Sect. 20. "Custodier" is the Scotch equivalent of "bailee." The expression might not have occurred" was substituted for "would not have occurred" in the first proviso at the instance of Lord Watson. It shifts the onus on to the party in fault. "As a general rule," says Blackburn, J., "res perit domino, the old Civil law maxim, is a maxim of our law, and, when you can shew that the property passed, the risk of the loss is primâ facie in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to one person or the other, it is a very strong argument for shewing that the property was meant to be in him, but the two are not inseparable. By the Civil law it was always considered that if there was any weighing, or anything of the sort which prevented the contract from being perfecta emptio, whenever that was occasioned by one of the parties being in mora, and it was his default, he shall bear the risk just as if there was emptio perfecta. That is good sense and justice, though not necessary to the decision of the present case." 1 ... The rule of the Civil law was Mora debitoris non debet esse creditori damnosa. Pothier, in discussing it, says: "If I sell you a horse, and make default in delivery, and it is struck by lightning in my stables, the loss falls on me, because the accident would not have happened if I had duly delivered the horse. But if the horse dies from a disease, which would have killed him in any case, I am not liable." The distinction drawn by Pothier has been adopted by arts. 1302, 1303 of the French Civil Code. When the seller remains in possession of the goods after the property in them has passed to the buyer, or when the buyer gets possession of the goods, before the property passes, as in the case of goods on trial, it seems clear the party in possession is in each case a bailee. But there appears to be no decision defining the nature of such bailment. Pothier has discussed the position of the seller at some length.3 Until the time for delivery has arrived, he must use ordinary diligence in taking care of the thing sold. In contractibus in quibus utriusque contrahentis utilitas versatur, levis culpa, non etiam levissima, præstatur. But, if the buyer makes default in taking delivery, the seller is only liable for dolus, which includes culpa lata or gross negligence. See, too, French Civil Code, arts. 1136-1138. Lord Blackburn's citation of the maxim Res perit domino is a little misleading as to the Roman law, because the law of sale formed an 1 Martineau v. Kitching (1872), L. R. 7 Q. B., at pp. 454, 456. exception to the general rule. By Roman law the property in goods did not pass until delivery, but as soon as the parties were agreed on the specific article, and the price, there was an emptio perfecta. The risk, unless otherwise agreed, passed to the buyer though the property did not. Cum autem emptio et venditio contracta sit periculum rei vendita statim ad emptorem pertinet tametsi adhuc ea res emptori tradita non sit.1 The rule of Roman law was followed in Scotland, and it may be stated broadly that when the facts would shew a bargain and sale in England passing the property and risk, in Scotland the buyer acquired a jus ad rem specificam, though not the property, and the risk would be in him. Thus by different routes English and Scotch law arrived at practically the same results.2 The Act now lays down a uniform rule for both countries. This section is supplemented by the special provisions of sects. 32 (2) (3) and 33, post, pp. 70, 71, which deal with particular cases; namely, goods sent by carriers by land or sea, and inevitable deterioration due to transit. As property and risk are separable, it follows that property and insurable interest may be separable. As to the insurable interest of seller and buyer respectively, see Arnould, Mar. Ins., 6th ed., p. 69. Sect. 20. The converse of the rule res perit domino also holds good, and any Accesfruits or increase of the thing sold belong primâ facie to the party sories or who has the property in it. Any calamity befalling the goods after accretion. the sale is completed must be borne by the purchaser, and, by parity of reasoning, any benefit to them is his benefit, and not that of the vendor." 193 Transfer of Title. 21.—(1.) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner 1 Moyle's Justinian, p. 420; Pothier, Contrat de Vente, Nos. 307-309. 2 Bell's Prin. Law of Scotland, §§ 87, 88. 3 Sweeting v. Turner (1871), L. R. 7 Q. B. 310, at p. 313, per Blackburn, J.; French Civil Code, arts. 1614, 1615; Dig. 19, 1, 13; cf. The Vindobala (1887), 13 P. D., at p. 47. See sects. 22 to 25, post, p. 54. 5 For principle, see Colonial Bank v. Whinney (1886), 11 App. Cas. 426, Sale by person not the owner. Sect. 21. of the goods is by his conduct precluded from denying the seller's authority to sell.1 (2.) Provided also that nothing in this Act shall affect (a.) The provisions of the Factors Acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof; 2 (b.) The validity of any contract of sale under any special common law, or statutory, power of sale, or under the order of a court of competent jurisdiction.3 at pp. 435, 436, per Lord Blackburn. For illustrations, see Cooper v. Willomatt (1845), 1 C. B. 672; 14 L. J. C. P. 219 (fraudulent sale by bailee); Lee v. Bayes (1856), 18 C. B. 599; 25 L. J. C. P. 249 (stolen goods sold by auction); the Telegrapho (1871), L. R. 3 P. C., at p. 685 (goods taken piratically); Hollins v. Fowler (1875), L. R. 7 H. L. 757 (sale by broker); Cundy v. Lindsay (1878), 3 App. Cas. 459 (goods obtained by fraud and resold); Helby v. Matthews (1895), A. C. 471 (wrongful disposition by hirer under hire-purchase agreement); cf. Indian Contract¡Act, 1872, s. 108. 