his notes to Erskine, falls into a similar error.1 1 There is Sect. 8. nothing, however, to prevent a special agreement such as that of hire-purchase, under which, notwithstanding delivery, the property is not to pass to the purchaser until the price is paid."

Payment of the price must be made by legal tender if Legal tender. such be insisted on. Legal tender in Scotland is confined. to coinage, viz. gold for a payment of any amount; silver for a payment not exceeding forty shillings; bronze for a payment not exceeding one shilling. But an objection to tender of payment in any commonly recognised currency, such as Scotch bank notes in Scotland, will not be looked upon with favour by the courts.*

3

payment.

Where payment is made under a condition either ex- Conditional pressly or tacitly acquiesced in by the seller, the condition must receive effect. Thus where a cheque was enclosed in a letter requesting in return a guarantee in regard to delivery of the goods, the receiver, having cashed the cheque but refused the guarantee, was held liable in repayment.5

Proof of payment of the price differs in England and Proof of Scotland. Written or oral evidence may be offered in payment. England, but in Scotland only written evidence is allowed, except in case of ready money, or where the amount is under £86: 8. The Mercantile Law Commission of 1855 recommended that the law of Scotland in this respect should be assimilated to that of England, but the recommendation did not receive statutory effect in the Act of 1856.7

9. (1.) Where there is an agreement to sell () goods on the terms that the price is to be fixed by the

his editor (Bell's Com., 7th ed. i. p. 217, note). Elsewhere Bell says: Nothing is better fixed than that payment of the price has no effect whatever on the transfer of the property"-Com. i. 192, note.

1 Ersk. (Ivory's ed.), p. 645, note.

2 See as to hire-purchase, Coм., Sect. 17 post, p. 83.

3 Coinage Act 1870, 33 Vict. c. 10, Sect. 4. Bank notes of Scotch Banks are not a legal tender, and Bank of England notes, although a legal tender in England, are not so in Scotland (8 & 9 Vict. c. 38, Sect. 15).

See in England Polglass v. Oliver (1831), 2 Cr. & J. 15, and other cases cited by Benjamin, Sale, p. 423.

5 Semple v. Wilson (1889), 16 Ret. 790.

6 2nd Report, p. 7.

7 19 & 20 Vict. c. 60.

Sect. 9.
SELL AT

AGREEMENT TO

VALUATION.

Sect. 9.

valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided; provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price ( therefor.

(2.) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.

NOTES.

(a) "Agreement to sell." Defined Sect. 1 (3).

(b) "Valuation of a third party." In Scotland the price may even be left to the determination of one of the parties themselves. COM. infra, p. 43.

(c) "If the persons appointed as valuers fail or refuse to act, there is no contract in the case of an executory agreement, even though one of the parties should himself be the cause of preventing the valuation." But the second sub-section gives a remedy in the form of damages. COM. infra, p. 43.

(d) "Appropriated" here seems equivalent to "accepted." See Sect. 35.

(e) "Reasonable Price." See Sect. 8 (2).

66 6

Fault,' i.e. wrongful act or default," Sect. 62 (1). See also Sects. 7 and 20.

(g) "Where parties have agreed that something shall be done which cannot effectually be done unless both concur in doing it . . . each agrees to do all that is necessary on his part for the carrying out of that thing." 2

COMMENTARY.

This section is supplementary to Sect. 8, which declares that the price may be left to be fixed in manner agreed upon in the contract. The rule as stated is that of the

1 Benjamin on Sale, p. 90.

2 Per Lord Blackburn in Mackay v. Dick and Stevenson (1881), 8 Ret. H.L. 37 at p. 40.

one of the

parties.

Civil law and of the law of Scotland, except in so far as Sect. 9. (failing a price being fixed) it imports a reasonable price, and after delivery imputes payment to contract rather than to recompense or quantum meruit.1 The law of Scotland, Reference to however, goes further than the Roman law,2 and permits not merely a valuation by a third party such as this section contemplates, but a reference of the amount of the price to one of the contracting parties.3 Where the price has been Effect of referred to a third party, the death of one of the parties death of third to the contract before the referee has fixed the price, will not avoid the agreement.*

party.

The first sub-section is declaratory of English law,5 but Fault of seller where the valuation had been prevented by the fault of or buyer. seller or buyer the law previous to the Act was doubtful. In Thurnell v. Balbirnie (1837) the law was assumed to be as now stated, though the point did not arise for decision. On the other hand, in Vickers v. Vickers (1867), Page-Wood, V.C., refused specific performance on the ground that there was "no existing contract," a reason which would equally prevent a claim for damages.

8

If an arbiter accept office he cannot refuse to proceed to a final determination, and in England a valuer in such circumstances will be held liable in damages."

1 Inst. iii. 24. 1; Dig. 18. 1. 15. 1; Ersk. iii. 3. 4: M. P. Brown on Sale, See also COM., Sect. 8, supra, p. 37.

p. 148 et seq.

2 Moyle, Sale in Civil Law, p. 69; Mackintosh, Roman Law of Sale, p. 71 ; Dig. 18. 1. 35. 1.; Cod. 4. 38. 13.

3 Steven v. Robertson (1760), Mor. 3158 (seller); E. Montrose v. Scott (1639), Mor. 14155 (buyer); Lavaggi v. Pirie and Sons (1872), 10 Macp. 312 (buyer). See also Graham and Co. v. Pollock and Caldwall (1763), Mor. 14198.-Stair, i. 14. 1; Ersk. iii. 3. 4; Bell's Prin., Sect. 92; M. P. Brown on Sale, p. 150. All these text-writers state or assume that the price so fixed is not absolute, but subject to correction by a judge, and Stair extends the same rule to any reference of the price to a third party. In either case, however, it is difficult to see how a judge could interfere unless upon a formal reduction of the award, as in the case of an ordinary reference. As to English law on this subject, see Haule v. Hemyng (1617), Cro. Jac. 432, cited in Vyse v. Wakefield (1840), 6 M. & W. 442, 454; Holmes v. Twist, (1614), Hob. 51, cited in Makin v. Watkinson (1870), L. R. 6 Ex. 25, 29.

