Sect. 20.

be impossible to prove that they "would" not equally have perished had delivery taken place. The party in fault is liable if it is proved that, but for the fault, the loss "might" not have been sustained, and he can only free himself by proving that the loss must have been sustained in any event. It is practically a question of shifting the onus on to the party in fault. M'Lean v. Grant (1805)1; Story on Sale, Sect. 222.

•See

(g) Although it may not be intended that delivery should pass the property (as e.g. in the case of hire-purchase), this proviso seems to impose the risk of accidental destruction upon a buyer (hire-purchaser) who is in mora in taking delivery of the article.

(h) Delivery is not (as formerly in Scotland) the only modus transferendi dominii, and therefore the parties may respectively possess goods, the property in which has either been parted with, or has not yet been acquired.2 The same might have happened under the former law of Scotland, e.g. where the buyer had properly rejected goods but they remained in his temporary custody. The involuntary agency thus arising might, by agreement, be turned into a voluntary one, subject to the general law of principal and agent.*

Res perit domino.

Previous law of Scotland as to risk.

COMMENTARY.

This section is simply an expansion of the maxim res perit domino,5 but it is new to Scotland, where, as already explained, the separation of the risk from the property formed a leading feature of the law of sale. In the case of specific goods, the risk passed to the purchaser at the completion of the contract, while the property did not pass till delivery.

In Scotland the separation of the risk from the property does not seem to have been established in the time of Stair (1693), who debates both sides of the question with an evident preference for continuing the risk with the

1 Mor. App. Reparation 2.

2 See, however, the effect of Sect. 25.

3 Thus the buyer of a mare warranted sound, but which died in the buyer's hands after having been unskilfully treated by him, was held barred from recovering the price-Newlands v. Leggatt (1885), 12 D. 820. See also Russell v. Ferrier (1792), Hume 675.

Ross v. Taylor and Co. (1823), 2 Sh. 173. 5 See Blackburn, p. 245; Benjamin, p. 380.

6 Ante, p. 6.

to risk.

ownership,1 but a uniform series of decisions, commencing Sect. 20. with Hutchison v. MDonald 2 (1744), placed the matter beyond question. The rule itself formed part of the law of Roman law as Rome, and has been justified on the ground that, if any considerable time elapsed between the sale and the transference, some kind of change must have occurred, and as the buyer had a right to any improvements upon the specific article sold, it was only fair that he should also be burdened with the risk of deterioration and loss. Erskine Erskine's put forward a theory strongly resembling the law of theory. England. "The property," he says, "which continues in the seller till after delivery is but nominal, he is truly no better than the keeper of the subject for behoof of the purchaser." 5 But the explanation commonly accepted was Explanation that of Pothier and Bell. According to this view, risk was by Pothier and a part of the law of obligation and not of transference. The seller, being debtor for the delivery of a specific subject which perished without his fault, was freed from an obligation which had become impossible, while on the other hand the buyer remained bound for the price under an independent and possible obligation. This theory is not more satisfactory than the others. The obligations of contracts are Objections. mutual. If the seller without fault is unable to implement his obligation to deliver, it may be a good reason for rescinding the contract, but it cannot be a reason for freeing one of the contractors and holding the other bound.

Bell of the principle of

risk.

Effect of section in pro. ducing assimi

The section embodies the law of England, and so far as risk is concerned, it also represents the former law of Scotland. Risk passed in Scotland in much the same circum-lation of the stances as those in which both property and risk passed in England and

1 Stair, i. 14. 7. See also Brodie's Com. on Stair, p. 857, note.

2 Elchies, Sale, No. 5. Lord Elchies adds the following note to his report -"The Lords determined the general point that Lord Stair doubts of, and found that the periculum rei vendita nondum tradita lies on the buyer.' 3 Just. Inst. iii. 23. 3.

4 Brodie's Stair, p. 857.

5 Ersk. iii. 3. 7. He further speaks of the seller's right to retain for the price as a right of "pledge," a term which implies the English principle of lien, rather than the Scottish right of retention.

6 Pothier, Vente, No. 307; Bell's Com. i. 180.

7 "It is a rule in the law of contract that both parties are bound or neither."-Bell's Com. i. 471. 8 See Brodie's Stair, pp. 857. 858.

laws of

Scotland.

Sect. 20.

Illustrations of
Scottish law
as to risk.

Dunlop v.
Lambert.

England.1 Property and risk now prima facie pass together in both countries, but this is brought about, not by altering the law as to passing the risk, but by assimilating the law as to passing the property.

