2. B verbally agrees to buy by sample 20 tons of hay. The hay is delivered at B's wharf, where he inspects and samples it. He rejects it, saying it is not equal to the original sample. This is a sufficient acceptance under sub-section (3).1

This section reproduces the provisions of the Statute of Frauds. That Act never applied to Scotland, and Scotchmen never appear to have felt the want of it. Its policy has frequently been severely criticised in England. It is merely "a weapon of defence, not offence." Sub-sect. (1.) This sub-section reproduces the 17th sect. of the Statute of Frauds 4 in somewhat altered language. The alterations in its language were made (a) to make it harmonise with the language of the rest of the Act; (b) to give effect to its construction with the amending Lord Tenterden's Act; (c) to give effect to certain decisions which have placed an unexpected interpretation upon some of its terms. The repealed 17th section is set out in the Appendix, post, p. 150, with a note of the more important decisions upon it.

As regards alterations in language, "value" is substituted for "price" to give effect to cases which held such was the operation of the construction of Lord Tenterden's Act with the 17th sect.5 The words "enforceable by action " are substituted for "allowed to be good " to give effect to cases which held that the words in question were the equivalent of "no action shall be brought" in the 4th section, and that they did not make the contract void, but merely unenforceable. The word "contract " in line 7 is substituted for the word "bargain" because it is clear since Lord Tenterden's Act that the term "bargain" was equivalent to the term "contract" used in the earlier part of the section. The words "party to be charged " are substituted for "parties to be charged" because it had been held that they must be so construed to make the enactment uniform with the 4th sect. The substitution of "his agent" for "their agents" is consequential.8

1 Abbot & Co. v. Wolsey (1895), 2 Q. B. 97, C. A.

2 See Law Quarterly Review, vol. i. p. 1, by Mr. Justice Stephen and Sir F. Pollock.

3 Hussey v. Horne Payne (1879), 4 App. Cas. 311.

4 Printed as sect. 16 in the Statutes Revised.

5 Harman v. Reeve (1856), 25 L. J. Q. B. 257.

• Maddison v. Alderson (1883), 8 App. Cas. 467, at p. 488, and see post, p. 149. The amendment was made in the Commons Committee. By sect. 62 "action" includes counter-claim and set-off.

7 Reuss v. Picksley (1866), L. R. 1 Ex. 342, Ex. Ch.

8 Cf. Graham v. Musson (1839), 5 Bing. N. C. 603.

Sect. 4.

Statute of

Frauds.

Sect. 4.

Existing or future goods.

Sub-sect. (2) This sub-section reproduces the repealed sect. 7 of Lord Tenterden's Act (9 Geo. 4, c. 14); the object of which was to make it clear that the Statute of Frauds applied to executory as well as executed contracts of sale.

Sub-sect. (3) is necessary to preserve the effect of the decisions reproduced by it, because for other purposes a definition of " acceptance is given by sect. 35 of the Act, post, p. 72. The sub-section adopts the language of Lord Bowen in Page v. Morgan,1 and seems to dispose of the doubt expressed by Lord Herschell in Taylor v. Smith,2 where he observes that "acceptance is not used in the statute in its common acceptation, and in what precise sense it is used has never been determined." The curious refinements resorted to by successive generations of judges to exempt particular cases from the operation of the statute constitute a strong argument against its policy.

Both in the High Court and in the County Court the statutory defence must be pleaded.3

Subject-matter of Contract.

5.—(1.) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract of sale, in this Act called "future goods."

(2.) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen.5

(3.) Where by a contract of sale the seller purports to

1 Page v. Morgan (1885), 15 Q. B. D. 228, at p. 233, C. A.

2 Taylor v. Smith (1893), 2 Q. B. 65, at p. 71, C. A. See per Lord Esher, Abbot v. Wolsey (1895), 2 Q. B., at p. 100.

3 Brutton v. Branson (1898), 2 Q. B. 219.

+ Watts v. Friend (1830), 10 B. & C. 446 (crop not yet sown); Hibblewhite v. M'Morine (1839), 5 M. & W. 452 (goods which seller can only acquire by purchase); Ajello v. Worsley (1898), 1 Ch. 274 (piano of a rival maker not yet purchased), Pothier; Contrat de Vente, No. 5.

