8. 17 (1). (2) Hire Another class of cases are hire-purchase agreements, where the property does not pass till all the instalments are paid (f). So, also, cases of goods sent on approval, &c., under s. 18, Rule 4. purchase But these two classes of cases would seem to be rather bailments, agreement. with an option of purchase, the same act of the buyer operating sent on (3) Goods both as an acceptance of the contract, and as a transfer of the approval, &c. property-cases, in fact, of what Mr. Benjamin (g) calls "conditional assent." But they are sufficiently illustrative of the above-quoted rule. Contract for the sale of specific or ascertained goods.—It is not very clear what the exact meaning of "specific or ascertained" is. The two latter words may be intended to be merely a further definition of "specific," which is unnecessary, as the term is defined in s. 62 (1) (h). In that event s. 17 will apply only to goods "identified and agreed upon at the time of the contract." There is this advantage in this interpretation, that thereby a better logical balance of ss. 16 and 17 is preserved; the former dealing only with unascertained goods, and the latter only with specific, and both laying down general rules; and s. 18 stating, with regard to both classes, the particular rules. If, on the other hand, "or" is to be read as disjunctive, then the word "ascertained" would appear to mean "subsequently ascertained," and the section then contains the common law rule, as stated by Parke, B., in Wait v. Baker (i), that, even after ascertainment, the question still remains one of intention as to the passing of the property. But it is possible that "ascertainment" is intended to be defined by s. 18, Rule 5 (1), as "unconditional appropriation." See on this the notes to s. 16, ante, p. 111. It is noticeable that the same words are found in s. 52, which reproduces s. 2 of the 19 & 20 Vict. c. 97, the word in the original Act being "specific" only. It would seem that under s. 52, at any rate, by the addition of the words "or ascertained," some extension of the cases to which the section is applicable was intended; and, the same words being used in s. 17 of this Act, it is submitted that "ascertained" is not intended to be synonymous with "specific," but meant to cover the case of subsequently ascertained goods, the "or" being read disjunctively. For the purpose of ascertaining the intention, &c.-This sub (f) Ex parte Crawcour (1878), 9 Ch. D. 419. (g) p. 67. (h) Lord Blackburn speaks of "a specific ascertained article," and of an article "specific and ascertained." See Seath v. Moore (1886), 11 Ap. Ca. S. 17 (2). S. 17 (2). section appears to include all the facts that can be proved in evidence to show the intention of the parties as to the passing of the property. Terms of the contract-e.g., a "hire-purchase" agreement, with a stipulation that the property shall pass only on payment of all instalments (k). Conduct of the parties.-This, as Mr. Lely points out (1), may mean more than "course of dealing" under s. 55. But it is impossible to say with certainty what its exact meaning is; it may include cases where the seller is estopped by his conduct from denying the transfer of the property (m). See also s. 21 (1). Circumstances of the case-e. g., a sale by a tradesman, from which an intention may be inferred that the goods are to be paid for on delivery (n). Other cases will be found in the Illustrations, infra. S. 18 also in its various rules contains the particular presumptions deduced from the special circumstances of the case. ILLUSTRATIONS. 1. A. agrees to sell B. a quantity of iron on the condition that certain bills, then outstanding against A., should be taken out of circulation. A part delivery is made, but B. does not take up the bills. A. may maintain trover against B. for the iron delivered. Bishop v. Shillito (1819), 2 B. & A. 329a. 2. B. orders of A. a piano to be delivered at the premises of C., a packer, and to be paid for in ready money. A.'s servant delivers at C.'s premises, C. being away, on the understanding that the piano should be paid for before it was delivered to B. C. delivers to B., who does not pay A. A. may maintain trover against C. Loeschman v. Williams (1815), 4 Camp. 181 (0). 3. A. agrees to sell to B., for a lump sum of 9007., a particular house and the furniture therein. The property in the furniture vests in B. on the completion of the sale of the house, the contract being entire. Lanyon v. Toogood (1844), 13 M. & W. 29 (p). 4. A. agrees to sell to B. a lease of premises, containing a greenhouse, with the chattels therein, for 497. A. never makes a good title to the lease and greenhouse, but B. removes and uses the chattels. The property in the chattels vests in B. on his acceptance of them as aforesaid. Sleddon v. Cruickshank (1846), 16 M. & W. 71. 5. A. agrees to sell to B. a specific hydraulic press, payment to be made before delivery within a specified time. Within the time B. tenders the price. The press becomes B.'s property on the tender. Cohen v. Foster (1892), 61 L. J. Q. B. 643. (k) Ex parte Crawcour (1878), 9 Ch. (1) Annotated Acts, No. 2, p. 11. (n) Bussey v. Barnett (1842), 9 M. & W. 312; 1 Sm. L. C. (9th ed.) P. 166. (0) Though the decision was that the goods could be stopped in transit, the case seems really to be one in which the property was involved. (p) See also Neal v. Viney (1808), 1 Camp. 471. S. 18. 18. Unless a different intention the appears, following are rules for ascertaining the intention Rules for of the parties as to the time at which the property intention. in the goods is to pass to the buyer. Unless a different intention appears-i. e., a different intention may appear from a consideration of the facts and circumstances mentioned in s. 17 (2), ante, p. 116; or the express agreement, course of dealing, or usage mentioned in s. 55. For the special instance of a contrary intention with respect to incomplete chattels, see notes to s. 18, Rule 2, post, p. 120. Rules for ascertaining.