Sect. 2. Misapplication Sect. 3. CONTRACT OF MADE. » 2 supplied.1 Again, in England," the supply of necessaries to an infant creates only a liability on simple contract, and it cannot be made the ground of any different kind of liability. . . . A deed, therefore, given by an infant to secure the repayment of money advanced to buy necessaries is voidable." In Scotland, on the contrary, bonds, bills, and other written obligations by minors have been again and again sustained, not merely where they represented the price of necessaries already furnished, but where they were granted for money advanced, provided it was proved that the amount of the advance was afterwards usefully employed for the minor's benefit.3 "Minors are effectually obliged by their own acts and deeds, and even by bonds of borrowed money granted by them, though without the consent of their curators, for all sums that have been profitably applied to their use.' As a "" minor" may, under certain conditions, validly contract, the attempt to adapt the section to Scotland by adding the words "or minor" is founded on a misapprehension. Where the words occur in the second paragraph they are unnecessary, and in the third paragraph they are not only unnecessary but misleading. Formalities of the Contract. 3. Subject to the provisions of this Act) and of any statute in that behalf," a contract of sale (c) may be made in writing (either with or without seal), (e) or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. Provided that nothing in this section shall affect the law relating to corporations." 1 Barnes v. Toye (1884), 13 Q.B.D., 410. See also Johnstone v. Marks (1887), 19 Q.B.D., 509. 2 Pollock on Contract, 6th ed. pp. 70, 71. 3 E. g. in Gordon v. Earl of Galloway (1629), Mor. 8941; Stuart v. Stuart and Hume (1639), Mor. 8943; Wilkie v. Dunlop and Co. (1834), 12 Sh. 506. 4 Ersk. i. 7, 33. See also Stair, i. 6, 44. NOTES. (a) The provisions referred to are contained in Sect. 4, and do not apply to Scotland. (b) E.g. the Merchant Shipping Act 1894,1 and the 4th section of the Statute of Frauds.2 (c) "Contract of sale includes an agreement to sell as well as a sale" [Sect. 62 (1)]. (d) An informal writing (i.e. in Scotland, a writing neither holograph nor tested) may be accepted as evidence, but, if challenged, it will not be conclusive. By the Interpretation Act 1889 3"expressions in any Act referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography, and other modes of representing and reproducing words in a visible form." (e) In England a seal is essential to a formal deed or covenant. Any signed writing without seal is, however, sufficient to evidence a "simple contract," and also to satisfy the requirement of writing introduced by the Statute of Frauds. Sealing is not necessary in Scotland, but the effect of certain British statutes, e.g. the Merchant Shipping Acts, has been to extend to Scotland the English requirement of a seal in the particular matters to which these statutes relate.* (f) The phrase "by word of mouth" is used to avoid the ambiguity connected with the word "verbal," which in England is applied to any contract, written or unwritten, which is not evidenced by deed under seal. The proof of a contract by word of mouth may be strengthened by presumptions arising from the subsequent conduct of the party denying it.5 (g)" Conduct of the parties," e.g. where parties act upon a draft agreement not signed or completed, or where goods are sent on "sale or return and are kept an unreasonable time. Assent 1 57 & 58 Vict. c. 60. See Appendix I. post, p. 307. 2 29 Car. II. c. 3. See Appendix I. post, p. 291. 3 52 & 53 Vict. c. 63, Sect. 20. See the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), Sect. 65, and relative form of Bill of Sale, Appendix I. post, p. 311. In company law the Scottish mode of authentication has been preserved or at least rendered optional (30 & 31 Vict. c. 131, Sect. 37; 37 & 38 Vict. c. 94, Sect. 56). 5 M'Fadzen v. Harsewell (1802), Hume 330. Brogden v. Metropolitan Railway Co. (1877), H.L. 2 App. Ca. 666. 7 Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829. "When an offer is made to another party, and in that offer there is a request, express or implied, that he must signify his acceptance by doing some particular thing, then as soon as he does that thing he is bound."