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eight states and territories. The Sales Act, drafted at the instance and under the supervision of these Commissioners, was adopted at the meeting of the conference at St. Paul in 1906, and recommended for passage. It has so far (1909) been enacted in Arizona, Connecticut, New Jersey, Massachusetts, Rhode Island and Ohio. It is probable that it will be enacted by a majority of the states within a few years. It is chiefly a codification of existing law.

This article will follow the classification of the Sales Act, and the principles of the law of sales will be stated in the language of that Act, with such explanations and illustrations as seem advisable and as space permits. The captions of the chapters and many of the sub-sections of this article are taken from the statute as passed in Rhode Island.

CHAPTER I.

FORMATION OF THE CONTRACT.

§ 2. Contracts to sell and sales. "A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price" (1).

It is important at the outset to understand the distinction between a contract to sell and a sale, a distinction that must always be kept in mind, in studying the subject of the law of sales. A contract to sell transfers no interest in the property which is the subject of the sale, but gives only a right in personam against the other contracting party. A sale transfers the property in the goods to the buyer. It produces a right in rem, a right in the property, good against all the world. The distinction is sometimes expressed as one between an executory and an executed contract of sale. "A contract to sell, that is, in future, is no more a sale than a contract to marry is a marriage" (2). If, according to the contract, the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, there is a contract to sell; but if the trans

(1)

Sales Act, sec. 1.

(2)

Gillette, J., in Still v. Cannon, 13 Okl., 491.

fer of the property in the goods is to take place at the time of the transaction, there is a sale. If this distinction is kept constantly in mind, the principles of the law of sales and the cases will be easily understood. The term "contract of sale" is ambiguous and includes both a contract to sell and a sale.

§ 3. Contracts of sale are simple contracts. A sale being a contract, all the elementary principles of the law of contracts are applicable to a contract of sale, whether it be a contract to sell or a sale. There must be offer and acceptance, mutual assent, consideration, and freedom from misrepresentation, fraud, duress, undue influence, and illegality, to the same extent as in any other contract. All of these matters are fully discussed in the article on Contracts in Volume II of this work.

A transfer of property by operation of law is not a sale. For example, where a defendant pays a judgment in trespass, trover, or detinue, for the full value of the plaintiff's goods and the title to the goods passes to the defendant; or where one who has been wrongfully dispossessed of his goods waives the tort and recovers the value of the goods on the theory of a fictitious sale, the election of the plaintiff to waive the tort, in effect making the wrongdoer the rightful owner of the goods-these are not sales.

§ 4. Absolute and conditional contracts to sell and sales. Conditions precedent. "A contract to sell or a sale may be absolute or conditional" (3).

(3) Sales Act, sec. 1.

In a contract to sell or in a sale there may be expressed or implied conditions, the most common being that the property (title) shall not pass until the price is paid. The goods are delivered to the buyer, but the property in the goods is retained by the seller until they are paid for. The condition may be a condition precedent or a condition subsequent. If it be a condition precedent, the condition must be performed before the property in the goods passes to the buyer; e. g., the delivery of goods to the buyer on condition that title shall remain in the seller until the price is fully paid. Often there is a contract of sale of specific goods to which something remains to be done. When anything remains to be done to the goods, by the seller, for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, the doing of such thing is a condition precedent to the transfer of the property, although the goods are ascertained and are in a state in which they ought to be accepted, unless it is clear that the parties intend that the property in the goods shall pass at once.

§ 5. Conditions subsequent. If it be a condition subsequent, the property in the goods has already passed to the buyer, but subject to being divested on the performance of the condition; e. g., a sale and delivery of goods to the buyer on condition that they may be returned within a certain time and the money refunded, if the

The performance of the

buyer decides not to keep them. condition subsequent here revests the title at once in the seller, irrespective of his consent at that time (4). Goods (4) Gay v. Dare, 103 Cal. 454.

are often sold subject to the condition that they be not sold again except at a certain price, or except to certain persons designated by the vendor; or, as it has been expressed, "offered for sale on condition that the same are not licensed for sale and use until a certain sum is bona fide paid therefor," or that "discounts off a certain price will vitiate the right of use and render the persons concerned in such transactions liable to suit." Whatever may be the contract rights and liabilities between the vendor and vendee, in the case of a breach of such a collateral agreement as to the use or sale of the goods sold, the vendor has no property rights in the goods and cannot follow them into the hands of a purchaser (even with notice) from his vendee in violation of the restrictive agreement (5).

§ 6. Sales between part owners. "There may be a contract to sell or a sale between one part owner and another" (6).

That is, one joint owner of goods may sell his interest therein to another joint owner or to a third person. Where the purchaser is already a joint owner, he is acquiring the interest of others in the goods; or, as in the case of a judgment debtor buying his own goods, though there be in that case no transfer of title, the vendor transfers to the purchaser his entire property rights in the goods.

§ 7. Capacity: Married women, infants, insane persons, and drunkards. "Capacity to buy and sell is regu

(5) Park & Sons Co. v. Hartman, 153 Fed., 24, 39.

(6) Sales Act, sec. 1.

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