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CH. XII. s. 12. or business, and also all fruit trees and fruit bushes planted by Landlord and him and not permanently set out; and he is also entitled to

(Market compensation at the end of the tenancy on quitting his holding, Gurden).

for the planting of fruit trees and bushes permanently set out, of strawberry plants, of asparagus, of rhubarb, and of other vegetable crops which continue productive for two or more years, and also for the erection or enlargement of buildings for the purpose of his trade or business (.x).

Sect. 13.The Action for Use and Occupation. At common Debt for use and occupation lay at common law, and was not law,

defeated by proof of a demise not under seal (y). And under the Under Dis. tress for Rent Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 14, the landlord Act, s. 14.

may in all cases maintain an action for the use and occupation of

the premises, unless there be a demise thereof under seal (z). If there be a

Where the demise is in writing, it must still, generally speaking, demise it

be produced and proved by the plaintiff at the trial, in order to must, in general, be

show the terms of the tenancy (a). produced.

The action is founded upon contract, and unless there be a Contract express or contract, express or implied, between the parties, it cannot be implied.

maintained (1). When, therefore, there is no evidence of a demise to the defendant, there must be some evidence that he held by permission of the plaintiff, and on the terms either express or implied, that he was to pay the plaintiff for the occupation (e). And accordingly, where the person in possession of the land is a mere trespasser, the plaintiff cannot waive the trespass and sue for

use and occupation («). Plaintiff can Where there is a contract, the plaintiff can recover only accordrecover only according to ing to the contract (e). the contract. Entry by the defendant is necessary for the plaintiff to maintain Entry by

the action (f) except that entry by a testator will support an action defendant necessary.

against his executor.

(2) Agricultural Holdings Act, 1900 per Bayley, J., Hall v. Burgess (1826), (63 & 64 Vict. c. 50, s. 1), and Sched. I., 5 B. & C. 332. Part III.

(c) Per Hill, J., Levi v. Leucis (1861), (y) Gibson v. Kirk (1841), 1 Q. B. 850. 9 C. B., N. S. 872 ; and see Salmon v.

(z) See, however, as to tenancy from Matthews (1841), 8 M. & W. 827, 833. year to year by holding over after an (a) Tew v. Jones (1844), 13 M. & W. expired lease, Hyatt v. Griffiths (1851), 12; and see per Cur., Hellier v. Silloor 17 Q. B. 505, and other cases, p. 314, ante. (1850), 19 L. J., Q. B. 295: Turner v.

(a) Brever v. Palmer (1800), 3 Esp. Cameron': C. S. C. Co. (1850), 5 Exch. 213; recognised in Ramsbottom v. Tune

932, 937. bridge (1814), 2 M. & S. 434 ; 15 R. R. (c) Collett v. Curling (1847), 10 Q. B. 303.

485. (6) See Churchward v. Ford (1857), 2 (5) Per Patteson, J., Woolley v. Tato H. & N. 466 ; Sloper v. Saunders (1860), ling (1836), 7 C. & P. 610; Elge v. 29 L. J., Ex. 275 ; per Ashhurst, J., Strufford (1831), 1 C. & J. 391; How v. Birch v. Wright (1786), 1 T. R. 378 ; Kennett (1835), 3 A. & E. 659.

CHAPTER XIII.

CONTRACTS FOR SALE OF GOODS.

(See Blackburn on Sale, 2nd ed., A.D. 1885 ; Benjamin on Sale, 5th ed., A.D. 1904 ;

Story on Sales of Personal. Property, 4th ed., A.D. 1871; Chalmers on the Sale of Goods Act, 2nd ed., A.D. 1894 ; Newboli's Sale of Goods Act, A.D. 1894 : Chitty's Statutes, tit. Goods."]

PAGE

1. Scope of Sale of Goods Act ....... 336 (a) Generally

336 (b) Continuance of Common Law

Rules and particular Statutes 336 (c) Scotland and Ireland

338 (d) Repeals .....

338 (e) Definitions of “Goods," &c... 338

(f) Horses and other Animals ... 339 2. Text of Sale of Goods Act

339 Contract of Sale. Sect. 1. Sale: Agreement to Sell 339 2. Capacity to ContractNecessaries"

340 Formalities of the Contract. 3. Contract anyhow, except by Corporation.

340 4. Contract of Sale for 101.

or upwards (if without
earnest or acceptance)
must be in Writing signed

by Party to be charged... 340 Subject-matter of Contract.

5. Existing or Future Goods.. 341 6. Sale of Perished Goods 341 7. Goods perishing after Agreement to Sell

341 The Price.

8. Ascertainment of Price 342
9. Agreement to Sellat Valua-
tion

342
Conditions and Warranties.
10. Stipulations as to Time of

Payment not of Essence
_"Month"

342 11. When condition Warranty

-Saving for Condition of
which Fulfilment excused
by Law

342 12. Implied Undertaking for

Title, Quiet Possession,

and against Incumbrances 343 13. Sale by Description......... 344 14. No Implied Condition of

Fitness, except where
reliance on Seller's Skill,
for Merchantableness, or
by Usage of Trade-
Implied Warranty not
negatived by express

344

PAGE
Sale by Sample.
Sect. 15. Implied Conditions for

Correspondence of Bulk,
&c.

