Sect. 58.
Opposed to

Scottish usage.

Sect. 59.

there is no reason why the Court should reduce the sale as fraudulent. But such intimation is so opposed to Scottish usage that few bidders would be likely to offer, and in the form here suggested, it is quite unknown in Scotland. The object aimed at is usually attained by fixing an upset price. It is not likely that even the express statutory sanction given by this section to a bid by the seller or by one person on his behalf, will render such procedure general in Scotland. There is no provision in the Act for the identification of the seller or of the person empowered to bid on his behalf, and strangers are not likely to offer without knowing distinctly by whom the reserved power is to be exercised. If the competition lies between a bond-fide offerer, and a person who is known to be empowered to exercise the reserved bid, the purpose would seem to be at least as well served by the Scottish practice of an upset price. In any event, the Court will, no doubt, take care that the reserved bid is not sanctioned without ample proof that the intention to exercise it is clearly made known to all intending offerers. The rules of the law of Scotland as to the illegality of any unfair means to enhance the price are well established, and are at least quite as strict as the English rules, even in their recent sterner developments.1

59. In Scotland where a buyer (a) has elected to accept goods which he might have rejected," and to

(b)

1 In England, a different rule seems to have prevailed in equity and at common law. Formerly, in equity, the seller might employ one person to bid without expressly intimating his intention to do so. So far as sales of land were concerned, this was altered by the Sale of Land by Auction Act 1867 (30 & 31 Vict. c. 48), which made puffers illegal, alike in Courts of law and of equity, except under conditions akin to those of the present section. It is practically the rule of the Act referred to, which is now extended to the sale of goods. As to the law of Scotland, see M. P. Brown on Sale, p. 578 et seq.; More's Stair, p. 91, notes; Ivory's Erskine, p. 639, note; Bell's Prin., Sects. 130-132, and the following cases-Grey v. Stewart (1753), Mor. 9560; Murray v. Macwhan (1783), Mor. 956; Cree v. Durie (1st December 1810), F.C. Anderson v. Stewart (16th December 1814), F.C.; Faulds v. Corbet (1859), 21 D. 587; Shiell v. Guthrie's Trustees (1874), 1 Ret. 1083; Strachan v. Auld (1884), 11 Ret. 756. As to intimation of the conditions of sale and its effect upon the bidders, see Hain v. Laing (1853), 15 D. 667; Christie v. Hunter (1880), 7 Ret. 729; Macdonald and Fraser v. Henderson (1882), 10 Ret. 95; White and Co. Ltd. v. Dougherty (1891), 18 Ret. 972.

(e)

Sect. 59.
PAYMENT INTO

SCOTLAND

WHEN BREACH
Is ALLEGED.

OF WARRANTY

treat a breach of contract as only giving rise to a claim for damages, he may, in an action by the COURT IN seller for the price," be required, in the discretion of the court before which the action depends, to consign or pay into court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof.)

NOTES.

(a) Buyer -"seller." Defined Sect. 62 (1). (b) "Elected to accept." Formerly the buyer in Scotland had no right of election. His claim for damages in respect of the seller's breach depended on his having timeously rejected the goods and repudiated the contract. Now, he has the alternative remedies of rejection or damages. See COM., Sect. 11 ante, p. 52.

(c) "Might have rejected." The buyer's right of rejection is expressly reserved by Sect. 11 (2), but the rejection must be timeous. See also Sect. 53 (5).

(d) "Claim for damages." The buyer has now the option of retaining the goods and treating the seller's failure "as a breach which may give rise to a claim for compensation or damages" [Sect. 11 (2)].

(e) "Action' includes in Scotland condescendence and claim and compensation" [Sect. 62 (1)]. Formerly the price might be sued for in Scotland whether the property had passed or not. See Coм., Sect. 49 ante, p. 235, and compare Sects. 49, 50, 57, and 61 (2).

(f) "Price." See Sects. 8 and 9 ante, pp. 35, 41. (g) "Court." No definition is given or required. common law jurisdiction in actions of sale is maintained. Sect. 61 (2).

(h) Discretion of Court, in Scotland, to order consignation. COM. infra.

COMMENTARY.

The

See

See

The provision of this section is intended to guard against the abuse of the alternative remedy given to the buyer by Sect. 11 (2). It may be said that according to the law of Scotland (differing from that of England) it was always within the discretion of the Court to order consignation. the Act.

Power of
Scotland before

Court in

Sect. 59.

Sect. 60.

REPEAL.

