Mackenzie Dalzell Edwin Stewart Chalmers

“ In ordinary cases the seller’s duty to deliver the goods is satisfied if he puts them at the disposal of the buyer at the place of sale. The normal contract of sale is represented by a cash sale in a shop. The buyer pays the price and takes away the goods: “ Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions” (§ 27) . But agreement, express or implied, may create infinite variations on the normal contract. ”

“ In England, if a bill is dishonoured by non-acceptance, a right of action at once accrues to the holder. In France no cause of action arises unless the bill is again dishonoured at maturity; the holder in the meantime is only entitled to demand security from the drawer and indorsers. In England a sharp distinction is drawn between current and overdue bills. In France no such distinction is drawn. In England no protest is required in the case of the dishonour of an inland bill, notice of dishonour being sufficient. In France every dishonoured bill must be protested. ”

“ In early English law caveat emptor was the general rule, and it was one well suited to primitive times. Men either bought their goods in the open market-place, or from their neighbours, and buyer and seller contracted on a footing of equality. Now the complexity of modern commerce, the division of labour and the increase of technical skill, have altogether altered the state of affairs. The buyer is more and more driven to rely on the honesty, skill and judgment of the seller or manufacturer. ”

“ A purely personal bond arises thereby between seller and buyer. But complete or executed contract of sale effects a transfer of ownership with all the advantages and risks incident thereto. By an agreement to sell a jus in personam is created; by a sale a jus in rem is transferred. The essence of sale is the transfer of property for a price. If there be no agreement for a price, express or implied, the transaction is gift, not sale, and is regulated by its own peculiar rules and considerations. ”

“ In most cases a contract induced by fraud is voidable only, and not void, and the act provides, accordingly, that a voidable contract of sale shall be avoided to the prejudice of an innocent purchaser. The ancient privilege of market overt [1] is preserved intact, section 22 providing that “where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods provided he buys them in good faith, and without notice of any defect or want of title on the part of the seller.” ”

“ The right of Judicial sale of buildings under a mechanic’s lien for labour and materials is given by the law of many states. The sale of public lands is regulated by Act of Congress. In the law of sale of personal property American law is also based upon English law. The principal differences are that the law of market overt is not recognized by the United States, and that an unpaid vendor is the agent of the vendee to resell on non-payment, and is entitled to recover the difference between the contract price and the price of resale. Warranty of title is not carried as far as in England. ”

“ A bill of exchange must be an unconditional order to pay. If an instrument is made payable on a contingency, or out of a particular fund, so that its payment is dependent on the continued existence of that fund, it is invalid as a bill, though it may, of course, avail as an agreement or equitable assignment. In Scotland it has long been the law that a bill may operate as an assignment of funds in the hands of the drawee, and § 53 of the act preserves this rule. ”

“ When judges and juries have been satisfied of the bona fides of a contract which does not appear to satisfy the statute, they have done their best to get round it. Every expression in the section has been the subject of numerous judicial decisions, which ran into almost impossible refinements, and illustrate the maxim that hard cases make bad law. It is to be noted that Scotland is excluded from the operation of section 4. The Statute of Frauds has never been applied to Scotland, and Scotsmen appear never to have felt the want of it. ”

“ In England a court of common law could only award damages, and apart from certain recent statutes, a claim for specific performance could only be entertained by a court of equity in a very narrow class of cases when the remedy by damages was deemed inadequate. ”

“ Though an infant cannot contract he must live, and he can only get goods by paying for them. The law, therefore, provides that he is liable to pay a reasonable price for necessaries supplied to him, and it defines necessaries as “goods suitable to the condition in life of such minor or other person, and to his actual requirements at the time of the sale and delivery.”
The 4th section of the act reproduces the famous 17th section of the Statute of Frauds, which was an act “for the prevention of frauds and perjuries.” ”

“ A bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank. If a man lawfully obtains possession of a bill payable to order without the necessary indorsement, he may obtain some common law rights in respect of it, but he is not the mercantile owner, and he is not technically the holder or bearer. ”

