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CHAPTER III.

THE EFFECT OF A BARGAIN AND SALE IS TO TRANSFER THE PROPERTY IN THE GOODS WITHOUT ANY DELIVERY; IN THIS RESPECT ENGLISH LAW DIFFERS FROM THE CIVIL LAW.

As has been already observed, the rules which mark the difference between an executory agreement and a bargain and sale, are nearly the same as those which, under the civil law, distinguished between a mere contract to sell, and a perfect sale, "emptio perfecta."

So far as those rules are founded in the nature of things, this is what might be expected; but some of the rules, which are merely technical, have been partially, and as it seems inconsistently introduced into English law. The Civil Law is founded, amongst others, upon two assumed principles, which are not recognised by the English law; one is, that a sale must be for a fixed price in money, and that a contract to part with property for a valuable recompence, not consisting of moneys numbered, cannot be a sale, but must be of a different nature. The other is, that property cannot be transferred by any agree

ment, unless there be an overt act of delivery of possession. Neither of these principles are recognised by the English law, and such of the rules of the Civil Law as are founded exclusively upon them, ought not to prevail in a system in which the principles themselves do not exist. It seems, however, that this has not been always kept in sight by the English judges. The Civil Law consistently declared, that there could not be a perfect sale until the price was fixed in money, though everything else was ascertained; and, consequently, that a contract to sell the whole of a particular parcel of goods, at a price depending upon the number, weight, or measure of those goods, could not be a sale until the goods were numbered, weighed, or measured, for till then the price was not fixed in money. The contract on the part of the vendor was complete, for he was to transfer a specific ascertained thing, in the state in which it then existed, but the consideration was not a fixed sum in money, till the number, weight, or measure was ascertained. This was a defect in the sale, according to the principles of the Civil Law, but it is hard to see why it should prevent the contract amounting to a bargain and sale in English law. In many cases the weighing, &c., may be necessary to ascertain the specific goods; in others may be necessary in order to put the goods into a deliverable state, and in those cases, the reasons are as applicable to English as to Civil Law; but where, as in Zagury v. Furnall (2 Camp. 240), and Simmons v. Swift (5 B. & C. 857), there is nothing unascertained

it

except the money value of the price, and yet the goods are held not to be bargained and sold, there seems little to be said, except that such are the decisions. With this exception, however, the Civil Law seems to differ from the English, where the difference in the fundamental principles becomes material, and to agree with it in other respects.

The following extracts from Pothier's celebrated Treatise Du Contrat de Vente, will be found to throw considerable light upon the subject matter of the last chapter. The reader must remember that Pothier wrote of the Law of France, such as it was modified by the customs of Orleans before the French Revolution, so that his positions are not always to be considered as universally true of the Civil Law, and far less to be taken as authorities for English Law.

The extracts are translated from the edition of Pothier's Works, published by M. Dupin at Paris in 1835. The first extract commences at p. 139 of the second volume, and ends at p. 144; the second extract commences at p. 147, and ends at p. 150.

Pothier Du Contrat de Vente, partie IV.

"It is a principle established in the title of the Digest de peric. et comm. rei vend., that so soon as the sale is perfected, the thing sold becomes at the risk of the purchaser, though it has not been yet delivered, so that if during that time it chance to perish without the fault of the vendor, the vendor is

freed from his obligation, and the purchaser is not on that account freed from his, and is not the less bound to pay the contract price.

"That the vendor should be freed from his obligation when the thing sold has perished without his fault, is a consequence of another principle, that every obligation de certo corpore, is destroyed when the thing ceases to exist, Traité des Obligations, part 3, chap. 6. This principle is founded in the nature of things, for the thing due being the subject of the obligation, it follows, that when the thing ceases to exist, the obligation can no longer exist, not being capable of existing without a subject.

"The second part of the decision, to wit, that the obligation of the purchaser does not cease to exist though that of the vendor be destroyed by the destruction of the thing, seems to be subject to more difficulty; nevertheless, it is true, and is founded in the nature of the contract of sale. This contract is of the number of those which are called consensual, which are perfected by the mere consent of the contracting parties. The delivery of the thing sold, is not necessary for the perfection of the contract. The obligation to pay the price which the purchaser contracts, being then complete, by the mere agreement of the parties which has taken place, and independently of the delivery, it should survive, although the thing sold has ceased to exist, and can no longer be delivered. It is true that so long as the seller is in default by not delivering the thing, he cannot compel payment because he cannot be permitted to demand, that the

purchaser should fulfil his obligation towards him, whilst on his own side he has made default in fulfilling his own. But when the obligation of the vendor is extinguished, in one of the ways in which obligations from their nature may be extinguished, the purchaser has nothing to oppose to protect himself from fulfilling on his part his obligation, which having once been bindingly contracted, cannot be put an end to, save in one of those ways in which obligations are terminated.

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Many moderns who have treated of the law of nature, amongst whom are Puffendorf, Barbeyrac, &c. have thought that the Roman lawyers had in this matter departed from the true principles of natural right; and they maintain, on the contrary, that the thing sold is at the risk of the vendor so long as he remains the owner of it: that it is upon him that any loss befalling that thing should fall, though it was without his fault, unless the purchaser was in default by not receiving it, and in like manner that it is he who should profit from any increase in the thing sold. Their arguments are, first, that it is a maxim recognised by the Roman lawyers themselves, that things are at the risk of their owner, res perit domino. The answer to that objection is, that the maxim is applicable when distinguishing between the owner and those who have the custody or the use of the thing; there the thing perishes to its owner rather than to those who have the custody or the use, who, by the destruction which has befallen the thing without their fault, are discharged from the obligation which they