from the authorities cited, that the provision of the English Sale of Goods Act, copied in the American Sales Act, goes further in throwing the risk upon the party in default than the common law has hitherto gone. The original draft of the English act provided that the risk should be upon the party in default "as regards any loss which would not have occurred but for such fault." 92 The expression "might not have occurred" was substituted at the instance of Lord Watson. The effect of this substitution seems to be to shift the burden to the wrongdoer to show that his default was not a cause of the loss. It seems reasonable, in case of doubt as to the proximate causation of the loss by the delay, that the party in default who is confessedly a wrongdoer should suffer rather than the innocent party. This view also has the support of the Civil law.83

§ 968. Requirements of warranty under the English Law. It is commonly said by the English authorities, and by the American authorities which follow the English law, that a warranty in the law of sales of chattels is collateral.84 It is not made wholly clear whether by this is meant collateral in form or in legal effect. There is no doubt that under the English law a warranty is collateral in legal effect, but the important question remains, How is a warranty to be identified as such? How is it to be distinguished from other promises? This is something which the English law and English lawyer have never been willing or perhaps able to define entirely.85

the subsequent injury suffered by the claimant, and was not the proximate cause of it. In such a case the rule of law applies, that where property is destroyed by accident, the party in whom the title is vested must bear the loss."

82 Section 20.

83 Moyle, Contract of Sale, 86; Pothier, Vente No. 58. See also infra, § 307.

84 As to other uses of the word warranty, see supra, § 673.

85 In the English Sale of Goods Act, § 11 (1 B.), it is said that whether a

stipulation in a contract is a condition or a warranty "depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract." The authority for this provision in the Sale of Goods Act is Graves v. Legg, 9 Ex. 709, and other cases where it is laid down that whether the performance of the duty of one party to the contract is a condition precedent to the liability of the other depends on the intention of the parties in each case. But in the law of contracts, in the determination of each

Three tests may be supposed, each one of which has doubtless had some weight in determining decisions but none of which can be said to have been established as conclusive. These three tests are: (1) Was the promise collateral in form? (2) Was the transaction in which it was made an executed sale or an executory contract to sell? (3) Did the transaction relate to specific goods? These tests may be considered in order.

§ 969. Suggested tests of a collateral warranty.

At

A warranty is not necessarily collateral in form, though frequently so. When a horse is sold and the seller, as a separate statement inducing the sale, says that he warrants him sound, the warranty is collateral. In the early English law probably all warranties were collateral in form.86 the present day it is clear that a warranty need not be collateral in form. An accepted order describing goods, or a contract to sell goods by description, involves a warranty that the goods are of that description.87 This test is therefore inadequate. Nor is the distinction based on whether the agreement is executed or executory satisfactory. In an executory contract to sell, it is apparently true that there may be in England a collateral warranty, the truth of which will not be a condition of the buyer's obligations;88 though such a case must be unusual. In the United States, however, the buyer certainly may reject goods offered under an executory contract if they fail to conform to a warranty of quality, or of title.90 Nor does the distinction between goods case the court has the further aid of considering the materiality of the stipulation in question. The Sale of Goods Act affords no such clue.

89

86 Chandelor v. Lopus, Dyer, 75, a, note; s. c. Cro. Jac. 4.

87 Edgar v. Breck, 172 Mass. 581, 52 N. E. 1083; Wolcott v. Mount, 36 N. J. L. 262, 13 Am. Rep. 438, 38 N. J. L. 496, 20 Am. Rep. 425; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13, 78 N. Y. 393, 34 Am. Rep. 544; Morse v. Union Stock Yards, 21 Or. 289, 28 Pac. 2, 14 L. R. A. 157; Hoff

man v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am. St. Rep. 916.

88 See English Sale of Goods Act, § 11 (1), (b). Cf. Benjamin, Sale (5th Eng. Ed.), 1003.

89 Rubin v. Sturtevant, 80 Fed. 930, 51 U. S. App. 286, 26 C. C. A. 259; Owens v. Sturges, 67 Ill. 366; Boothby v. Plaisted, 51 N. H. 436, 437, 12 Am. Rep. 140.

90 Nevels v. Kentucky Lumber Co., 108 Ky. 550, 56 S. W. 969, 49 L. R. A. 416, 94 Am. St. Rep. 388.

specified and those unspecified at the time of the bargain afford more help.

A warranty collateral in form ordinarily applies to specific goods. Indeed a collateral warranty of unspecified goods is only conceivable in an executory contract to sell. But if a collateral warranty is possible in any case of an executory contract to sell, it seems that such a possibility is not precluded though the goods are unspecified at the time of the bargain. The difficulty of determining when a warranty is collateral, and the slight importance attached by parties to the form of their transaction makes it undesirable for the law to make a substantial difference in the rights of the parties depend on whether a warranty is collateral in form. If the buyer on breach of any material promise or warranty by the seller, may reject the goods if title has not passed and may rescind it by acting promptly if title has passed,"1 there will be little occasion to distinguish between collateral obligations and those which form part of the main promise. The principles governing substantial performance and material breach of contract will suffice.

