Offertory

“ An auctioneer is bound under a penalty of £20 to see that his full name and address are displayed before the commencement of an auction and during its continuance in the place where he conducts it. He is the agent of the vendor only, except in so far that, after he has knocked down a lot to the highest bidder, he has authority to affix the name of the latter to a memorandum of the transaction, so as to render the contract of sale enforceable where written evidence is necessary. ”

“ We say that one offers for a present benefit, when the offering is accepted by the king, and he who offers it receives from the king in proportion to what he has offered: as when any one, for some liberty, for an estate or for a farm, or for the wardship, to be enjoyed until he is of age, of some one who is a minor, or for any thing else which seems to add to his convenience or honour, offers of his own accord to the king £100 or 100 marks, and, the king consenting, immediately after the offer receives what he wished for. ”

“ Thus, an offering to the members of a class who should have special knowledge of the issuer is less likely to be a public offering than is an offering to the members of a class of the same size who do not have this advantage. This factor would be particularly important in offerings to employees, where a class of high executive officers would have a special relationship to the issuer which subordinate employees would not enjoy.' 11 Fed.Reg. ”

“ It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, the seller, therefore, must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be willing and ready to pay the price in exchange for the possession of the goods. ”

“ It is an offer made to all the world;and why should not an offer be made to all the world which is to ripen into a contract with anybody who comes forward and performs the condition? It is an offer to become liable to any one who,before it is retracted, performs the condition, and, although the offer is made to the world, the contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. ”

“ Under an open contract a vendor is presumed to be selling the fee-simple in possession, free from any incumbrance, or liability, or restriction as to user or otherwise; and if he cannot deduce a title of the statutory length, or procure an incumbrance or restriction to be removed, the purchaser may repudiate the contract. The preparation of an agreement for sale involves accordingly an examination of the vendor’s title, and the exercise of skill and judgment in deciding how the vendor may be protected against trouble and expense without prejudice to the sale. ”

“ 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. ”

“ When a company is promoted for acquiring property—to work a mine or patent, for instance, or carry on a going business—the usual course is for the promoter to frame a draft agreement for the sale of the property to the company or to a trustee on its behalf. The memorandum and articles of the intended company are then prepared, and an article is inserted authorizing or requiring the directors to adopt the draft agreement for sale. ”

“ Even if the auctioneer promises that he will accept the highest offer, that is, that he will sell to the highest bidder, his promise to accept the highest bid, not being paid for, would not be binding upon him were it not for a statute in some States which, in the sale of goods, would make an auctioneer bound to keep a promise to sell without reserve, that is, to the highest bidder, if he made such a promise. ”

“ If a man orders ten tons of scrap iron from a dealer, it is obvious that the dealer can fulfil his contract by delivering any ten tons of scrap that he may select, and that until the ten tons have been set apart, no question of change of ownership can arise. But when a specific article is bought, or when goods ordered by description are appropriated to the contract the passing of the property is a question of intention. Delivery to the buyer is strong evidence of intention to change the ownership, but it is not conclusive. Goods may be delivered to the buyer on approval, or for sale or return. ”

“ On the same grounds on which you leave the seller of gloves and the buyer of gloves to make their own contract, you ought to leave the seller of labour and the buyer of labour to make their own contract. ”

“ In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered. ”

“ If the person addressed does not choose to pay that price, all he has to do is to reject the offer, but he can bind the offerer only on the terms proposed. Therefore, if the offerer asks for an act in return for his promise, that is, asks for an immediate payment, or work, or the giving of property for his promise, no contract can be made by the person addressed saying, "All right, I will do it;" that is not giving the price the offerer asked. On the other hand, should the offerer ask for a promise and not for an act, the acceptor must give the promise asked for. ”

“ Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of 'about,' or 'more or less,' or words of like import, the contract applies to the specific lot ”

“ Such an offering, though not open to everyone who may choose to apply, is none the less 'public' in character, for the means used to select the particular individuals to whom the offering is to be made bear no sensible relation to the purposes for which the selection is made. ”

“ You make him the offer to give or take three thousand dollars, and I will supply the money. But you ought, by all means, to add a stipulation, that whoever goes out shall sign a written agreement not to go into the same business for at least ten years to come. If you don't do this, he can take his three thousand dollars and start another establishment upon as large a scale as the one you have, and seriously affect your operations. ”

