SALE is that transaction by which the ownership of property is transferred to the buyer, in consideration of a money payment by him, or on his behalf, to the seller. Such transfer of ownership may some times be made, although the property does not belong to the seller ; as in the case of sales in open market, which are valid, though made by parties wholly without title to the property, or authority to sell it; and salsas by factors and agents duly authorised. Under the present head it is proposed to treat only of the law relating to the simple act of sale, it being assumed that the parties to the sale are legally qualified to effect it. Persona hi certain conditions are by Law in Borne cases restrained and in others diaabled from buying and selling, but these restrictions and disabilities form no part of the Law of sale; they belong rather to those branches of the law, such as infancy, bank ruptcy, insolvency, coverture, lunacy, alienage, &c., which create and define them.
Generally, all things may be the subject of sale; but there are some exceptions,---such are a were title to lands of which a party is not in passossion, a presentation to a living actually vacant, the pay of a naval ur military officer, and some other things.
Property is distributed under the two heads of real and personal pro 1,erty, which differ materially in many respects ; and the modes of effect ing the sale of each of theme kinds of property likewise materially differ. Some incidents, however, are common to a sale both of real and personal property.
No sale is valid so ea to be capable of being enforced unless 1st The parties to it act with good faith ; 2nd. Unless there is consent In each of them ; and, 3rd. No sale is valid the subject of which is Illegal, or, which in volves an illegal tranaaction, or has for its object an illegal act.
With respect to the first principle, it is a maxim of the common law that fraud vitiates all contracts. The fraud may be, with respect to the property, the subject of sale, either of a positive character, such an wilful mladescription of it in some material particular by the seller, or negative, such as a designed concealment of defects and incum brances. In these caeca the contract of sale cannot be enforced, not
withstanding express stipuLations that the property shall be taken with all its faults, or that nnestatementa shall not invalidate the sale, but shall be provided for by compensation.
What Is a material particular, will of course depend upon the subject-matter of the sale and the circumstances of the Que. A min description of the situation of an estate, a statement that a public house which watt bound by covenant to plimlialse beer of a particular brewer was a free public-house, that a long leasehold estate was free hold, have been held to be material. Under thin head may be adduced as an Instance the employment of more persona than one to make false biddings at an auction on behalf of the seller. Such persons are eornmonly called puffers. One such person may lawfully be employed to protect the interest+, of the seller by merely buying in the property at a predetermined eum. But the bidding of more than one has the effect of inducing an incorrect opinion as to the value of the estate, and such bidding, being fraudulent, invalidates the sale. In like manner fraud on the tart of the buyer will have the same effect; as where he prevent:, other persons from purchasing by fraudulently misrepresenting the nature of the property, or attempts to obtain possession of it with A design not to pay for It; or where, 'when negotiating the sale, he knows himself to be insolvent, or makes pay ment by cheques or bill+, which he knows will not be honoured, &c. The are instances of fraud which in intended to operate only on ono of the parties to the sale. But the same effect may be produced where the fraud is intended to operate on other persons not parties to the sale ; se where • sale is attempted to be made by a seller for the pur pose of defrauding Ilia creditors. If in such case the buyer participate in the fraudulent intention, the sale will be invalid. In an action at law, the question whether fraud has existed is to be determined by the Jury.