Sect. 15.

Latent faults.

Sample in
executory sales
and in sales
of specific
goods.

goods may agree with the sample in every respect, but may not correspond with some of those attributes included in the name or phrase by which the genus is described.1

Assuming the goods to correspond both with sample and description, the buyer is further safeguarded against latent faults rendering the goods unmerchantable. Sect. 14 (2) applies to goods bought by description and the present section to goods bought by sample [15 (2) (c)]. In the former case, however, the defect must be such as not to be apparent on a reasonable examination of the goods by the buyer if he happens to have made such an examination, while in the latter case the defect must be such as not to be apparent on a reasonable examination of the sample.2

3

It has been already noticed that description is almost necessarily confined to executory sales, and that the rule is not affected by a combination of description and sample. In this section, however, it is provided without qualification that where the sale is by sample the goods shall be "free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample." In the case of specific goods this appears to alter the previous law both of England and Scotland. A sample of specific goods is often given, and before the Act it reasonably inferred an undertaking that the bulk corresponded with the sample. But the seller did not undertake, nor did the law imply, any obligation as to merchantable quality. This explains the case of Parkinson v. Lee* (1802), which is in sharp contrast to Heilbutt v. Hickson (1872). The distinction between these cases has sometimes been attributed to the fact that in Parkinson v. Lee the seller was a merchant, while in Heilbutt v. Hickson he was a manufacturer, and Lord Esher expressed the opinion that

5

1 See Mody v. Gregson (1868), L. R. 4 Ex. 49, in which "grey shirtings' were conform to sample, but were found to be weighted with China clay, a substance entirely foreign to the description " grey shirtings."

2 Heilbutt v. Hickson (1872), L.R. 7 C.P. 438.

3 Coм., Sect. 13 ante, p. 63.

4 2 East 314. See as to Scotland Couston, Thomson, and Co. v. Chapman (1872), 10 Macp. H.L. 74, and especially remarks of Lord Chancellor Hatherley at p. 80, and Lord Colonsay at p. 84. 5 L.R. 7 C. P. 438. 6 As to sale by a manufacturer see Coм., Sect. 13 ante, p. 65.

in the contract.

the former case was no longer law.1 It is submitted, Sect. 15. however, that as Parkinson v. Lee related to a sale of specific goods, this was a sufficient ground of judgment,2 and that the law in this respect should have been preserved. Sub-section (1) provides that to constitute a sale by Sample a term sample there must be a term in the contract to that effect. The exhibition of a sample does not necessarily make it a term of the contract; but, on the other hand, such a term may be implied from the circumstances without being expressed. Where a sample is made use of it is often difficult to determine whether or not it enters into the constitution of the contract.3

As a term of the contract, care should be taken for the preservation and identification of the sample. To this end there existed an old Scottish practice of sealing the sample.5

1 In Randall v. Newson (1877), 2 Q.B.D. 102 at p. 106. 2 See Benjamin on Sale, pp. 637, 654, 663.

3 The sale was by sample in Watt v. Glen (1829), 7 Sh. 372; Padgett and Co. v. M'Nair and Brand (1852), 15 D. 76; Jowett and Sons v. Stead (1860), 22 D. 1400; Couston, Thomson, and Co. v. Chapman (1872), 10 Macp. H.L. 74; Parkinson v. Lee (1802), 2 East 314; Parker v. Palmer (1821), 4 B. & Ald. 387; Lorymer v. Smith (1822), 1 B. & C. 1; Carter v. Crick (1859), 4 H. & N. 412; Russell v. Nicolopulo (1860), 8 C.B. N.S. 362. Samples were exhibited or referred to, but the sale was held not to be by sample, in Kerr and Sons v. M'Dowall (1828), 6 Sh. 1029; Muil v. Gibb (1840), 2 D. 1227; White and Co. Ltd. v. Dougherty (1891), 18 Ret. 972; Tye v. Fynmore (1813), 3 Camp. 462; Meyer v. Everth (1814), 4 Camp. 22; Gardiner v. Gray (1815), 4 Camp. 144; Powell v. Horton (1836), 2 Bing. N.C. 668; Josling v. Kingsford (1863), 13 C.B. N.S. 447. In Hills v. Buchanan (1786), Mor. 14200, 3 Pat. App. 47, samples were sent after the contract had been completed. The question was one of constructive delivery, but it was explained that the object of sending samples to the buyer was to enable him to distinguish the respective qualities of different parcels of tobacco with a view to re-sale.

Bell's Prin. Sect. 98, quoted and approved by Lord President Inglis in White and Co. Ltd. v. Dougherty (1891), 18 Ret. 972.

5 Cheap v. Cleugh (1713), Mor. 14238. In a case where wheat was sold by sample, a witness for the seller stated that the buyer had tampered with the sample by picking out sprouted and moulded grains, but his evidence was unsupported, and was not credited-Watt v. Glen (1829), 7 Sh. 372. The same suggestion as to tampering with the sample was made in Lamb v. M'Kenzie and Sons (1891), 8 Sh. Ct. Repts. 28, and here also the evidence was held insufficient.

Preservation

and identification of sample.

Sect. 16.

GOODS MUST

BE ASCER

TAINED.

PART II.

EFFECTS OF THE CONTRACT.

Transfer of Property as between Seller and Buyer. (a)

(b)

16. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.

NOTES.

(a) As to changes in the law of Scotland in connection with transfer of property, see Coм., Sect. 1 ante, p. 3.

