When the documents are tendered the buyer must be ready and willing to pay the price. He is not entitled to withhold payment until he has had an opportunity of examining the goods. The term "net cash" in a c.i.f. contract means cash against documents. The property passes, if any one general rule can be laid down on the subject, when the documents are tendered. But on this as on other aspects of the sale there is a growing body of law to which it is very difficult to do justice in a general statement. Some of the topics are not altogether free from difficulty. Moreover, though it is a form of contract in use the world over, the law governing it is by no means as uniform as could be wished. Ac cordingly it has been suggested, though the suggestion has a greater measure of support on the Continent where it originated than in either England or the United States, that attempts should be made to secure uniformity along the lines of the York-Antwerp rules. More doubtless will be heard of the proposal as time goes on.
The English law, as stated above, gives even in its details a picture of the American law. There is, to be sure, no market overt in the United States ; and the American Factors' Acts are not only less broad in scope than the English, but, even with their narrower scope, are found only in a handful of States. Their policy should be compared with that of the statutes requiring filing or recording of chattel mortgages (see BILL OF SALE) and of conditional sales (see INSTALMENT PURCHASE). Where found, they commonly per mit a consignee of goods, whose business also includes selling on his own account, to make an effective pledge of his principal's goods to secure his own debt ; but the American law extends such powers to the "intending purchaser" who has secured possession only in a few specific cases, such as (in many States) instalment purchase. It should also be noted that the rule that risk follows title has an exception where title is withheld—as in the instalment purchase—only for securing payment of the price.
The chief divergence of American sales law from that described above has to do with warranties ; i.e., the nature of the seller's obligation with reference to the kind and quality of goods sold. The facts which will place some obligation on the seller with refer ence to quality are substantially the same in both countries. But in the United States, if the seller has undertaken any obligation in this respect, the buyer will, in the majority of States, be entitled not only to damages (the English "warranty") but also (at his election) to return the goods and recover the price (the English "condition"). This rule as indicated, is not universal. The Ameri can common law was in some conflict and confusion on the point, and the Uniform Sales Act, incorporating the view just stated, has not been adopted as yet (1928) in 20 of the States.
The long controversy over the buyer's power to return defective goods indicates the extent to which the law of warranty has been a creature of mercantile law, designated to settle disputes about goods between merchants. Of recent years, however, the law of warranty has been put to another striking social use : that of allo cating the risks incident, in a highly industrialized society, to the unavoidable use of goods manufactured by persons with whom the user has no direct contact, who may be a "corporation" located in a distant place, whose methods the user has neither skill nor oppor tunity to know—but whose efficiency he is forced by the nature of the market to rely upon. Injury in those cases results from a tack or a piece of glass concealed in cake or a can of beans, from the explosion of an automatic water-heater, or from the breaking of an automobile wheel. In such cases return of the goods is not in question, but only the allocation of the damage suffered. The device of an action for negligence has recently been extended for this purpose ; but it seems to be limited to personal injury, as opposed to property damage; and it is obviously ineffective in the many States in which the burden rests on the injured plaintiff of proving the manufacturer negligent in regard to the particular defective article. There is some tendency to shift the burden to the manufacturer where the article is one, which, if negligently made, would be dangerous ; i.e., to make an injury due to defect raise a presumption of negligence in manufacture. Under this rule the remedy "for negligence" is effective—so effective indeed, as apparently to have given rise to a considerable volume of fraudu lent claims. The remedy in negligence, too, may well be extended to any injured purchaser.
But the remedy for the same injury by way of the law of war ranty seems in almost all States to be limited to the specific pur chaser against his specific seller ; it has been held to extend neither to his wife, his child, his employee nor his guest. Nor, under most decisions, will it run against the manufacturer if the plaintiff bought the article not directly from him, but from an intervening dealer. On the other hand, wherever remedy in warranty is avail able, it requires no proof of negligence at all: the seller is held to guarantee against dangerous defects in the article. It is clear the situation is one in which the courts are groping toward satisfying a definite social need, and yet one in which the traditional legal devices are only with delay and distortion capable of being made to fill the need.