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Year Books, 49 H. 6, 18; 10 Ed. 4, 19 - - - 196
13 Ed. 4,9 - - - - 207
17 Ed. 4, 1 - - - 190, 317
Zagury v. Furnell, 2 Camp. 240 - - - 157
Zwinger v. Samuda, 7 Taunt. 265 - - - 299
Page 271, for "Assignment of Transitus," read "Assignment during the Transitus."
It is often of much importance to determine whether a litigant has a legal property in the subject matter of dispute or merely a right of action against a person. The form of the remedy very frequently depends upon the answer to this question; for instance, a plaintiff cannot maintain trover or trespass de bonis asportatis, unless he has a right to the possession of the goods which are the subject of the action; neither can a vendor of goods maintain an action for goods bargained and sold unless the property has been transferred to the purchaser. And not only may the technical forms of action depend upon this, but sometimes the substantial question itself turns upon it; if property is destroyed either by pure accident or by the wrongful act of a party who is unable to pay for it, the loss in general falls upon the owner of the property; and in cases of insolvency, a creditor who has a legal or equitable right to a thing has the full benefit of it, whilst one whose claim is only against the person of the debtor, can obtain no more than a proportion of the insolvent estate along with the other creditors. In such cases, therefore, it is commonly one of the
most important inquiries whether the creditor has any right to some specific property or not.
It is the object of the following Treatise to investigate one branch of this important subject, viz., how the legal interest in moveable corporeal property is affected by a sale of it.
Railway shares, stock, &c., and those kinds of property that are not tangible are of a different nature, and so is the property in the materials on which contracts or documents of title are written, which, in general, is considered as attached to the writing on them. And the law regulating the property in ships in some degree differs from that affecting other moveable property, but as the law respecting them has been treated of by Lord Tenterden, in his Treatise on Shipping, it is not intended to touch upon that subject.
But subject to these exceptions, the law is the same as regards all moveable property, whether it be live stock or dead, manufactured goods or raw material, in short, of everything capable of touch and not fixed to the soil. The object of this Treatise, as already stated, is to discuss how far the property in goods, is, by the law of England, affected by an agreement concerning the sale of them.
By the common law of England, no peculiar form is required to give validity to a contract or agreement. It is essential that there be a mutual assent of both parties as to what is agreed upon, and also (unless the agreement be by deed) that there be a consideration for the engagement of the parties, for if not, the agreement is merely honorary and not enforced by the law; but if these essential circumstances can be shewn to exist the common law is satisfied. The agreement might, at common law, be enforced, if the mutual assent of the parties and the consideration could be proved by any evidence. But by statute law, no contract for the sale of any goods, wares, or merchandize for the price of 10/. or upwards shall be allowed to be good except there be evidence of a particular character. When this evidence exists the effect of the agreement is the same as it would have been at common law.
A contract concerning the sale of goods may be defined to be a mutual agreement between the owner of goods and another, that the property in the goods shall for some price or consideration be transferred to the other, at such a time and in such a manner as is then agreed. If the consideration to be given for the goods is not money, it might, perhaps in popular language, rather be called barter than sale, but the legal effect is the same in both cases.
Such an agreement may have different effects in law upon the ownership of the goods to which it relates. It may be an agreement perfectly binding on the parties so as to give either of them a remedy against the person and general estate of the other for any default in fulfilling his part of the agreement, but having no effect on the property or right of possession in • the goods, and giving the proposed purchaser neither the rights nor the liabilities of the proprietor; so that he has no preferable right to the goods themselves, nor any means of enforcing his demand against them more than any other creditor, and on the other hand he is not liable to any loss arising from the destruction or injury of the goods.
Such agreements are generally called " Executory Agreements
Or it may be an agreement amounting to a bargain and sale of the goods, transferring to the purchaser the general property in the goods, and with it the rights and liabilities attached to property, so that the purchaser has a specific interest in the goods themselves, of which he may avail himself, independently of his remedy against the vendor on the contract, and on the other hand making him liable to the general risk of any loss befalling the goods. Such an agreement is sometimes called an executed sale, but it is more technically called " a bargain and sale of the goods." When goods are bargained and sold, the vendor, if unpaid, still retains certain rights over the goods until they are delivered.
Such being the outline of the law, there are different points which it will be convenient to treat of separately, viz., 1st, What is required to satisfy the provisions of the statute law, and render an agreement concerning the sale of goods capable of being enforced.
2ndly, What agreements amount to a bargain and sale, and what are but executory.
3rdly, What are the rights reserved to a vendor when the general property is transferred to the purchaser, but before it is delivered into his possession.