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20. POMPONIUS. According to another opinion of Sabinus, if a man orders an article, such as a statue, a particular vessel, or a coat, to be made
cealment of insolvency, undermines the consent given to a contract of sale, and entitles the seller to recover the goods after delivery. In Watt v. Findlay (1846) 8 D. 529, a positive pledge was given at the time of delivery to pay two days after, while the party was at the moment preparing a petition and affidavit for sequestration. Held, that the property of the goods, although delivered, did not pass owing to deceit practised in order to induce the delivery.
L. 20.–Sale and location resembled each other so closely that it was often found difficult to draw a clear line between them. In both it was necessary that something should be delivered in return for a consideration, which must be in current money, and must be definite. Where the contract was for permission to use a subject without a time being fixed for its return, as in grants of emphyteusis (Inst. iii. 24. 3; Gaius, iii. 145, cp. our 'feu-contract ') and superficies (L. 32 infra), there was much doubt to which head the contract belonged. Again, there was a question as to the case here put, where you ordered an article to be made for you for a fixed price, the workman supplying the materials: the opinion of Cassius was that the transaction was a mixture of both contracts, a sale of the material by the workman to you, accompanied by a brevi manu delivery of it back to him, and a hire of his labour (Gaius, iii. 147; Inst. iii. 24. 4); but the view of Sabinus was ultimately adopted, that the contract was a unity (unum esse negotium D. 19. 2. 2, 1), and that, when the workman supplied the material, it was simply sale, and, when you found the material, it was location. The criterion is stated by Javolen in L. 65 infra in this way: in sale there is a transfer of the property in the material from the vendor to the vendee; in location there is not (non solet locatio dominium mutare, D. 19. 2. 39). Location, however, does in some cases import a transmutation of property as an incidental result, e.g. D. 19. 2. 22, 2: cum insulam aedificandam loco, ut sua impensa conductor omnia faciat, proprietatem quidem eorum ad me transfert et tamen locatio est : locat enim artifex operam suam, id est faciendi necessitatem. Here the 'corpus ipsum' is my site, not his materials. Cp. ib. L. 31.
pecuniam daremus, emptionem uideri nec posse ullam locationem esse, ubi corpus ipsum non detur ab eo cui id fieret: aliter atque si aream darem, ubi insulam aedificares, quoniam tunc a me substantia profiscitur.
In Scots law hiring is held to be strictly “an engagement to do certain work upon materials furnished to the workman’; but when the workman contributes the materials as well as the labour, as in the general case of manufactures, it is sale, though, properly speaking, there are combined with the contract of sale other contracts — as locatio operis, mandate, etc.' (Bell, Prin. $$ 90, 147). This recalls the opinion of Cassius, that the contract is a complex one of a peculiar nature.
The question has been more canvassed in English law, partly on account of the former strict rules of pleading which made it necessary to sue under different counts, according as the contract was for the sale of goods or for work and labour, and still more on account of the 17th section of the Statute of Frauds, which has repeatedly raised the question, What is a contract for the sale of goods within the meaning of the Statute? It was at one time thought to be a sufficient test to ask, Who furnishes the materials? If it is the employer, the contract is for work and labour ; if it is the workinan, it is sale : but this is not quite correct—e.g. if I damage a bicycle which I have hired from the maker, and employ him to repair it, he can sue me for work done and materials furnished by himself to repair his own machine; Grafton v. Armitage (1845) 2 C. B. 336. The criterion now approved is thus stated in Lee v. Griffin (1861) 1 B. & S. 272 : 'If the contract be such that when carried out it will result in the sale of a chattel, the party cannot sue for work and labour; but, if the result of the contract is that the party has done work and labour which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered.' The contract is sale, 'if it contemplates the ultimate delivery of a chattel. See discussion in Benj. pp. 94–110, and Law Quarterly Review, vol. i. p. 1 (Sir J. F. Stephen and Sir F. Pollock).
When does the property in a special article to be made for the buyer vest in him? The general rule of English law is stated in Clark v. Spence (1836) 4 A. & E. 466 thus : 'Under
for him, agreeing simply to pay the price of it, that falls under sale, for it is essential to the contract of hire that the materials be furnished by the person for whom the thing is to be made: but the case is different when I give a site for you to build a block of houses on, for there I provide the material. a contract for building a vessel, or making any other thing not existing in specie at the time of the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or thing is finished and delivered, or at least ready for delivery and approved by the purchaser. The builder or maker is not bound to deliver to the purchaser the identical vessel or thing which is in progress, but may, if he please, dispose of that to some other person, and deliver to the purchaser another vessel or thing, provided it answers to the specification contained in the contract. See S. G. B. $ 20, rules 2 and 5.
