1902 Encyclopedia > Sale

Sale




SALE is one of the forms of CONTRACT (q.v.). The law of contract is accordingly applicable as a whole to the law of sale. But the importance of the contract of sale demands a fuller treatment. The law of the United Kingdom and of the United States is based upon the Boman law in its later stage, as modified by the praetors and by legislation. But there are some considerable dif-ferences. In Boman law sale originally meant nothing more than barter; but the introduction of coined money converted the contribution of one of the contracting parties into price (pretium), as distinguished from article of sale (merx) contributed by the other (see ROMAN LAW, vol. xx. pp. 700-701). Sale fell under the head of consensual contracts, i.e., those in which the causa or that which made the contract enforcible was consent. In all con-tracts of this class (except mandatum) consent really de-noted valuable consideration. The law in the case of movables and immovables was as far as might be the same. The price must be definite. Reduction of the terms to writing was optional; if a writing was used, either party was at liberty to withdraw before the com-pletion of the writing. If earnest or deposit (arrhd)— often a ring, sometimes a part of the price—was given, it was by the legislation of Justinian made the measure of forfeit on rescission, the buyer losing what he had given as arrha, the seller restoring double its value. The seller did not warrant title; his contract was not rem dare, to give the thing, but prsestare emptori rem habere licere. to guarantee the buyer possession ; the transfer was of vacua possessio, not of property. The buyer was secured by a covenant duplet stipulatio against eviction by a superior title, limited to double the price where there was no fraud by the seller. There was a warranty of quality by the seller. He was bound to suffer rescission or to give com-pensation at the option of the buyer if the thing sold had undisclosed faults which hindered the free possession of it. The damages to which he was liable differed according as he was guilty of bad faith (dolus) or not. If guilty he was liable for all consequential damage, if innocent only for the diminution in the value of the thing sold by reason of its unsoundness. Thus, if a seller knowingly sold an infected sheep and the whole flock caught the disease and died, he would be liable for the value of the flock; if he was ignorant of the defect, he would be liable only for the difference in value between a sound and an unsound sheep.' Mere overpraise did not amount to dolus; nor was inade-quacy of price in itself a ground of rescission. When the agreement was complete it was the duty of the seller to deliver the thing sold (rem tradere). In case of a sale on credit, the delivery must be made at the time appointed. Prior to delivery the seller must take due care of the thing sold, the care which a reasonably prudent householder (bonus paterfamilias) was expected to exercise. Delivery did not pass property in the full sense of the word, but rather vacua possessio secured by duplse stipulatio. Risk of loss (periculum rei venditee) after agreement but before delivery fell upon the buyer. On the other hand, he was entitled to any advantage accruing to the thing sold be-tween those dates. It was the duty of some one to pay the price; the obligation was discharged if payment were made by the debtor or by any other person, whether authorized or not by the debtor, and even against his will. The duties of buyer and seller might be varied by agreement, the only restriction being that the seller could not by any agreement be relieved from liability for dolus.

Sale in English law may be defined to be " a transfer of the absolute or general property in a thing for a price in money " (Benjamin, On Sales, p. 1). The words "absolute or general" are inserted because there may be both a general and a special property in certain cases, and a transfer of the special property would not be a sale. The above definition, though applied in the work cited only to sales of personalty, seems to be fully applicable to sales of any kind of property. The rules as to legality, capacity of parties, assent, and fraud depend upon the law of CONTRACT (q.v.), of which sale is a particular instance. In-capacity is either absolute or relative, the latter being a bar only in the individual case, e.g., the incapacity of a person in a fiduciary position (see TRUST). The capacity of parties tends to become more extended as law advances; thus in England the Roman Catholic, the alien, and the married woman have all been relieved within a compara-tively recent period from certain disabilities in sale and purchase which formerly attached to them.

In England, for historical reasons (see REAL ESTATE), there is a considerable difference in the law as it affects real and personal estate. The main principles of law are perhaps the same, but the sale of real estate is a matter of greater expense and intricacy than the sale of personal estate, and depends to a large extent upon legislation inapplicable to the latter. It appears, therefore, better to treat the two kinds of sale separately.

