Sidor som bilder




The law of Sales is concerned essentially with the transfer of ownership to personal property. It does not include the origin of ownership in the first instance, nor does it involve the character of the rights and liabilities which accrue to ownership. It comprises only the transfer thereof with the attendant rights and liabilities, whatsoever they may be, from one person to another.

Meaning of Sale.—A sale may be defined as the transfer from one person to another of the absolute ownership of some specific chattel, for a reciprocal compensation which is in money or something valued by the parties in terms of money.

The word “sale” has also a secondary meaning, in which sense it implies not an accomplished transfer of the ownership, but an agreement to transfer it. It may thus apply to an agreement which has been performed, or to an agreement to be performed, and its use in either significance is indiscriminate. Thus in some cases the court uses “sale” and “contract of sale” as quite different from “agreement to sell” and as meaning actual transfer of ownership. On the other hand "sale" is often used in reference to the “contract' regardless of whether the contract has been carried to execution or not. Thus one court uses it in saying, "In many cases of sales of personal property it is a very nice and difficult question to determine

1-Low v. Pow, 108 Mass. 347; wood v. Cutting Packing Co., 76 Oklahoma Moline Plow Co. v. Cal. 212, 9 Am. St. 199. Smith, Okla., 137 Pac. 285; Black- 2-Oliphant v. Baker, 5 Denio


whether the title has passed."

If one. bears in mind this duplex use, as indicating either an agreement to transfer the title, or an accomplished transfer, he will find no real confusion arising from it, despite the rather remarkable literal confusion, because the context practically always shows the sense in which it is employed.*

No definition is wholly clear unless all the terms by which it is expressed are themselves definite and precise. In defining “sale” as the transfer of ownership, one is met at the outset by an uncertainty as to just what constitutes “ownership.” In the abstract it may be defined as the fundamental right to enjoyment of the particular thing to which it is said to attach. (It is obvious that the terms “right,” “privilege," "power,” and similar expressions are not used here in any precise sense, such as that of the so-called Hohfeltian terminology.) In the case of corporeal property, as distinct from mere “rights,' enjoyment has always been so completely predicated on physical possession, that ownership is often defined in terms of possession, and is the fundamental right to possession of a particular piece of property.8

But in addition to the right of possession, there are other powers, privileges and duties in respect to things, which are recognized by the courts. Certain of these privileges, etc., commonly follow as a matter of course from ownership or, conversely, an owner is said to have certain definite privileges and liabilities.*

[ocr errors][ocr errors]

3—"So feeble and precarious sary in modern times, the clumsy was property without possession, term 'special property' was emor rather without possessory rem- ployed to denote the rights of a edies, in the eyes of medieval possessor not being owner." Pol. lawyers, that Possession largely lock & Wright, “Possession," p. 5. usurped not only the substance but the name of Property, and 4,"The term 'property' alwhen distinction became neces- though in common parlance fre.

*See Uniform Sales Act, Section 1, (1), (2), (3), (4), and 76, "Sale".

The composite whole of these powers, privileges and duties is ordinarily thought of as constituting ownership. Occasionally, however, it transpires that certain of these component powers, privileges, or duties, are attributed by courts to one individual while the others are, at least by implication, attributed to another. The query is at once presented, whether“ownership’ can be divided, whether two persons, one having the right to ultimate possession and the other having different rights in respect to the same chattel, can both be called "owners” of it. If ownership is not divisible, so that they can not both be owners, how many of the component rights usually constituting "ownership,” or which of them, are absolutely essential for the law to call their possessor owner? No attempt need be made to answer this question here, but specific reference to it is necessary because knowledge of the question is itself the solution of much confusion, to be pointed out later, as to whether or not "title" has passed when certain legal powers and privileges have passed and others have not.

Sale Distinguished From Other Transactions.—A transfer of anything less than enough of these component rights and duties, to constitute the ownership-or, more concretely, a transfer of anything less than the fundamental right to control possession— is not a “sale” but is called by some other name such as “bailment,' “pledge,” etc. The name which a contract gives to a particular transaction does not determine the number

quently applied to a tract of land or a chattel, in its legal significance means only the rights of the owner in relation to it. It denotes a right over a determinate thing. Property is the right of any person to possess, use, enjoy and dispose of a thing." Eaton V. B. C. & M. R. R. Co., 51 N. H.

504. And see the excellent exposition in Some Fundamental Legal Conceptions. 23 Yale L. Jr. 16.

5-CI., “The action * must be brought by the owner, although the ownership need not be absolute but may be that of a ballee." Garvan v. N. Y. C. Rr., 210 Mass. 275.

« FöregåendeFortsätt »