SALES

All the Provinces have enacted a "sale of goods act," except Quebec, where sales are governed by provisions of the Civil Code. The Provincial acts, with minor alterations, are the same as the English Sale of Goods Act of 1893,31 and the Uniform Sales Act adopted by most States in the United States, which practically codified the common law.

FORMALITIES OF CONTRACT

In Alberta, British Columbia, Manitoba, and Saskatchewan, a contract for the sale of any goods of the value of $50 or more is not enforceable by action unless the buyer accepts part of the goods so sold, and actually receives the same, or gives something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf; in New Brunswick, Nova Scotia, and Ontario the amount is $40 or more, and in Prince Edward Island $30 or more. The foregoing provisions 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. There is an acceptance within the meaning of this provision of the law when the buyer does any act in relation to the goods which recognizes a preexisting contract of sale, whether there be an acceptance in performance of the contract or not.

TRANSFER OF TITLE

The conditions of sale determine when the property in goods is transferred, but the intention must be clearly defined. When there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained or appropriated. Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. For the purpose of determining the intention of the parties, the terms of the contract, the conduct of the parties, and the circumstances of the case must be examined.

If there are no express or implied terms to show when it was intended that title to the goods should pass, certain rules that must be followed are established by the statutes. Where there is an unconditional contract for the sale of specific goods, in a deliverable

31 See Trade Promotion Series No. 153, Trading under the Laws of Great Britain.

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 are postponed.

If there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the title does not pass until such thing is done, and the buyer has notice thereof.

Where the contract is for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do something else for the purpose of ascertaining the price, the property does not pass until the act required is done and the buyer has been notified. Where articles are shipped on approval or "on sale or return," or on similar terms, the property in the goods passes to the buyer when he signifies his approval or acceptance to the seller or does any other act adopting the transaction. If the buyer does not signify his approval or acceptance to the seller, but retains the goods, without serving notice of rejection, beyond the time fixed for return or if no time is fixed beyond a reasonable time, the title to the goods passes to the buyer. What is a reasonable time is a question of fact in each case.

If there is a contract for the sale of 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. Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.

There is a sale by sample only where the contract expressly or impliedly so provides, and the mere exhibition of a sample can not make the sale one by sample. The following conditions are implied: (1) That the bulk shall correspond with the sample in quality; (2) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; (3) that the goods are free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.

DISTINCTIVE PROVISIONS IN QUEBEC

In the Province of Quebec the sale of goods is governed by provisions of the Civil Code (art. 1472 et seq.). A sale is defined as a contract by which one party gives a thing to the other for a price. in money which the latter obliges himself to pay for it. The contract is completed by the consent alone of the parties, although the thing sold be not then delivered. This rule is subject to certain exceptions, of which the more important relating to movable property are the following:

1. When things movable are sold by weight, number, or measure, and not in the lump, the sale is not perfect until they have been weighed, counted, or measured; but the buyer may demand the delivery of them or damages according to circumstances.

2. A sale on trial is presumed to be made upon a suspensive condition, when the intention of the parties to the contrary is not apparent; the property does not pass until the buyer signifies his acceptance, and the acceptance then has a retroactive effect. If a sale is made on a resolutive condition (such as that the property shall pass to the buyer, but shall revert to the seller unless the price is paid on a certain day) the property is in the buyer until the condition takes effect, when it replaces things in the same state as if the contract had not existed, subject to the rules respecting things which have perished or deteriorated.

3. Sales where the ownership is expressly reserved to the seller until some condition is fulfilled.

The sale of a thing which does not belong to the seller is null, subject to certain exceptions. The sale is valid if it be a commercial matter, or if the seller afterward becomes owner of the thing. If a thing lost or stolen be bought in good faith in a fair or market, or at a public sale, or from a trader dealing in similar articles, the owner cannot reclaim it, without reimbursing to the purchaser the price he has paid for it. Where a thing lost or stolen is sold under the authority of law it cannot be reclaimed.

A simple promise of sale is not equivalent to a sale, but the creditor may demand that the debtor shall execute a deed of sale in his favor according to the terms of the promise, and, in default of so doing, that the judgment shall be equivalent to such deed and have all its legal effects, or he may recover damages according to the rules in the Title of Obligations. Where a promise of sale is accompanied by the giving of earnest, each of the contracting parties may recede from it; he who has given the earnest by forfeiting it, and he who received it by returning double the amount. A promise of sale with tradition and actual possession is equivalent to sale.