Real Estate.—At common law it was not necessary that there should be written evidence of a contract of sale. The publicity of the feoffment obviated the necessity of writing, which was not essential to the validity of a feoff-ment until the Statute of Frauds (see FEOFFMENT). The earliest statute making a written instrument essential to a sale appears to be the Statute of Enrolments (27 Hen. VIII. c. 16). The bargain and sale operating under the Statute of Uses, and enrolled under the Statute of Enrol-ments in the High Court of Justice or with the custos rotulorum of the county, is no longer in use; a bargain and sale at common law is a mode of conveyance some-times used by executors exercising a power of sale. Such a bargain and sale must be by deed since 8 and 9 Vict, c. 106, but need not be enrolled. There was no compre-hensive legislative enactment dealing with all cases of sale of real estate until section 4 of the Statute of Frauds. Since that date a contract for the sale of real estate must be in writing (see FRAUD, where the provisions of the Act are set out). Sales by auction are within the statute, the auctioneer being the agent of both parties (see AUCTION). In an ordinary case of the sale of real estate the contract is formally drawn up on the basis of particulars and con-ditions of sale, which ought fairly to represent the actual state of the property. The statute, however, is satisfied by informal agreements, such as letters, if they contain the means of determining the property, the parties, and the price. The price must be a sum of money. If it is another estate, the contract is one of exchange; if no con-sideration passes, it is a gift. The price may be left to be determined by a third person, as by arbitration. For the way in which payment of the price may be made, see PAYMENT. The formation of a binding contract of sale is the most important stage in the transfer of real estate. From the moment at which the parties are bound by the contract the sale is made; the purchaser has the equitable estate in the subject-matter of the contract (see EQUITY), the vendor holding in trust for him, subject to the pay-ment of the purchase money, for which the vendor has a lien. The price becomes personal estate of the vendor and the land real estate of the purchaser. The latter has the right to accidental benefits and the burden of accidental losses accruing before completion of the purchase. The rights defined by the contract descend to the representa-tives of a deceased vendor or purchaser. In most cases the personal representative of a deceased vendor may convey the property under 44 and 45 Vict. c. 41, s. 4. After the contract it becomes the duty of the vendor to deliver an abstract of title, to satisfy the purchaser's reasonable requisitions as to any question arising on the title of the purchaser, and to pay a deposit, usually ten per cent, of the price fixed, within a certain time, the remainder being paid on completion,—that is, the execution of the conveyance and payment of the balance of the price. He also prepares the conveyance, which since 8 and 9 Vict, c. 106 must be by deed. The costs of execution of the conveyance are paid by the vendor. Any of these duties may be varied by special agreement. The sale is not in ordinary cases avoided because the purchaser is in default in payment of the purchase money on the day appointed. The purchaser does not forfeit his rights if he be ready to complete within a reasonable time after the day fixed for completion and to pay interest on the sum overdue. This rule is an old doctrine of equity, and is generally expressed by saying that time is not of the essence of the contract. As a general rule, any real estate is capable of sale, unless it is altogether extra commercium, as a church or public building. There are, however, a few exceptions introduced by the legislature, such as estates tail not barred, estates which by Act of Parliament are inalienable (see REAL ESTATE), and crown lands, of which all grants for more than thirty-one years are in general void by 1 Anne st. 1, c. 7. Sales of pretended titles to land are void by 32 Hen. VIII. c. 9. The sale of land to be held in mortmain would be void as contrary to the policy of the Mortmain Acts (see CHARITIES, CORPORATION). The rights and liabilities of vendors and purchasers have been considerably affected by recent legislation, the principal Acts dealing with the subject being the Vendor and Purchaser Act, 1874, and the Conveyancing Act, 1881. A period of forty years has been substituted for the period of sixty years previously necessary as the root of title,—that is to say, in most cases an abstract showing title for forty years is sufficient. In an abstract of title to leaseholds, the title is to commence with the lease or underlease, in an abstract of title to enfranchised lands, under a contract to sell the freehold, with the deed of enfranchisement. Recitals twenty years old are evidence, except so far as they can be proved to be inaccurate, and recitals of documents dated prior to the commencement of the abstract are to be taken as correct, and their production is not to be required. The expenses of evidence required in support of the abstract and not in the vendor's possession are thrown upon the purchaser. The Conveyancing Act, 1881, further protects the purchaser by implying in a conveyance by a beneficial owner on sale for valuable consideration covenants for right to convey, quiet enjoyment, freedom from encum-brances, and further assurance. In a conveyance of lease-holds a covenant for the validity of the lease is implied. These covenants protect the purchaser much in the same way as the implied warranty in the sale of personalty. The Act also gives the mortgagee, where the mortgage is by deed, the power of sale generally inserted in mortgage deeds (see MORTGAGE).