345 Transfer of Property as between Seller and Buyer. 16. Property in unascertained

Goods does not pass till

Goods ascertained..... 345 17. Property in ascertained

Goods passes when in-
tended to pass

346 18. Five Rules for ascertaining

Intention as to Time of
Property passing—"Un-
conditional Appropria
tion to the Contract

346 19. Reservation on Seller of Right of Disposal

347 20. Risk prima facie passes with Property

318 Transfer of Title.

21. Sale by Person not Owner 348 22. Title by Purchase in

Market Overt in England

and Ireland - Horses 348 23. Title by Purchase from

Seller having voidable
Title

349
24. Revesting of Stolen Goods 349
25. Re-sale by Seller or Buyer
in Possession...

349 26. Effect in England or Ire

land of Writs of Execution 350 Performance of Contract. 27. Seller to deliver, Buyer to accept and pay

351 28. Payment and Delivery

prima facic concurrent

Conditions....
29. Place and Time, &c., of
Delivery

351 30. Short, excessive or mixed Delivery, Effect of

351 31. Instalment Deliveries....... 352 32. Delivery to Carrier-In

surance on Sea Transit... 352 33. Risk where Goods delivered

elsewhere than at Place
of Sale...

353

351

one

CH. XIII. s.l.

PAGE
Sule of Goods Sect. 34. Buyer's Right to Examine
Art.
before Acceptance.........

353
35. Acceptance how cousti.
tuted

353
36. Buver need not return
Rejected Goods

353
37. Liability of Buyer veglect-

ing or refusing Delivery 353
Rights of unpaid Seller'.
38. Unpaiid Seller defined......

351
39. Unpaid Seller's Rights 354
40. Attachment by Seller in
Scotland......

354
Unpaid Seller's Lien.
41. Seller may retain Goods

until Payment if no Credit

given or Buyer insolvent 355 42. Retainerof Possession after Delivery of Part

355
43. Termination of Lien by

Delivery to Carrier, &c. 355
Stoppage in Transitu.
41. Right of Umpaid Seller to
Stop in Transitu

355
45. Duration of Transit

356
46. How Stoppage in Transitiu
effected

356
by Buyer or Sel
47. Effect of Sub-Sale
Pledge by Buyer

357
48. Şale not rescinded by Lien

or Stoppage in Transitu

PAGE Sect. 48-cont. Re-Sale by unpaid

Seller of Perishable

Goods, or on Xotice, &c. 357 Remedies of Seller. 49. Action for Price-Interest

on Price, in Scotland ... 357 50. Damages for Nen-Acceptance..

358 Remedies of Buyer.

51. Damages for Non-Delivery 358 52. Right of Buyer to Specific

Performance and, in Scotlandi, to Specific Implement

359 53. Remely for Breach of Warranty

359 54. Interest, Special Damages,

and Recorery of Money on Failure of Consideration....

339 Supplementary. 55. Exclusion of Implied Terms

and Conditions... 56. Reasonable Time a Ques. tion of Fact

350 57. Rights and Duties under

Actenforceable by Action 360 58. Ai ions, Right of Seller to bid at, &c.

360 59. Consignation, &c., in Scotland

361 3. Illegal and Void Sales.

361

360

or

Sect. 1.The Scope of the Sale of Goods Act.

(a) Generally. The Sale of Goods Act, 56 & 57 Vict. c. 71 (a), has to a very great extent codified the law relating to the sale of goods, as previously gathered from some hundreds of decisions and two or three comparatively unimportant statutory enactments, such as the 17th section of the Statute of Frauds (anté, p. 77), and some scores of decisions thereon. The Act contains few patent alterations of the law.

General Sarings.

Sect. 61.

Bankruptcy.

(b) Continuance of Common Law Rules, and particular Statutes.

Like its predecessors in codifying, the Bills of Exchange Act, 1882, and the Partnership Act, 1890, the Sale of Goods Act is not exhaustive, the 61st section of the Act declaring that, (1) The rules in bankruptcy relating to contracts of sale shall continue

to apply thereto, notwithstanding anything in this Act contained. (2) The rules of the common law, including the law merchant, save in so or other invalidating cause, shall continue to apply to contracts for the Ch. XIII. s. 1. sale of goods.

far as they are inconsistent with the express provisions of this Act. and in particular the rules relating to the law of principal and agent

and the effect of fraud, misrepresentation, duress or coercion, mistake, (a) The Act, by sect. 63, came into ope- 1894; but by sect. 64 it may be cited as ration on 1st January, 1894, and did not “ The Sale of Goods Act, 1993.", receive the royal assent till 20th February,

Principal and agent, fraud on.

Scope of Sale (3) Nothing in this Act or in any repeal effected thereby shall affect the of Goods Act.

enactments relating to bills of sale, or any enactment relating to the Bills of sale. sale of goods which is not expressly repealed by this Act.