-"The agreement is just what the parties intended to make it. If that intention is clearly and unequivocally manifested, then cadit quæstio. But parties very frequently fail to express their intention, or they manifest them so imperfectly as to leave it doubtful what they really mean, and when this is the case, the Courts have applied certain rules of construction which, in most instances, furnish conclusive tests for determining the controversy "(q). These tests are set out in the rules to s. 18. As to the time when.-This phrase includes the "future time" and "conditions" spoken of in s. 1 (3), ante, p. 7. Property in the goods. The expression "goods," including both specific and unascertained goods. Rule 1. Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. ascertaining Parke, J., well explains the law embodied in this rule in the S. 18, Rule 1. following words in Dixon v. Yates (r): "I take it to be clear that, by the law of England, the sale of a specific chattel passes the property in it to the vendee without delivery. .. Where there is a sale of goods generally (s), no property in them passes till delivery (t); because, until then, the ... (9) Benj. p. 274. (r) (1833), 5 B. & Ad. at p. 340. (8) As.under ss. 16 and 18, r. 5 (1). (t) i.e., some act of appropriation under s. 18, r. 5 (1). See Benj. p. 677, on this use of the word. S. 18, Rule 1. very goods sold are not ascertained. But when by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery (u) of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." Other statements of the law are to the same effect (v). An unconditional contract. The parties may impose what conditions they please to the transfer of the property under ss. 1 (2) and 17 (1) (w). Instances are given in Rules 2-4 to s. 18. Specific goods.-Defined in s. 62 (1) as "goods identified and agreed upon at the time the contract of sale is made." In a deliverable state.-Defined in s. 62 (4) as "such a state that the buyer would, under the contract, be bound to take delivery of them." Where the goods are not in a deliverable state, Rule 2 applies. Property-i. e., under s. 62 (1), the "general property." Passes when the contract of sale is made-i. e., the same act that shows an acceptance by the parties of the "agreement to sell," shows also that the contract is at the same time a under s. 1 (3). sale" Time of payment . . . or delivery postponed.-"The right of property and the right of possession are distinct from each other; the right of possession may be in one person, the right of property in another. . . . The fact in this case that the hay was not to be paid for till a future period, and that it was not to be cut until it was paid for, makes no difference, provided it was the intention of the parties that the vendee should, by the contract, immediately acquire a right of property in the goods, and the vendor a right of property in the price" (x). "Delivery" is defined in its true sense in s. 62 (1) as “voluntary transfer of possession." It was constantly used in the cases in the sense of "appropriation." (u) See note (t), on preceding page. (v) See in particular Gilmour v. Supple (1858), 11 Moo. P. C. 551; and per Lord Blackburn, in Seath v. Moore (1886), 11 Ap. Ca. at p. 370. (w) See also per Cur., in Calcutta, &c. Co. v. De Mattos (1863), 32 L. J. Q. B. at p. 328. (x) Per Bayley, J., in Tarling v. Baxter (1827), 6 B. & C. 360. ILLUSTRATION. A. agrees to sell, and B. to buy, for 1457., a specific stack of hay, then standing in a certain field, to be paid for in a month, and not to be cut till payment, and to be allowed to stand in the field for some months. Notwithstanding these stipulations, the property in the stack is transferred to B. immediately the contract is complete, and (the stack having been destroyed by fire) B. must bear the loss. Tarling v. Baxter (1827), 6 B. & C. 360. S. 18, Rule 1. Rule 2. Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof. This rule is taken from Lord Blackburn's first rule (y) for S. 18, Rule 2, ascertaining the intention of the parties, with the addition as to notice to the buyer, which is new. Under this rule the single presumed condition precedent to the passing of the property is that the seller shall put the goods into a deliverable state, as defined in s. 62 (1); and the condition is presumed because the seller "is bound" by the contract to the act which has the result of putting the goods in that state. The reason for the rule is well put by Lord Blackburn in the following passage (z). "In general, it is for the benefit of the vendor that the property should pass; the risk of loss is thereby transferred to the purchaser, and as the vendor may still retain possession of the goods, so as to retain a security for payment of the price, the transference of the property is to the vendor pure gain. It is therefore reasonable that when by the agreement the vendor is to do something before he can call upon the purchaser to accept the goods as corresponding to the agreement, the intention of the parties should be taken to be, that the vendor was to do this before he obtained the benefit of the transfer of the property. The presumption does not arise if the things might be done after the vendor had put the goods in the state in which he had a right to call upon the purchaser to accept them, and would be unreasonable where the acts were to be done by the buyer, who would thus be rewarded for his own default." (y) Blackburn, p. 174, reproduced in Benj. p. 281. |