by the buyer, he must pay a reasonable price. Of course, if the third party should be prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault. Price must be money and in sterling where contracts are made to sell goods; overseas the price may be in foreign currency, but that is entirely subject to the contract. If goods are transferred by one person to another without any price being paid or other consideration being given or intended, such a transaction is a gift. An agreement for a gift has no legal effect, and is unenforceable unless the person to whom the gift is made has received the chattel or goods or the contract is made by deed.

Formalities.

This matter has been referred to under the GENERAL LAW OF CONTRACT, (f) but it needs much more consideration. Originally enacted by the Statute of Frauds, Section 4, and extended by Lord Tenterden's Act, the formalities necessary in order to render an executory contract of sale enforceable at law are now re-enacted with amplifications by Section 4 of the Sale of Goods Act, 1893.

The importance of this section is very great, and it is therefore printed here in full

(e) INDERMAUR's Common Law, 12th Edn., p. 102.
(f) See ante, p. 16.

(1) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.

(3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in performance of the contract or not.

(4) The provisions of this section do not apply to Scotland.

DETAILED EXAMINATION OF SECTION 4 OF SALE OF GOODS Аст.

It will be seen, therefore, that a contract for the sale of goods of or above the value of £10 is not enforceable by action unless any one of several conditions be observed. These conditions

are

(a) Part performance, which can be either

(i) accepting and receiving part of the goods, or

(ii) part payment of the price;

(b) Something given in earnest; or

(c) A memorandum signed by the party to be charged, or

his agent.

It is sometimes difficult to decide whether a contract is for the sale of goods or for work and labour done. Thus, in Clay v. Yates (1856), where a printer undertook to print a work and to supply the necessary materials, it was decided that it was a contract for work and labour and not of sale. A very important case in this connection was Lee v. Griffin (1861), where a dentist brought an action for the price of artificial teeth, there being no memorandum sufficient to satisfy the Statute of Frauds. The Court decided that it was a contract of sale, and BLACKBURN J. laid down the following rule-" If the contract be such that it will result in the sale of a chattel, the proper form of action, if the other party refuses to accept the article when made, would be for not accepting. But if work and labour be bestowed in such a manner that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labour is the proper remedy."

Value. If a considerable number of articles each less than

£10 in value be purchased from the same tradesman, then if the total value is £10 or over the purchase falls within the section. But this rule does not apply at an auction sale, as then each lot is reckoned the subject of a separate contract of sale.

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(a) Part Performance: (i) Acceptance and Receipt. This is a matter which requires a certain amount of consideration, for "acceptance" here does not bear its ordinary meaning. Acceptance" is laid down in the Act to mean any act of the buyer in relation to the goods which recognizes a pre-existing contract of sale, whether there is acceptance in performance of the contract or not. So that although the buyer may, with every right, reject the goods if they do not satisfy the agreement made, there may yet be sufficient acceptance and receipt to satisfy the statute and show that there is a pre-existing contract of sale. A leading case on this point is Page v. Morgan (1885), where A has sold to B certain wheat, which was sent in sacks by barge to B's mill. A small portion was taken out of the barge by B's foreman into the mill and examined, and B then rejected the whole on the ground that it was not up to sample. It was held that the taking part of the wheat into the mill to see if it was up to sample constituted acceptance and receipt sufficient to satisfy the statute. In a later case, Abbott v. Wolsey (1895), where hay was purchased, the circumstances were somewhat similar. The defendant, when it was delivered, took a sample and examined it and said that it was not up to sample and he would not have it. It was held that there was sufficient evidence of an act by the buyer which recognized a pre-existing contract of sale, and that there had been an acceptance sufficient to satisfy the statute. But in Taylor v. Smith (1893), where the defendant merely looked at the goods after they arrived at his wharf but did not handle them, it was held that there was no acceptance.

