Sec 317

The rule of the Roman law, that if a sale is completed, the loss, in case of destruction, falls on the purchaser (there being no blame on either side) although there has been no delivery, has been much criticized, and various efforts made to reconcile it with the position that in contracts of hiring the lessee is excused pro tanto by the destruction of the thing hired. The older jurists held fast to the maxim casum sentit dominus, to which they regarded the Roman rule as to sale as an anomalous exception. - By some the exception was based on the rule debitor speciei diated as such by later German authorities and codes. Koch, Ford, ut supra. According to Weber, the clause rebus sic stantibus is only to be implied in cases where by either the nature of the contract or its express terms the contract would be inoperative without such assumption. In the German Landrecht, sec 378, the rule is thus stated: When by such unforeseen change of circumstances it becomes impossible to perform the contract on either side, then either party may rescind. In this case rescission is permissible without either party having a right to damages. As to the conditioning of performance on delivery, see infra, sec 579.

Subsequent non-produ-cibility of goods a defence.

After completion of sale loss falls on purchaser.

1 Mommsen, op. cit. 30.

2 Howell v. Coupland, L. R. 9 Q. B. 462; S. C. aff. in Ct. of Ap., 1 Q B. D. 258; and other cases cited supra, sec 300-315.

3 See supra, sec 315.

liberatur interitu rei.1 More recently the rule governing sales has been declared to be founded on reason, that governing leases being exceptional.2 The reason given is that only the delivery, not the payment, becomes impossible, and that the latter, therefore, remains due. Others base the Roman doctrine of sale on the fiction of a performance. Mommsen repudiates the first of these views on the ground that the obligation of payment is dependent on the performance of the obligation of delivery. - He explains, however, the distinctive Roman ruling as to sales on the ground that when a sale is complete, there is nothing in the way of immediate performance. The obligation, therefore, could be regarded as actually performed, supposing that the delay in delivery is not imputable to misconduct of the vendor. This, however, is not the case with incomplete sales and with hiring. - An incomplete sale cannot be spoken of as so consummated that the property passes to the purchaser. When goods are hired out, also, it is for a continuous period in which the obligation of the lessee is from time to time renewed; an instantaneous performance of the contract is impossible from the necessity of the case. It follows that the rule governing complete contracts of sale (that impossibility of delivery based on casus is equivalent to a performance of the contract.) cannot have the general application claimed for it. It is, indeed, not limited to contracts for sale. But it assumes as conditions precedent (1) that there is no incompleteness or condition in the obligation; and (2), that there is nothing in the transaction forbidding immediate delivery. If either of these conditions fail, the fiction of delivery also fails, and with it fails the duty of payment. By Vangerow, as we have already seen, the rule is based on the reason that if the purchaser bears the loss when the goods have been delivered, he should bear it when delivery is prevented by causes for which the law does not hold the vendor responsible; and this view is strengthened by the fact that from the time when the sale is completed, though before delivery, the vendee has the disposal of the goods.3 In our own law the same result is

1 Voet. comm. ad. tit. periculo, M. 1, oitod by Mommsen, op. cit. 346.

2 Wachter, Archiv. civ. Pr. xv. 189; reached by the position that when by the terms of a contract the goods are to be deposited in a particular place, or given to a particular carrier (and unless there be some immediate disposal of the custody of the goods the contract cannot be regarded as complete), there is a constructive delivery.1 - By our own.

Pothier, Traite de la vente, sec 307; Molitor, les Obligations, i. sec 282. 3 Supra, sec 314.

1 See Wh. Con. of L. sec 417.

Where the defendant had a horse on trial, with the right to return in eight days if not satisfied, and the horse died on the third day without the fault of either party, it was held that the plaintiff, being the vendor, could not recover the price. Elphick v. Barnes, L. R. 5 C. P. D. 321.

On the topic in the text the following observations by Mommsen are worthy of study: In the Roman law, if destruction by casus occurs after the sale of the thing, not only is the vendor relieved from delivering the thing, but may recover not only the price, but the expenses he had been at in relation to the thing after the sale. Cf. Mackenzie, Rom. Law, 221. Thus the vendor of a slave, which before tradition has died without fault of the vendor, may recover from the purchaser the price of the burial of the slave. L. 13, sec 22, D. de act. empti. (19, 1). Mommsen cites a series of passages in which it is ruled that the purchaser is bound to pay the price when the thing sold cannot be delivered through causes for which the vendor is not to blame. - It is frequently ruled, so he declares (op. cit. 330), that, if the sale is perfected, the purchaser takes the risk (peri-culum); and that under such circumstances the purchaser can obtain no indemnity, but must pay the price. - This rule applies a fortiori in cases where the thing is only partially destroyed.