The remedies of the vendor are an action for the price or for specific performance according to circumstances. There is also a remedy by mandamus against public com-panies refusing to complete. Specific performance is a remedy introduced by the Court of Chancery to enforce contracts for the sale or purchase of real estate, it being considered that in such cases the common law action for damages was an insufficient remedy. Strictly, it is only an exercise by the court of its jurisdiction over trustees, the vendor being after the contract, as has been said, a trustee for the purchaser. By the Judicature Act, 1873, actions of specific performance are specially assigned to the Chancery Division. A county court has jurisdiction where the purchase money does not exceed £500. In spite of the Statute of Frauds, specific performance may in some cases be decreed where a parol contract has been followed by part performance and where the position of the parties has been materially altered on the faith of the contract. Actions for the price or for specific performance are subject to the purchaser's right to compensation for deficiency of quality or quantity or of the vendor's interest in the property. The question whether in a particular case the purchaser is entitled to rescind the contract or only to compensation is often a very difficult one. The remedies of the purchaser are an action for specific perform-ance, for rescission of the contract or for damages (in case of fraud), for a return of the deposit, or for expenses. On the principle of caveat emptor, the sale is not avoided by mere commendatory statements, statements of opinion, or non-disclosure of patent defects. Non-disclosure of latent defects or material misrepresentation of facts, on the faith of which the purchaser entered into the contract, will as a rule be a ground for rescission or for damages, and this irrespective of fraud, as a contract for the sale of land is a contract uberrimee fidei. Where the sale goes off or the vendor without fraud fails to make a good title, the purchaser can only recover the deposit, if any, and any expenses to which he may have been put; he cannot recover damages for the loss of his bargain. Certain frauds by a vendor or his solicitor or agent in order to induce the purchaser to accept a title render the offender guilty of a misdemeanour, as well as liable to an action for damages (22 and 23 Vict. c. 35, s. 24). By the Vendor and Pur-chaser Act, 1874, either a vendor or a purchaser of real or leasehold estate in England may obtain on a summary application the decision of a judge of the Chancery Division on any question connected with the contract, not being a question affecting its existence or validity. (See Sugden, Vendors and Purchasers; Dart, Vendors and Purchasers; Fry, Specific Performance.')