5 Benjamin on Sale, 4th ed., p. 87; Pothier, Contrat de Vente, Nos. 6–9; cf. Watts v. Friend (1830), 10 B. & C. 446 (crop not yet sown); Hale v. Rawson (1858), 27 L. J. C. P. 189 (goods to arrive by ship).

effect a present sale of future goods, the contract operates as an agreement to sell the goods.1

See the terms "contract of sale," "future goods," "goods," and "specific goods” defined by sect. 62, post, p. 114.

Sub-sect. (1.) The Roman lawyers doubted whether an agreement to sell "future goods" constituted a contract of sale, but it is long since any such question has been raised in English law. The term "future goods" is not a very happy one, but the alternative "afterto-be-acquired goods" was impossible.

Sect. 5.

Sub-sect. (2.) "Une simple espérance," says Pothier, "peut même Emptio être l'objet d'un contrat de vente; c'est pourquoi, si on vend à spei. quelqu'un son coup de filet pour un certain prix, c'est un vrai contrat de vente." 3 There is very little English authority on the point. "No doubt," says Martin, B., "a man may buy the chance of obtaining goods," but he then goes on to say that in the case he was dealing with the plaintiff bought the goods themselves. Perhaps the doubtful case of Bagueley v. Hawley may be explained on the ground that the plaintiff there bought another man's bargain at an auction for what it was worth, and not the goods themselves.5

The purchase of a chance was known in the Civil Law as emptio spei. "If the intention of the parties is that the purchase-money shall be paid in any case, whether the hoped-for equivalent comes to anything or not, it is commonly called for the sake of distinction emptio spei simplicis. If it is, that it shall not be paid unless something at any rate is forthcoming, or shall only be paid in proportion to what the purchaser actually gets, it is termed emptio rei sperata."

Sub-sect. (3.) The conditions under which an ordinary agreement Assign

ment of after-ac

quired

1 Benjamin on Sale, 4th ed., p. 82; Lunn v. Thornton (1845), 1 C. B. property. 379, 14 L. J. C. P. 161 (trover for furniture).

2 Moyle's Sale in the Civil Law, p. 29; Hibblewhite v. M'Morine 1839),

5 M. & W. at 466. Sect. 7 of Lord Tenterden's Act, at any rate, concluded the question in England.

3 Pothier, Contrat de Vente, No. 6.

4

+ Buddle v. Green (1857), 27 L. J. Ex., at p. 31 (goods in hands of wharfinger).

5 Bagueley v. Hawley (1867), L. R. 2 C. P. 625 (second-hand boiler); see, too, Chapman v. Speller (1850), 14 Q. B. 621 (sale by sheriff and sub-sale).

Moyle's Sale in the Civil Law, p. 30.

с

Sect. 5. to sell becomes a sale are dealt with in sect. 1, and sects. 16-20, post, p. 39. But sometimes a contract purports presently to assign goods to be acquired in the future. In such case the legal property in the goods does not pass to the buyer unless and until the seller does some act irrevocably appropriating them to the contract,2 or the buyer takes possession of them under a licence to seize, which is equivalent to a delivery by the seller. But if the goods be sufficiently described to be identified on acquisition by the seller, the equitable interest in them passes to the buyer as soon as they are acquired : 4" A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in the future, and when it has come into existence equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment." 5 It is only the equitable interest which passes to the buyer by the contract, hence his rights are liable to be defeated, if, before he gets the legal property in the goods, the seller disposes of them to a second purchaser without notice, who thus first obtains the legal estate.

