Warranty from defects implied.

tion may consist of whatever articles bearing a legal value the seller and purchaser may agree upon. There must be two parties to every contract of sale, and it is sufficient that the parties have a sense of the obligation they contract. A minor, with the consent of his guardian, or a lunatic in his lucid interval, may be contracting parties. It is essential to the validity of every contract of sale that the subject of it and the consideration should be so determinate as to admit of no future contention regarding the meaning of the contracting parties. It is also essential that the subject of the contract should be in actual existence at the period of making the contract, or that it should be susceptible of delivery either immediately or at some future definite period. When payment is deferred to a future period, it must be determinate, and cannot be suspended on an event the time of the occurrence of which is uncertain, though its occurrence is inevitable. A warranty as to freedom from defect and blemishes is implied in every contract of sale. And where the property sold differs either with respect to quality or quantity from what the seller had described it, the purchaser is at liberty to recede from the contract. When the property has not been seen by the purchaser, nor a sample, he is at liberty to recede from the contract, provided he may not have exercised any act of ownership. But though the property has not been seen by the seller, he is not at liberty to recede from the contract, except in a sale of goods for goods, where no option was stipulated. A purchaser who may not have agreed to take the property with all its faults, is at liberty to return it to the seller on the discovery of a defect of which he was not aware at the time of the purchase, unless while in the hands of the purchaser it received a further blemish; in which case he is only entitled to compensation. But, if the purchaser have sold such faulty articles to a third person, he cannot exact compensation from the original seller, unless he was precluded from returning it to the original seller. In a case where articles are sold, and are found on examination to be faulty, complete restitution of the price may be demanded from the seller, even though they have been destroyed in the act of trial, if the purchaser has not derived any benefit from them; but if the purchaser had made beneficial use of the faulty articles, he is only entitled to proportionate compensation. If a person sell an

article which he had purchased, and be compelled to receive back such article, and to refund the purchase money, he is entitled to the same remedy against the original seller, if the defect be of an inherent nature. If a purchaser, after becoming aware of a defect in the article purchased, make use of the article, or attempt to remove the defect, he has no remedy against the seller, such act on his part implying acquiesence. It is a general rule, that if the articles sold are of such a nature as not easily to admit of separation or division without injury, and part of them, subsequently to the purchase, be discovered to be defective, or to be the property of a third person, it is not competent to the purchaser to keep a part and to return a part, demanding a proportional restitution of the price for the part returned. In this case he must either keep the whole, demanding compensation for the proportion that is defective, or he must return the whole, demanding complete restitution of the price. It is otherwise where the several parts may be separated without injury. The practices of forestalling, regrating, and engrossing, and of selling on Friday after the hour of prayer, are all prohibited, though they are valid (a).

Sales on inon sample.

spection and

Germany.-An offer of sale by circulars or prospectuses is not a binding offer. A purchase on inspection or trial is conditional on such inspection and acceptance of the article. The purchaser is not bound till he has accepted it; but the seller ceases to be bound, if the purchaser does not signify his acceptance at the stipulated or usual time. And if the goods have already been delivered, the silence of the purchaser, after the expiration of such time, is considered as an acceptance. A sale on sample is not conditional, but the seller binds himself to deliver the goods equal to the sample. The delivery of the Delivery. goods must be made at the place named in the contract, or at such a place as is implied from the nature of the contract or the meaning of the agreement. If nothing is provided on the subject, the delivery of the goods must be made at the place where the seller has his warehouse, or, in want of it, where he resided at the conclusion of the contract. The price must be paid Price. on delivery, unless otherwise provided. The purchaser must make the payment at his own risk and expense, and at the warehouse or residence of the seller. The seller is bound to take care

(a) Moohummadan Law, by W. H. Macnaghten.

of the purchaser and seller.