Special acts. (4) The provisions of this Act relating to contracts of sale do not apply to

Mortgages, any transaction in the form of a contract of sale which is intended to &c.

operate by way of mortgage, pledge, charge, or other security. (5) Nothing in this Act shall prejudice or affect the landlord's right of Hypothec in hypothec or sequestration for rent in Scotland.

Scotland.

sect. 61.

These general savings are very wide.

The General The principal rules in bankruptcy, saved by sub-sect. 1, may

Savings by

be found in sects. 37, 44 (2), 48 and 55 of the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52. The general saving for the rules of the common law, including Rules of

common law, the law merchant, and the law of principal and agent, fraud, mis- &c. representation, duress, mistake," or other invalidating cause,” is a very comprehensive and indefinite one.

As to principal and agent, see ante, Ch. IX. and post, Ch. XIX., sect. 5.

As to duress, see ante, p. 169.
As to mistake, see post, Ch. XXVII.

As to avoidance of contract for illegality, see post, p. 361, and
Ch. XXI.

The specific savings for the Bills of Sale Acts and “any Bills of sale. enactment relating to the sale of goods " not expressly repealed by the Sale of Goods Act itself, are very comprehensive too, but being savings for statute law only are definite. The Bills of Sale Acts are the Bills of Sale Acts, 1878, 1882, 1890, and 1891, the Act of 1878 requiring and regulating registration of instruments authorising the seizure of personal chattels as security for money, and the Act of 1882 requiring, amongst other things, that such instruments must be in a particular form scheduled to that Act.

Amongst the numerous other enactments relating to the sale of goods not expressly repealed by the Sale of Goods Act, may be mentioned the Sale of Food and Drugs Act, passed for the prevention of adulteration, the Chain Cables and Anchors Acts, passed to ensure the strength of chain cables, and sect. 182 of the County Courts Act, 1888, whereby no action may be brought in any Court for the price of beer consumed on the premises where sold.

The principal contracts intended to operate by way of mortgage, Mortgagees, pledge, &c., which are referred to and saved by sub-sect. 4, appear to be those which are dealt with by the Factors Act, 1889, or the Pawnbrokers Act, 1872. The Scots law of hypothec is like the law of distress.

Hypothec. 22

&c.

C.C.

CH. XIII. s. 1.

(c) Scotland and Ireland. Scope of Sale

The Act applies to the whole of the United Kingdom with a few of Goods Act.

savings (see sects. 4 (4), 11 (2), 52, 59, 61 (5), for the Scots law, of Application of Act through which sect. 4 (4) as to the sale of goods for 101. or more is the most out United Kingdom.

important). The Statute of Frauds neither did nor does apply in Scotland, and the provisions of the 4th section of the Act, which re-enacts the 17th section of the Statute of Frauds (copied in sect. 13 of the Irish Statute of Frauds, 7 Will. 3, c. 12, which is not repealed by the Act), requiring sales for 101. or more to be in writing, do not apply in Scotland either.

(d) Repeals effected by the Act. Repeals The only enactments expressly repealed by the Act (sect. 60) effected by the Act.

are :

An Act against brokers, already repealed as to Great Britain by the Pawnbrokers Act, 1872.-Sects. 15 and 16 of the Statute of Frauds (commonly cited as sects. 16 and 17, reproduced in sect. 26, p. 350, and in sect. 4 (1), p. 310).Sect. 7 of 9 Geo. 4, p. 14, reproduced in sect. 4 (2), p. 341.-Sects. 1–5 of the Mercantile Law Amendment (Scotland) Act, 1836–Sects. 1 and 2 of the Mercantile Law Amendinent Act, 1856, reproduced in sect. 26, p. 350, and sect. 52, p. 359.

(e) Definitions. The following is the interpretation clause of the Act (sect. 62), which applies "unless the context or subject-matter

otherwise requires" :" Action." (1) “Action” includes counterclaim and set-off, and in Scotland con

descendence and claim and compensation : “ Bailee." “ Bailee” in Scotland includes custodier: Buyer."

Buyer” means a person who buys or agrees to buy goods : “ Contract of Contract of sale” includes an agreement to sell as well as a sale : sale."

“Defendant” includes in Scotland defender, respondent, and claimant in

a multiplepoinding: · Delivery.”

“ Delivery” means voluntary transfer of possession from one person to

another : * Document · Document of title to goods” has the same meaning as it has in the Factors of title to

Acts : [i.e., it includes any bill of lading, order for delivery of goods, &c. : see

p. 236 (1) for full definition]. “Factors “Factors Acts” mean the Factors Act, 1889, the Factors (Scotland) Act, Acts."

1890, and any enactment amending or substituted for the same: "Fault."

• Fault” means wrongful act or default: "Future “Future goods” means goods to be manufactured or acquired by the seller goo Is." after the making of the contract of sale: * Goods." “Goods” include all chattels personal other than things in action and

money, and in Scotland all corporeal moveables except 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 : Scotland. “Lien” in Scotland includes right of retention.

Plaintiff” includes pursuer, complainer, claimant in a multiplepoinding, and defendant or defender counterclaiming :

goods."

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