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thing and the price, although the thing has not yet been delivered or the price paid.

Wherever merchandises are sold, not in the lump, but by weight, by number, or by measure, the sale of them is not perfected, and the things sold continue at the risk of the vendor until such time as they are weighed, counted, or measured; but the buyer is entitled to the delivery of them, or to damages, in case of non-performance of the engagement. If, on the contrary, the merchandise has been sold in the lump, the sale is perfected, although the merchandise has not been weighed, counted, or measured. As regards wine, oil, and other things, which persons are accustomed to taste before buying, the sale is not perfected so long as the buyer has not tasted and approved them. A sale made upon trial is always presumed as made under a suspensive condition.

If something has been paid in earnest, each of the contracting parties is at liberty to depart from the promise; he who has given it, by losing the money given; and he who has received it, by restoring two-fold.

A promise of sale is as good as a sale, where there is a reciprocal consent of the parties as to the thing and the price.

Effect of sale

on the transfer

of property.

The price of sale must be determined and specified by the The price. parties. The price must be reasonable, but it is difficult to define what is the just value of a thing. Generally, a just price is that at which things of a similar nature and quality are sold in the same place, at the same time, under the same circumstances, and to any person, without having regard to its extraordinary value— that is, to the price which might be obtained in certain cases and under special circumstances. It may, nevertheless, be left to the arbitration of a third person. If the third person cannot or will not value it, there is no sale. The expenses of the deed, and other accessories to a sale, are at the charge of the buyer (a).

Everything which is in commerce may be sold, unless particular laws have prohibited the alienation of it. The sale by a person of a thing belonging to another is null; but it may give a right to the buyer to sue for damages where he was ignorant that the thing belonged to another.

The sale of moveable property belonging to another by the possessor of it would pass a valid title to one who believed him

(a) French Civil Code, §§ 1582 to 1593.

As respects moveable property, posses. sion gives title.

Proof of the contract.

must be in

existence.

to be the owner of it, or even to a buyer who was not ignorant
that the seller was not the owner, provided the latter has acted
in good faith, and thought that the seller had a right to sell.
The owner of the thing sold and delivered by a bailee or a
borrower to a third person bona fide, has no right to claim the
article from the latter, and far less from another person to
whom the latter may have sold it.

If at the moment of sale the thing sold was lost entirely, the
sale would be null. If a part only of the thing was lost, it is at
the option of the purchaser to abandon the sale, or to demand
the part preserved on having the price determined by public
auction (a).

Purchases and sales may be proved by public deeds, by private contract, by the broker's note duly signed, by the books of the parties, and by parol evidence when the tribunal thinks it admissible. Nevertheless, a sale of patent right must be made by deed; the sale of a ship must be made in writing ; public funds can only be sold by the instrumentality of exchange brokers; sale of goods made voluntarily by public auction can only be made by auctioneers where they are established, or by notaries in other places (b).

United States of America.-A sale is a contract for the transfer of property from one person to another for a valuable consideration, and three things are requisite to its validity; namely, the thing sold, which is the object of the contract, the The thing sold price, and the consent of the contracting parties. 1. The thing sold must have an actual or potential existence, and be capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement. If the subject-matter of the sale be in existence, and only constructively in the possession of the seller, as by being in the possession of his agent or carrier abroad, it is nevertheless a sale, though a conditional or imperfect one, depending on the future actual delivery. But if the article intended to be sold has no existence, there can be no contract of sale. If part of the thing sold be destroyed at the time, it is at the option of the buyer to abandon the sale, or to take the part preserved on a reasonable abatement of price. So, when the parties enter into an agreement for sale and purchase and the consideration partially fails, the buyer has a right (a) French Civil Code, § 2229.

(b) French Code of Commerce, § 109.

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to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement.

Effect of a failure of title.