Personal Estate.—At common law, as in the case of real estate, writing was not essential to the validity of a contract of sale. The common law is thus stated by Blackstone: "A contract of sale implies a bargain, or mutual understanding and agreement between the parties as to terms; and the law as to the transmutation of property under such contracts may be stated generally as follows. If the vendor says the price of the goods is ¿64 and the vendee says he will give £4, the bargain is struck; and, if the goods be thereon delivered or tendered, or any part of the price be paid down and accepted (if it be but a penny), the property in the goods is thereupon trans-muted and vests immediately in the bargainee; so that in the event of their being subsequently damaged or de-stroyed he and not the vendor must stand to the loss. This supposes (it will be observed) the case of a sale for ready money; but, if it be a sale of goods to be delivered forthwith, but to be paid for afterwards, the property passes to the vendee immediately upon the striking of the bargain without either delivery on the one hand or pay-ment on the other" (Stephen, Commentaries, vol. ii. bk. ii. pt. ii. ch. v.). Earnest may have been originally the same as the Boman arrha; it was never, however, part payment, as arrha might have been,—in fact, the Statute of Frauds specially distinguishes it from part payment. The giving of earnest has now fallen into disuse. The price need not be fixed; if not fixed, a reasonable price will be presumed. Though writing was in no case necessary at common law, it has become so under the provisions of various Acts of Parliament, prominent among which is the Statute of Frauds, ss. 4 and 17 (see CONTRACT, FRAUD). Section 17 of the Statute of Frauds was extended to execu-tory contracts of sale by Lord Tenterden's Act, 9 Geo. IV. c. 14. The sale of horses in market overt must be entered in a book kept by the toll-keeper (2 and 3 Ph. and M. c. 7, 31 Eliz. c. 12). The sale of ships must by the Merchant Shipping Act, 1854, be made by bill of sale in a certain form. Contracts for the sale of shares in a joint-stock banking company are void unless the contract sets forth in writing the numbers of the shares on the register of the company or (where the shares are not distinguished by numbers) the names of the registered proprietors (29 and 30 Vict. c. 29). Bills of sale of goods must be in writing in a certain form and registered under the Bills of Sale Acts, 1878 and 1882. As a general rule the property in goods passes by the contract of sale. This general rule is subject to the following important exceptions : (1) where the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, the property does not pass until performance of the necessary acts; (2) the same is the case where the goods are to be weighed, tested, or measured; (3) where the purchaser is bound to do anything as a condition on which the passing of the property depends, the property does not pass until the condition is fulfilled, even though the goods may be actually in the possession of the buyer; (4) where an executory contract for the sale of goods is made, the property does not pass until appropriation of specific goods by the vendor in completion of the contract; (5) where the vendor reserves to himself the jus disponendi or future power of dealing with the goods, as by making a bill of lading deliverable to his order, the property does not pass until the jus disponendi is exercised in favour of the purchaser; (6) where there is fraud on the part of the vendor or purchaser, the sale is voidable, not void; it may be affirmed and enforced or rescinded. In sales of personalty, unlike sales of real estate, time is usually of the essence of the contract. A sale of goods may be accompanied by an express warranty or collateral contract as to the title to or quality of the goods. No special form of words is necessary to create a warranty, nor need it be in writing. An implied warranty of title—that is, an affirmation that the vendor has a right to sell—exists certainly in executory contracts of sale. It most probably exists in executed contracts, the exceptions to the rule having in recent times become by judicial decision more numerous than the cases falling under the old rule, that there was no such warranty. Warranty of quality exists either by statute or at common law. The Merchandise Marks Act, 1862, implies a warranty from the existence of trade-marks on chattels that the trade-mark is genuine, and from the existence of any statement respecting number, quantity, weight, place, or country that such statement is not in any material respect false. The rules as to warranty of quality at common law cannot be better stated than in the language of the clear and full judgment of the Court of Queen's Bench in Jones v. Just (Law Reports, 3 Queen's Bench, 197).

'' First, where goods are in esse and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. The buyer in such case has the opportunity of exercising his judgment upon the matter, and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment, he may if he chooses require a warranty. In such a case it is not an implied term of the contract of sale that the goods are of any particular quality or are merchant-able. So in the case of the sale in a market of meat which the buyer had inspected, but which was in fact diseased and unfit for food, although that fact was not apparent on examination and the seller was not aware of it, it was held that there was no implied warranty that it was fit for food, and that the maxim caveat emptor applied. Secondly, where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty. Thirdly, where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known de-scribed and defined thing he actually supplied there is no warranty that it shall answer for the particular purpose intended by the buyer. Fourthly, where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own. Fifthly, where a manufacturer undertakes to supply goods manufactured by him-self or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. And this doctrine has been held to apply to the sale of an existing barge by the dealer which was afloat but not completely rigged and furnished ; there, inasmuch as the buyer had only seen it when built and not during the course of the building, he was considered as having re-lied on the judgment and skill of the builder that the barge was reasonably fit for use."
The case of sale by sample' is peculiar to personalty.

