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self possesses (6), it follows that no sale would, under any circumstances, have the effect of divesting the property from the true owner, where the title of the vendor has been wrongfully acquired. For the security, however, of innocent purchasers, this rule is confined to private and secret sales ; and however wrongful or illegal may have been the title of the vendor, the property, by a sale for valuable consideration in market overt (c), is ab- Sale in marsolutely altered, and the vendee acquires a title which is good against the whole world. But an exception is made in one species of chattel, to wit, horses, because (saith Blackstone) a horse is Sale of so fleet an animal that the stealers of them may fly far off in a short space, and be out of reach of the most industrious owner (d). Therefore, to change the property in a horse against the owner, not only must the sale be in market overt, but certain formalities prescribed by statute (e) must be strictly adopted.
An important division of the law of sale relates Reciprocal
rights and to the reciprocal rights, duties, and liabilities of liabilities of
parties. the vendor and purchaser, and the remedies provided by law to enforce those rights.
(6) Nemo potest plus juris ad alium transferre quàm in ipso est. Noy's Max. p. 339, (9th Ed.)
(c) Of Sale in Market Overt, see Book I. Chap. vi. (d) 2 Comm. ch. 30. 2 Inst. 714.
(e) 2 Ph. & Mar. c. 7 ; 31 Eliz. c. 12. See Book I. Chap. vi. Sect. 2.
cial remedies of vendor.
Extra-judi- After the bargain of sale has been completed,
but before the price has been paid, or the possession of the goods has been parted with, the vendor possesses the extrajudicial right of Lien, i. e. the right of retaining the goods as a security for the price (f). Even after the possession is lost by the vendor, while the property, not being absolutely vested in the purchaser, remains in transitu, a species of contingent lien continues. The vendor
is entitled to exercise this right (technically termed Stoppage in Stoppage in transitu), and to resume possession of
the goods, in cases where the intermediate bankruptcy or insolvency of the purchaser deprives him of the reasonable chance of obtaining payment (g).
When the contract of sale between the parties is concluded, if the purchaser departs from his
engagement, and refuses to accept the goods, the Assumpsit vendor may maintain an action of Assumpsit (h) cepting. on the special contract for not accepting. Or, if
the property has been transferred to the purchaser,
and the price has not been paid, the vendor may Assumpsit bring assumpsit (or debt) for goods bargained and fur goods sold, or for goods sold and delivered. Rights of
On the other hand, where default is made on the part of the vendor, the vendee has certain
Judicial remedies of vendor.
for not ac
(f) Of Lien, see Book II. Part 1. Chap. i.
remedies to compel performance of the agreement. When the contract has been legally entered into, and the price duly paid or tendered, if the vendor refuses to deliver the goods, the purchaser may sue in Assumpsit on the special contract for not Assumpsit delivering (i). Or if the property and right of livering. possession have vested in the purchaser, although the actual possession may remain in the seller, an action of Trover (k) for the goods may be supported. Trover.
Further, after the contract is finally concluded, by the delivery on one side and payment on the other, a cause of action may arise against the vendor, on the ground of a breach of Warranty (1) Action of of the goods. In general this action must be founded on express warranty. The Civil law, in this respect, was much more favourable to purchasers than the English law; their rule being that the vendor was bound to warrant the subjectmatter of the sale against all defects, whether he were cognizant of them or not (m); and moral writers have urged, that the seller is bound in foro conscientia to make known to the purchaser the defects with which he is himself acquainted (n).
(1) Of Assumpsit by vendee, see Book II. Part 2. Chap. i.
(m) “ Certiores faciant emptores quid morbi vitiive cuique sit.” D. lib. xxi, t, 1. 1. i. §. 1.
(n) See 1 Poth. Obl. p. 7. Paley Mor. Phil. vol. i. b. 3 c. vii. Grotius, 1. ii. c. xii, s. 9. Cic. de Off. lib. iii. 13.
Maxim ca. With us, nevertheless, the maxim “caveat emptor”
is more generally applicable. If the purchaser act so improvidently, as to neglect taking the necessary precautions for ascertaining the quality of the goods which he bargains for, he must pay the penalty of his negligence; for the ancient maxim of law is “vigilantibus, non dormientibus leges subveniunt.” And mere vague expressions which are usual to sellers, who praise at random the goods which they are desirous to dispose of, will not amount to a warranty (o). If the vendor, however, expressly undertakes, at the time of the sale, that the quality of the goods shall accord with the description given, or with a sample exhibited, he will be bound by his undertaking. Yet if the purchaser himself was aware of the defects, he cannot afterwards take advantage of them; on the principle of the maxim " scientia utrinque par pares facit contrahentes ” (p). It must be observed that the maxim “caveat emptor" is never to be understood as applying to cases of actual fraud ; for even where a commodity is expressly sold with all faults, this will not protect the vendor, if it can be proved that there were any latent defects which he used artifice and contrivance to conceal (9).
The collateral rights and liabilities of vendor rights and
(0) Sugd. Vend. p. 3. “Simplex commendatio non obligat."
and purchaser are scarcely less important than liabilities of
the parties. their mutual obligations.
Partners (r) are liable in general for all engage- Partners. ments entered into by their co-partners ; or, as Lord Kenyon has broadly expressed it, “one partner may pledge the credit of the firm to any ex
The rule holds equally in the case of general trading partnerships, as in cases where the parties have held themselves out as partners in a particular transaction. No private understanding, or express arrangement, among the partners themselves, limiting or qualifying the extent of their liability, can avail them in respect of third persons without notice (s). Therefore, partners in name (although not really interested), and partners in interest (although dormant or secret), are involved in a common liability.
The rights of vendor against Sureties(t), or third Sureties. persons entering into a collateral undertaking to guarantee payment of the price by the purchaser, forms an important subject of consideration. The claim against a surety is said to be strictissimi juris (u); and accordingly, to establish his liability on the vendee's default, the plaintiff must prove a
(r) Of Vendee's Partners, see Book II. Part 3. Chap. i. Of Vendor's Partners, see Book II. Part 4. Chap. i.
(s) Waugh v. Carver, 2 H. Bl. 235.
(u) Per Lord Ellenborough, C. J., Bacon v. Chesney, 1 Stark. N. P. C. 193.