the remedy of specific performance seems to be generally adopted; 49 and, since the adoption of a system of registering deeds and contracts relating to land, one who has entered into a contract for the purchase of real estate may, in some jurisdictions, by recording his contract, acquire a right against any one who thereafter takes title.50 These changes in the law do not seem, however, to have been considered by writers as making any difference in the risk after a contract of sale. Registration laws and specific performance are not referred to in that connection. It is obvious that the extent of the right to the thing itself which a buyer acquires immediately on the completion of a contract might well be a consideration of great importance. If the buyer acquires by a recorded contract for the purchase of an estate an absolute right against the world to have that property upon paying the price, there is given to the argument of Windscheid quoted above, that a sale is itself an alienation of the property, a force which it does not otherwise possess. It has been in part at least because of the control which the 49 A learned reviewer of the third edition of Fry on Specific Performance, questioning an opinion expressed in that work, that specific enforcement of contracts probably has a more extensive application in England than on the Continent of Europe, says (8 Law Quarterly Review, 251): "If we had to express the difference between English and Continental law in this respect in a few words, we should say that in England specific performance is granted where damages are not an adequate remedy, whilst on the Continent damages are awarded when specific performance is impossible, and also that the means of enforcement are more varied on the Continent than in England." This statement seems borne out by quotations from French and German authorities. Demolombe, Traité des Contrats, 2d ed. vol. I. p. 486; Dernburg, Preussisches Privatrecht, 3d ed. vol. i. p. 276; ForsterEccius, Preussisches Privatrecht, 4th ed. vol. i. pp. 551, 899; German Code of Civil Procedure, §§ 769-779. 50 In France, in 1855, a law was passed having the same general effect as the registration laws generally in force in this country. See Aubry & Rau, Cours de Droit Civil, 4th ed. ii. pp. 56 et seq., 286 et seq. Under this law contracts to sell real estate as well as conveyances may be recorded; and consequently, if recorded, insure the purchaser a right against any one who in fraud of the contract thereafter obtains a conveyance. In Germany registration laws are now generally in force. In some States registration is a necessary element in the transfer of title; in other States it has no more importance than in this country. In Prussia title passes by registration, even though the buyer knows of a previous contract; and so in some other States. Stobbe, Handbuch des Deutsches Privatrecht, § 95. buyer of real estate acquires immediately upon the formation of a contract of sale that the English court of chancery and the courts of some of the United States have held that the contract makes the buyer at once the owner in equity, and the loser by the injury or destruction of the property. But this reasoning seems peculiar to English and American law. Buyer is not bound to return goods wrongly delivered. Risk of loss-under the Sales Act. Risk generally attends title... Risk may by agreement be separated from title. Risk is on the buyer where the seller retains a security title only. 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 The sample not always a representation as to the bulk. 1004 1 The following sections of the Uniform Sales Act 1 state the fundamental duties of buyer and seller of goods. "It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale." 2 "Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods." 3 § 956. Place, time, and manner of delivery. The Sales Act continues: 4 (1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer, is a question 1See supra, § 506, n. 2, for a statement of the jurisdiction, where the statute has been enacted. 2 Sec. 41. Sec. 42. This section was cited and applied in: Bridgeport Hardware Mfg. Corp. v. Bouniol, 89 Conn. 254, 93 Atl. 674; Gruen v. Ohl, 81 N. J. L. 626, 80 Atl. 547; Bernzweig v. Hyman Levin 4 Sec. 43. 5 depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business, if he have one, and if not, his residence, but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery." (2) Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.8 (3) Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall affect the operation of the issue or transfer of any document of title to goods.10 (4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.11 (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller." 12 5 Bridgeport Hardware Mfg. Co. v. Bouniol, 89 Conn. 254, 93 Atl. 674; Leuders v. Fahlberg Works (N. Y. Misc.), 150 N. Y. S. 635; Schiff v. Winton Motor Car Co., 90 N. Y. Misc. 590, 153 N. Y. S. 961, 964; Dressler Beard Mfg. Co. v. Winter Garden Co. (N. Y. Misc.), 158 N. Y. S. 875. "Dordoni v. Hughes, 83 N. J. L. 355, 85 Atl. 353. 7 See supra, § 836. 8 Rochester Distilling Co. v. Geloso, 92 Conn. 43, 101 Atl. 500; Gruen v. Ohl, 81 N. J. L. 626, 80 Atl. 547; Stephens-Adamson Mfg. Co. v. Bigelow, 86 N. J. L. 707, 92 Atl. 398. See also supra, § 38. 'See Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433; Greenfield v. Herrman, 130 N. Y. S. 132, 72 N. Y. Misc. 406, Williston, Sales, § 454. 10 See Williston, Sales, §§ 366, 371, 374. 11 See supra, § 856. 12 This necessarily follows from the duty of the seller to deliver the goods. Williston, Sales, § 456. |