In such a sale the vendor warrants the quality of the bulk to be equal to that of the sample. There are certain kinds of sale which are governed by special legislation, chiefly on grounds of public policy. A sale contrary to the pro-visions of any of the Acts is generally void in the same way as though it were illegal at common law, on the principle of the maxim Ex turpi causa non oritur actio. The sale of certain public offices is forbidden by 5 and 6 Edw. VI. c. 16, 49 Geo. III. c. 126, and other Acts dealing with special offices. A sale by a tradesman in the way of his ordinary business upon Sunday is illegal under 29 Car. II. c. 7. The same is the case with the sale of intoxicating liquors during prohibited hours, whether on Sundays or week days (31 and 38 Vict. c. 49, s. 6). No action can be brought to recover any debt alleged to be due in respect of the sale of any ale, <fec, consumed on the premises where sold (30 and 31 Vict. c. 142). The sale of game in the close season or by an unlicensed person is forbidden by 1 and 2 Will. IV. c. 32. The sale of spirits to a person apparently under the age of sixteen is made penal by 35 and 36 Vict. c. 94, s. 7. These cases are only given as examples; there are numerous other enactments dealing with, inter alia, sales of anchors and chain cables, adulterated food and drugs, explosives, and poisons. Every sale by weight or measure must be accord-ing to one of the imperial weights or measures ascertained by the Weights and Measures Act, 1878; if not so made, the sale is void (41 and 42 Vict. c. 49, s. 19).





The remedies of the vendor are of two kinds, judicial against the purchaser, extra-judicial against the goods. Judicial remedies are either by action for non-acceptance where the property has not passed or by action for the price where it has passed. The extra-judicial are (1) a lien for the price, so that, in the absence of agreement to the contrary or assent to a sub-sale, the vendor need not deliver the goods until the price is paid; (2) the right of stoppage in transitu. This right is universally acknow-ledged by the commercial law of civilized nations. It arises on the insolvency of the purchaser before the goods have reached his possession, and is defeasible only by transfer, whether by way of sale or pledge, of the bill of lading or other document of title to a bona fide indorsee for value. The protection afforded at common law to the bona fide transferee has been extended by the Bills of Lading Act, 1855, and by the Factors Act, 1877. There is no general right of resale by the vendor on default of the purchaser. The remedies of the buyer are an action for damages for non-delivery, for conversion, for breach of warranty, for misrepresentation, &c, according to cir-cumstances. He has also a remedy analogous to specific performance under the Mercantile Law Amendment Act, 1856. The Act gives power to the court or a judge, in an action for breach of contract to deliver specific goods, to order execution to issue for the delivery of the goods without giving the defendant the option of retaining them upon paying the damages assessed. The buyer has further a right to reject goods where they are different in kind or quality from those which he had a right to expect. He is entitled to keep them for a sufficient time to give them a fair trial. It should be noticed that the effect of mis-representation in the sale of real and personal property is not the same. As a rule innocent misrepresentation of facts does not give a right to rescind the sale, since a representation is, like an express warranty, not an integral part of the contract. A representation may, however, if so intended by the parties, become a condition a breach of which will avoid the sale. See Story's, Blackburn's, and Benjamin's treatises on the sale of personal property, especially Benjamin's, which is now the recognized text-book on the subject.

It may be useful to recapitulate shortly the main points of difference between Roman and English law. They have all been noticed in the preceding part of this article. (1) Arrha was not the same as earnest. (2) Written contracts were not necessary in Roman law under any circumstances. (3) There was no warranty of title in Roman law: the transfer was of vacua possessio, not of ownership; in Eng-land there is a warranty of title (unless the parties other-wise intend) on sales of personalty, but not on sales of real property, though the covenants for title practically amount to a warranty. (4) There was a warranty of quality extending to undisclosed defects in Roman law beyond anything recognized by English law. (5) By Roman law the property did not pass until traditio; even then it was only property in a modified sense; it was rather vacua possessio secured by duplx stipulatio; by English law the property in specific ascertained goods vests by the contract in the buyer. (6) A sale by a person who was not the owner was not good in Roman law; it is good in certain cases in English law (see below).

There are certain kinds of sale which it is proposed to consider separately on account of the exceptional circumstances in which they stand.

Compulsory Sale.—As a general rule sale is a matter of contract between the parties, and no one can be forced to sell against his will. But in this, as in other matters, the right of the state comes in. Under the powers of the Lands Clauses and other Acts the state, exercising its right of eminent domain, may force an owner to sell for the purpose of public improvements,—such as railways. The power of compulsory sale is less common where the interests of the state are not involved ; an example occurs in the Partition Act, 1868, under which the court may order a sale instead of a division, even though some of the parties interested dissent.

