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INTRODUCTION TO FIRST EDITION.
It is difficult to know whether to call this little book a first edition or a second edition. It is a first edition of the Sale of Goods Act, 1893, but it is a reproduction of my book on the Sale of Goods, published in 1890, which was in substance a commentary on the Sale of Goods Bill. The clauses of the Bill, with a few verbal alterations, formed the large type propositions of the book. But though the language of the propositions remains the same, its effect is now very different. Those propositions were only law in so far as they were correct and logical inductions from the decided cases. Now the position is reversed. The propositions have become sections in the Act, and the decided cases are only law in so far as they are correct and logical deductions from the language of the Act. Each case, therefore, must be tested with reference to the Act itself. But it may be none the less useful to the reader to call his attention to the decisions which formed the basis of the various sections, and which were intended to be reproduced in the Act. In so far as the law is unaltered, they are still in point as illustrations.
The history of the Act is as follows: The Bill was originally drafted by me in 1888. I then settled it in consultation with Lord Herschell, who kindly consented to take charge of it. In 1889, Lord Herschell introduced
it in the House of Lords, not to press it on, but to get criticisms on it. In 1890 there was no opportunity of proceeding with it, but in 1891 the Bill was again introduced in the Lords, and referred to a Select Committee. It had in the mean time been criticised by Lord Bramwell, Mr. Walter Ker, and other friends, and the Bar Committee had submitted a valuable memorandum
In the Lords it was carefully considered by a Select Committee, consisting of Lords Herschell, Halsbury, Bramwell, and Watson. A question arose as to its extension to Scotland, so the Bill stood over till 1892. It was then again introduced in the Lords, and extended to Scotland, on the advice of Lord Watson, who had consulted various Scotch legal authorities. Professor Richard Brown and Mr. Spens of Glasgow took an infinity of pains to suggest the necessary amendments. In 1893 the Bill was again passed through the Lords in the form in which it was settled in 1892. then considered by a Select Committee of the House of Commons and further amended. The Committee consisted of Sir Charles Russell, A.G., Sir R. Webster, Q.C., Mr. Asher, Q.C. (the Scotch Solicitor-General), Mr. Shiress Will, Q.C., Mr. Bousfield, Q.C., Mr. Ambrose, Q.C., and Mr. Mather. Some of the amendments introduced by the Commons were modified on its return to the Lords, and it was finally settled in its present form.
The Bill, in its original form, was drafted on the same lines as the Bills of Exchange Bill. On Lord Herschell's advice, it endeavoured to reproduce as exactly as possible the existing law, leaving any amendments that might seem desirable to be introduced in Committee on the authority of the Legislature. So far as England is concerned, the conscious changes effected in the law
have been very slight.
They are pointed out in the notes to the various sections. As regards Scotland, in some cases the Scottish rule has been saved or enacted for Scotland, in others it has been modified, while in others the English rule has been adopted. These points are noted under the sections as they arise. Scotch law differs from English law mainly by adhering to the Roman law in matters where English law has developed a rule of its own. The Mercantile Law Commission of 1855 reported on this question, and recommended that on certain points the Scotch rule should be adopted in England, while on other points the English rule should be adopted in Scotland. The recommendations of the Commission were partially embodied in the English and Scotch Mercantile Law Amendment Acts of 1856. The result was curious. Either by accident or design certain
. rules were enacted for England which resembled, but did not reproduce, the Scotch law, while other rules were enacted for Scotland which resembled, but did not reproduce, the English law. The present Act has carried the process of assimilation somewhat further. It is perhaps to be regretted that the process has not been completed; but future legislation may accomplish that. It is always easier to amend an Act than to alter common law. Legislation, too, is cheaper than litigation. Moreover, in mercantile matters, the certainty of the rule is often of more importance than the substance of the rule. If the parties know beforehand what their legal position is, they can provide for their particular wants by express stipulation. Sale is a consensual contract, and the Act does not seek to prevent the parties from making any bargain they please. Its object is to lay down clear
1 Cf. Lockyer v. Offley, 1 T. R.,
rules for the cases where the parties have either formed no intention, or failed to express it.
As regards this edition, I have not attempted to expound or criticise the mass of cases which illustrate or are modified by the Act. Such a work could hardly be undertaken with any prospect of success until the Act has been for some time in operation. I have only sought to indicate the sources of the various provisions in the Act, and to elucidate the general principles of the law of sale by citations from eminent judges. Our common law is rich in the exposition of principles, and these expositions lose none of their value now that the law is codified. A rule can never be appreciated apart from the reasons on which it is founded.
I have compared the main propositions of the English law with the corresponding provisions of the Code Napoleon, which is the model on which most of the Continental Codes have been framed. On the one hand, the scope and effect of a principle are often best brought out by contrast; on the other hand, where any rule of municipal law is found to be generally adopted in other countries, there is a strong presumption that the rule is founded on broad grounds of expediency, and that its application should not be narrowed. The Roman lawyers were justified in attaching a peculiar value to those rules of law which were juris gentium. I have also made frequent reference to Pothier's Traité du Contrat de Vente. Although published more than a century ago-for Pothier died in 1772—it is still, probably, the best reasoned treatise on the Law of Sale that has seen the light of day. “The authority of Potbier,” says Best, C.J.,
“ “is as high as can be had next to the decision of a court