Conditional sale

“ A learned author says, 'If any one of the ingredients be wanting, there is no sale.' Atkinson on Sales, 5. Benjamin on Sales, p. 1, note, and p. 2, says, 'To constitute a valid sale, there must be (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer, (4) a price in money, paid or promised.'
How, then, can there be a sale of seven hundred and five packs of iron, unless there be a purchase of it? How can there be a seller, unless there be likewise a purchaser? ”

“ He thus receives for all f.o.b. mill sales an identical net amount of money for like goods from all customers. But a 'delivered price' system creates complications which may result in a seller's receiving different net returns from the sale of like goods. ”

“ When a party has specific goods which, without his knowledge, have perished partly or wholly, the buyer may treat the sale as avoided, or as transferring the property in all of the existing goods and as binding him to pay the full agreed price if the sale was indivisible, or if divisible the agreed price for the goods in which the property passes. One can readily imagine trouble when none of the goods have been destroyed but all are in a condition inferior to that supposed at the time of the bargain. ”

“ Upon the first of them, relating to the premises having been parted with by Clarke to De Grasse, upon a consideration other than cash, we remark that sale is a word of precise legal import, both at law and in equity. It means at all times, a contract between parties, to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. ”

“ That the producer or vendee of a commodity require upon the sale of such commodity to another, that such purchaser agree that he will not, in turn, resell except at the price stipulated by such producer or vendee. ”

“ We do not think that it is wrong to agree to sell something that one does not now possess, but expects to obtain later. Contracts and agreements to sell, and deliver in the future, property which one does not possess at the time of the contract, are common in all kinds of business. The man who has “sold short” must some day buy in order to return the stock which he has borrowed to make the short sale. ”

“ The reasoning cited in the earlier part of this paper, to show the uselessness of a mere purchaser or customer, for enriching a nation or an individual, applies only to the case of dealers who have already as much business as their capital admits of, and as rapid a sale for their commodities as is possible. To such dealers an additional purchaser is really of no use; for, if they are sure of selling all their commodities the moment those commodities are on sale, it is of no consequence whether they sell them to one person or to another. ”

“ As we have seen above, in treating of sales, the essential basis of justice in exchange was the observance of aequalitas between buyer and seller—in other words, the fixing of a just price. The contract of mutuum, however, was nothing else than a sale of fungibles, and therefore the just price in such a contract was the return of fungibles of the same value as those lent. If the particular fungible sold happened to be money, the estimation of the just price was a simple matter—it was the return of an amount of money of equal value. ”

“ By conditioning his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the 'tied' product would convince freely choosing buyers to select it over others, anyway. ”

“ Sales in this manner give credence to the inference that the samples constitute a part of the goods sold, and therefore the goods must be of same quality as the samples, else the vendor does not comply with the conditions of the contract to which he is a party, and the purchaser may refuse to complete the sale by acceptance of the goods.
The quality of goods sold must be as represented by the vendor, if he warrants them by such representation, in order to secure a sale. In sales each one is supposed to be on his guard. ”

“ To make a sale valid, the thing to be sold must have an actual or a possible existence, and be capable of delivery. Thus, if A sells a horse or certain goods to B; and if, at the time of the sale, the horse is dead, or the good? are destroyed; the sale is void. ”

“ No contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment ”

“ So a sale upon credit, instead of being for ready money, under a general authority to sell, and in a trade where the usage is to sell for ready money only, creates to contract between the owner and the buyer, and the thing sold may be recovered in an action of trover. ”

“ One may observe preliminarily that the Government's remedy for the so-called 'bootstrap' sale-defining sale or exchange so as to require the shifting of some business risks-would accomplish little by way of closing off such sales in the future. ”

“ To accomplish a sale at one's farm or house or office might, and probably would, occupy a great deal of time, in finding a customer, bringing him to the spot, and agreeing on a price. All this can be done at an exchange in the very shortest time, and at the least inconvenience. The market is there, and all that is necessary is to send the commodity. Although a sale is the result in each case, and the thing sold may be of the same kind, the difference exists in the means and facilities for accomplishing such sale ”

“ Again, the obligation imposed on a buyer to return the boxes to a retailer, is constantly preventing hundreds of chance purchasers of rare fruit from taking it; but if the seller could say to him that the box goes with the fruit, and need not be returned, the mere convenience of the thing would be sufficient to determine the sale of large quantities,—the purchaser would carry it home in his hand. ”

“ It is requisite that there should be two parties to every contract of sale, except where the seller and purchaser employ the same agent, or where a father or a guardian makes a sale on behalf of a minor, or where a slave purchases his own freedom by permission of his master. ”

“ If owing to distance in time or place there occurs any fall in the value of the merchandise, the retail dealers shall pay the value and profit at that rate which obtained when they received the merchandise.
Servants selling commodities at prices prescribed by their masters shall realise no profit. They shall only return the actual sale proceeds. If prices fall, they shall pay only as much of the sale proceeds as is realised at the low rate. ”

