Sale of Goods

Having dealt with the effects of sale, first, as between seller and buyer, and, secondly, as between the buyer and third parties, the act proceeds to determine what, in the absence of convention, are the reciprocal rights and duties of the parties in the perform ance of their contract (secs. 27 to 37). "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" (sec. 27). 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 pay ment of the price are concurrent conditions" (sec. 27). But agreement, express or implied, may create infinite variations on the normal contract. It is to be noted that when goods are sent to the buyer which he is entitled to reject, and does reject, he is not bound to send them back to the seller. It is sufficient if he intimate to the seller his refusal to accept them (sec. 36).

Remedies of Buyer and Seller.

The ultimate sanction of a contract is the legal remedy for its breach. Seller and buyer have each their appropriate remedies. If the property in the goods has passed to the buyer, or if, under the contract, "the price is payable on a day certain irrespective of delivery," the seller's remedy for breach of the contract is an action for the price (sec. 49). In other cases his remedy is an action for damages for non acceptance. In the case of ordinary goods of commerce the meas ure of damages is the difference between the contract price and the market or current price at the time when the goods ought to have been accepted. The convenient market-price rule is subordi nate to the general principle that "the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract" (sec. 56). Similar considerations apply to the buyer's right of action for non delivery of the goods (sec. 51). In exceptional circumstances the remedy of specific performance is available to the buyer (sec. 52). Thus the court might order the specific delivery of an autograph letter of an otherwise unrecorded signatory of the Declaration of Independence. The seller's rights are further protected by the rules as to lien and stoppage in transitu (secs. 38 to 48).

The sixth and last part of the act is supplemental, and is mainly concerned with drafting explanations, but sec. 58 contains some

rules for regulating sales by auction. The practice known as a "knock-out" has since been struck at by the Auctions (Bidding Agreements) Act, 1927, by which it is declared illegal and punish able.

The act of 1893 has been adopted in substance by very many of the colonial possessions, and has been followed in the main by the American Sales Act (U.S.A.). (M. D. C.) C.I.F. Contracts.—These are in a class by themselves. The law governing them is mostly of recent growth and, nearly all of it, case law. They are contracts for the sale of sea-borne goods where the price quoted covers cost, insurance and freight. Hence the name. But the distinguishing characteristic of these sales is this : Performance is effected by tender of the documents in place of the delivery of the actual goods. Indeed, in the business world they are often referred to as sales of documents. By their means the goods are often sold many times over while still afloat ; even though the ship be sunk or the goods perish no loss need fall upon the buyer, because he is protected under the policy of insurance effected on the goods or the bill of lading under which they are carried.

The documents are naturally the focus of attention. The seller must tender to the buyer the invoice, the bill of lading and the policy of insurance. On this point the requirements of the English courts are strict. By bill of lading is meant a bill or document at testing that the goods have been loaded on board, not that a ship ping company is under contract to carry the goods on a named or subsequent ship. In the United States the practice may be different and the courts there may recognize "received for ship ment" bills of lading and similar documents which circulate freely enough in the commercial world. Similarly with the policy of insurance. English law requires the tender of a policy. In the United States certificates of insurance and even more informal records of the contract of insurance are in recognized use. In this respect perhaps English law lags a little behind commercial prac tice, for certainly these certificates are a great convenience and by special agreement can be regularly employed. But in criticizing the law as it stands it must not be forgotten that other interests besides those of buyer and seller are affected ; the banker and underwriter have to be taken into account. The banker for his part has up till now resolutely set his face against the so-called "bill of lading" which gives no certain information as to the whereabouts of the goods.