As has been already observed, the rules which mark the difference between an executory agreement and a sale, are nearly the same as those which, under the Civil law, distinguished between a mere contract to sell, and a perfect sale or "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 recompense, 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 agreement, unless there be an overt act of delivery of possession. Neither of these principles is 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 seller 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 sale in English law. In many cases the weighing, &c., may be necessary to ascertain the specific goods; in others it 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. Furnell (a), and Simmons v. Swift (b), there is nothing unascertained except the money value of the price, and yet the goods are held not to be sold, there seems little to be said, except that such were 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.

English Law.-Operation of Contract.

In the English law a contract of sale has two effects (c). It operates as a contract giving rise to obligations or rights in personam, as, for example, an obligation binding the seller to deliver on payment of the price, and binding the buyer to pay the price; and it also, in some cases, operates as a conveyance of the property from the seller to the buyer, giving to the buyer all those real rights or rights in rem which follow the property.

It operates as a conveyance the moment the contract is made if the thing is specific, unless some rule of law as to weighing or measuring or otherwise prevents the passing of

(a) Zagury v. Furnell, 2 Camp. 240, ante, p. 189. (b) Simmons v. Swift, 5 B. & C. 857, ante, p. 189.

(c) Austin's Jurisprudence, 3rd ed., 1000 and 1006, Table II., note 4, C. c.

the property, or unless the parties have agreed that it shall not pass (a).

But if the thing is not specific, or is specific and some rule of law, as for example as to weighing, measuring, or putting into a deliverable state, or the intention of the parties, prevents the property passing, then the contract, at the time of making, merely operates to create personal obligations and no jus in rem is created; and until the thing is made specific, or the rule is complied with, or the intention exists, the owner may, in defiance of his contract, sell to some third person and give him a perfectly good title even if that third person had notice. of the prior contract. When the thing has been made specific, or the rule of law has been complied with, and the intention existed, thenceforward the case is the same as if these circumstances had existed at the date of the contract, and it operates as a conveyance.

In other words, a contract by which it is presently agreed that when an event shall happen in future then the property shall pass, operates as follows: up to the happening of the event personal obligations only are created; after the event happens the contract operates as a conveyance, the property passes, and real rights are created.

But by the Roman law a contract of sale was only an enforceable promise. It gave rise to obligations only, and did not operate as a conveyance of the property. With them the property could be transferred by delivery only. The Roman contract purported to pass the whole of the seller's interest to the buyer, but it did not pass the property, for that passed by delivery only, and even delivery did not pass it if the seller was not actually the owner. The contract merely gave rights in personam but no rights in rem. Pothier (a) says the contract of sale of the Roman law comprises "An obligation to deliver the thing to the buyer, "and also an obligation, when it has been delivered, to defend "him against all claims, which may deprive him of his "possession, or prevent him from making use of the thing

(a) Pothier's Contract of Sale, translated by Cushing, p. 1.

"as his own; but they do not, in strictness, import an "obligation to transfer the property. . And, therefore, "if a buyer discovers that the seller was not the owner of "the thing sold, and consequently that the property in it had "not been transferred to him, he cannot, on that account, so "long as his possession remains undisturbed, complain that "the seller has not fulfilled his obligation. It is, indeed, of "the essence of the contract of sale, that the seller should not "intend to retain the right of property in the thing, when "he is the owner of it; and that in such case, he should be "bound to transfer it to the buyer. But when the "seller is not the owner, if he in good faith believes "himself to be so, he is bound only, as above stated, to "defend the buyer against those who seek to deprive him of "his possession, or to prevent him from exercising the rights "of ownership."

The expression, "Res perit domino" is a very meaningless one in the law of sales; and the distinction must be borne in mind between being the loser of the property and the loser by the contract. Whether that expression can be used as an argument that, because the risk falls on one party, therefore the property is in that party, must depend entirely on the terms of the contract. For if the parties have agreed, as they certainly may, that although the property is to be in one party, yet if the goods are lost, the other party is to pay for them, it is clear that risk is no test of property in that case. Such was the case in Castle v. Playford (a). The case of Anderson v. Morice (b), in 1875, was a case of insurable interest, and it was argued at great length that the risk was with one party, even though the property was in the other.

The judgment of Lord Cottenham, L. C., in the case of

(a) Castle v. Playford, 41 L. J. Ex. 44; L. R. 7 Ex. 98. See also Calcutta Co. v. De Mattos, 32 L. J. Q. B. 322; 33 L. J. Q. B. 214; ante, p. 256; and Shepherd v. Harrison, 38 L. J. Q. B. 105 and 177; 40 L. J. Q. B. 148; L. R. 4 Q. B. 197 and 493; 5 E. & I. Ap. 116.

(b) Anderson v. Morice, 44 L. J. C. P. 10; 44 L. J. C. P. 341; 46 L. J. C. P. 11; L. R. 10 C. P. 58; L. R. 10 C. P. 609; 1 App. Ca. 713.