Judicial Sale. —Under this head may be grouped all those sales wdiich are made under the authority and by the direction of a court of justice. In regard to real property the most important example is the sale by order of the Chancery Division. Such a sale may be ordered either under the original jurisdiction of the court or under the provisions of certain Acts of Parliament, such as the Lunacy Regulation Act, 1853, the Partition Act, 1868, the Settled Estates Act, 1877, or the Settled Land Act, 1882 (see SETTLEMENT). The Conveyancing Act, 1881, provides for freeing any land from encumbrances on sale by the court, on payment into court of a sum to meet the encumbrance. The Act also makes the order for sale conclusive in favour of a purchaser in almost every case. The abstract of title in a sale by the court is submitted to one of the conveyancing counsel of the Chancery Division, and the particulars and conditions are settled in judges' chambers. The sale is generally by public auction, the auctioneer being appointed by the judge. The regulations for the conduct of sales by the court will be found in the Rules of the Supreme Court, 1883, Ord. li. r. 1-13.

The Bankruptcy Act, 1883, gives power to a trustee acting under the authority of a court of bankruptcy to sell all or any part of the property of a bankrupt by public auction or private contract. Simi-lar rights are given by the Scotch Bankruptcy Act, 1856. Judicial sales of the property of a debtor in Scotland are regulated by 19 and 20 Vict. c. 92. The term "judicial sale" does not seem to be used as a technical term in English as it is in Scotch law. In admiralty actions a vessel may be sold under a commission of ap-praisement and sale issued by the court. The practice is now regulated by Ord. li. r. 14-16. Similar powers may be exercised in an action of sett in Scotland. A common instance of a judicial sale is the sale by a sheriff of an execution debtor's goods under a writ of fieri facias or venditioni exponas. Where the execution is for a sum above £20 the sale is, unless the court otherwise orders, to be by public auction. Where the sheriff has seized and a claim by interpleader is set up, the court may order a sale of the whole or part of the goods (Rules of the Supreme Court, 1883, Ord. lvii. r. 12). The same rules (Ord. 1. r. 2) give a valuable power to the court or a judge of ordering a sale of any goods of a perishable nature, or such as for any reason it may be desirable to have sold at once.

Sale by Persons not Owners.—English law in general agrees with the rule in Dig. 1. 17, 54, "Nemo plus juris ad alium transferre potest quam ipse haberet," and a purchaser takes his purchase subject to informalities in the title. To this rule there are several excep-tions, in which title may be given by persons who are limited owners or not owners at all. An example of sale by a limited owner is a sale by a tenant for life under the powers given by the Settled Land Act, 1882. Under the same head would fall sales by persons having a qualified right of sale under particular circum-stances, such as a sheriff, the master of a ship in a foreign port, or a pawnee in default of payment (see PLEDGE). Sales by persons not owners at all must as a rule, in order to be valid, be made to purchasers ignorant of the defect of title on the part of the vendor. In the case of real estate a bona fide purchaser for valuable consideration without notice, actual or implied, of any adverse title is protected. This is on the principle that equity assists the person in possession of the legal estate. In the case of personal property title may be passed by a person not owner under the Factors Acts and in the case of stolen goods. The effect of the Factors Acts is to enable title to be given by the vendor or vendee or any person on his behalf while he is in possession of the documents of title (see FACTORS). The law as to the sale of stolen goods will be found under THEFT.

Pre-emption.—This is a right of purchasing some particular property given to some particular person in priority to the public. It is conferred either by agreement between parties or by law. Thus by the Lands Clauses Act, 1845, before the promoters of an undertaking dispose of superfluous lands not required for the pur-poses of the undertaking they must (with certain exceptions) first offer to sell the same to the person then entitled to the lands from which the same were originally severed. In the United States pre-emption is very important in its connexion with the homestead law (see HOMESTEAD). In international law the right is exercisable by a belligerent nation over property not strictly contraband, but wdiich would still be of advantage to the enemy. The goods are not seized and condemned, but purchased by the capturing nation at a reasonable compensation. The right of pre-emption is given to the admiralty by 27 and 28 Vict. e. 25, s. 38 (see CONTRABAND). The old crown prerogative of purveyance and pre-emption was a right of buying up provisions and other necessaries for the royal household at a valuation even without the consent of the owner, and also of impressing horses and carriages for the king's service on the public roads upon paying a settled price to the proprietor. The right was relinquished by the Act abolishing the feudal tenures (12 Car. II. c. 24).

