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5. With regard to things which are weighed, counted, or measured, as grain, wine, oil, silver, sometimes the same principle holds for them as for other things—a sale is considered complete as soon as the price is settled ; sometimes the rule is that, although the price is settled, yet the sale is not held to be complete until a process of measuring, weighing, or counting has followed. Thus when a whole lot of wine, oil, grain, or silver is sold for a slump sum, however much there may be of it, the law is the same as for other things. But when wine is sold at so much a jar, oil at so much a measure, wheat at so much a bushel, silver at so much a pound, the question arises, When is the sale complete? The same question, of course, arises about things which pass by number, when a price is fixed at so much a head. Sabinus and Cassius think the sale is completed only when the counting, measuring, or weighing has been done, because the sale would seem to be made subject to this condition, so to speak, that the contract is to have reference to the separate measures or bushels to be measured, the separate pounds to be weighed, or the separate units to be counted out of the mass.
delivered at a distant place and have to be transmitted through a carrier. Cp. S. G. B. $$ 34, 35; Bell, Prin. $$ 116-118.
Lord Blackburn (Sale, p. 260) seems to hold that where the seller remains in possession of goods after the property in them has passed to the buyer—as it does in England in virtue of the contract, if the goods are specific and no contrary intention appears—the seller is a bailee for the buyer, and is subject to the same responsibility for careful keeping as the Roman law imposed upon the seller before the property had passed by delivery. But there appears to be no decision defining the nature of such bailment' (Chalmers, Sale, p. 36).
$8 5–7. On the question of periculum generally, see Vangerow, § 591. The rule of Roman law is quite distinct that, as soon as the contract is complete, the goods are at the risk of the purchaser, and, if they perish accidentally, the seller is absolutely free, but the buyer is bound to pay the price, although the goods have not been delivered and the property in them has not been transferred. The all-important matter, therefore, is to ascertain when a sale is
6. Ergo et si grex uenierit, si quidem uniuersaliter uno pretio, perfecta uidetur, postquam de pretio conuenerit: si uero in singula corpora certo pretio, eadem erunt, quae proxime tractauimus. complete to the effect of passing the risk: necessario sciendum est quando perfecta sit emptio : tunc enim sciemus, cuius periculum sit, nam perfecta emptione periculum ad emptorem respiciet (D. 18. 6. 8 pr.). The sequel to that passage states very tersely what is requisite to perfect the contract: et si id quod uenierit appareat quid quale quantum sit, et pretium, et pure uenit, perfecta est emptio. Cp. Inst. iii. 23. 3.
$85 and 6 take up the question when a contract for the sale of things which pass by weight, number, or measure (' fungibles ') is complete. The answer is that they may be sold in two ways: (a) they may be specifically ascertained as separate lot, and a gross price be fixed for the whole, as in a sale en bloc of all the corn in a granary (the exact quantity being unknown) or of a whole flock of sheep for a slump price (sale per aversionem (L. 62, 2) or universaliter uno pretio); it is on exactly the same footing as an ordinary sale, and the risk is changed as soon as the parties are ad idem on the subject sold and the price. Cp. D. 18. 6. 1, 1; C. iv. 48. 1, 1; ib. 2: (B) Though the quantity or lot is specifically distinguished, yet the price may be fixed at so much per unit: here the amount of the price depends upon an operation of weighing, counting, or measuring, and it could never be liquidated if some casus fortuitus made it impossible to ascertain the number of units; it is like a sale where the fixing of the price is referred to a third party (p. 10, note) and is therefore held to be conditional, and the risk remains on the seller until the act necessary for the purpose of ascertaining the price is performed. Soine civilians think that in this case also the sale is perfect, because the subject is identified and the price agreed on, and nothing is unascertained except its money value; but this view, though plausible on general grounds, cannot be maintained in face of $$ 5, 6 above.
Some words seem to have dropped out after ut* ($ 5 fin.): Mommsen suggests in singulas amphoras contrahatur aut; another conjecture is pretium constituatur.
In SS 5, 6, a whole quantity was sold. In § 7 only a part of a
6. So in the case of a flock, if it is sold for a slump price, the sale is held to be complete, immediately the price is fixed; but if it is sold at so much a head, the rule we have just explained will apply. larger whole (say ten dozen of wine out of a large cellar) is sold; and the same rule applies, whether the price be so much a dozen
so much for the lot. Here the contract is not complete (nondum apparet quid uenierit) till the necessary separation of the quantity sold has been made, till specific goods are appropriated to the contract as we say ; meanwhile the seller bears the whole risk (omne periculum, i.e. both the risk of deterioration and of total destruction). C. iv. 48. 2; D. 18. 6.5; Vat. Fr. 16. The civilians discuss under what conditions the setting apart of individual corpora to which the contract is to attach must be carried out so as to alter the risk (Windscheid, & 390), but there is a lack of authority in the texts. It has been suggested that the same principle should have been applied here as in the case of an alternative obligation (L. 31, 6), so that, if the seller's obligation became imprestable owing to the accidental destruction of the whole mass or bulk out of which the res vendita was to be taken under the contract, the buyer would still be liable for the price ; the non-separation of his specific goods, it may
be said, is an irrelevant fact, seeing that his portion (whichever it might have been) has perished with the rest. But the buyer, whose only hold upon the seller is that the latter is bound to separate and deliver say ten sheep out of a large flock, where the number of possible combinations of ten may be endless, has not the right to a specific thing in any ordinary sense. Hence the obligatio generis was looked upon as practically a conditional sale, and therefore imperfect in the sense here appropriate, till the condition of weighing, measuring, or counting was purified. Cp. Pothier, Vente, 308 sq.