1 Pickard v. Sears (1837), 6 A. & E. 469; Gregg v. Wells (1839), 10 A. & E. 90; Freeman v. Cooke (1848), 2 Exch. 654; 18 L. J. Ex. 114; Knights v. Wiffen (1870), L. R. 5 Q. B. 660; cf. Seton v. Lafone (1887), 19 Q. B. D. 68, C. A. 2 See the Factors Act, 1889, post, p. 121; and the Factors (Scotland) Act, post, p. 142; and see the Bills of Lading Act (18 & 19 Vict. c. 111); the Bankruptcy Act, 1883, s. 44 (reputed ownership), and for certain purposes the Bills of Sale Act, 1878; cf. Indian Contract Act, 1872, s. 108. 3 As to pawnee, sec Martin v. Reid (1862), 31 L. J. C. P. 126, at p. 128, per Willes, J.; Pigot v. Cubley (1864), 33 L. J. C. P. 134. As to distrainor, see Woodfall's Landlord and Tenant, 13th ed., pp. 479-481; cf. King v. England (1864), 33 L. J. Q. B. 145. As to sheriff, see Doe v. Donston (1818), 1 B. & Ald. 230 (sale after expiration of office); cf. Batchelor v. Vyse (1834), 4 M.【& Sc. 552 (excessive sale); Manders v. Williams (1849), 4 Exch. 339; 18 L. J. Ex. 437 (goods on sale or return). As to master of ship, Page v. Cowasjee (1866), L. R. 1 P. C., at p. 144; and Kaltenbach v. Mackenzie (1878), 3 C. P. D. at p. 473. As to order of Court, see R. S. C. Or. L. rule 2. As to goods left with innkeeper, see 40 & 41 Vict. c. 38. Illustration. The high bailiff of a County Court seizes certain goods under a warrant of execution. X., who is the true owner, claims them, but does not make the required deposit. The high bailiff sells them, and the price is duly paid into court. The purchaser acquires a good title under sect. 156 of the County Courts Act, 1888.1 Sub-sect. (1.) "The general rule of law," says Willes, J., “is undoubted, that no one can transfer a better title than he himself possesses. Nemo dat quod non habet." 2 In a case under the Factors Act, 1842, Blackburn, J., says: “At common law a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt (sect. 22), and an apparent exception where the person in possession had a title defeasible on account of fraud (sect. 23, post, p. 55). But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shewn that the seller 'or pledger had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to sell or pledge, he was at common law precluded, as against those who were induced bonâ fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited.". The rule of the civil law seems to have been in accord with the common law. Nemo plus juris in alium transferre potest quam ipse habet; or as Ulpian puts it, with special reference to the law of sale, Rem alienam distrahere quem posse nulla dubitatio est nam emptio est et venditio; sed res emptori auferri potest. See Pothier, Contrat de Vente, No. 7. By art. 1599 of the French Civil Code, "La vente de la chose d'autrui est nulle; " but this provision must be read subject to art. 2279, which provides that, "En fait de meubles possession vaut titre." There are special provisions about loss or stolen goods, but, 1 Goodlock v. Cousins (1897), 1 Q. B. 558, C. A. 2 Whistler v. Forster (1863), L. J. C. P. 169, at p. 164 (cheque). 3 Cole v. North Western Bank (1875), L. R. 10 C. P. 354, at p. 362; approved Colonial Bank v. Whinney (1886), 11 App. Cas. 426, at pp. 435, 436 (reputed ownership); cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 677, as to Roman and Old French law, and Canadian law. Sect. 21. Sale by person not the owner. Sect. 21. Special power. Conflict of laws. Jointowners. Market overt. with these exceptions, it seems that an innocent purchaser of goods is always protected. Sub-sect. (2). One person is sometimes invested by law with a special power to dispose of another person's property. For instance, a pawnbroker may sell unredeemed pledges; and a landlord, who has duly distrained for rent, may sell the goods so distrained. So, too, the master of a ship may, in case of necessity, dispose of the ship and cargo. See the authorities collected in the footnote to (2) (b), ante, p. 52. An English statute only operates in the United Kingdom, so sales in foreign countries are in general regulated by the law of the country where the sale takes place. Subject to certain qualifications, the rule is that if personal property be disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere. Thus where the master of a ship wrongfully sold the cargo by auction in Norway, but under such circumstances as to give a good title in Norway, the sale was held valid, although the cargo subsequently came to England.1 Locus regit actum is a rule of wide application. By sect. 108 (2) of the Indian Contract Act, 1872, "If one of several joint-owners of goods has the sole possession of them by the permission of the co-owners, the ownership of the goods is transferred to any person who buys them of such joint-owner in good faith, and under circumstances which are not such as to raise a reasonable presumption that the person in possession of the goods has no right to sell them." Probably, in England, a joint-owner, in the absence of estoppel or authority from the other co-owners, could only transfer his own share.2 22.—(1.) Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. 3 1 Cammell v. Sewell (1860), 29 L. J. Ex. 350, Ex. Ch.; Westlake's Private International Law, 3rd ed., p. 181; Dicey's Conflict of Laws, p. 530, and the dicta in Alcock v. Smith (1892), 1 Ch. 238, C. A. (bill of exchange taken in execution abroad). 2 Cf. Ex p. Barnett, Re Tamplin (1890), 7 Morrell, 70. As to partners, who primâ facie are agents for each other, see Pollock on Partnership, 5th ed., pp. 31, 32. 3 The Case of Market Overt (1596), 5 Coke R. 83 b; Tudor's Merc. |