goods by description, there is an implied warranty that the goods shall correspond with the description and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

§14. Identical with section thirteen of the English Statute, except that warranty is substituted for condition."

SECTION 15. Subject to the provisions of this act and of any other statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.

(2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.

(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.

(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.

(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.

§15 (1) and (4). With a few verbal alterations, these subdivisions reproduce section fourteen, subdivision one, of the See comments on § 13 (1) supra.

English Act, and subject the seller to an absolute engagement for the reasonable fitness of the articles sold for the particular purpose notified to him by the buyer, in the cases mentioned in subdivision one. That subdivision was intended to change the rule in New York and some other jurisdictions, and to give effect to the principles announced in Rodgers v. Niles and Randall v. Newson.

§ 15 (2) and (3).

2

Substantially the same as section fourteen, subdivision two of the English Statute."

§ 15 (5) and (6). Copied from section fourteen, subdivisions three and four.

SALE BY SAMPLE.

SECTION 16. In the case of a contract to sell or a sale by sample:

(a) There is an implied warranty that the bulk shall correspond with the sample in quality.

(b) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as is otherwise provided in section forty-seven (3).

(c) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

16. While there is some change in verbiage, this section is substantially the same as section fifteen of the English Statute, and codifies established doctrine."

PART II.

TRANSFER OF PROPERTY AS BETWEEN SELLER AND BUYER.

SECTION 17. Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods may be transferred as provided in section six.

1 Text, pp. 129, 130.

82 Q. B. D. 102, (1877).

211 Oh. St. 48, (1860).

1 Text, p. 131. 5 Text, pp. 119–121.

§ 17. Except for the last clause, this section is a literal copy of section sixteen of the English Act, and states an undisputed rule.'

SECTION 18. (1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the party to the contract intend it to be transferred.

(2) 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, usages of trade, and the circumstances of the case.

§ 18.

This section also states well settled principles.'

SECTION 19. 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 to sell 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 to sell 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.

Rule 3. (1) When goods are delivered to the buyer "on sale or return," or on other terms indicating an intention to make a present sale but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the contract, or if no time has been fixed, within a reasonable time.

(2) When goods are delivered to the buyer on approval or on 1 Text, p. 71. * Text, pp. 64-70.

trial or on satisfaction, or other similar terms, the property therein 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. What is a reasonable time is a question of fact.

Rule 4. (1) Where there is a contract to sell 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 expressed or implied, and may be given either before or after the appropriation is made.

(2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section twenty. This presumption is applicable, although by the terms of the contract, the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words "collect on delivery" or their equivalents.

Rule 5. If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or have reached the place agreed upon.

19. Rule 1. The introductory sentence and the first rule are unchanged from section eighteen of the English Act, and simply affirm existing law.1

1 Text, pp. 57-62.

§ 19. Rule 2. The last clause of the English rule has been omitted, for the reason that it has no support in American decisions, and was inserted in the English statute to make the rule in England conform to that in Scotland.'

The third rule of the English statute, postponing the passing of title in cases where the seller is bound to weigh, measure or test the goods, for the purpose of ascertaining the price has been omitted.'

Rule 3 (1).

This differs from the English statute and states the rule prevailing in this country.'

Rule 3 (2). This limits the doctrine of section eighteen, rule four, of the English Act, to sales "on approval, or on trial, or on satisfaction;" and accords with the weight of judicial authority in this country."

Rule 4 (1). This is an exact copy of the corresponding subdivision of the English statute, and accords with American authorities.

Rule 4 (2). This contains a modification of the corresponding subdivision of the English statute; and the last sentence is intended to settle "a disputed question in accordance with the weight of authority.'

Rule 5. This is not contained in the English Act, but accords with American decisions.

SECTION 20. (1) Where there is a contract to sell 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 possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may thus be reserved notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer.

(2) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on ship

1 Text, p. 66.

2 The omission will change existing law in some states, as shown by Text, pp. 66-69.

8 Text, p. 71.

4 Text, p. 70. 5 Text, pp. 71-78.

Text, pp. 71, 74, 191. 74 Columbia Law Review, 541.

8 Text, p. 77.