There was one case in which it was supposed at common law that future goods could be assigned. It was said that a man might sell future goods which had a "potential existence," and that then the legal property in them would pass to the buyer as soon as they came into actual existence. Goods were supposed to have a potential existence if they would naturally grow out of anything already owned by the seller. For instance, it was said a man might sell the wool to be grown on sheep which he then had, but not the wool on sheep which he was going to buy. But there is no rational distinction between one class of future goods and another, and the supposed rule appears never to have been acted upon. Indeed, Langton v. Higgins, closely

1 See such a contract distinguished from an agreement to sell plus a licence to seize, Reeves v. Whitmore (1864), 33 L. J. Ch. 63.

2 Langton v. Higgins (1859), 28 L. J. Ex. 252 (sale of future crop). 3 Congreve v. Evetts (1854), 10 Exch. 298; 23 L. J. Ex. 273; Hope v. Hayley (1856), 25 L. J. Q. B. 155.

4 Holroyd v. Marshall (1862), 10 H. of L. Cas. 191; 33 L. J. Ch. 193;

cf. Tailby v. Official Receiver (1888), 13 App. Cas., at p. 516.

5 Collyer v. Isaacs (1881), 19 Ch. D. 342; see at pp. 351, 354, C. A.

6

Joseph v. Lyons (1884), 15 Q. B. D. 280, C. A.; Hallas v. Robinson (1885), 15 Q. B. D. 288, C. A. (bill of sale cases).

Grantham v. Hawley (1603), Hobart Rep. 132, 2 Roll. 48, pl. 20; Benjamin on Sale, 4th ed., p. 82. This was the emptio rei ɛperatæ of the Roman lawyers.

looked at, seems to negative it. The sub-section may therefore be regarded as declaratory.

Sect. 5.

which have

perished.

6. Where there is a contract for the sale of specific Goods goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.2

By sect. 62, post, p. 119, unless the context or subject-matter otherwise requires," specific goods" mean goods identified and agreed upon at the time a contract of sale is made.

The rule may be based either on the ground of mutual mistake, or on the ground of impossibility of performance. It is confined to the case of specific goods. Generic goods, that is to say, goods defined by description only, come within the maxim genus numquam perit.

Art. 1601 of the French Civil Code provides that, in case of partial loss, the buyer may either rescind the contract or have the price reduced by valuation. English law recognises no such rule. The only question is whether the article has been so far destroyed as no longer to answer to the description of it given by the contract.3

Thus where a specific cargo of corn was sold at sea, and it turned out afterwards that before the sale the ship had stranded and the corn had been so damaged as not to answer to its description under the contract, the sale was held to be void. But if a man contracts to sell five dozen of a particular brand of champagne, it would be immaterial if unknown to him his whole stock of wine had been destroyed by fire. He must procure five dozen of that champagne elsewhere or pay damages. A mixed case might arise which is not covered by the section. Suppose a man contracts to sell to B "five dozen of the '74 champagne now in my cellar," not knowing that all but three dozen

1 Langton v. Higgins (1859), 28 L. J. Ex. 252 (contract to buy next crop of oil of peppermint, bottles sent by buyer and filled by seller).

2 Couturier v. Hastie (1856), 5 H. of L. Cas. 673; 25 L. J. Ex. 253 (cargo of corn); cf. Clifford v. Watts (1870), L. R. 5 C. P. 577 (covenant in mining lease); Smith v. Myers (1870), L. R. 5 Q. B. 429, in Ex. Ch. L. R. 7 Q. R. 139 (cargo “expected to arrive" by particular ship); Benjamin on Sale, 4th ed., p. 81; Pothier, Contrat de Vente, No. 4; Pollock's Law of Contract, 4th ed., p. 370; French Civil Code, art. 1601; Moyle's Sale in the Civil Law, p. 21; Story on Sale, § 149.

3 Barr v. Gibson (1838), 3 M. & W. 390 (stranded ship). 4 Couturier v. Hastie, suprà.