the buyer or of the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

§ 70. This follows section fifty-four of the English Act, and leaves the recovery of interest as well as of special damages to be determined by the local law of each jurisdiction.'

PART VI.

INTERPRETATION.

SECTION 71. Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or sale.

871. This section substitutes "custom" for "usage" in the English Act, but in other respects follows that Act and represents existing law.'

SECTION 72. Where any right, duty or liability is declared by this act, it may, unless otherwise herein provided, be enforced by action.

72. Follows section fifty-seven of the English Act and is elementary law.

SECTION 73. In any case not provided for in this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to contracts to sell and to sales of goods.

$73. Modified from section sixty-one, subdivision two, of the English Act, and as the draftsman says, "This provision seems obviously desirable."

1 Text, pp. 241-244, 249-251, 262 2 Text, p. 153, and passim.

SECTION 74. This act shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the law of those states which enact it.

§74. This is new. The draftsman's comment is as follows: "This section introduces a new principle of statutory interpretation. This, however, obviously a proper principle in regard to statutes, the primary object of which is to make the law uniform."

SECTION 75. The provisions of this act relating to contracts to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security.

§ 75. This is slightly modified from section sixty-one, subdivision four, of the English Act.1

SECTION 76. (1) In this act, unless the context or subjectmatter otherwise requires:

"Action" includes counterclaim, set-off and suit in equity. "Buyer" means a person who buys or agrees to buy goods, or any legal successor in interest of such person.

"Defendant" includes a plaintiff against whom a right of set-off or counterclaim is asserted.

"Delivery" means voluntary transfer of possession from one person to another.

"Divisible contract to sell" or "divisible sale" means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation.

"Document of title to goods" includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, 1 Cf. text, pp. 34-5.

either by endorsement or by delivery, goods represented by such document.

"Fault" means wrongful act or default.

"Fungible goods" mean goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit.

"Future goods" mean goods to be manufactured or acquired by the seller after the making of the contract of sale.

"Goods" include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

"Order" in sections of this act relating to documents of title means an order by indorsement on the document.

"Person" includes a corporation or partnership or two or more persons having a joint or common interest.

"Plaintiff" includes defendant asserting a right of set-off or counterclaim.

"Property" means the general property in goods, and not merely a special property.

"Purchaser" includes mortgagee and pledgee.

"Purchases" includes taking as a mortgagee or as a pledgee. "Quality of goods" includes their state or condition.

"Sale" includes a bargain and sale as well as a sale and delivery.

"Seller " means a person who sells or agrees to sell goods, or any legal successor in interest of such person.

"Specific goods" means goods identified and agreed upon at the time a contract to sell or a sale is made.

66

Value" is any consideration sufficient to support a simple contract. An antecedent or pre-existing claim, whether for money or not, constitutes value where goods or documents of title are taken either in satisfaction thereof or as security therefor.

(2) A thing is done "in good faith" within the meaning of this act when it is in fact done honestly, whether it be done negligently or not.

(3) A person is insolvent within the meaning of this act who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not.

(4) Goods are in a "deliverable state" within the meaning of this act when they are in such a state that the buyer would, under the contract, be bound to take delivery of them.

§ 76. The draftsman's note to this section is as follows: "The only one of these definitions requiring comment is that of value, which follows the weight of authority at common law and the provision of the Negotiable Instruments Law as intended by its framers. In regard to property other than negotiable instruments the law of many states does not regard an antecedent debt as value;' but it seems desirable to have a single rule for what constitutes valuable consideration, and mercantile convenience supports the one adopted. It is supported, moreover, by the law of England and a few of our states."

SECTION 77. This act may be cited as the Sales Act.

SECTION 78. Section five of chapter seventy-four of the Revised Laws and all acts and parts of acts inconsistent herewith are hereby repealed.

SECTION 79. This act shall take effect on the first day of January in the year nineteen hundred and nine. [Approved March 18, 1908.

1 Text, pp. 201–205. * Text, p. 203.

CHAPTER II.

SALE OF GOODS ACT. 1893.
(56 & 57 Vict. c. 71.)

AN ACT FOR CODIFYING THE LAW RELATING TO THE
SALE OF Goods.

(20 February, 1894.)

Be it enacted, etc.

PART I.

FORMATION OF THE CONTRACT.

CONTRACT OF SALE.

1.-(1.) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part-owner and another. (2.) A contract of sale may be absolute or conditional.

(3.) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(4.) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

2. Capacity to buy and sell is regulated by the general law