4 E. Selkirk v. Nasmith (1778), M. 627.

5 Ess v. Truscott (1837), 2 M. & W. 385; Clarke v. Westrope (1856), 18 C.B. 765. 6 2 M. & W. 786.

7 L.R. 4 Eq. 529.

8 Edin. and Glas. Ry. Co. v. Marshall (1853), 15 D. 603.

9 Jenkins v. Beetham (1854), 15 C.B. 189; Cooper v. Shuttleworth (1856), 25 L.J. Ex. 114.

Arbiter's

refusal to proceed.

Sect. 9.

Quantum meruit.

Sect. 10.

Although the agreement is avoided under the first subsection, the buyer, if he has received and retained or used the goods, will be liable upon a quantum meruit.1

Conditions and Warranties.

10.-(1.) Unless a different intention (a) STIPULATIONS the terms of the contract, stipulations

AS TO TIME.

Conditions.

appears from as to time of

(c)

payment are not deemed to be of the essence of a contract of sale.(d) Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(2.) In a contract of sale "month" means primâ facie calendar month.(e)

NOTES.

(a) "Different intention." E.g. the seller may stipulate a right of re-sale on the buyer's default, which right, if exercised, rescinds the contract [Sect. 48 (4)].

(b) "Stipulations." This word is used to include both "conditions" and "warranties." "A stipulation may be a condition though called a warranty" [Sect. 11 (1) (b)].

(c) "Essence." Any stipulation which is of the essence of a contract of sale is a "condition"; if it is not of the essence of the contract it is a 66 warranty." See definition of "warranty"

[Sect. 62 (1)].

(d) "Contract of sale." Defined Sects. 1 (1) and 62 (1).

(e) "Calendar month.' So also in Bills of Exchange Act 1882 2 [Sect. 14 (4)]. In all Acts, unless the contrary intention appears, "month means "calendar month." 3

COMMENTARY.

The remainder of Part I. (Sects. 10 to 15 inclusive) deals with conditions and warranties. A condition (i.e. a suspensive condition or condition precedent) is a stipulation

1 Clarke v. Westrope (1856), 18 C. B. 765.

2 45 & 46 Vict. c. 61.

3 52 & 53 Vict. c. 63, Sect. 3.

which goes to the essence of a contract, so that non-fulfil- Sect. 10. ment either avoids the contract or makes it voidable in the option of one of the parties. In the former case the contract itself is conditional,' so that if the condition is not fulfilled both parties are free from obligation.2 In the latter case the condition is one (not impossible in itself 3), the non-fulfilment of which by one of the parties constitutes a breach of contract by him.* In the event of such a breach, the other party may either repudiate or maintain the contract, and if he repudiate he is not only free from his counter obligation, but he may obtain damages in respect of the breach. By the former law of Scotland, if the party not in fault desired to maintain the contract, he was excluded from any claim of damages. It was a pre-requisite to such a claim that the contract should be repudiated and annulled, and both parties placed as far as possible in the same position as if it had never been entered into. Now, however, the buyer has an alternative remedy against the seller, who is in breach of a condition. If the goods are offered for delivery he is entitled as formerly to reject them and repudiate the contract, or he may accept the goods and maintain the contract without depriving himself of his

5

1 COм., Sect. 1, ante, p. 7.

2 Kelman v. Barr's Trustee (1878), 5 Ret. 817; Ivory's Erskine, p. 647 (note). See also numerous English cases, such as Boyd v. Siffkin (1809), 2 Camp. 326; Johnson v. Macdonald (1841), 9 M. & W. 600; Benjamin, p. 559 et seq.

3 As to impossibility of performance see Stair, i. 10. 13; Ersk. iii. 3. 84; Dig. 18. 1. 8. pr.; Benjamin, p. 81; M. P. Brown, p. 110; Gowans v. Christie (1873), 11 Macp. H.L. 1; Gillespie and Co. v. Howden and Co. (1885), 12 Ret. 800; Smith v. Riddell (1886), 14 Ret. 95; North British Ry. Co. v. Benhar Coal Co. (1886), 14 Ret. 141. "An agreement to do an act impossible in itself is void" (Indian Contract Act, Sect. 56). In discussing the different kinds of impossibility of performance, Pollock says: "An agreement is not void merely by reason of the performance being impossible in fact, nor does it become void by the performance becoming impossible in fact without the default of either party, unless, according to the true intention of the parties, the agreement was conditional on the performance of it being or continuing possible in fact. Such an intention is presumed where the performance of the contract depends on the existence of a specific thing." -Pollock on Contracts, 6th ed. p. 382. See also Sect. 11 (3) of this Act.

4"A condition is either a promise or the statement of a fact in a contract upon the truth of which the existence of a contract is to depend "-Behn v. Burness (1862), 3 B. & S. 751; Colvin v. Short (1857), 19 D. 890; Anson on Contracts, 6th ed. pp. 146, 201.

5

Benjamin, p. 940; Bell's Prin., Sect. 120.