“ If, however, X ships the thirty tons of coal, he can hold Y only at thirteen dollars a ton for he has abandoned his original offer and accepted Y's offer. It can be taken as a general principle that if an offer be not accepted in its terms and a new condition be introduced, then the acceptance really becomes an offer, and if the one who made the original offer goes ahead, it can be assumed that he has agreed to the modifications of the unresponsive acceptance. ”

“ Thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract.
3 So nearly akin, indeed, is purchase and sale, to letting and hiring, that in some cases it is a question to which class of the two a contract belongs. ”

“ Modern historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commodatum) , deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet barely recognized by law. The law recognized conveyance but hardly contract. Sale was the offspring of barter—of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side. ”

“ When a merchant treated with a seller who had come into the town, any of his fellows who happened to come in at the moment when the earnest-money was paid and the striking of hands in ratification of the bargain took place, had the right to claim a share in the transaction and to obtain the goods in question at the same price. ”

“ The wholesale trade is conducted by three classes of persons: dealers or merchants, commission men, and brokers. The dealer is one who buys the goods outright and takes his own risk on making a favorable sale to the retailer. The commission man is one who receives the goods, sells them at such price as he may be able to obtain and remits to the seller the amount obtained less expenses and his commission. The broker is a man who effects a sale without coming in contact in any way with the materials sold. ”

“ A Sale is a transfer of the title to property to another person for a certain price; or the exchange of a commodity for its equivalent value in money. The exchange of one commodity for another, is barter. Unless the absolute title is conveyed, the contract is merely a mortgage. The same general principles of law which apply to contracts in general, are applicable to contracts of sale, viz.: the competency of the parties to contract ”

“ In such sales the goods are delivered to the buyer, but the title is retained by the seller until payment.
The capacity to buy and sell is regulated by the general law concerning the capacity to contract, transfer and acquire property. When necessaries are sold and delivered to a minor, or to an insane or drunken person, or to a married woman, who is lacking in mental capacity to make a contract, he must, by the general Sales Act, pay a reasonable price therefor. ”

“ Suppose one should mail a letter of acceptance, but before its receipt by the offerer, should send a telegram declining the offer which was received before the letter of acceptance? The acceptance would stand, for as there had been a meeting of minds when the letter was put into the postoffice, the offeree could not afterwards withdraw his offer. A person who makes an offer cannot turn it into an acceptance. An old uncle wrote to his nephew that he would give thirty dollars for his horse and added, "If I hear no more about the matter, I consider the horse is mine." ”

“ The offerer cannot by his own act make the silence of the other person amount to an acceptance. Suppose an offer of this sort: "We offer to sell you 100 shares of stock at $50 a share, and unless we hear from you to the contrary by next Wednesday we shall conclude that you have accepted our offer." The offerer does not get any word before next Wednesday. Nevertheless, there is no contract. ”

“ No contract for the sale of any goods, wares, or merchandise for the price of ten pounds sterling or upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum in writing of the said bargain, be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized. ”

“ As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract is divisible. ”

“ If a merchant lends to an agent and the agent returns to the merchant whatever the merchant had given him, if the merchant has a dispute with him about it, that agent shall put the merchant on trial on oath in the presence of the elders, and the merchant, because he had a dispute with his agent, whatever he received he shall give to the agent six times as much. ”

“ The parties are the persons from whom the property, or some estate or interest in or in relation to it, is to pass to the purchaser, or whose concurrence is rendered necessary by the state of the title in order to give the purchaser the full benefit of his contract and to complete it according to law. It is often necessary that other persons besides the actual vendor should join in the conveyance, e.g. ”

“ In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the advertisement cases it seems to me to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. ”

“ Unaccepted offers to enter into a contract bind neither party, and can give rise to no cause of action; as, for example, if one merchant offer to sell goods to another, such an offer is not binding until it has been in some form accepted by the party to whom it was made. ”

“ The memorandum leaves it doubtful, whether a sale in presenti, or a contract, or proposals towards a contract, for a future sale, were intended. The probable, if not necessary inference, from the face of the paper, is, that no present sale is made.
1. No specific goods are designated.
2. An election to reject or deny any contract as to part, at the mere pleasure of the purchaser, is reserved.
3. Credit is not to commence until a future uncertain event.
4. Delivery is thereafter to be made. ”