-Per Lord Blackburn in Brogden v. Metropolitan Railway Co., 2 App. Ca. at p. 691. See as to the effect of usage in the contract of hire-purchase, Marston v. Kerr's Trustee (1879), 6 Ret. 898. с Sect. 3. Sect. 3. Statute of Frauds. "may be signified by a nod or a gesture, or may even be inferred (h) Corporations in England signify their corporate intention by means of a seal. Their seal forms their signature. Corporations in Scotland are not similarly restricted, except in so far as they are affected by British statutes [see note (e) supra]. COMMENTARY. 4 8 This section is declaratory of the law of Scotland 3 as well as that of England. The special restrictions upon freedom of contract in England arising from the Statute of Frauds or the substituted provisions of this Act [Sect. 4] 1 Benjamin on Sale, p. 43. Blackstone's Com. b. 2 c. 30, quoted and approved by Tindal, C. J., in Hoadley v. M'Laine (1834), 10 Bing. 482. But see Hunter v. Duff (1831), 9 Sh. 703; Affd. (1832), 6 W.S. 206; M'Lean and Hope v. Thomas (1869), 42 Sc. Jur. 159. 2 Towill and Co. v. The British Agricultural Association (1875), 3 Ret. 117. "The English cases as to the completion of the contract of sale through brokers turn mainly on the 17th section of the Statute of Frauds.”—Bell's Com. i. 460, editor's note. 3 Stair, i. 14. 1; Ersk. iii. 3. 2, and iv. 2. 20; Bell's Com. i. 458; Bell's Prin., Sect. 89; Bell on Sale, p. 32; M. P. Brown on Sale, p. 2; Hamilton v. Richard (1698), Mor. 12412; Gibb v. Walker (1751), Elch. Caut. No. 19; Carruthers v. Bell (13th November 1812), F.C.; Pollock and Dickson v. M'Andrew (1828), 7 Sh. 189; Wilson v. Walker (1856), 18 D. 673. But see Allans v. Gilchrist (1875), 2 Ret. 587. "Sale is a mutual and reciprocal contract in which both parties are bound or neither "-Bell on Sale, p. 32. There may be circumstances where one only of the parties is legally bound, as, e.g., in Graham and Co. v. Pollock and Caldwall (1763), Mor. 14198, but the contract of hire with an option to purchase has been recently held not to be a sale although the lender is bound to give effect to the hire-purchaser's option by turning the hire into instalments of the price-Helby v. Matthews and others, H. L., 30th May 1895. A contract of sale completed verbally cannot be opened up by a subsequent request for writing-Martin and Sons v. Robertson, Ferguson, and Co. (1872), 10 Macp. 949; nor can a contract completed by correspondence, except in one particular not afterwards insisted in, be resiled from on other grounds--Jack v. Roberts and Gibson (1865), 3 Macp. 554. In other departments of sale the laws of England and Scotland differ in regard to the formalities of the contract. Thus in England a sale and transfer of incorporeal moveables such as debts, shares, debentures, and other rights may be proved parole, at least to the effect of constituting an equitable right in the transferee, but in Scotland similar rights cannot be transferred without writing. As to the effect in England of an assignment in writing of a debt or other legal chose in action, see Judicature Act 1873 (36 & 37 Vict. c. 66), Sect. 25 (6). Consideration. have no place in the law of Scotland, and are reserved by Sect. 3. this section but not enacted. The English doctrine of Doctrine of "Consideration" may also be classed as one of the formalities of the contract, the absence of which from the law of Scotland forms a distinguishing feature not specially referred to in the Act. It might be supposed that the contract of sale is beyond the reach of the doctrine of "Consideration," seeing that in sale the price, however inadequate, forms a "consideration," and thus satisfies the requirement. But even in sale the influence of the doctrine is felt. 3 In England, if A offers to sell to B, and specifies a Offer and actime within which the offer may be accepted, he may with- ceptance. draw his offer before the time has expired, provided B has not previously accepted it. This is due to the absence of "consideration" (in the English sense) for A's obligation not to withdraw. In Scotland A would be bound to keep the offer open until the expiry of the time mentioned.