The law of Scotland as to risk is illustrated by numerous cases, some of which are noted below.2 Dunlop v. Lambert 3 (1839), although an appeal to the House of Lords from Scotland, established an important principle, equally applicable to England, which is thus stated by Lord Chancellor Cottenham: "It is perfectly true, generally speaking, that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is the risk of the consignee. ... On reference, however, to the authorities it will be found that although that is the general inference it is capable of variations. Where the party undertaking to consign undertakes to deliver at a particular place the property, till it reaches that place and is delivered according to the contract, is at the risk of the person consigning; so although the consignor may follow the directions of the consignee, and deliver the property to be conveyed either by a particular carrier or in the ordinary course of business, still the consignor may make such a contract with the carrier as will make the carrier liable to him. There are therefore an infinite variety of circumstances which may occur in which the ordinary rule will turn out not to be

1 Per Lords Blackburn and Watson in Seath and Co. v. Moore (1886), 13 Ret. H.L. 57. See Coм., Sect. 18 ante, p. 90.

2 Spence v. Ormiston (1687), Mor. 3153; Hutchison v. M'Donald (1744), Elchies, Sale, No. 5; Campbell v. Barry (1748), Elchies, Sale, No. 7; Melvil v. Robertson (1749), Mor. 10072; Harle v. Ogilvie (1749), Mor. 10095; M'Laren v. Barclay (1777), 5 Br. Sup. 506; Milne and Co. v. Miller (1st Jan. 1809), F.C.; Andrew v. Ross (6th Dec. 1810), F.C.; Hall and Co. v. Armstrong (1823), 2 Sh. 358; Dunlop v. Lambert (1837), 15 Sh. 884, 1232, Revd. H.L. (1839), Macl. & Rob. 663; Fleet Brothers v. Morrison (1854), 16 D. 1122; Hastie v. Campbell (1857), 19 D. 557; Hansen v. Craig and Rose (1859), 21 D. 432; Anderson and Crompton v. Walls and Co. (1870), 9 Macp. 122; Walker v. Langdales Chemical Co. (1873), 11 Macp. 906; Beesley and Co. v. M'Ewen (1884), 12 Ret. 384; Henckell Du Buisson and Co. v. Swan and Co. (1889), 17 Ret. 252; Brewer and Co. v. Duncan and Co. (1892), 20 Ret. 230. See also Stair, i. 14. 7; i. 17. 5. ; Ersk. iii. 3. 7; M. P. Brown, 355 et seq.; Bell's Com. i. 179 et seq.; Bell's Prin., Sects. 87 et seq. 3 Macl. & Rob. 663; 6 Cl. & Fin. 600.

As for example in the old case of Spence v. Ormiston (1687), Mor. 3153, where the seller's risk continued during the transit, he having expressly undertaken to deliver at the buyer's shop in Edinburgh.

the rule to regulate the parties." 1

3

Another Scottish case, Sect. 20.

Liddel v.

that of Melvil and Liddel v. Robertson 2 (1749), is interest- Melvil and ing as illustrating at a much earlier date the precise point Robertson. presented by the English case of The Calcutta Co. v. De Mattos (1863), where Lord Blackburn says: "The parties may intend that the vendor shall deliver the goods to the carrier, and that when he has done so he shall have fulfilled his undertaking so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination, and yet they may intend that the whole or part of the price shall not be payable unless the goods do arrive." 4 In the Scottish case the goods were not lost, but only damaged, and it was held that the seller's risk being confined to the safe arrival of the goods, the buyer was bound to pay the full price. The report bears that the Court "considered the seller's undertaking the risk in this case to have meant no more than that the buyers should be free of the risk, and not be liable unless the cargo should arrive safe." 5

Transfer of Title.

PERSON NOT

THE OWNER.

21.-(1.) Subject to the provisions of this Act,) Sect. 21. where goods are sold by a person who is not the SALE BY 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 of the goods is by his conduct precluded from denying the seller's authority to sell. (a)

(2.) Provided also that nothing in this Act shall affect

(e)

(a.) The provisions of the Factors Acts, or any enactment enabling the apparent owner of

1 Macl. & Rob. at P. 675.

2 Mor. 10072.

3 32 L.J. Q.B. 322.

5 Mor. 10073.

4 32 L.J. Q. B. at p. 328.

Sect. 21.

goods to dispose of them as if he were the true owner thereof;"

(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.

NOTES.

(a) See Sects. 22 to 25 and Sect. 48 (2).

(b) "Sale with the consent of the owner,' as by an agent on behalf of his principal, or under an agreement, express or implied, by which a power of sale is given.1 "To make either a sale or pledge valid against the owner of the goods sold or pledged it must be shown that the seller or pledger had authority from the owner to sell or pledge as the case might be." 2

(c) "Acquires no better title." "At common law a person in possession of goods could not confer on another any better title to the goods than he himself had." 3 "If the owner of

(d) Owner precluded from denying authority. 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 bona 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." 4 In other words, the owner is prevented by estoppel, or, in Scottish phraseology, barred personali exceptione, from denying that he had given authority to sell or pledge.5

"4

(e) Factors Acts defined Sect. 62 (1). Text in Appendix I. post, pp. 296, 302.

(f) In addition to the Factors Acts, see Bills of Lading Act 1855.6 In England a statutory reputed ownership is provided

1 Gough v. Wood and Co. [1894], 1 Q.B. 713; North-Western Bank v. Poynter, Son, and Macdonalds (1894), 21 Ret. 513, Revd. H.L. 32 S. L.R. 245.

2 Per Blackburn, J., in Cole v. North-Western Bank (1875), L. R. 10 C.P. 354 at p. 362. 3 Ibid. 4 Ibid.

5 See Woodley v. Coventry (1863), 2 H. & C. 164; National Mercantile Bank v. Hampson (1880), 5 Q.B.D. 177.

6 18 & 19 Vict. c. 111. Text in Appendix I. post, p. 293.