“ Scottish law varies widely from English. To speak broadly, the Scottish law of sale differs from the English by adhering to the rules of Roman law, while the English common law has worked out rules of its own. Where two countries are so closely connected in business as Scotland and England, it is obviously inconvenient that their laws relating to commercial matters should differ. ”

“ The person who gives the order is called the drawer. The person thereby required to pay is called the drawee. If he assents to the order, he is then called the acceptor. An acceptance must be in writing and must be signed by the drawee. The mere signature of the drawee is sufficient (§17) . The person to whom the money is payable is called the payee. The person to whom a bill is transferred by indorsement is called the indorsee. The generic term “holder” includes any person in possession of a bill who holds it either as payee, indorsee or bearer. ”

“ Section 20 deals with the transfer of risk from seller to buyer, and lays down the prima facie rule that “the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer’s risk whether delivery has been made or not.” Res perit domino is therefore the maxim of English, as well as of Roman law.
In the vast majority of cases people only sell what they have a right to sell, but the law has to make provision for cases where a man sells goods which he is not entitled to sell. ”

“ For friendship, or other reasons, a man may be willing to lend his name and credit to another in a bill transaction. Hence arise what are called accommodation bills. Ordinarily the acceptor gives his acceptance to accommodate the drawer. But occasionally both drawer and acceptor sign to accommodate the payee, or even a person who is not a party to the bill at all. The criterion of an accommodation bill is the fact that the principal debtor according to the instrument has lent his name and is in substance a surety for some one else. ”

“ If the buyer becomes insolvent the unpaid seller has a further right founded on ancient mercantile usage. He may have parted with both the property in and possession of the goods sold, but he can attach the goods as long as they are in the hands of a carrier or forwarding agent, and have not reached the actual possession of the seller or his immediate agent. ”

“ But if, instead of buying a particular horse, a man applies to a dealer to supply him with a quiet horse, and the dealer supplies him with a vicious one, the stipulation is a condition. The buyer can either return the horse, or keep it and claim damages. ”

“ They naturally have better means o judging of their merchandise than the outside public, and the buyer is entitled within limits to rely on their skill or judgment. A tea merchant or grocer knows more about tea than his customers can, and so does a gunsmith about guns. In such cases, if the buyer makes known to the seller the particular purpose for which the goods are required, there is an implied condition that the goods are reasonably fit for it, and if no particular purpose be indicated there is an implied condition that the goods supplied are of merchantable quality (§ 14) . ”

“ The fact is that, when Beawes wrote, the law or practice of both nations on this subject was nearly uniform. But English law has gone on growing while French law has stood still. A bill of exchange in its origin was an instrument by which a trade debt due in one place was transferred to another place. This theory French law rigidly keeps in view. In England bills have developed into a paper currency of perfect flexibility. In France a bill represents a trade transaction; in England it is merely an instrument of credit. English law affords full play to the system of accommodation paper ”

“ A man must be expected to know and follow the law of the place where he conducts his business, but no man can be expected to know the laws of every country through which a bill may travel. For safety of transmission from country to country bills are often made out in sets. ”

“ But there are certain peculiar rules relating to the latter which arise from the fact that the relationship Cheques.of banker and customer subsists between the drawer and drawee of a cheque. For example, when a person has an account at a bank he is, as an inference of law, entitled to draw on it by means of cheques. A right to overdraw, can, of course, only arise from agreement. The drawer of a cheque is not absolutely discharged by the holder’s omission to present it for payment within a reasonable time. ”

“ In the interests of the currency the issue of bank notes is subject to various statutory restrictions. A bank, other than the Bank of England, may not issue notes in England unless it had a lawful note issue in 1844. On the other hand, Bank of England notes are legal tender except by the bank itself.
In fundamental principles there is general agreement between the laws of all commercial nations regarding negotiable instruments. ”