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"cost a subsidy," it has, at any rate, been the subject of innumerable decided cases ranging over (even in more modern times) a long course of years. The Legislature, having thought fit to re-enact the section in substantially its original form, has at the same time apparently intended that it should be interpreted in the same way and by the same means as its predecessor, that is to say, by the long series of decisions which explain almost every term or phrase employed. We therefore think that no apology is needed, so far as s. 4 is concerned, for the review which we have made of the anterior authorities.
This work is intended as a Commentary on the Act, as explained both by special illustrative cases, and also by frequent reference to the standard text-book on the subjectthe late Mr. Benjamin's learned work. It is on these two points that we base any justification which may be necessary for our more or less detailed exposition of the common law of sale.
The utility of illustrative cases we venture to think obvious. The Legislature itself in this country has not yet seen fit to make use of them as a means of interpretation of statutes; but the seal of law has been placed upon them in many of the Indian Acts, notably, the Indian Contract Act of 1872, and to their aid is owed much of the value, as statements of law, which has attached to such authorities as Stephen on Evidence and Pollock on Partnership.
A code, as applicable to the many varying circumstances of human affairs, must from the nature of the case be drawn in broad and general terms. But the very generality of its provisions renders the interpretation more difficult, and it is here that the value of illustrative cases, as embodying special facts, is most clearly seen. To take an instance from the present Act, the words in s. 27, "in accordance with the terms
of the contract of sale," contain in themselves the whole duty of seller and buyer in delivery, acceptance, and payment, as contained in the contract under the circumstances of each particular case.
Assuming, however, the value of illustrative cases, we nevertheless feel a doubt whether we may not have occasionally set out too few, and occasionally perhaps too many. In the event of our being fortunate enough to have a second edition of this book called for, it may be necessary to amend the work in this particular. In the meantime we leave it to the impartial judgment (as merciful, we trust, as may be) of the critic and the practising lawyer.
With regard to the second special feature of the book—the statements of the common law therein quoted from Mr. Benjamin's treatise-we submit that those lucid and accurate statements of legal principles will be found not to be out of place, even in a Commentary on an Act which is intended as a new stepping-stone in the development of the law. It is unnecessary to point out that "Benjamin on Sale" is or was a standard authority on its subject-matter, and also (for Lord Blackburn's earlier book was of only limited scope) the most complete. Its arrangement has been followed by the draftsman, and the Act has undoubtedly been generally based upon it. The extracts we have quoted from the book may therefore, we submit, throw valuable light on the interpretation of the Act; in so far as they are consistent with the provisions of the latter, by containing in themselves a less concise, and therefore more lucid, statement of the principles involved; and, in so far as they may be inconsistent, by affording, it is hoped, a better key to the elucidation of the meaning of the various sections of the Act.
In conclusion, we may say that the labour necessarily incurred (and it has been great) in the compilation of the
following pages, has shown us that the Act is in parts by no means easy to interpret, and is occasionally very obscure. It is but justice to the learned draftsman to say that the difficulties for the most part, if not in all cases, spring from additions and emendations introduced into the Bill in its passage through Parliament. However that may be, it seems certain that it will require, before the meaning of its provisions is finally settled, some judicial interpretation. Moreover, the scope of s. 25, and its meaning when compared with ss. 47 and 48 (2), is at present uncertain, and little judicial authority exists to explain it.
We have added (post, p. xliii) a statement of the changes in the law which appear to have been effected by the Act. There are few direct alterations, but it is probable that judicial decisions on the wording of the Act will show that on a number of points the law is no longer what it was.
We have attempted to make the Index as exhaustive as possible; and, though thereby it has extended to a length perhaps somewhat out of proportion to the bulk of the text, yet this result seemed preferable to any curtailment of this most necessary adjunct to a legal commentary.
We desire to express our obligation to Mr. H. F. BOYD, Barrister-at-Law, of the North-Eastern circuit, joint owner of the copyright in "Benjamin on Sale," for permission to make the citations from the text of that treatise.
W. C. A. K.
A. B. P.-G.