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Wensleydale has pointed out that there may be an intermediate state of things.

An article may be in course of manufacture, and the parties may have so far agreed upon it that there arises what the Roman lawyers called an obligatio certi corporis. The seller would break his contract if he delivered any other article, but there may be no intention that the property in it should pass before its completion.1 Unless a different intention be clearly shewn, the rule is that the property in an article, which the seller is to make or complete for the buyer, does not pass until the article is delivered in a finished state, or until it is ready for delivery and is approved by the buyer in that state.2

At one time the Courts seemed inclined to reverse the presumption in the case of shipbuilding contracts, where the ship was to be paid for by stated instalments as the work progressed; 3 but in a recent case in the House of Lords it was held that there was no sound distinction between the case of a ship and any other corpus manufactum.4

Rule 3.-As to the concluding words, "and the buyer has notice thereof," see note to last rule. Lord Blackburn, in his work on Sale, states this rule without confining its operation to acts to be done by the seller, and regards it as a rule arbitrarily adopted from the Roman law, where it was a logical deduction from the principle that there could be no sale until the price was fixed. But the Court of Exchequer in 1863 reviewed the cases, and came to the conclusion that the rule should be qualified, as in the text, by confining it to acts to be done by the seller. This construction brings the rule into line with Rule 2.

Sect. 18.

Rule 4.-This rule, like the others, is merely a primâ facie rule. In Sale or some trades the usage is that when goods are delivered on fourteen return, etc. days' approval, the property does not pass to the buyer on the expira

tion of that time, but the seller at any time after the fourteen days

1 Laidler v. Burlinson (1837), 2 M. & W., at p. 610; Wait v. Baker (1848), 2 Exch., at pp. 8, 9.

2 Clarke v. Spence (1836), 4 A. & E., at p. 466, reviewing the previous cases; Seath v. Moore, infrà. As to an article commenced by one person and finished by another, see Oldfield v. Lowe (1829), 9 B. & C. 73, and cf. Beaumont v. Brengeri (1847), 5 C. B. 301 (carriage requiring slight alteration).

3 Woods v. Russell (1822), 5 B. & Ald. 942; Ex p. Lambton (1875), L. R. 10 Ch. App., at p. 414.

Seath v. Moore (1886), 11 App. Cas., at pp. 370, 380; Story on Sale, 316a.

5 Furley v. Bates (1863), 33 L. J. Ex. 43, commenting on Blackburn on Sale, p. 152.

Sect. 18.

Generic goods.

can call on the buyer either to take or to return the goods at once. When goods are sent on trial, or on approval, or on sale or return, the clear general rule is that the property remains in the seller till the buyer adopts the transaction,1 but it is quite competent to the parties to agree that the property shall pass to the buyer on delivery, but that, if he does not approve the goods, the property shall then revest in the seller. To use the language of the continental lawyers, the condition on which the goods are delivered may be either suspensive or resolutive.

Rule 5.-The term "future goods" includes goods to be acquired and goods to be made by the seller after the formation of the contract of sale. As to a special article to be made for the buyer, see note to Rule 2. As to a present sale of future goods, see sect. 5, ante, p. 16.

When there is a contract for the sale of unascertained goods, and the goods are afterwards selected by the buyer, or if selected by the seller are approved by the buyer, no difficulty arises. The difficulty arises when the seller makes the selection pursuant to an authority derived from the buyer; and it is often a nice question of law whether the acts done by the seller merely express a revocable intention to appropriate certain goods to the contract, or whether they shew an irrevocable determination of a right of election. “The general rule seems to be that when, from the nature of an agreement, an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his part of the agreement; when once he has performed the act the choice has been made and the election irrevocably determined; till then he may change his mind as to what the choice shall be, for the agreement gives him till that time to make his choice." 3 The expression that the property in the goods passes by their "appropriation to the contract," though consistently used in the modern cases, is not a fortunate one. In the first place, as Lord Wensleydale has pointed out, the term is used in two senses. It may mean that the goods are so far appropriated that the seller would break his contract by delivering any other goods, though they still remain his property, or it may, and

1 Swain v. Shepherd (1832), 1 M. & Rob. 223; cf. Re Jones (1889), 6 Morrell, at p. 197; cf. Bédarride, Des Aschats et Ventes, § 156.

2 Cf. Head v. Tattersall (1871), L. R. 7 Ex. 7. The Roman law was similar; see Moyle's Justinian, vol. i. p. 423.

3 Blackburn on Sale, p. 128, citing Heywood's Case, 2 Coke, 36, where it is said "the certainty and thereby the property begins by election." Cf. Rankin v. Potter (1873), L. R. 6 H. L., at p. 119, as to election.

