Sect. 56. Rights It is often difficult to say whether reasonable time is a question of law or a question of fact, or a mixed question of law and fact.1 The Act resolves the doubt as regards sale, by making it in all cases a question of fact. Compare sect. 29 (4), ante, p. 65, as to reasonable hours. 57. Where any right, duty, or liability is declared by enforceable this Act, it may, unless otherwise by this Act provided, be enforced by action. by action. Auction sales. [Cf. 30 & 31 This section is required in order to negative the rule of the common law, that when a statute provides no express penalty for disobedience to its provisions, any contravention of its provisions is punishable as a misdemeanour.2 See "action" defined by sect. 62, post, p. 114. 58. In the case of a sale by auction 4 (1.) Where goods are put up for sale by auction in 1 Taylor on Evidence, § 30. 2 Stephen's Digest of Criminal Law, 3rd ed., p. 87. 3 Emmerson v. Hellis (1809), 2 Taunt. 38; Roots v. Lord Dormer (1832), 4 B. & Ad. 77; cf. Couston v. Chapman (1872), L. R. 2 Sc. App. 250 (a Scotch case). Payne v. Cave (1789), 3 T. R. 148; Warlow v. Harrison (1858), 28 L. J. Q. B., at p. 21, per Lord Campbell. 5 Mainprice v. Westley (1865), 34 L. J. Q. B. 229; cf. 30 & 31 Vict. c. 48, s. 5. this rule may be treated as fraudulent by the Sect. 58. buyer: 1 Vict. c. 48, s. 6, post, (4.) A sale by auction may be notified to be subject [Cf. 30 & 31 to a reserved [or upset] price, and a right to bid may also be reserved expressly by or on behalf of p. 161.] the seller.2 Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.3 "Upset price" is the Scottish equivalent of "reserved price." As regards Scotland, the section appears to be declaratory.4 auction sale. Sub-sect. (2.) The nature of the contract involved in a sale by auction Nature of was much discussed by the Roman lawyers.5 In England if the contract be resolved into offer and acceptance, it seems clear that the bid constitutes the offer. As the offer may be retracted before acceptance, so, conversely, it has been held that if a sale be advertised, but the lots are afterwards withdrawn, an intending bidder has no right of action. An auctioneer who sells goods which he has no right to sell may or may not be guilty of conversion, according to the circumstances.7 Sub-sect. (3.) Formerly it seems to have been the rule in equity Bids at that, when a sale by auction was not expressly stated to be without auction. reserve, the seller might employ one person to bid, so as to prevent the property going at an undervalue. The Sales of Land by Auction 1 Bexwell v. Christie (1776), Cowp. 395, per Lord Mansfield; Thornett v. Haines (1846), 15 M. & W. 367; Green v. Baverstock (1863), 32 L. J. C. P., 181; cf. Mortimer v. Bell (1865), L. R. 1 Ch. App., at p. 13. As to fictitious bids by person interested in the sale, but not the seller, see Union Bank v. Munster (1887), 37 Ch. D. 51, and the Rule of Roman law, Alterius circumventio alio non præbet actionem. 2 Ibid.; and see Howard v. Castle (1796), 6 T. R., at p. 645, per Grose, J. 3 Thornett v. Haines (1846), 15 M. & W., at p. 372; Mortimer v. Bell (1865), L. R. 1 Ch. App. 10 (where auctioneer and puffer both bid and sale was held void). 4 See Bell's Princ., §§ 130-132. 5 See Moyle's Sale in the Civil Law. 6 Harris v. Nickerson (1873), L. R. 8 Q. B. 286. 7 Barker v. Furlong (1891), 2 Ch. 172; see, too, Sol. Journal, vol. 36, p. 480. Sect. 58. Payment into Court in Scotland when breach of warranty alleged. Repeals. Act, 1867 (30 & 31 Vict. c. 48) was passed to abolish this rule. It first declares that any sale which would be invalid at common law by reason of the employment of a puffer, shall be invalid in equity, and then proceeds to regulate sales at which a price is reserved or a right to bid is reserved, and in this it appears to go slightly further than the common law rule.1 The Act does not apply to the sale of goods by auction, but this section is in substantial accordance with the Act. For the sake of comparison the Sale of Land by Auction Act, or, as it is commonly called, the Puffers Act, is set out in the Appendix, post, p. 160. The common law rule is an ancient one, Tollendum est igitur ex rebus contrahendis omne mendacium non licitatorem venditor, nec qui contra se liceatur emptor opponat.2 An agreement for a "knock-out" seems to be a conspiracy at common law, as well as a ground for avoiding the contract.3 As to auctioneer's duty to put up his name, etc., during sale, see 8 & 9 Vict. c. 15, s. 7. As to his position generally, see Leake on Contracts, 3rd ed., p. 441. 