“ Apparently, to qualify as a sale, a transfer of property for money or the promise of money must be to a financially responsible buyer who undertakes to pay the purchase price other than from the earnings or the assets themselves or there must be a substantial down payment which shifts at least part of the risk to the buyer and furnishes some cushion against loss to the seller. ”

“ This statute applies to a contract for goods that may be intended for future delivery, but not to goods that are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business.
The Sales Act contains an important section relating to the sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer becomes an owner in common with the owner of the remaining shares. How important is this section may be easily learned. The grain of many owners is often mingled in an elevator. ”

“ The failure to observe the distinction between an actual, bona fide sale, and what is nominally a sale, but in reality only a cloak under which to accomplish a combination of corporate properties or interests, has sometimes led to confusion of language, if not of thought, in the discussion of trade combinations. ”

“ The purchaser draws boundaries, fences himself in, and says, “This is mine; each one by himself, each one for himself.” Here, then, is a piece of land upon which, henceforth, no one has a right to step, save the proprietor and his friends; which can benefit nobody, save the proprietor and his servants. Let these sales multiply, and soon the people—who have been neither able nor willing to sell, and who have received none of the proceeds of the sale—will have nowhere to rest, no place of shelter, no ground to till. ”

“ If language is to be interpreted in its natural and ordinary sense, the contract means that, and means nothing more nor less. The purchases, it says, shall be made during the present year. The sale shall be made within five years from that time, and one-half the profits from such purchase and sale, not from purchases or sales made at any other time, shall be paid to Price, not as profits, but as compensation for his services. ”

“ As it supposes that two years' taxes are actually due, there can be no doubt that the lots may be severally sold; for the greater sum includes the less, and the owner had his remedy to prevent a sale, by tendering the amount actually due on any particular lot set up for sale. But if the corporation are suffered to go on to sell, and the sale of any one or more lots shall produce the amount actually due on the whole, by the same individual, it is clearly at their peril to proceed further. ”

“ This is a sale of a single product with the incidental provision of financing. It is not a sale of one product on condition that the buyer will not deal with competitors for another product or will buy the other product exclusively from the seller. ”

“ Any vendor who offers property for sale at a named price similarly carries the burden or risk that the property may increase in value between offer and acceptance. If the sale is by executory contract he also carries the risk between promise and performance. It is an inseparable incident of every sale except those in which conditions admit of payment for the property simultaneously with its tender for sale, a procedure which may not be available to a corporation seeking to sell its property to stockholders. ”

“ It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and 'after having given public notice of such sale by advertisement at least thirty days;' but it assumes that the sale will be conducted as such sales are usually conducted. ”

“ A sale and purchase is the work of a moment in the Board Rooms, and no voucher is exchanged to prove it till comparisons are made at the brokers’ offices, usually after the Exchange closes. But no contract thus made in an instant of time is ever repudiated, no matter how heavy a loss it 957may involve to buyer or seller, for the penalty of such a repudiation would be immediate suspension from the Stock Exchange, followed by expulsion when proved. ”

“ This ruling, therefore, accords with the principles of the former cases, and illustrates the distinction between an implied condition of the sale as the essence of the thing sold, and the ascertainment of whether the contract of sale in the purview of the parties embraced a particular object, just as it appeared to be, whether existing or not, whether valid or invalid. ”

“ Within the category of goods and services that can be sold at retail, naturally not every sale can be so classified. The exemption itself excludes any sale for resale and beyond that, references in the legislative history, n. 14, supra, and common parlance certainly suggest that the term retail becomes less apt as the quantity and the price discount increase in a particular transaction. Again, we do not believe the word usage of the industry must be given conclusive force. ”

“ When a piece of landed property is bought at a forced sale, if those who have lent money on that property see that is likely to be sold so low as not to cover the sum loaned upon it, they have the right, until the expiration of a certain time, to bid it in ”

“ It is unrealistic to treat an extraordinary sale for one consideration of real property, part of which is immature green fruit, which sale will put the seller completely out of business, as an ordinary sale in the course of trade or business, when the business being closed out had been one that dealt only in the sale of matured fruit. ”

“ If the sale has been attended by any irregularity, as if several lots have been sold in bulk where they should have been sold separately, or sold in such manner that their full value could not be realized; if bidders have been kept away; if any undue advantage has been taken to the prejudice of the owner of the property, or he has been lulled into a false security; or if the sale has been collusively or in any other manner conducted for the benefit of the purchaser, and the property has been sold at a greatly inadequate price,-the sale may be set aside, and the owner permitted to redeem. ”

“ If the sale produced a much smaller sum than expected, the set-off necessarily would fall, and a new order would be required. The whole matter was in fieri, and subject to change if, for any reason, it became necessary or desirable to change the plan. ”