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usually does, mean that the goods are finally appropriated to the contract so as to pass the property in them to the buyer.1 In the second place, if the decisions be carefully examined, it will be found that in every case where the property has been held to pass, there has been an actual or constructive delivery of the goods to the buyer. If the term "delivery" had been substituted for "appropriation," probably less difficulty would have arisen; and it seems a pity that this was not done by the Act. The commonest form of appropriating goods to the contract is by delivering them to a carrier, and then, if there be authority to so deliver them, and the seller does not reserve the right of disposal, "the moment the goods which have been selected in pursuance of the contract are delivered to the carrier, the carrier becomes the agent of the vendee, and such a delivery amounts to a delivery to the vendee; and if there is a binding contract between the vendor and the vendee, either by note in writing, or part payment, or subsequently by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, that the goods should agree with the contract." 2 The qualifying reference to the Statute of Frauds, of course, only applies where the value of the goods is £10 or upwards.

Sect. 18.

tion of

19.-(1.) Where there is a contract for the sale of Reservaspecific goods or where goods are subsequently appro- right of priated to the contract, the seller may, by the terms of disposal. the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee [or custodier] for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.3

1 Wait v. Baker (1848), 2 Exch., at p. 8, pcr Parke, B.

2 Wait v. Baker (1848), 2 Exch., at p. 8 (unindorsed bill of lading). 3 For statement of principle, see Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. 164. In illustration, see as to delivery to buyer, Brandt v. Bowlby (1831), 2 B. & Ad. 932; Godts v. Rose (1855), 17 C. B. 229; 25 L. J. C. P. 61. As to delivery on board ship, Wait v. Baker (1848), 2 Exch. 1; Van Casteel v. Booker (1848), 2 Exch. 691, 18 L. J. Ex. 9; Turner v. Liverpool Docks (1851), 6 Exch. 543, Ex. Ch.; 20 L. J. Ex. 293; Gabarron v. Kreeft (1875), L. R. 10 Ex. 274.

Sect. 19.

(2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is primâ facie deemed to reserve the right of disposal.1

(3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together, to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him.2

This section, like the preceding sections, deals only with the transfer of the property in goods as between seller and buyer, and does not affect the protection afforded to innocent third parties by section 25 and the Factors Acts.3

In a case in the Court of Appeal, where the previous decisions were reviewed, Lord Bramwell seems to think that the seller may retain a jus disponendi, even when the property has passed to the buyer; but Cotton, L.J., sums up the law as follows: "In the case of such a contract (i.e. a contract for the sale of unascertained goods), the delivery by the vendor to a common carrier, or, unless the effect of the shipment is restricted by the terms of the bill of lading, shipment on board a ship of, or chartered for, the purchaser is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent, or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchaser. . . . If the vendor deals with, or claims to retain the bill of lading, in order to secure the contract price, as when he sends forward the bill of lading with a bill of

1 Ogg v. Shuter (1875), 1 C. P. D. 47, C. A.; Mirabita v. Imperial Ottoman Bank (1878), 3. Ex. D., at p. 172, C. A. See Joyce v. Swann (1864), 17 C. B. N.S. 84, where inference was negatived.

2 Shepherd v. Harrison (1871), L. R. 5 H. L. 116, see at p. 133, per Lord Cairns; Cahn v. Pockett (1899), 1 Q. B., at p. 656, C. A.

3 Cahn v. Pockett's Bristol Channel Co. (1899), 1 Q. A. 643, C. A.

exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft, or payment or tender of the price, is conditional only, and until such acceptance or payment or tender, the property in the goods does not pass to the purchaser." 1

With reference to Lord Bramwell's doubt, it seems that, though the property in goods may be intended to pass to the buyer, they may be delivered to his agent on such terms as to prolong the right of stoppage in transitu, and in that sense a limited right of disposal may be said, to be reserved.2

Sect. 19.

Risk primâ with pro

facie passes

20. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred perty. to the buyer, the goods are at the buyer's risk whether delivery has been made or not.1

Provided that where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.5

Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee [or custodier] of the goods of the other party.

1 Mirabita v. Imp. Ottoman Bank (1878), 3 Ex. D., at p. 172. See at p. 170, per Ld. Bramwell. Cf. Ex p. Banner (1876), 2 Ch. D. 278.

2 Cf. Schotsmans v. Lancashire Railway (1867), L. R. 2 Ch. App., at p. 335,

3 Martineau v. Kitching (1872), L. R. 7 Q. B. 436; Custle v. Playford (1872), L. R. 7 Ex. 98, at p. 100, Ex. Ch.; Anderson v. Morice (1875), L. R. 10 C. P. 609, at p. 619; affirmed 1 App. Cas. 713.

For examples of seller's risk, see Simmons v. Swift (1826), 5 B. & C. 857; Head v. Tattersall (1871), L. R. 7 Ex. 7, see at p. 14; Elphick v. Barnes (1880), 5 C. P. D. 321, see at p. 326. For example of buyer's risk, see Rugg v. Minett (1809), 11 East, 210; Fragano v. Long (1825), 4 B. & C. 219; Tarling v. Baxter (1827), 6 B. & C. 360; Tudor's Merc. Cases, 3rd ed., p. 308, and notes; Sweeting v. Turner (1871), L. R. 7 Q. B. 310.

5 Martineau v. Kitching (1872), L. R. 7 Q. B. 436, at p. 456; per Blackburn, J.

6 Assumed in such cases as Head v. Tattersall and Elphick v. Barnes, suprà, but not expressly stated.

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