3

"The English Courts will not order money to be brought
into Court upon anything short of a distinct admission of
the party that the money is owing from him,' and the
reason of the rule is very obvious, for, were it otherwise, the
Court might have to hear the whole cause twice over, upon
the motion for bringing in the money, and, again, upon the
final hearing....
. . No such rule is propounded in Scotland.
If the Court is satisfied, quovis modo, that a sum will ulti-
mately be payable, it makes the order which it judges will
best secure the fund for the party to whom it is payable.”2
The common-law right of the Scottish Courts to call for
consignation was, however, by no means clear, and it was
sometimes practically negatived. Thus in Findlay v.
Donaldson (1846) the Court of Session ordered consigna-
tion, but the House of Lords reversed, holding that "there
was not a sufficient medium concludendi whereupon they
might have proceeded in the exercise of their discretion." 4
In this case, Lord Campbell said: "It is a rule, and a very
salutary rule in the Courts of England, that they will not
order money to be paid into Court unless there be a clear
admission of the money being in the hands of the party.
... But, though such is the law and practice of England, we
do not by any means say that that law and that practice
shall be adopted in Scotland, though we have great reason
to regret that no rule of the kind does prevail there, and
that it is a mere matter of discretion in each particular
case." "5 The Courts in Scotland have hitherto, rarely, if
ever, called for consignation in ordinary actions for the
price of goods supplied. The express power here given is
therefore a suggestion for guidance, as well as a warrant for
procedure.

60. The enactments mentioned in the schedule to this Act are hereby repealed as from the commence

1 Richardson v. Bank of England (1838), 4 Myl. & Cr. 165.

2 Per Lord Brougham (obiter) in Findlay v. Donaldson (1846), 5 Bell's 35 Bell's App. 105.

App. 105 at p. 118.

Per Lord Brougham, 5 Bell's App. at p. 121.

55 Bell's App. at p. 124.

ment of this Act (a) to the extent in that schedule Sect. 60. mentioned."

Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest.

NOTES.

(c)

(a) Commencement of Act. The Act came into operation on 1st January 1894 (Sect. 63), although it did not receive the royal assent till 20th February 1894. It is therefore retrospective in its operation. See NOTE, Sect. 68 post, p. 289.

(b) The schedule repeals Sects. 15 and 16 (commonly cited as Sects. 16 and 17) of the English Statute of Frauds, but does not repeal the corresponding section of the Irish Statute of Frauds. Nothing in the Act is to affect any enactment relating to the sale of goods which is not expressly repealed [Sect. 61 (3)]. The omission to repeal the Irish Statute seems an oversight.

(c) Compare this proviso with Sect. 38 of the Interpretation Act 1889.2

61.-(1.) The rules in bankruptcy () relating to Sect. 61. contracts of sale shall continue to apply thereto, not- SAVINGS. withstanding anything in this Act contained.

(c)

(2.) The rules of the common law," including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invali

17 William III. c. 12, Sect. 13 (Irish Statutes).

252 & 53 Vict. c. 63.

Sect. 61.

dating cause, shall continue to apply to contracts for the sale of goods.

(3.) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale," or any enactment relating to the sale of goods which is not expressly repealed by this Act.

(4.) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security.

(5)

(5.) Nothing in this Act shall prejudice or affect the landlord's right of hypothec or sequestration for rent in Scotland.()

NOTES.

(a) "Rules in bankruptcy." Among the rules in bankruptcy saved by this sub-section, is the statutory reputed ownership provided by Sect. 44 of the English Bankruptcy Act of 1883.1 See COM., Sect. 17 ante, p. 83. In Scotland, reductions at common law or under the Acts 1621,2 1696,3 or 1856 are preserved. This and the two following sub-sections are framed on the model, and for the most part in the language, of Sect. 97 of the Bills of Exchange Act 1882.5

(b) "Rules of the common law." Where the common law of England and Scotland differs, occasional complications may be expected, as in Talisker Distillery v. Hamlyn and Co. (1893), Affd. H. of L. (1894).

(c) "Law merchant." "There is no part of the history of English law more obscure than that connected with the common maxim that the law merchant is part of the law of the land."8

1 46 & 47 Vict. c. 52.

2 1621, c. 18.

3 1696, c. 5.

4 19 & 20 Vict. c. 79. As examples of reductions affecting the sale of goods, see Wright v. Mitchell (1871), 9 Macp. 516; Gourlay v. Hodge (1875), 2 Ret. 738, and other cases in Appendix II. III. (6) and III. (7). 5 45 & 46 Vict. c. 61. 6 21 Ret. 204.

7 21 Ret. H.L. 21. In consequence of this judgment an Act was immediately afterwards passed to amend the Scottish Law of Arbitration (57 & 58 Vict. c. 13).

8 Blackburn, p. 317. See sketch of the history of the law merchant in England, Blackburn, pp. 317 et seq., also Bell's Com., Preface, p. xi. A more