SALE OF GOODS. The law of sale is usually treated as a branch of the law of contract, because sale is effected by contract. Thus Pothier entitles his classical treatise on the subject, Traite du contrat de vente. But a completed contract of sale is some thing more. It is a contract plus a transfer of property. By an agreement to sell a ius in personam is created; by a sale of ius 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 of the nature of a gift. So, too, if commodity be exchanged for commodity, the transaction is called barter (q.v.) and not sale, and the rules relating to sales do not apply in their entirety. Again, a contract of sale must contemplate an absolute transfer of the property in the thing sold or agreed to be sold. A mortgage may be in the form of a conditional sale, but English law regards the substance and not the form of the transaction. If in substance the object of the transaction is to secure the repayment of a debt, and not to transfer the absolute property in the thing sold, the law at once annexes to the transaction the complex consequences which attach to a mortgage. So, too, it is not always easy to distinguish a con tract for the sale of an article from a contract for the supply of work and materials. If a man orders a set of false teeth from a dentist the contract is one of sale, but if he employs a dentist to stop one of his teeth with gold the contract is for the supply of work and materials. The distinction is of practical impor tance, because very different rules of law apply to the two classes of contract. The property which may be the subject of sale may be either movable or immovable, tangible or intangible. The present article relates only to the sale of goods—that is to say, tangible movable property.
several years the main principles have been well settled. In 1891 the subject seemed ripe for codification, and Lord Herschell intro duced a codifying bill which two years later passed into law as the Sale of Goods Act, 1893.
Sale is a consensual contract. The parties to the contract may supplement it with any stipulations or conditions they may see fit to agree to. The code in no wise seeks to fetter this dis cretion. It lays down a few positive rules—such, for instance, as that which reproduces the 17th section of the Statute of Frauds. But the main object of the act is to provide clear rules for those cases where the parties have either formed no intention or have failed to express it. When parties enter into a contract they contemplate its smooth performance, and they seldom pro vide for contingencies which may interrupt that perf ormance such as the insolvency of the buyer or the destruction of the thing sold before it is delivered. It is the province of the code to provide for these contingencies, leaving the parties free to mod ify by express stipulation the provisions imparted by law. When the code was in contemplation the case of Scotland gave rise to difficulty. 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. The Codifying bill of 1891 applied only to England, but on the advice of Lord Watson it was extended to Scotland. As the English and Irish laws of sale were the same, the case of Ireland gave rise to no difficulty, and the act now applies to the whole of Great Britain. As regards England and Ireland, very little change in the law has been effected. As regards Scotland, the process of assimilation has been carried further, but this has not been completed. In a few cases the Scottish rule has been saved or re-enacted, in a few other cases it has been modified, while on other points, where the laws were dissimilar, the English rules have been adopted.