It is otherwise, however. with an imperfect sale - imperfecten Kaufcon-tract. In this case, it is true, if there be an impossibility based on casus, no damages can be claimed from the vendor; but, on the other hand, the purchaser also is freed from his obligation. As cases of imperfect sales are enumerated the following: -

1. Conditional sale. As long as the condition is not complied with, the risk is on the vendor. If performance becomes, without the fault of the vendor, impossible before the condition is satisfied, the contract is void, and the purchaser is not bound. L. 8, pr. D. de peric. et comm. (18, 6). The same rule is applied in cases of partial impossibility, and of temporary impossibility, even when the impossibility rests on the quality of the things to be delivered. It is true that it is ruled that the purchaser must take the risk of a depreciation of value which occurred without the vendor's fault, and that he must pay the entire purchase-money when the goods at the time of the occurrence of the condition could be delivered to their full superficial extent, but had intermediately suffered a deterioration. This, however, is to be limited to cases in which the quality of the goods at the time of the obligation does not expressly enter into the contract. There is, therefore, here no contradiction with the rules above given, since the deterioration of the goods creates only a partial impossibility of performance in cases where the contract designates the quality.

2. Imperfect contract in reference to the price. As long as the price is unsettled, the sale is imperfect. A case specifically mentioned is that where law, the risk of casus, after a sale is completed, falls on the purchaser.1 "When the terras of the sale are agreed on and the bargain is struck, and everything that the seller has to do with the goods is complete, the contract of sale becomes absolute without payment or delivery, and the property and risk of accident to the goods vest in the buyer."2 "In an actual sale," so is the rule stated by Mr. Benjamin,3 " the property passes, and the risk of loss is in the purchaser, while in the agreement to sell, or executory contract, the risk remains in the vendor." "Generally," so it is said by Bayley, the price is made dependent upon the quantity of the goods sold. If the casus intervenes before measurement, the vendor bears the loss, and has no claim against the purchaser. L. 35, sec 5, 6, D. de contr. emp. (18, 1). But the purchaser bears the risk of depreciation.

3. Imperfect sale in reference to the goods. Under this head, Mommsen (op. cit. 339) specifies the following: - (a) Sale of a resfutura. In this case the perfecting of the contract depends upon the thing coming into existence, on which event all the incidents of perfect sales are to be assigned. It follows, therefore, that when the thing, without the vendor's fault, does not come into existence, there is no binding obligation, and consequently no claim against the purchaser.

(6) Sale of a genus. "If the article is designated only by its class, and that class unlimited, objective impossibility cannot be set up. It is otherwise when the class is limited, as when wine is sold of a particular vintage. In such case, when none of the class is obtainable, all being destroyed subsequently to the contract, and this without the vendor's fault, then, if the question be considered on principle, the loss falls on the purchaser. We have, however, rulings of the Roman jurists to the effect that when a certain quantity of wine is sold, out of a particular cask, the vendor takes the risk down to the time of the measurement of the wine. L. 35, sec 7, D. de contr. emp. (18, 1); L. 5, D. de periculo (18, 6). While the Romans, therefore, so comments Mommsen (op. cit. 344), regarded the alternative obligation as unconditioned and therefore perfect, they held the obligatio generis to be conditioned on the due separation of the object to be delivered from the class to which it belonged; and they applied, therefore, to the sale of a genus the principles adopted in reference to conditional sales, so that the risk does not attach to the purchaser until the measurement. But the purchaser must bear the risk of deterioration falling on the particular class. The deterioration, however, must be of all that class. Thus, if two pipes of a wine in a particular cellar are sold, the purchaser does not bear the risk when only one or more of the casks of this wine are injured, so long as the injury does not extend to other casks.

1 Adams v. Lindsell, 1 B. & Ald. 681; Mactier v. Frith, 6 Wend. 103; Phillips v. Moor, 71 Me. 78.

2 Kent's Com. ii. 492, adopted Wing v. Clarke, 24 Me. 366; Phillips v. Moor, 71 Me. 81.

3 Sales, etc., 3d Am. ed. sec 78.

J.,1 "where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price."2