2. A substantial error between the parties concerning the Substantial error destroys subject-matter of the contract, either as to the nature of the the contract. article or as to the consideration, or as to the security intended, would destroy the consent requisite to its validity. In the case of a purchase of land where the title in part fails, the Court of Chancery will decree a return of purchase money, even after the purchase has been carried completely into execution by the delivery of the deed and payment of the money, provided there had been a fraudulent misrepresentation as to the title. But if there be no ingredient of fraud, and the purchaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase and claiming restitution of the money. The party is remitted to his remedies at law, on his covenants to insure the title. A failure of title in sales of land remits the party back to his covenants in his deed, and if there be no ingredient of fraud in the case, and the party had not had the precaution to secure himself by covenants, he has no remedy for his money, even in a failure of title. This rule applies equally to chattels when the vendor sells without any averment of title, and without possession. In sales of chattels the purchaser cannot resist payment in cases free from fraud, while the contract continues open and he has possession. In respect to land the same rule has been considered to be the law in New York. In South Carolina their courts of equity will allow a party, suffering by the failure of title, in a case without warranty, to recover back the purchase money in the sale of real as well as personal estates. The rule is that a partial, as well as total Failure of failure of the consideration, may be given in evidence by the maker of a note to defeat or mitigate, as the case may be, a recovery. In Indiana, by statute of 1831, in actions upon special- Indiana. ties or other contract, excepting conveyances of real estate and paper negotiable by the law merchant, the defendant may allege the want or failure of consideration, in whole or in part. He may allege fraud, or breach of warranty, and if he shows that the article was of no value, or had been returned or tendered, he destroys the action. In North Carolina, a total failure of North Caroconsideration may be given in evidence in a suit on a promissory

consideration.

lina.

Illinois.

Louisiana.

note, though a partial failure cannot, and the relief is by a distinct suit. In equity, as well as at law, the defendant, for the purpose of preventing circuity of action, may show, by way of defence, in order to lessen or defeat the recovery, a total or partial failure of the consideration, as the case may be, when sued for the consideration of a sale, or upon the security given for the purchase money. In Illinois, by statute a want of title in the vendor of lands may be set up by the vendee on the note given for the purchase money as a failure of consideration. So the true value of the articles sold may be shown in reduction of the price, in cases of sales with warranty, or representation, as well as in cases of fraud, and this is allowed to avoid circuity of action. In Louisiana, the failure of consideration, either in whole or in part, in a contract of sale, has been held to be a defence, as far as it goes, on the principle that matters which diminish, as well as those which destroy the Pennsylvania. demand, may be pleaded in defence of the suit. In Pennsylvania, the discovery by the vendee before payment of incumbrances, is held to be a valid defence in a suit for the purchase money to the amount of the incumbrance where there existed a general or special warranty. The defendant may, by way of defence, show a breach of warranty as to the quality of articles sold, without either returning them or giving notice to the vendor to take them away. In Virginia, it was provided by statute in 1830, that the defendant might allege, by way of plea, not only fraud in the consideration or procurement of any contract, but any such failure in the consideration thereof, or any such breach of warranty of the title or soundness of personal property, as would entitle the defendant in any form of action. to recover damages at law, or to relief in equity. In Ohio, the rule is, that the fraud must go to the whole consideration, or the payment of a note cannot be avoided at law upon the ground of fraud. In Kentucky is the same law, and a plea going only to a part of the consideration is bad. If the defect of title, whether of lands or chattels, be so great as to render the thing sold unfit for the use intended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. In South Carolina, it has been held, that if the deficiency in the quantity of land be so great as to defeat the object of the

Virginia.

Ohio.

Kentucky.

South Carolina.

purchase, the vendee may rescind the bargain; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price; and this doctrine was applied equally to defects in the quantity and quality of land, and for unsoundness and defects in personal property.

3. The price is an essential ingredient in the contract of sale, The price. and it must be fixed or be susceptible of being ascertained in the mode prescribed by the contract, without further negotiation between the parties.

4. Mutual consent is requisite to the creation of the contract, Mutual and it becomes binding when a proposition is made on one side and. consent. accepted on the other. The negotiation may be conducted by letter, as is very common in mercantile transactions, and the contract is complete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence after the receipt of the letter containing the proposal and before any intimation is received that the offer is withdrawn, On the other hand, if A makes an offer to B, and gives him a specific time to answer, A may retract before the offer is accepted, on the ground that until both parties are agreed it is no contract, and either of them has a right to recede, and one party cannot be bound without the other (a).

The statute of frauds has been frequently re-enacted in New York, and is held to be in force in the several states. The Massachusetts Revised Statutes of 1835; the Revised Laws of Illinois of 1833; of Indiana, 1838; of Connecticut, 1838; and of New Jersey, 1794, follow closely the English statute of frauds (b).

British India.-Sale is a mutual and voluntary exchange of Nature of the property for property. A contract of sale may be effected by

the express agreement of the parties or by reciprocal delivery. Sale is of four kinds; it may be a commutation of goods for goods; of money for money; of money for goods, and of goods for money. Sales are either absolute or conditional, imperfect or void. An absolute sale is that which takes effect immediately; a conditional sale is that which is suspended on the consent of the proprietor. An imperfect sale is that which takes effect on seisin. A void sale is that which can never take effect, where the articles given are of no legal value. The considera

(a) Kent's Commentaries, Vol. 2, p. 602, and following. (b) Ibid. p. 669.

contract.

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