페이지 이미지
PDF
ePub

rash to oblige the provinces to accept a single magistrate's determination, as they had always been accustomed to having their lawsuits settled by the magistrates. Where an order has been given by the ministry of justice in Berlin that registration shall be begun in an amtsgericht district, notice is sent to all the district occupiers requiring them to appear before the tribunal and produce:

"First. An extract from the cadaster office showing the parcels they are believed to own in any particular township. "Second. All their personal documents serving as proofs

of their claim.

"On the appointed day each applicant is cross-examined by the tribunal, and a statement is drawn up of his declarations. This statement contains:

66

66

'(a.) The name of the applicant's predecessor.

(b.) The legal nature of the last transfer concerning the land (sale, grant, legacy, inheritance, auction, contract, etc.). (c.) A reference to any document produced by the appli

66

cant.

66

(d.) A list of mortgages charged upon the land.

"A copy of this statement is sent to the mayor of the town where the parcels claimed are situated, as well as to the keeper of mortgages, who must not give advice of their personal belief concerning the accuracy of the claim. Notice is also sent to all the known incumbrancers. Each case in a township is dealt with in the same way, and as soon as information is collected as to all the cases in a township, notice is sent to the president of the court of appeal, on which all the local tribunals are dependent, and which for the Rhine provinces sits in Cologne. The president of the court of appeal obtains from the minister of justice a rescript fixing a preclusive term of six months for objections, if any, to be produced, and possible opponents are warned of the proceeding by advertisements in the local papers, requesting them to send in their claims. As soon as the six months have elapsed the registers are engrossed according to the claims received. After this engrossment is accomplished, there is still a final delay of eleven days for actions to be commenced by opponents before the registers come into operation. This procedure has proved satisfactory. A few mistakes, but no cases of intentional fraud, have been observed.' Registering Title to Land, Jacques Dumas, 1900. Callaghan & Co., Chicago. A series of lectures delivered at Yale in 1899-1900."

It has been assumed that great inconvenience in sales and of certainties of titles in the city of Chicago was caused by the destruction of the public records in the great fire of October 9, 1871, and that this induced those most interested in real estate in that city to urge on the legislature the adoption of the Torrens System of Registration. This is an error, as the destruction of the public records did not at all materially inconvenience sales or create uncertainties of titles, because the abstract companies had a complete abstract of all property in the city of Chicago, County of Cook, from the government down to the time of the fire, and which were not destroyed by the fire, owing to their being contained in fire proof vaults.

In those states where the ancient method of searching records prevails, for the purpose of being enabled to give an opinion as to the title of real estate, no doubt it will be advisable that the Torrens System or the German System should be adopted.

In Illinois, which has made the greatest use of the Torrens System,its use is limited to one county out of 101. The statutory fees for registering titles amount to but $24, with additional sheriff's fee of $1 for each person served; and each applicant for the first registration contributes to the indemnity fund $1 on each $1000 of the value of the property. Upon a sale a fee of $3 is charged for a certificate.

The members of this Committee, however, are quite of the opinion that it is not advisable at the present time to recommend the adoption of a uniform law in reference to a system of registration of title to real estate.

Respectfully submitted,

JOHN C. RICHBERG, Chairman,

JAMES BARR AMES,

ERLISS P. ARVINE,

WALTER E. COE,

W. O. HART,

CHARLES T. TERRY,

Committee.

DRAFT OF AN ACT TO MAKE UNIFORM THE LAW

RELATING TO THE SALE OF GOODS.

(Approved in final form.)

PART I.

FORMATION OF THE CONTract.

Section 1.-[Contracts to sell and sales.] (1.) A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price.

(2.) A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration. called the price.

(3.) A contract to sell or a sale may be absolute or conditional.

(4.) There may be a contract to sell or a sale between one part owner and another.

The most fundamental distinction in the law of sales is between a contract to sell in the future and a present sale. This distinction is defined in this section and is observed throughout the draft. The phrase "Contract of Sale" used in the English Act has been discarded.

[ocr errors]

Section 2.- [Capacity Liabilities for Necessaries.] Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.

Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.

Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery.

This section states the prevailing, though not wholly uniform, doctrine of the existing law. Mechem on Sales, § 122 et seq.

The section follows verbatim section 2 of the English Act except that the words "the sale and" which precede the last word in the section are omitted as introducing a possible ambiguity.

Formalities of the Contract.

Subject to the

Section 3.-[Form of Contract or Sale.] provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties.

This follows the first part of section 3 of the English Act. That act contains the following proviso which was omitted as unnecessary:

"Provided that nothing in this section shall affect the law relating to corporations.

[ocr errors]

Section 4.-[Statute of Frauds.] (1.) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf,

(2.) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not

suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply.

(3.) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.

Sub-section (1) of this section follows section 4 (1) of the English Act with the exceptions stated below.

The words of the section of the English Act are somewhat altered from those of the seventeenth section of the Statute of Frauds, but the changes are such as to express more accurately the construction previously given by Lord Tenterden's Act and by the courts to the Statute of Frauds. See Chalmers (5th ed.) 16.

In the United States a provision corresponding to the seventeenth section of the Statute of Frauds exists in all the states but Alabama, Arizona, Delaware, Illinois, Kentucky, Louisiana, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia and West Virginia.

In the remaining states the language of the statutes is by no means uniform, but the construction given by the courts is generally the same as that which has been given to the English Statute of Frauds, and which is now expressed in the Sale of Goods Act. There are some exceptions, however, to this. In the United States it is generally held that promissory notes, shares of stock and other choses in action "which are subjects of common sale and barter and which have a visible and palpable form," are within the statute. This result is due in some cases to the express inclusion within state statutes of choses in action, but even where the statutes are similar to the English Statute of Frauds, a broader effect has been given to them. Under the definition of goods in Part VI, it is clear that no choses in action would be included (Chalmers, 120), unless choses in action were expressly mentioned. The words "or choses in action" have therefore been inserted in the present draft. Similar words or the broad term "personal property are found in the Statutes of Frauds now in force in about twenty of the states. Mechem on Sales, § 287.

« 이전계속 »