The incidence of the risk is practically the same in modern law. But English law reaches this result by a different road : the theory is that 'the risk of the loss is prima facie in the person in whom the property is' (Lord Blackburn in Martineau v. Kitching (1872) L. R. 7 Q. B. p. 454; cp. S. G. B. $ 22), and the maxim res perit domino applies to sales (which it did not by the Roman law). The law of Scotland adopts the maxim
7. Sed et si ex doleario pars uini uenierit, ueluti metretae centum, uerissimum est (quod et constare uidetur) antequam admetiatur, omne periculum ad uenditorem pertinere: nec interest, unum pretium omnium centum metretarum in semel dictum sit an in singulos eos. of the civil law periculum rei venditae nondum traditae est emptoris, the theory being that accidental destruction of the thing sold extinguishes the buyer's jus ad rem specificam by making the seller's obligation to deliver it imprestable, while the buyer's obligation to pay the price subsists unaffected (Pothier, Vente, S$ 56, 307; Brodie's Stair, p. 854 sq. ; Bell, Prin. § 87). It follows from this that in Roman and Scots law the doctrine of risk forms no criterion by which the question of property can be decided; while in English law if it can be shown that the risk attached to one person or the other, that is an argument for showing that the property was meant to be in him. But though the risk usually attaches to the ownership, they are not inseparable. The expression res perit domino is ambiguous : 'the distinction must be borne in mind between being the loser of the property and the loser by the contract; for if the parties have agreed, as they certainly may, that although the property is to be in one party, yet if the goods are lost, the other party is to pay for them, it is clear that the risk is no test of property in that case' (Blackburn, Sale, p. 245; cp. Bell, Com. i. 180). Thus risk is always in the end a question of intention ; if the terms of the contract are express, they receive effect; if not, the Courts have adopted certain rules of construction for arriving at the presumed intention both as to the property, and the risk as an incident of it. See S. G. B. § 20. The question usually is: (1) Where the goods are specific, whether the seller is bound to do something to them to put them into a deliverable state, meaning a state in which the buyer is bound to accept them; and (2) where the goods are specific and in a deliverable state, whether anything remains to be done to them (such as measuring, counting, weighing, or testing) by the seller or by the parties jointly for the purpose of ascertaining the price : if so, the doing of such act or thing is presumed to be intended as a condition precedent to the passing of the property and the risk. Anderson v. Morice (1875) L. R. 10 C. P. 609 and 1 App. Ca. 713, and Turley v.
7. When part of the wine in a cellar is sold, say 100 measures, it is quite fixed (as seems to be admitted on all hands) that all the risk lies on the vendor until the quantity is measured off, and it makes no difference whether the price named was a slump sum for the whole hundred or so much a measure.
Bates (1863) 2 H. & C. 200 (where the earlier cases are reviewed) may be taken as typical cases under these heads.
It will be observed that the second of these principles is just the rule stated in $$ 5, 6 of this lex, regarding the necessity of ascertaining the money value of the price where it depends on number, weight, etc., before the contract is complete to the effect of passing the risk. This rule is said to have been arbitrarily adopted from the Roman law within the present century': thus in Zagury v. Furnell (1809) 2 Camp. 239, where several bales each containing five dozen goat-skins were sold at so much a dozen and all burnt before counting (which was proved to be the duty of the seller by usage), Lord Ellenborough was of opinion that
as the enumeration of the skins was necessary to ascertain the price, this was an act for the benefit of the seller; and as this act remained to be done by him when the fire happened, there was not a complete transfer to the purchaser, and the skins continued at the seller's risk.' As the law of England does not require the price to be fixed in money before a sale is complete, it is hard to see why the risk and property should not have passed. But the rule is now well established, and the only question is whether its operation should be confined to acts to be done by the seller.
The sale of an undivided or unseparated portion of a specific mass or bulk (as in § 7 of the text) may be compared with Campbell v. Mersey Docks Co. (1863) 14 C. B. n. s. 412, and other cases in Benj., p. 295 sq., where it was held that neither property nor risk could pass unless, and until, the goods were ascertained by separation or division.
In the Scotch case, Hansen v. Craig & Rose (1859) 21 D. 432, a cargo of oil, the actual weight of which was stated in the contract, along with particulars from which the gross price could be readily calculated, was destroyed by fire when ready for delivery; held, that the contract was complete and the risk had
1 See Blackburn, Sale, p. 174 sq.