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APPENDIX.

APPENDIX.

SALE OF GOODS BILL.

MEMORANDUM.

1. This Bill is drafted on the same lines as the Bills of Exchange Act, 1882. It endeavours to reproduce as exactly as possible the statutory and common law rules relating to the sale of goods, leaving any amendments that may seem desirable to be introduced at a later stage.

2. The Bill is almost entirely a reproduction of the common law. With the exception of the Statute of Frauds, the legislative enactments relating to the sale of goods deal only with isolated points of not much general importance. In so far as such enactments deal solely with the law of sale they have been reproduced in the Bill; but where they relate mainly to some different subject-matter, and deal only incidentally with the law of sale, or where they affect only certain specified classes of goods, they have been covered by saving clauses. If the whole law of contract was codified the present Bill would form a single chapter in the Code. In accordance with this principle, no attempt is made to reproduce the effect of cases, which, though arising out of sales, merely illustrate principles common to the whole law of simple contracts. A similar course was observed with regard to the Bills of Exchange Act, 1882.

3. The Bill does not extend to Scotland. The law of Scotland with respect to the sale of goods differs in many important respects from the law of England. Hence a merely codifying Bill could not extend to both countries. For example(a.) The Statute of Frauds (29 Car. 2. c. 3, s. 17, as amended by the

9 Geo. 4. c. 14, s. 7) does not extend to Scotland. (6.) In England the property in goods passes under a contract of sale

as soon as the parties intend it to pass, whether the goods be delivered or not. In Scotland the rule of the civil law prevails, and the property in goods sold does not pass until delivery. It has, however, been pointed out by Lord Blackburn that since the 19 & 20 Vict. c. 60, s. 1, this distinction is of not much importance, for whenever the property would pass in England, the buyer in Scotland acquires a jus ad rem, though not a jus

The goods are at the buyer's risk, and the seller's creditors cannot attach them ; see M'Bain v. Wallace, 6 App. Cas. 888.

in rem.

(c.) Certain stipulations which in England would only be treated as

warranties are treated in Scotland as conditions, so that where an English buyer could only treat the breach of the stipulation as a ground of damages, a Scotch buyer might be entitled to

rescind the contract; Couston v. Chapman, L. R. 2 Sc. App. 250. (d.) In England when goods are ordered from a manufacturer, as such,

there is an implied warranty that the goods supplied shall be of his own make. In Scotland there is no such warranty ;

Johnson v. Railton, 7 Q. B. D. at pp. 445, 455. (e.) The English rule as to sales in market overt does not apply in

Scotland. (.) The seller's lien in Scotland is regulated by the Statute 19 & 20

Vict. c. 60, ss. 2 and 3. 4. The Bills of Exchange Bill, as originally drafted, did not apply to Scotland, but after consultation with Scotch legal authorities it was thought desirable to lay down uniform rules for both countries, and this was effected by amendments in committee, in some cases the Scotch, and in others the English, rule being adopted. Possibly a similar course might be found feasible in the case of the present measure. The Bills of Exchange Act, 1882, has worked smoothly, and has already been adopted by Canada and by six of the Australian Colonies,

5. As regards terminology, it is to be noted that the terms 'seller' and 'buyer' are used uniformly throughout the Bill to the exclusion of the synonymous terms "vendor and purchaser' and vendor' and "vendee,' and the terms 'sale' and 'agreement to sell' are used to the exclusion of the terms 'executed and executory contract of sale.'

March 1892.

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