Scotland.—The law of Scotland follows the Roman law more closely than does English law. Thus in Scotch as in Roman law the contract of sale is called a consensual contract ; the sale is not complete until delivery, and market overt does not afford any protection. Writing is essential to the sale of heritable property, not by any statute, as in England, but by the ancient unwritten law. Rei interventus may, however, in some cases, like part performance in England, supply the place of writings. The vendor is bound on completion to supply a sufficient progress of titles. In addition to the protection afforded to the purchaser by the progress of titles the statutory form of warrandice in 31 and 32 Vict. c. 101, s. 8 implies, unless specially qualified, absolute warrandice as regards the lands and writs and évidents, and warrandice from fact and deed as regards the rents,—that is to say, that a good title to the land has been conveyed, and that the granter has not done and will not do anything contrary to the writ as regards the rents (see Watson, Law Diet., s.v. "Warrandice "). In the case of movables writing is not necessary for a good contract of sale, except where the sale is of a ship, or the parties agree to reduce the terms to writing. The Mercantile Law Amendment (Scotland) Act, 1856 (19 and 20 Vict. c. 60), has made important changes in the law of Scotland. " The statute was passed for the purpose of assimilating the law of Scotland to that of England " (Lord Watson, in M'Bain v. Wallace, Law Reports, 6 Appeal Cases, 588). By section 1 goods after sale but before delivery are not attachable by the creditors of the seller. By section 2 the sub-purchaser may demand that delivery be made to him instead of to the original purchaser, without pre-judice to the right of retention of the seller. By section 3 the seller of goods may attach the goods while in his own possession at any time prior to the date when the sale of such goods shall have been intimated to him. By section 5 the English principle of caveat emptor is introduced : ' ' where goods shall be sold the seller, if at the time of the sale he was without knowledge that the same were of defective or of bad quality, shall not be held to have warranted their quality or sufficiency, but the goods, with all faults, shall be at the risk of the purchaser, unless the seller shall have given an express warranty of the quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller shall be considered, with-out such warranty, to warrant that the same are fit for such pur-pose." The right of retention corresponds closely to the right of lien in England, but rests upon the simpler ground of undivested property (see Watson, Law Diet., s.v. " Sale "). Criminal liability for fraud seems to be carried farther in Scotland than in England (see FRAUD).

United States.—The law as to the sale of real estate agrees generally with English law. It is considerably simplified by the system of REGISTRATION (q.v.). The covenant of warranty, unknown in England, is the principal covenant for title in the United States. It corresponds generally to the English covenant for quiet enjoy-ment. The right of judicial sale of buildings under a mechanic's lien for labour and materials is given by the law of many States.
The sale of public lands is regulated by Act of Congress (Revised Statutes, 2353-2379). In the law of sale of personal property American law is also based upon English law. The principal differences are that the law of market overt (see THEFT) is not recognized by the United States, and that an unpaid vendor is the agent of the vendee to resell on non-payment, and is entitled to recover the difference between the contract price and the price of resale. The law of Louisiana (Civil Code, § 3194) gives the unpaid vendor a still greater right in his preferential claim for the price against the creditors of the purchaser, if the property still remains in the latter's possession. Warranty of title is not carried as far as in England. United States decisions draw a distinction between goods in the possession and goods not in the possession of the vendor at the time of sale. There is no warranty of title of the latter. The Statute of Frauds has been construed in some respects differently from the English decisions. The differences will be found in Mr Benjamin's work. As to unlawful sales, it has been held that a sale in a State where the sale is lawful is valid in a State where it is unlawful by statute, even though the goods are in the latter State. (J. W†.)



The above article was written by: James Williams, B.C.L., Barrister-at-law.



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