59. In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the seller for the price, be required, in the discretion of the Court before which the action depends, to consign or pay into Court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof. In Scotland the actio quanti minoris has hitherto been extremely limited in its scope. It was only competent when the buyer could not return the goods. Now that the English rule is extended to Scotland, by sects. 11 and 53, it was thought well to safeguard it by this provision. It is to be regretted that the section was not extended to England, where it is a common fraud to keep the goods and then set up against the price an alleged breach of warranty. 60. The enactments mentioned in the schedule to this 1 Parfitt v. Jepson (1877), 46 L. J. C. P. 529, at p. 533. 2 Cicero, De Officiis, lib. 3, s. 15, cited in Warlow v. Harrison (1858), 28 L. J. Q. B. 19. 3 Leake on Contracts, 3rd ed., p. 308. Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. See schedule of repeals, post, p. 123. Sect. 60. 61.—(1.) The rules in bankruptcy relating to contracts Savings. of sale shall continue to apply thereto, notwithstanding anything in this Act contained. (2.) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. (3.) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act. (4.) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security. (5.) Nothing in this Act shall prejudice or affect the landlord's right of hypothec or sequestration for rent in Scotland. Sub-sect. (1.) The Act now in force is the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52). See in particular sect. 44 (2) (III.), repute i ownership; sect. 48, fraudulent preferences; sect. 49, protected bonâ I Sect. 61. fide transactions; sect. 51, power of trustee to sell; and sect. 55, power of trustee to disclaim onerous contracts. Interpretation of terms. Action. Bailee. Buyer. Contract of sale. Defendant. Delivery. [Cf. 45 & 46 Vict. c. 61, s. 3.] Sub-sect. (3.) The Bills of Sale Acts at present in force are the Acts of 1878, 1882, 1890, and 1891. The Act of 1878 alone affects sales as defined and dealt with by this Act. As to the Act of 1878, see App. I., post, p. 162. For examples of other Acts relating to sales, see the Conveyancing and Law of Property Act, 1881, so far as it relates to conveyances of personalty; the Acts regulating the Sale of Food and Drugs; the Acts regulating the sale of Poisons; and the Weights and Measures Acts; also the Acts relating to the sale of horses, post, p. 143. 62.-(1.) In this Act, unless the context or subjectmatter otherwise requires― "Action" includes counterclaim and set-off, and in Scotland condescendence and claim and compensation. "Bailee" in Scotland includes custodier. 66 'Buyer" means a person who buys or agrees to buy goods. As to a person buying his own goods, see ante, p. 2. "Contract of sale" includes an agreement to sell as well as a sale. The term "contract of sale" is used to include both executory and executed contracts of sale; see for instance, as justifying this, the 17th sect. of the Statute of Frauds. Probably a similar object is aimed at by the obscure art. 1589 of the French Civil Code: "La promesse de vente vaut vente." "Defendant" includes in Scotland defender, respondent, and claimant in a multiple-poinding. 66 Delivery" means voluntary transfer of possession from one person to another. For rules as to delivery in contracts of sale, see sects. 27 to 32, ante, p. 62. Mr. Benjamin observes that the term " delivery" is used in different senses in the cases.1 It would perhaps be more correct to 1 Benjamin on Sale, 4th ed., |