CHAPTER III.

Doctrine of caveat emptor (let the buyer beware!)-Sale by Sample-Where there is an implied condition in Contract by Sample-Evidence always admissible to prove Custom-Effect of contract of Sale-Transfer of property as between Seller and Buyer-Contract for specific or ascertained Goods-Rules for ascertaining Intention of Parties-Contract made for Specific Thing in existence-When Seller may reserve to himself right of disposal of Specific Goods-Contract of Sale of unascertained Goods-When Goods remain at seller's risk-The Person who has to bear loss of Goods.

IN reference to the doctrine of caveat emptor (let the buyer beware!), the modern cases go to show that there has been a distinct tendency to limit its operation. Goods sold for a particular purpose must be fit for that purpose, that is to say, the articles offered or delivered must answer the purpose for which they were bought, and where the article or commodity does not, in fact, answer to the description of it in the contract, "it does not do so more or less because the defect of it is patent, or latent, or discoverable."

Sale by Sample.-A contract of sale is a contract of sale by sample when there is a term in the contract, express or implied, to that effect.

In the case of a contract of sale by sample, there is an implied condition that the bulk shall correspond with the sample in quality; and there is

an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample. There is also an implied condition that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

Evidence of usage is always admissible to prove that by a particular trade such and such a custom was the usage of that particular trade, even where no reference was made to it in the contract. Mere exhibition, however, does not make the contract necessarily a contract for sale by sample. The buyer may always reject the goods if the bulk do not correspond with the sample, unless he has finally accepted them, or the contract relates to specific goods the property in which has passed to him.

Effects of the Contract of Sale-Transfer of property as between seller and buyer.-Where there is a contract for the sale of unascertained goods, no property to the goods is transferred to the buyer unless and until the goods are ascertained.

Mere descriptive goods must always be distinguished from specific goods.

Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred at such time as the parties to the contract intend it to be transferred; and for the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the

case.

Of course in English law, and the principle applies to Scotland also, the effect of such a contract would be, if such was the intention of the parties, to vest the property in the buyer.

Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.

Rule 1.-Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

Rule 2.-Where there is a contract for the sale of specific goods, and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done and the buyer has notice of it.

Rule 3.-Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done and the buyer has notice of it. [The three rules enumerated above apply only to specific goods.]

Rule 4.-When goods are delivered to the buyer on approval or "on sale or return,' or other similar terms, the property in them passes to

the buyer: (a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time; and, if no time has been fixed, on the expiration of a reasonable time. As to what will be considered a reasonable time, this is a question of fact.

Rule 5.-When there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller, with the assent of the buyer, or by the buyer, with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. Where, in accordance with the terms of the contract, the seller delivers the goods to the buyer or to a carrier or other person to whom they have been given for safe custody (whether named by the buyer or not), for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.

If a contract of sale is made for a specific thing in existence, in order to vest the property, the identical goods must be sold and the price fixed; and the moment the goods which have been

selected in pursuance of the contract are delivered to a carrier, such carrier becomes the agent of the buyer, and such a delivery amounts to a delivery to the buyer; therefore, if there is a binding contract between the seller and buyer, either by note in writing or part payment, or subsequently by part acceptance, then there can be no doubt that the property passes by such delivery to the carrier. But the goods must agree with those mentioned in the contract of sale. In other words, if a tradesman orders goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier it operates as a delivery to the purchaser, and the whole property vests in him.

When there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such a case, notwithstanding the delivery of the goods to the buyer or to a carrier or other person having control over them for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled; and when goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller will generally be deemed to reserve the right of disposal.

When the seller of goods draws on the buyer for the price, and transmits the bill of exchange and