Actions founded on deceit and warrranty. Money had and received. Partners of vendor. Warranty. Trover AS TO VENDOR' OF VENDEE AS TO THIRD RIGHTS AND LIABILITIES OF THE PARTIES. XIXXX The Law OF VENDORS AND PURCHASERS OF CHATTELS. BOOK I. OF THE CONTRACT OF SALE. CHAPTER I. PRELIMINARY CHAPTER. sale. SALE is defined to be the transfer of the pro- Definition of perty from the owner to some other person, in consideration of a price or equivalent recompence (a). There is no essential distinction between sale, and barter or exchange; in the former, Barter. the consideration is money; in the latter, any valuable commodity (b). The law is the same whatever be the quid pro quo; but a consideration of some kind is absolutely necessary, for the maxim is, ex nudo pacto non oritur actio (c). The first consideration naturally is, what persons Parties to are qualified in law to become parties to a con (a) See 2 Bl. Comm. ch. 30; 2 Wooddeson's Lect. p. 210. (b) 2 Bl. Comm. ch. 30. (e) Noy's Max. p. 348 (9th Ed.) Irons v. Smallpiece, 2 B. & A. 351; Bunn v. Markham, 2 Marsh, 532. B sale. Infancy. tract of sale. The general rule is, that all are to be presumed competent unless proved to be Disabilities. affected by some express disability (d). Persons under the age of twenty-one years (e), which is the legal age of discretion, are not held responsible for civil contracts into which they may enter; but as this very disability is a privilege allowed by the indulgence of the law, in order that advantage may not be taken of the inexperience of youth (ƒ), an exception is made in the case of necessaries suitable to the fortune and condition of the infant. The privilege is personal; none therefore, can avail themselves of it, but the infant himself, and on the principle that the privilege ought (as it has been expressed) to be regarded rather as a shield than a sword, most contracts entered into by an infant, are held to be, not absolutely void, but voidable only, and may thereCoverture. fore be ratified on attaining full age. Married women (g) are under a similar disability of binding themselves (or their husbands) by contract, unless it be for necessaries, or unless the authority of the husband has been given either expressly or by implication; and the general rule holds equally where the husband and wife live together, as where (d) Of Disability, see Book I. Chap. ii. (e) Of Infancy, see Book 1. Chap. ii. Sect. 1. Lunacy. they have been separated, whether by the act of either party, by mutual consent, or by the sentence of a Spiritual Court. Idiots and lunatics may bind Idiocy and themselves for necessaries (h) and in general the Courts will not interfere to set aside a contract entered into by one who is non compos, if it appear, that no contrivance or imposition has been practised by the plaintiff, and that no prejudice has resulted to the defendant, from his mental imbecility (i). Persons attainted of felony forfeit Attainder. all their property to the crown, and are consequently disabled to contract from the period of conviction (k). Lastly, Alien enemies are incapa- Alien enecitated from suing in any Court of this realm, and cannot, therefore, during the continuance of hostilities, enforce a contract, even if entered into before the commencement of the war (). In the sale or barter of personal property, no Mode of formal mode of transfer is prescribed by law, whether the sale be by private contract or by public auction (m). The technical niceties, and the instruments of conveyance, which are requisite in the graver matters of alienation of real property, would be cumbersome and useless in the every-day transactions of buying and selling goods. (h) Of Idiocy and Lunacy, see Book I. Chap. ii. Sect. 3. my. transfer. |