Sect. 16.

Property passes when

intended

Foreign rules.

Southdown sheep now in my field" he could not keep his contract by delivering any others, and the property might pass at once if the parties so intended.

An agreement for the sale of unascertained goods was known in Roman law as emptio generis. See Moyle's Sale in the Civil Law, p. 28, where the effects of this contract are discussed.

17.-(1.) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.1

(2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.2

66

By English law the property may pass by the contract itself, if such be the intention of the parties. In other words, the contract may include a conveyance. Where, by the contract itself," says Lord Wensleydale, “the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee."3 Whether this be a satisfactory explanation or not, the rule is undoubted, and is as old as the year books.1 By the Civil Law, the property in goods did not pass by virtue of a contract of sale until delivery, the rule being Traditionibus et

1 Seath v. Moore (1886), 11 App. Cas. 350, at p. 370, per Ld. Blackburn, and at p. 380, per Ld. Watson (ship engines); cf. Shepherd v. Harrison (1871), L. R. 5 H. L., at p. 127; McEntire v. Crossley (1895), A. C., at p. 463 (hire-purchase).

2 Ogg v. Shuter (1875), L. R. 10 C. P., at p. 162; cf. Young v. Matthews (1866), L. R. 2 C. P. 127.

3 Dixon v. Yates (1833), 5 B. & Ad. 313, at p. 340, per Parke, J.

For a discussion of its policy, see 2nd Report of Mercantile Law Com. mission, 1855, pp. 9, 42; Blackburn on Sale, pp. 187-197; and for its history, see Cochrane v. Moore (1890), 25 Q. B. D. 57, C. A.

usucapionibus dominia rerum, non nudis pactis, transferuntur.1 But though the property did not pass, as soon as the parties were agreed on the subject - matter and the price, there was an emptio perfecta, the result of which was that the risk passed to the buyer, and he acquired a jus ad rem, though not a jus in re. The Scotch common law followed this rule, but by the 19 & 20 Vict. c. 60, s. 1, when goods had been sold but not delivered, the seller's creditors could not attach them, and a sub-vendee was entitled to demand the goods subject to satisfying the seller's lien for the price. The effect was, that when in England the property in goods would pass to the buyer, the same results followed in Scotland, though those results were arrived at in a different manner.2 Now, under the Act, the same rule applies to both countries.

France and Italy have also departed from the principle of the Civil Law, and have adopted a rule substantially the same as that of English law.3

4

Sect. 17.

ascertain

ing inten

18. Unless a different intention appears, the following Rules for are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass tion. to the buyer.

Rule 1.-Where there is an unconditional 5 contract for the sale of specific goods, in a deliverable state,o the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.7

1 Moyle's Justinian, p. 200, citing Cod. 2, 3, 30.

2 M'Bain v. Wallace (1881), 6 App. Cas. 588, at p. 618; Seath v Moore (1886), 11 App. Cas., at pp. 370, 380. See, too, Blackburn on Sale, pp.

187-197.

3 French Civil Code, art. 1583; Italian Civil Code, art. 1448. For the history of this departure, see Viollet, Histoire du Droit Français, pp. 187-197.

4 Blackburn on Sale, pp. 147, 167: Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 329; Furley v. Bates (1863), 33 L. J. Ex. 53; Young v. Matthews (1866), L. R. 2 C. P. 127.

5 As to contracts which are in terms conditional, see ante, pp. 1 and 6. • Deliverable state = state in which buyer is bound to accept. Blackburn on Sale, p. 152, and sect. 62, post, p. 122.

'Blackburn on Sale, pp. 147-150; Benjamin on Sale, 4th ed., p. 277;

Sect. 18.

Rule 2.-Where there is a contract for the sale of
specific goods and the seller is bound to do some-
thing to the goods, for the purpose of putting them
into a deliverable state, the property does not pass
until such thing be done,1 and the buyer has notice
thereof.

Rule 3.-Where there is a contract for the sale of
specific goods in a deliverable state, but the seller
is bound to weigh, measure, test, or do some other
act or thing with reference to the goods for the
purpose of ascertaining the price, the property does
not pass until such act or thing be done, and the
buyer has notice thereof.
Rule 4.-When goods are

delivered to the buyer
on approval or "on sale or return" or other similar
terms the property therein passes to the buyer:—
(a) When he signifies his approval or acceptance to the

3

seller, or does any other act adopting the transaction : Tarling v. Baxter (1827), 6 B. & C. 360; Tudor's Merc. Cases, 3rd ed., p. 308, and notes; Dixon v. Yates (1833), 5 B. & Ad., at p. 340; Barr v. Gibson (1838), 3 M. & W. 390; Martindale v. Smith (1841), 1 Q. B., at p. 395; Gilmour v. Supple (1858), 11 Moore, P. C., at p. 556; Joyce v. Swann (1864), 17 C. B. N.s., at p. 102 (price not fixed); Sweeting v. Turner (1871), L. R. 7 Q. B. 310, at p. 313; Heilbutt v. Hickson (1872), L. R. 7 C. P., at p. 449. See the rule stated and contrasted with the Civil law and Scotch common law; Seath v. Moore (1886), 11 App. Cas., at p. 370. 1 Blackburn on Sale, p. 152; Rugg v. Minett (1809), 11 East, 210; Tansley v. Turner (1835), 2 Bing. N. C. 151; Laidler v. Burlinson (1837), 2 M. & W. 602; Acraman v. Morrice (1849), 8 C. B. 449; 19 L. J. C. P. 57; Boswell v. Kilborn (1862), 15 Moore, P. C. 309; 8 Jur. 443; Young v. Matthews (1866), L. R. 2 C. P. 127; Pothier, Contrat de Vente, Nos. 308, 309; Anderson v. Morice (1875), L. R. 10 C. P. 609, at p. 618, Ex. Ch. affirmed, 1 App. Cas. 713; Seath v. Moore (1886), 11 App. Caș., at p. 370. 2 Furley v. Bates (1863), 33 L. J. Ex. 43, criticising Blackburn on Sale, p. 152; Hanson v. Meyer (1805), 6 East, 614; Zagury v. Furnell (1809), 2 Camp. 239; Simmons v. Swift (1826), 5 B. & C. 857; Pothier, Contrat de Vente, Nos. 308, 309.