In Quebec there exists a privileged right of the unpaid vendor known as revindication (similar to replevin) which ranks above all other privileges except law costs and expenses incurred in the interest of the mass of creditors, and tithes. Its exercise is subject to certain conditions, namely: the sale must not have been made on credit, the thing must be entire and in the same condition and not have passed into the hands of a third party who has paid for it, and the right must be exercised within 8 days after the delivery except in the case of insolvent traders, when the delay is 30 days after delivery. Under revindication the seller has the things seized under a writ and obtains a judgment declaring him entitled to possession.

Under article 409 of the Civil Code, it is provided that in commercial matters in which the sum of money or value exceeds $50, no action or exception can be maintained by verbal testimony upon any contract for the sale of goods unless the buyer has accepted or received part of the goods or given something in earnest to bind the bargain.

SALES OF FARM MACHINERY

In the Prairie Provinces of Alberta, Manitoba, and Saskatchewan there are special statutes affecting dealers and manufacturers of farm implements or machinery making sales of such equipment in those Provinces. The Saskatchewan Farm Implements Act of 1917 as

amended, among many other provisions, requires vendors of farm implements (other than retail dealers who are not manufacturers) to register a list of such of the implements and repairs, the price thereof and other particulars. Contracts, to be valid, must be in the form prescribed by the act. Among the provisions in the contract forms is one that the vendor warrants that all necessary repairs, other than standard parts which are made by blacksmiths and carpenters, will for a period of 10 years be available at a certain place in the Province. On the repossession of a large implement by the vendor, special provisions are made for valuation by arbitration. This act applies only to sales of implements by manufacturers and dealers and does not apply to sales to persons carrying on an implement business. In view of the detailed provisions of the act, and the special contract forms annexed thereto, it is advisable for implement manufacturers and dealers to obtain the full text of the act. The Alberta Farm Machinery Act (ch. 152, Revised Statutes of Alberta, 1922) and the Manitoba Farm Implements Act 1919 likewise merit careful examination. Copies of these acts may be purchased from the King's Printer at the capital of the respective Province.

BULK SALES

All of the Provinces have enacted Bulk Sales Acts making it incumbent on the purchaser of goods sold in bulk to procure from the vendor an affidavit giving the names and addresses of all creditors, nature of indebtedness, and amounts due or becoming due. This declaration must be obtained by the purchasers before paying any part of the purchase price (in some Provinces in excess of $50) or giving any promissory notes or securities, or executing any transfer, conveyance, or incumbrance of the property.

A sale in bulk means any sale, transfer, conveyance, barter, or exchange of a stock of goods, wares, or merchandise out of the usual course of business or trade of the vendor, or of substantially the entire stock, or of an interest in the business of the vendor. These acts apply only to sales by persons who buy or sell merchandise ordinarily the subject of trade and commerce, commission merchants and manufacturers, and do not apply to sales by public officers acting under judicial process.

At the time of the completion of the sale some one of the following provisions must be complied with in all the Provinces, except Quebec: (a) The claims of all creditors shown in the statement must be paid in full; or

(b) A written waiver of the provisions of the act, other than the one relating to a statement of obligations, from the creditors representing not less than 60 percent (Nova Scotia, 50 percent in number and amount) in number and amount of claims exceeding $50 must be delivered to the puchaser; or

(c) A written consent of a similar proportion of the creditors to the sale must the delivered to the purchaser.

The Quebec Act (art. 1569A et seq. of the Civil Code) provides that the buyer, after having received the affidavit, must pay to the creditors therein mentioned, out of the purchase price, ratably and

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in accordance with the contracts between them and the seller, having regard to all privileges provided for by law, the sums due to said creditors, or such proportion of such sums as can be paid out of such purchase price. The Quebec Act does not apply to sellers whose creditors have renounced the right to take advantage thereof, or to public officers acting under authority of the courts.

Sales in bulk not made in compliance with the provisions of the statutes are deemed to be fraudulent and void as against the creditors of the vendor, unless all the creditors are paid in full. No action or proceedings may be had or taken to set aside any sale in bulk for failure to comply with the statutes unless brought within 6 months from the date of sale in Alberta, British Columbia, and Manitoba, 4 months in New Brunswick and Prince Edward Island, and within 60 days from the date of sale or of date when creditors attacking first received notice in Ontario and Saskatchewan. No specific limitation is provided for in the acts of Nova Scotia and Quebec.