ELEMENTS

OF

THE LAW OF SALES.

§ 1. Definition:

A SALE OF PERSONAL PROPERTY IS A CONTRACT TRANSFERRING THE GENERAL PROPERTY IN A THING FOR A PRICE CONSISTING OF A SUM OF MONEY OR MONEY'S WORTH.

The limited scope of the present work prevents discussion of the many, and irreconcilable, definitions of a sale that have been laid down by the text-writers and the courts. We call attention, however, to some things which many of the definitions either ignore or else improperly include. In the first place, a sale is a contract, and, therefore, subject to all the general principles of law relating to contracts. The mere transfer of a chattel, it should be further noted, is not a sale, nor is a contract to transfer a chattel a sale, although some of the definitions so imply. Moreover, sale is often confused with barter, from which it may be important, at times, to legally distinguish a sale, despite the fact that, historically, all voluntary transfers of chattels were, originally, of the nature of barter, or of gift. To constitute a sale the general property in the thing is transferred, rather than the thing itself, and it is transferred for a price measured in money or money's worth, as a sum. To

transfer a chattel for a particular coin or "bill," the coin itself, or the bill, being desired on account of its rarity or association, as (say) to transfer a book for a rare coin (the thing and not the mere amount of money being the consideration), is not a sale, but an exchange, or barter. A sale implies a price in a sum of money, a measure of value, and not the mere fact that a piece of money, as a chattel, was transferred in return. Again, a contract to sell, that is, in futuro, is no more a sale than a contract to marry (in futuro) is a marriage. The contract to sell is merely executory. No title passes in such a contract, and the actual sale may never take place. Nevertheless, contracts to sell are so intimately associated with contracts of sale that the law relating to such executory contracts is necessarily involved in the law relating to sales, and such contracts must be duly considered in any general discussion of our subject.

To sum up, a contract which, of itself, transfers the general property in a chattel for a sum of money, or money's worth, as a price, is a sale, or, as often called, a bargain and sale."

66

§ 2. Sales and Kindred Contracts:

As stated in the preceding section, sales are often confused with other transactions which, in some of their features, resemble, more or less, contracts of sale. It is important, however, to distinguish sales from such other transactions, since principles relating to sales do not, necessarily, relate to them, and, often, the rules of law governing such other transactions are entirely different from, or else have no connection with, the law of sales. Again, a statute relating to sales alone would not include a bailment or an exchange, and, as stated before, if a cer