3 Swain v. Shepherd (1832), 1 M. & Rob. 223; Blackburn on Sale, p. 167; Bell on Sale (Scotland), p. 111.

(b) If he does not signify his approval or acceptance Sect. 18. to the seller but retains the goods without giving Rules for notice of rejection, then, if a time has been fixed for ascertainthe return of the goods, on the expiration of such ing intentime, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable

time is a question of fact.1

Rule 5.-(1.) Where there is a contract for the sale of

unascertained or future goods by description, and
goods of that description and in a deliverable state
are unconditionally appropriated to the contract,
either by the seller with the assent of the buyer, or
by the buyer with the assent of the seller, the
property in the goods thereupon passes to the
buyer. Such assent may be express or implied,
and may be given either before or after the appro-
priation is made.3

(2.) Where, in pursuance of the contract, the seller
delivers the goods to the buyer or to a carrier or
other bailee [or custodier] (whether named by the
buyer or not) for the purpose of transmission to the
buyer, and does not reserve the right of disposal,

1 Moss v. Sweet (1851), 16 Q. B. 493; 20 L. J. Q. B. 167; cf. Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829; Ex p. White (1870), L. R. 6 Ch. App. 397; Ray v. Barker (1879), 4 Ex. D. 279, C. A.; Elphick v. Barnes (1880), 5 C. P. D. 321.

2 For statement of principle, see Blackburn on Sale, p. 127; Benjamin on Sale, 4th ed., p. 318; Heilbutt v. Hickson (1872), L. R. 7 C. P., at p. 449. See, in illustration, Busk v. Davis (1814), 2 M. & S. 397; Rohde v. Thwaites (1827), 6 B. & C. 388, see at p. 393; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296; Langton v. Higgins (1859), 28 L. J. Ex. 252; Boswell v. Kilborn (1862), 15 Moore, P. C. 308; 8 Jur. 443.

3 Campbell v. Mersey Docks (1863), 14 C. B. N.s. 412, at p. 415, per Willes, J.; cf. Godts v. Rose (1855), 17 C. B. 229, at p. 237; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296; Jenner v. Smith (1869), L. R. 4 C. P. 207.

tion.

Sect. 18.

Specific goods.

he is deemed to have unconditionally appropriated the goods to the contract.1

Illustration.

A. delivers goods to B. on sale or return. B. pledges the goods. This adopts the sale, and the property passes to the buyer. A. therefore cannot recover the goods from the pawnbroker.2

The term 66 99 custodier is the Scotch equivalent of bailee. See "specific goods" and "future goods" and "deliverable state" defined by sect. 62, post, p. 114. As to generic goods, see ante, p. 39.

As the English Courts have rejected the objective test of delivery for marking the time when the property is to pass, they have been forced to lay down more or less arbitrary rules for fixing the moment when the property is to be held to pass in cases where the parties have either formed no intention on the point, or failed to express it.

Rule 1.-See note to last section, ante, p. 40. The first three rules deal only with specific goods. In an unreported case it seems to have been held that "the property in a specified chattel, bought in a shop, to be paid for upon being sent home, did not pass before delivery."

Rule 2.—The final words, "and the buyer has notice thereof," were added in Committee on a suggestion from Scotland that it was unfair that the risk should be transferred to the buyer without notice. It is to be noted that this rule is negative. The case of an article, which the seller is to manufacture for the buyer, is sometimes treated as coming under this rule, but it generally comes under Rule 5. If a man orders a watch to be specially made for him, it is clear that the watchmaker may, if he likes, make two such watches, and that he keeps his contract by delivering either of them.1 Lord

1 For statement of principle, see Wait v. Baker (1848), 2 Exch., at p. 7, per Parke, B.; Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, J.; Joyce v. Swann (1864), 17 C. B. N.s. 84, at p. 102, per Willes, J. As to delivery to buyer, Greaves v. Hepke (1818), 2 B. & Ald. 131; Ogle v. Atkinson (1814), 5 Taunt. 759. Delivery to carrier by land, Dutton v. Solomonson (1803), 3 B. & P. 582. To canal-boat, Fragano V. Long (1825), 4 B. & C. 219; Bryans v. Nix (1839), 4 M. & W. 775; 'on board ship, Alexander v. Gardner (1835), 1 Bing. N. C. 671; Tregelles v. Sewell (1862), 7 H. & N. 574, Ex. Ch.; Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. 164, C. A.

2 Kirkham v. Attenborough (1897), 1 Q. B. 201, C. A.

3 Smith L. C., 9th ed., p. 166.

* Cf. Atkinson v. Bell (1828), 8 B. & C. 277; and Xenos v. Wickham (1867), L. R. 2 H. L., at p. 316, per Willes, J.