of the goods, so long as the buyer does not delay in receiving them. If the buyer delays the reception of the goods, the seller may deposit them in a public warehouse, or with a third person, at the buyer's risk and expense. The seller is also entitled, after notice given, to have the goods sold by public auction or even by private sale, at the current price, through a broker or Mutual duties auctioneer. If the goods are likely to be spoiled, and there is danger in delaying the sale, no previous notice would be requisite. The seller must send notice of the sale to the buyer without delay; if he omits to do so, he would have to pay damages. If the goods are to be sent to the buyer from another place, and the buyer has given no instruction about the mode of transport, the seller is authorised to make the arrangement. After the delivery of the goods to the forwarding agent or carrier, the goods remain at the risk of the buyer. If, however, the buyer has given orders about the mode of transport, and the seller, without any urgent reason, transgresses them, he will be responsible for the neglect. Where the goods are sold at a price including the delivery at the buyer's place, the risk of transport to that place rests with the seller. But the simple fact that the seller is to pay the expenses of carriage is not sufficient to prove that the delivery was to be made at the place of the buyer, and that the seller was to undertake the risk. The buyer is bound to receive the goods if they are according to the contract; and must receive them at once, unless otherwise agreed. If the goods are forwarded from another place, the buyer must examine them immediately, or as soon after the delivery as possible, and if the goods are not according to contract, he must at once give notice of the same to the seller. If he omit to do so, the goods are considered as accepted, unless there are faults which could not be found by an examination on the spot. As soon as such faults are discovered, immediate notice must be given of them. If the buyer objects to the goods, he must take care of them in the meantime. When faults are discovered on the delivery, or afterwards, the buyer should show the goods to experienced persons, who are to give their written opinion on it. The buyer cannot object that the quality of the goods is not according to contract, if he cause six months to elapse after the delivery. Unless otherwise agreed on by special custom, the seller bears the expenses of the delivery, especially when the goods are to

be measured, or weighed, and the buyer those of the receipt. If the market price has been stipulated as the purchase price, the same is understood to be that which is fixed by the authorities at the time and place when the contract was made; or if no price was fixed, or the same is found incorrect, the average price of the sale contracts will be taken as the price. If the buyer delays the payment, and the goods have not been delivered, the seller may either demand the execution of the contract, or sell the goods on account of the buyer, and ask damages, or rescind the contract altogether. If the seller delays the delivery, the buyer may either demand the fulfilment of the contract, or seek damages, or rescind the contract. If the buyer, instead of demanding the fulfilment of the contract, seek for damages, the amount of damages will be the difference between the purchase price and the market price at the time and place where delivery was to have been made (a).

Italy. The Sardinian code has provisions equal to those of the French code (b).

Portugal.-A sale is a contract by which the vendor binds. himself to deliver certain articles, and the purchaser to pay for them at a price agreed upon. The sale may be pure and simple, or upon certain conditions. When the price is not mentioned,

the contract is to be considered concluded at the current price on the day and at the place of delivery, as declared by practical men. A sale made by correspondence is considered as concluded at the time when a mutual consent has been obtained. Commercial contracts may be concluded by parol, whatever the amount of the goods or their value may be; but oral evidence is not admitted until after a commencement of proof in writing has been given, or unless it be allowed by the courts. The general law on contracts is the same as the French (c).

(a) German Code, §§ 337 to 359.

(b) Sardinian Code, 1605 to 1635.

(c) Portuguese Code, §§ 458 to 478.

What is the market price.

VOL. I.

X

The delivery must be at the

time and place specified.

Delivery must

be of the

whole and not of part.

SECTION IV.

DUTIES OF THE SELLER.

BRITISH LAW.

§ 1. Delivery.

The first duty of the seller is to deliver the thing sold. He must deliver the goods by the time and at the place specified in the contract. Where he contracts to deliver the goods on a certain day, he has the whole of the day, and if in one of several days, the whole of the days, for the performance of his part of the contract; but he must do all he can to complete the delivery at a convenient hour before midnight, and in sufficient time for examination and receipt, and until the whole day, or the whole of the last day has expired, no action will lie against him for the breach of such contract (a).

So if the delivery is to be performed at a certain place on a specific day, the tender must be to the other party at that place, and as the attendance of the other is necessary at that place to complete the act there, it is not necessary for the other party to be present through the whole day, provided he be at the place on a part of the day, and at a convenient time before sunset, so that the act may be completed; and if the party tender goods before sunset, that is sufficient (b). A tender of goods purchased at the warehouse, at an hour which leaves him time enough for completing the delivery before twelve o'clock at night, is sufficient. If the contract makes no mention of the time of delivery, the seller undertakes to put the buyer in possession of the goods sold without delay, or in a reasonable time. Where the contract is silent as to the place of delivery, the seller must deliver at the place where the thing sold was at the time, except the delivery was intended to take place elsewhere.

When the contract is not divisible, and for an entire quantity, the seller is not bound to comply with the request of the vendee to deliver a part only, and should he refuse to accept the whole the vendor may abandon the contract (c).

(a) Startup v. Macdonald, 6 M. & G. 600.

(b) Startup v. Macdonald, 6 M. & G. 600.

(c) Kingdom v. Cox, 2 C. B. 661.