(b) "Unascertained goods." That is, goods in genere as distinguished from "specific goods," which are defined [Sect. 62 (1)] as "goods identified and agreed upon at the time a contract of sale is made." Even in regard to specific goods the passing of the property is subject to the rules of Sect. 18, while in the case of unascertained or non-specific goods the property does not pass In an 66 in any case. executory sale" the goods are unascertained," but they are not necessarily "future goods" [defined Sect. 62 (1)]. They may be in esse and belong to the seller, but may require to be selected from a larger number or taken from bulk.1

1 The following English cases may be consulted :- Wallace v. Breeds (1811), 13 East 522; Austen v. Craven (1812), 4 Taunt. 644; Busk v. Davis (1814), 2 M. & S. 397; White v. Wilks (1814), 5 Taunt. 176; Shipley v. Davis (1814), 5 Taunt. 617; Campbell v. Mersey Docks Co. (1863), 14 C.B. N.S. 412; Gabarron v. Kreeft (1867), L. R. 10 Ex. 274; Jenner v. Smith (1869), L.R. 4 C. P. 270. In all these cases there was an existing subject, but as the whole was not sold, and no particular part had been appropriated to the contract, no property passed to the buyer. See also Rohde v. Thwaites (1827), 6 B. & C. 388; Dixon v. Yates (1833), 5 B. & Ad. 313; Aldridge v. Johnson (1857), 7 E. & B. 885; Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. Div. 164. The case of Whitehouse v. Frost (1810), 12 East 614, seems con

(c) "Ascertained." The word is not specially defined, but it Sect. 16. may be taken to refer to goods made specific, i.e. "identified and agreed upon" [Sect. 62 (1)]. It has possibly a wider meaning in Sect. 52. See note (c) to that section post, p. 249. "Unconditionally appropriated" seems to have much the same meaning in Sect. 18, Rule (5).

(b)

PASSES WHEN

17.—(1.) Where there is a contract for the sale of Sect. 17. specific or ascertained goods (a) the property in them PROPERTY is transferred to the buyer at such time as the INTENDED TO parties to the contract intend it to be transferred.

(2.) For the purpose of ascertaining the intention () of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.()

PASS.

NOTES.

(a) "Specific or ascertained goods." "Specific goods' mean goods identified and agreed upon at the time a contract of sale is made" [Sect. 62 (1)]. The phrase "ascertained goods" is not defined, but may refer to goods made specific after the contract of sale. Probably the alternative "specific or ascertained" is used because, although "specific" is synonymous with "ascertained," it is not necessarily synchronous. Thus the goods may be specific at the date of the contract, or they may be afterwards ascertained, i.e. made specific. See also Sect. 16, note (c) supra, and Sect. 52, note (c) post, p. 249.

(b) "Property." Defined as "the general property in goods and not merely a special property" [Sect. 62 (1)].

(c) "At such time." E.g. the completion of the loading of a vessel, or despatch of the goods from the vendor's warehouse.2

trary, but is generally disapproved. See Benjamin, 313. In Scotland, under the old law, the property only passed on delivery, which necessarily implied specific appropriation. In Broughton v. Aitchisons (15th November 1809), F.C., the sale related to a portion only of the bulk, and there had been no appropriation, yet the Court held that the property had passed. This case, however, is of doubtful authority, and in the opinion of Bell "is not to be held as a precedent."-Bell's Com. i. 191, note. See also Ross, Leading Cases, Com. Law, ii. 567.

1 Anderson v. Morice (1876), 1 App. Cas. 713. 2 Fragano v. Long (1825), 4 B. & C. 219.

Sect. 17.

(d) Rules for ascertaining the intention are contained in Sect. 18.

(e) "Conduct of the parties." E.g. in weighing, measuring, or putting the goods into a deliverable state. The phrase may mean more than 66 a course of dealing" under Sect. 55. Thus one of the parties may, by his conduct, be barred personali exceptione from affirming or denying the intention to transfer.2

(f) "Circumstances of the case." E.g. the circumstances may be such as to show a ready money transaction in which the transfer is conditional upon payment of the price.

Change in the law of Scotland as to delivery and possession.

Reputed ownership.

COMMENTARY.

This section embodies an important change in the law of Scotland. Formerly the property in specific goods did not pass to the buyer until delivery, now it passes according to the intention of parties irrespective of delivery.3

The former law of Scotland was based on the maxim that "the property of moveables is presumed from possession." "4 In the form, however, of reputed ownership, the law went a step further than a mere presumption which may be overcome by contrary proof,5 and which can only be of importance as between competing parties, neither of whom has a valid independent title. Reputed ownership, where it was recognised, created a right in favour of the creditors of the possessor which was not affected by proof of a latent contrary right. But the strict theory was necessarily

1 As in Logan v. Le Mesurier (1847), 6 Moo. P.C.C. 116, and Gilmour v. Supple (1858), 11 Moo. P.C. C. 551.

2 As in Richmond and Co. v. Railton (1854), 16 D. 403.

3 Sect. 18, Rule 1.

4 Bell's Com. i. 178. "Tradition or delivery in a sale of moveables is important only as a means of obtaining possession, and possession is the true completion of the contract of sale."-Per Lord Justice-Clerk Moncreiff in Orr's Trustee v. Tullis (1870), 8 Macp. 936 at p. 945. The nature and essentials of possession are explained by Lord Neaves and Lord Kinloch in Moore v. Gledden (1869), 7 Macp. 1016 at pp. 1020, 1024. A classified list of Scottish cases relating to possession of moveables will be found in Appendix II. post, p. 312. The following is an English view of the subject:"Possession of goods is prima facie evidence of title, but that possession may be precarious, as of a deposit; it may be criminal, as of a thing stolen; it may be qualified, as of things in the custody of a servant, carrier, or factor. Mere possession without a just title gives no property."-Per Lord Loughborough in Lickbarrow v. Mason (1790), 1 H.Bl. 357 at p. 360.

5 Bell's Prin., Sect. 1314.