But if it appears to be the intention of the parties to a contract for building a ship that, at a particular stage of its construction, the vessel, so far as then finished, shall be appropriated to the contract of sale, the property of the vessel, as soon as it has reached that stage of completion, will pass to the purchaser, and subsequent additions made to the chattel thus vested will accessione become his property’; and such an intention is to be inferred where the contract is to pay for the ship by instalments according to the progress of the work, and where the purchaser or some one appointed by him regularly inspects the work; and there is no difference in principle between the sale of a ship and any other corpus manufactum in course of construction. See per Lord Watson in Seath & Co. v. Moore (1886) 11 App. Ca. 350, 380.
In Scotland when a manufacture in the workman's hand unfinished is purchased, and the price paid; or when, by periodical payments, it is appropriated as it advances, the law holds it as delivered' (Bell, Prin. § 1303), on the principle of specification, the maker holding thereafter for the true owner. This proposition rests on the leading case, Simpson v. Duncanson's Crs. (1786) M. 14,204; Bell, Com. i. 189 note, who refers to the opinion of Julian (in D. 6. 1. 61, 1) that, where a ship is built with another's materials, proprietas totius navis carinae causam sequitur. The principle of Simpson's case, as recognising in this special class of contracts an equitable exception from the
21. Paulus libro y ad Sabinum. Labeo scripsit obscuritatem pacti nocere potius debere uenditori qui id dixerit quam emptori, quia potuit re integra apertius dicere.
22. ULPIANUS libro XXVIII ad Sabinum. Hanc legem uenditionis 'si quid sacri uel religiosi est, eius uenit nihil'superuacuam non esse, sed ad modica loca pertinere. ceterum si omne religiosum uel sacrum uel publicum uenierit, nullam esse emptionem,
23. PAULUS libro v ad Sabinum. (et quod soluerit eo nomine, emptor condicere potest)
24. ULPIANUS libro XXVIII ad Sabinum in modicis autem ex empto esse actionem, quia non specialiter locus sacer uel religiosus uenit, sed emptioni maioris partis accessit.
strict rule that delivery is essential to pass the property, is thought to be still good law, though its authority in the case of a ship on the stocks paid for by stated instalments was doubted in M Bain v. Wallace (1881) 6 App. Ca. 588, where the same result was reached by a wide construction of the first section of the Mercantile Law Amendment Act. See also Seath & Co., supra, where it was held that marine engines which were in course of construction belonged, on the bankruptcy of the engineer, to his trustee, and not to the shipbuilder who had ordered them and made advances on them; in that case there was no express stipulation, and no evidence of an intention that the property in the completed portions of the work should pass to the purchaser on payment of a proportionate instalment of the price. These two decisions seem to a considerable extent to assimilate the law of both countries as to the property in unfinished ships or machinery paid for by instalments during the progress of the work.
L. 21.-For this rule of construction, compare D. 50. 17. 172 pr.: in contrahenda uenditione ambiguum pactum contra uenditorem interpretandum est. Cp. D. 2. 14. 39 and 45. 1. 99.
Labeo has laid down that an ambiguity in the terms of the contract ought to be construed against the seller who framed them, for he might have expressed himself more clearly while matters were still entire.
22. ULPIAN. A term of sale to this effect, “if any of the ground be sacred or religious, it is excepted from the sale,' is not superfluous; it applies to plots of moderate size. But if the whole of the ground sold be religious, sacred, or public, the sale is void.
23. PAUL (and the buyer can bring a condictio to recover his money);
24. ULPIAN. in respect of small plots, however, (without such clause), an action on purchase will lie, because the sacred or religious ground is not sold specifically, but as an accessory to the bulk of the lands. The decisions in D. 8. 3. 30 and 8. 2. 17, 3 illustrate its strict application. It is adopted in the French Code, art. 1602, but not in English law, though some effect is given to the maxim that an ambiguous clause in a contract or writ is to be construed against the person founding on it, verba sunt interpretanda contra proferentem. See remarks on the construction of written contracts by Kelly, C.-B., in Coddington v. Paleologo (1867) L. R. 2 Ex. 200. Erskine says, ' Doubtful clauses in obligations are to be interpreted against the granter' (Inst. iii. 3. 87). Life Ass”. of Scotland v. Foster (1873) 11 Macp. 351.
LL. 22-24.-The clause si quid, etc., amounts to a notice by the seller that he does not warrant that some part of the lands is not divini iuris, and so exempt from commerce. It may turn out that small portions are extra commercium, in which case the sale as a whole is valid, and the clause is essential to protect the seller from a claim of damages for eviction from such parcels, which the buyer could enforce by action on the contract but for this agreement (L. 24): it may be found, however, that the whole