If the buyer takes the goods with him, or sends a carrier for them, there is receipt, and so also is there where he re-sells or attempts to re-sell the goods before they arrive, or if he has agreed with the seller that the latter shall hold them for him. For instance, in Elmore v. Stone (1809), A bought a horse from B, who was a livery-keeper, and he left the horse at livery with B. It was held that he had received it. Similarly, if goods are held by a third party and it is agreed that the third party shall hold them for the buyer, that is sufficient receipt.

Part Performance: (ii) Part Payment. An actual payment is necessary, but it may consist of a bill of exchange or promissory note, which amounts to payment until dishonoured. But if one of the terms of the contract should be the retention of money owing by the seller to the buyer, that is not "part payment ";

neither is the North country custom of "striking off" a bargain by drawing the edge of a shilling over the hand of the seller and not paying him the money; nor the prevalent custom amongst farmers and in the cattle trade of shaking hands on a bargain. The parties may feel morally bound by the act, but it has no legal significance.

(b) Earnest. This is not part payment but something given, irrespective of the price, by the buyer to the seller to mark the completion of a bargain. It is a custom rarely found nowadays. (c) Memorandum. What is a sufficient memorandum has already been fully considered under the GENERAL LAW OF CONTRACT. (g)

Rights of the Buyer.

The buyer has two rights

(1) To delivery of the goods bought;

(2) To observance of any conditions and warranties.

The question of delivery has already been considered under the title of SALE. (h)

There are certain implied conditions and warranties attendant on every sale of goods; but, apart from these and from any express terms made, it is the duty of the buyer to satisfy himself as to the quality of the goods or of their fitness for any particular purpose before he concludes the contract, the maxim being caveat emptor (let the buyer beware).

A warranty is an agreement made contemporaneously with the contract with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not a right to reject the goods and treat the contract as repudiated. It may be made after the time of making the agreement but, if so, it requires either to be under seal or to be supported by consideration.

But although its breach does not vitiate the contract the buyer may

(a) Set up against the seller the breach of warranty in diminution or extinction of the price, or

(b) Maintain an action against the seller for damages for the breach of warranty,

and if necessary he may adopt both remedies.

A condition is a representation that a certain state of things. exists, or will exist, on the truth of which depends the existence

(g) See ante, pp. 17-19.

(h) See ante, p. 125.

of the contract. It is an essential term of the contract, and a breach of the condition entitles the buyer to reject the goods and treat the contract as at an end.

Both warranties and conditions fall under the generic term stipulation, and it is not always an easy matter to determine whether a stipulation is one or the other. BOWEN L.J. in Bentsen v. Taylor (1893) said: "There is no way of deciding the question except by looking at the contract in the light of the surrounding circumstances, and then making up one's mind whether the intention of the parties will best be carried out by treating the promise as a warranty sounding only in damages, or as a condition precedent, by the failure to perform which the other party is relieved of his liability." The Act states that the question depends in each case on the construction of the contract, and that a stipulation, even though termed a warranty, may be a condition. Where there is a breach of a condition the buyer may elect, if he desires, to treat it as a breach of warranty and not repudiate the contract. But where a contract of sale is not severable and the buyer has accepted the goods, or part of them, or where the contract is for specific goods the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.

Breach of a stipulation should not be confused with misrepresentation, which is a false statement made before or at the time of the contract and which induces the contract. It gives the injured party the right to repudiate the contract.

The Implied Warranties on a sale of goods are as follows(1) That the buyer shall have and enjoy quiet possession of the goods, and that they are free from any charge or encumbrance in favour of third parties, which is not declared or which is unknown to the buyer at the time of the making of the contract (Sale of Goods Act, 1893); (2) On the sale, or in the contract for sale, of any goods to which a trade-mark, or mark, or trade description has been applied, that the mark is a genuine trade-mark and not forged or falsely applied, or that the trade description is not a false trade description (Merchandise Marks Act, 1887);

(3) On the sale of an article for use as food for cattle or poultry, that the article is suitable for feeding purposes; and the seller of manufactured or artificially prepared fertilizers or feeding-stuffs is bound to give a special invoice to the buyer which is a warranty of the state