§ 970. Definition of express warranty.

The American Uniform Sales Act thus defines express warranty: 92

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty." 93 It should be observed that under this definition a warranty is not necessarily a promise or contract. The law of warranty is older by a century than special assumpsit, and the action on the

91 See infra, § 1461.

92 Sec. 12.

93 See Marmet Coal Co. v. People's Coal Co., 226 Fed. 646, 141 C. C. A. 402; Rittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102, 98 Atl. 361;

Mastin v. Boland, 178 N. Y. App. D. 421, 165 N. Y. S. 468; Dabany v. Rosenthal (N. Y. Misc.), 152 N. Y. S. 1043; Kirkpatrick v. Kepler, 164 Wis. 558, 160 N. W. 1047.

case on a warranty was in part the foundation of the action of assumpsit. An action on a warranty was regarded for centuries as an action of deceit, and it was not until 1778 that the first reported decision occurs of an action in assumpsit on a warranty.94 And it is still possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.95 It is probable that to-day most persons instinctively think of a warranty as necessarily a contract or promise, but though frequently warranties are true promises and contracts, in other cases they are merely representations which induce a sale, and if it is said that a promise or contract is implied from such representation, the implication is one of law and not of fact.96 It may be added that the whole law of implied warranty both of title and of quality is based on implied representations rather than on promises.

§ 971. Intent to warrant.

It is often said that an intent on the part of the seller to warrant is an essential element of the obligation. Undoubtedly in order to make out a true contract of warranty, it is essential that the apparent intention of the seller shall have been to promise in consideration of the buyer's purchase; but if the contention in the previous section is sound that warranty may be based on representation as well as on true contract, it follows that not even apparent intent to contract is essential, and much authority supports this conclusion.97 It is of vital importance, however, that the seller should affirm as matter of fact, and not as matter of opinion, his statement

94 Stuart v. Wilkins, 1 Doug. 18.

95 Shippen v. Bowen, 122 U. S. 575, 7 Sup. Ct. 1283, 30 L. Ed. 1172; Farrell v. Manhattan Market Co., 198 Mass. 271, 15 L. R. A. (N. S.) 884, 84 N. E. 481, Williston, Sales, § 197.

"Williston, Sales, § 197. See infra, § 1503, 1504. See, however, Heilbut v. Buckleton, [1913] A. C. 30. A criticism of this decision may be found in 27 Harv. L. Rev. 1. It is followed

in Harrison v. Knowles, [1918] 2 K. B. 608.

97 Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615; Stroud v. Pierce, 6 Allen, 413, 416; Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Ingraham v. Union R. Co., 19 R. I. 356, 33 Atl. 875; Hobart v. Young, 63 Vt. 363, 369, 21 Atl. 612, 12 L. R. A. 693. See further, Williston on Sales, §§ 198, 199.

in order to render him liable as a warrantor.98 The tendency of modern cases is towards holding positive statements of quality affirmations of fact." The question has been somewhat confused by inexact terminology. The words warranty and representation recur in the discussions, and differences of opinion have been increased by the manifold meanings attached to the word warranty.1 That a representation is the antithesis of warranty, as that word is used in the language of insurance and of charter-parties, is certain. It is natural that it should be hastily assumed that the same antithesis is used when warranty is spoken of in the law of sales; and this assumption is made in some of the decisions, but generally it is made clear if a representation is spoken of as distinguished from a warranty, that what is meant by representation is an expression of opinion as distinguished from an assertion of fact.

§ 972. Reliance of the buyer-obvious defects.

It is essential that the buyer should rely on the seller's statement, whether in the particular case the warranty sounds in contract or in tort. If in contract, the offer must be accepted; if in tort, the deceitful statement must be acted on. The difficulties which arise in regard to questions of reliance relate to several special cases which may be classified under four headings, as follows: 1, Obvious or known defects; 2, inspection; 3, statements made previously to the bargain; 4, statements made subsequently to the bargain. In regard to obvious defects, two conceptions exist which are not always kept separate. In the first place, a warranty in general terms is held not to cover defects which the buyer must have observed. This is a rule of a construction, and is based on an

98 See the analogous question regarding fraudulent statements, infra, §§ 1491. et seq.

99 See Williston, Sales, §§ 203, 204. 1 See supra, § 673.

2 Thompson v. Harvey, 86 Ala. 519, 5 So. 825; Huston v. Plato, 3 Colo. 402; Marshall v. Drawhorn, 27 Ga. 275; Ragsdale v. Shipp, 108 Ga. 817,34 S. E. 167; O. H. Jewell Filter Co.

v. Kirk, 102 Ill. App. 246, affd., 200 Ill. 382, 65 N. E. 698; Connersville v. Wadleigh, 7 Blackf. 102, 41 Am. Dec. 214; Dean v. Morey, 33 Iowa, 120; Storrs v. Emerson, 72 Iowa, 390, 34 N. W. 176; Scott v. Geiser Mfg. Co., 70 Kans. 500, 80 Pac. 955; Richardson v. Johnson, 1 La. Ann. 389; Brown v. Bigelow, 10 Allen, 242; McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675;