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WHAT AGREEMENTS AMOUNT TO A BARGAIN AND SALE, AND WHAT ARE BUT EXECUTORY.
GENERAL RULES TO ASCERTAIN WHETHER AN AGREEMENT AMOUNTS TO A BARGAIN AND SALE OR NOT. THE INDIVIDUAL GOODS MUST BE AGREED UPON, BUT THE APPROPRIATION MAT BE SUBSEQUENT TO THE MAKING OF THE ORIGINAL CONTRACT, AND MAY BE BY DETERMINATION. OF AN ELECTION.
The next question to be considered is, what are the circumstances under which a contract (good within the statutes) amounts to a bargain and sale of goods, so as to operate as an actual sale of them, and when not?
This is, properly speaking, a question depending upon the construction of the agreement, for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this, as in other cases, the parties are apt to express their intention obscurely, very often because the circumstances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the fundamental point to be ascertained, the Courts have adopted certain rules of construction which in their nature are more or less technical; some of them seem very well fitted to aid the Court in discovering the intention of the parties: the substantial sense of others may be questioned.
The parties do not contemplate a bargain and sale till the specific goods on which that contract is to attach are agreed upon. When the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfilment of any conditions; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when anything is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shews a contrary intention. The parties may lawfully agree to an immediate transference of the property in goods, although the seller is to do many things to them before they are to be deliverable, and, on the other hand, they may agree to postpone the vesting of the property till after the fulfilment of any conditions they please.
These rules require a careful examination of the cases in which they have been applied, in order to perceive their precise meaning and force. (a)
The goods must be specified.
The first of them that the parties must be agreed as to the specific goods on which the contract is to attach before there can be a bargain and sale, is one that is founded on the very nature of things. Till the parties are agreed on the specific individual goods, the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold.
This rule has existed at all times; it is to be found in the earliest English law books. In the Year Book (18 Ed. 4, 14), the Justices all agreed that a grant
(a) They are nearly, but not quite equivalent to the text of the Digest: Si id quod venierit appareat quid quale quantum sit et pretium et pure venit perfecta est emptio. "When the thing to be transferred under the contract of sale has been ascertained in its individuality, its state, and its quantity, and the price is fixed and the transference is to be unconditional, the contract amounts to a perfect sale;" but as this concise statement requires a good deal of explanation, the reader is referred to the extracts from Pothiep, post.
to kill and take a deer in the grantor's park conferred no property in any deer; but Brian (then Chief Justice) said, "But if I have a black deer amongst "others in my park, I can grant him, and the grant "is good; and if I have two amongst the others "known, and I grant one or both of them, the grant "is good, for this, that it is ascertained what thing is "granted."
Lord Coke (a) uses a very similar illustration: "If "I have three horses, and I give you one of them, in "this case the election ought to be made in the life"time of the parties, for inasmuch as none of the "horses is given in certain, the certainty, and thereby "the property, begins by election."
It makes no difference, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such a case the reason still applies: the parties did not intend to transfer the property in one portion of the stock more than in another, and the law which only gives effect to their intention, does not transfer the property in any individual portion.
Thus in White v. Wilks (b), in 1813, where the agreement was for the sale of 20 tons of oil in the vendor's cisterns, and in point of fact the vendor had many cisterns with much more than 20 tons in them. Sir J. Mansfield, C. J. held, at Nisi Prius, that no property had passed to the purchaser, because the contract did not attach on any particular portion of
(a) Heywood's Case, 2 Coke, 36.
oil, and the Court of Common Pleas approved of this decision. And in Busk v. Davis (a), in 1814, in which case the agreement was for the sale of " 10 tons of Riga flax, marked P. D. R., at Davis's wharf, ex Vrow Maria," and the vendors had more than 10 tons of flax of this description lying at Davis's wharf, in mats varying in size; and nothing was done to sever 10 tons from the rest; the King's Bench decided that no property passed. Lord Ellenborough said, "The flax was to be weighed, and the portion of the "entire bulk to be delivered was to be ascertained, and "if the weight of any number of unbroken mats was "insufficient to satisfy the quantity agreed upon, it "would have been necessary to break open some "mats in order to make up that quantity. There"fore it was impossible for the purchaser to say that "any precise number of mats belonged exclusively to "him. If the weight did not divide itself in an "integral manner, it would be necessary to break "up and take some fraction of another mat: every "component part, therefore, was uncertain;" and Le Blanc, J. remarked, that every thing required to make a complete sale had been done but one. "It was to "be ascertained what goods the vendee was to have; "now that is the point where the case is defective "* * * something was to be done to ascertain the "individuality."
Several similar decisions were come to about the same time: Wallace v. Breeds (b), Austin v. Craven (c),
(a) Busk v. Davis, 2 M. & S. 397.