A TREATISE

ON THE

CONTRACT OF SALE.

PART I.

THE FOURTH SECTION OF THE SALE OF GOODS ACT.

CHAPTER I.

WHAT AGREEMENTS ARE WITHIN IT.

THE 17th section of 29 Car. 2, c. 3, made for the prevention of frauds and perjuries, commonly called the Statute of Frauds, was in the following words :-"And be it enacted, "that from and after the said four-and-twentieth day of "June (A.D. 1677) no contract for the sale of any goods, "wares, or merchandizes, for the price of 107. or upwards, "shall be allowed to be good, except the buyer shall accept "part of the goods so sold, and actually receive the same, "or give something in earnest to bind the bargain, or in 'part payment, or that some note or memorandum in writing "of the said bargain be made and signed by the parties to "be charged by such contract, or their agents thereunto "lawfully authorized" (a).

แ

(a) The fourth section enacted "That no action shall be brought to charge any "executor or administrator upon any special promise to answer damages out of "his own estate; or whereby to charge the defendant upon any special promise "to answer for the debt, default, or miscarriage of another person; or to charge "any person upon any agreement made upon consideration of marriage; or "upon any contract or sale of lands, tenements or hereditaments, or any

B

The 4th section of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), which repealed and in substance re-enacted the 17th section of the Statute of Frauds, provides as follows:

"(1.) A contract for the sale of any goods of the value of "107. or upwards shall not be enforceable by action unless "the buyer shall accept part of the goods so sold, and actually "receive the same, or give something in earnest to bind the “contract, or in part payment, or unless some note or memo"randum in writing of the contract be made and signed by the "party to be charged or his agent in that behalf.

"(2.) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to "be delivered at some future time, or may not at the time of "such contract 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.

"(3.) There is an acceptance of goods within the meaning of "this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale "whether there be an acceptance in performance of the "contract or not.

"(4.) The provisions of this section do not apply to "Scotland."

The Sale of Goods Act, 1893, was a codifying statute, which, except in a few points to be hereafter noted, made no alteration in the existing law, but merely gave it a final and definitive expression. That being so, decisions prior to the Act are still of value as indicating and illustrating the principles upon which the codification proceeded, and as explaining the application of the various sections of the Act.

Lord Blackburn, in the case of Maddison v. Alderson (a), in

"interest in or concerning them; or upon any agreement that is not to be per"formed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or "note thereof, shall be in writing, and signed by the party to be charged "therewith, or some other person thereunto by him lawfully authorized."

(a) Maddison v. Alderson, 52 L. J. Q. B. 749; 8 Ap. Ca. 488. See also the

1883, said, "I think it is now finally settled that the true "construction of the Statute of Frauds, both the 4th and "17th sections, is not to render the contracts within them "void, still less illegal, but is to render the kind of evidence "required indispensable when it is sought to enforce the "contract" (a).

This important section is applicable to every sale of tangible moveable property, though not to sales of shares in a company or other intangible property (b).

At one time a question arose under the 17th section of the Statute of Frauds as to whether public sales by auction. were not excepted from its operation. Conflicting opinions were expressed by Lord Mansfield in Simon v. Motivos (c) and Lord Ellenborough in Hinde v. Whitehouse (d), but the point was finally decided in the case of Kenworthy v. Schofield (e) in 1824. In that case there was a sale by auction of goods above 107. in value, and the requisites of the statute were not complied with. The King's Bench decided that the contract could not be enforced; this decision has always been acted upon (ƒ).

It was an unsettled point whether the provisions of the Statute of Frauds were applicable to contracts for the sale of goods which were at the time of the contract not in a state capable of being delivered according to the provisions of the contract more recent statutes have rendered the point no longer important, but it may be worth while to state the difficulty.

In Towers v. Osborne (g), in 1724, Pratt, C. J., decided

judgment of Brett, L. J., in Britain v. Rossiter, in 1879, 48 L. J. Q. B. 363; 11 Q. B. D. 127.

(a) An agreement made verbally abroad, and good there, cannot be enforced here if it fails to conform with the Sale of Goods Act, Leroux v. Brown, 22 L. J. C. P. 1; 12 C. B. 801, in 1852. But very considerable doubt was thrown on this case by Willes, J., in Williams v. Wheeler, 8 C. B. N. S. 299, in 1860.

(b) Humble v. Mitchell, 11 A. & E. 205.

(e) Simon v. Motivos, 1 W. Bl. 599; S. C. 3 Burr. 1921.

(d) Hinde v. Whitehouse, 7 East, 558.

(e) Kenworthy v. Schofield, 2 B. & C. 945.

(ƒ) See also Peirce v. Corf (1874), 43 L. J. Q. B. 52; L. R. 9 Q. B. 210.

(g) Towers v. Osborne, 1 Strange, 506.