* 5 It was settled by Dunlop v. Higgins (1848), a House Effect of posting. of Lords appeal from Scotland, that the posting of an acceptance in due time completes the bargain, even if through the fault of the post-office it does not reach the offerer, or has been unduly delayed. Some subsequent English judgments were contrary to this view, Dunlop v. Higgins not being recognised as an authority in England; but these have now been overruled on the express authority of the Scotch appeal. It is to be observed, however, that 1 See Appendix I. post, p. 291, and Appendix III. post, p. 343. 2 The leading characteristics of the doctrine of "Consideration" will be found in Appendix III. post, p. 341. 3 Cook v. Oxley (1790), 3 T.R. 653; Dickenson v. Dodds (1876), 2 Ch. Div. 463. 6 Bell's Com. i. 344; Bell on Sale, pp. 33, 38; Marshall and M'Kell v. Blackwood (1747), Elchie's Sale, No. 6. But see Hogg v. Elliot (1877), 14 S.L. R. 229. Referring to the English rule Bell says: "One cannot help feeling that a rule so different from what commonly happens in the intercourse of life raises that inconsistency between law and justice which is sometimes complained of."-Bell on Sale, p. 34. 51 H. of L. Cases 381: in the Court of Session (1847), sub. nom. Higgins v. Dunlop, 9 D. 1407. E.g. The British American Telegraph Co. v. Colson (1871), L.R. 6, Ex. 108. 7 Imperial Land Co. of Marseilles [Harris' Case] (1872), 7 Ch. App. 587; The Household Fire Insurance Co. v. Grant (1879), 4 Ex. Div. 216. In Harris' Case James, L. J., said: "The Vice-Chancellor's decision seems to me Sect. 3. Sale of ships. the same rule will not hold in the case of a revocation of an offer, it being held in England that such revocation must be received by the party to whom it is addressed before the contract has been completed by the posting of an acceptance. The effect of a revocation of an acceptance received by the offerer prior to or at the same time as the acceptance itself, seems to be still an open question. The Scottish case Dunmore v. Alexander2 (1830), relating to a contract of service, supports the view that the revocation will be effectual; but this judgment was given before Dunlop v. Higgins, and is inconsistent with the theory that the contract has been completed by the mere despatch of the acceptance. Probably when the question is again raised the finality of the contract consequent upon the posting of the acceptance will be consistently applied both in England and Scotland.3 The formalities of the contract in the case of ships suggest a question of considerable importance. Ships are clearly "goods" as defined by Sect. 62 (1) of this Act, and therefore, unless there is some other "statute in that behalf," they may be transferred by "word of mouth." The older Merchant Shipping Acts undoubtedly prescribed writing, and not only so, but, as interpreted by the Courts both of England and Scotland, they rendered absolutely void any contract not in the particular form provided by the Acts, or not registered in the terms of their provisions. In this to be utterly indistinguishable in principle, or in fact from Dunlop v. Higgins, a case which is binding upon us (7 Ch. App. at p. 591). See as to the present law of Scotland on this subject, Jacobsen, Sons and Co. v. Underwood and Son, Limited (1894), 21 Ret. 654. Where an order by telegram was, through the fault of the telegraph office, so altered in transmission that goods were despatched to a non-existing person there was held to be no contract.Verdin Brothers v. Robertson (1871), 10 Macp. 35. 1 Stevenson v. M'Lean (1880), 5 Q. B. D. 346; Byrne v. Van Tienhoven (1880), 5 C.P.D. 344; Henthorn v. Fraser (1892), 2 Ch. 27. See specially the remarks of Lindley, J., in Byrne's Case, 5 C.P.D. at p. 347. 2 9 Sh. 190. 3 The question is discussed by the editors of Benjamin on Sale, 4th ed. pp. 56, 57. 4 See as to Scotland Spence v. Muir (20th January 1809), F.C.; Leitch v. Berry (20th May 1819), F.C.; Calder v. Miller (1824), 3 Sh. 253; M'Arthur v. M'Briar and Johnston's Trustee (1844), 6 D. 1174; Ord v. Barton (1846), 8 D. 1011. But in the older case of M'Nair v. Millar (2nd December 1808), F.C., letters exchanged, though not conform to the statute, were held to confer a |