If the intention of the parties is clearly expressed, cadit quaestio. Frequently, however, the parties fail to express their intention (not uncommonly because they have no definite intention, not having thought of the question of the passing of the property). The courts have therefore been obliged to formulate certain rules of construction (now stated in the Sale of Goods Act) for deciding the intention of the parties on this subject in cases where the parties have failed to express their intention. If the goods are specific and nothing remains to be done to the goods by the seller in order to put them into a deliverable state or to ascertain the price, the presumption is that the parties intend to effect a present sale, but in different circumstances the presumption may be that the parties intend to suspend the passing of the property. In any event a mere presumption of the intention of the parties must give way to the actual intention, if that intention can be gathered from the contract or conduct of the parties. Cf. Benjamin, Sale, 5th ed. 1906, pp. 310 ff.

The Sale of Goods Act (Ont. s. 20; U. K. S. 18) provides: 20. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer:

(a) Rule 1. - Where there is an unconditional contract for the sale of specific goods in a deliverable 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 be postponed.

(b) Rule 2 - Where there is a contract for the sale of specific goods and the seller is bound to do some thing to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof.

(c) Rule 3. - Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done, and the buyer has notice thereof.

The Sale of Goods Act (Ont. s. 2; U. K. s. 62) also provides:

2. - (4) Goods shall be deemed to be in a "deliverable state" within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them.

Examples of the application of rule 1:

Tarling v. Baxter, 1827, 6 B. & C. 360, 23 R.C. 257 (de livery and payment postponed).

Craig v. Beardmore, 1904, 7 O.L.R. 674 (goods to be delivered at railway siding but destroyed in woods before delivery: delay in delivery possibly due to buyer's fault).

McGregor v. Whalen, 1914, 31 O.L.R. 543, 20 D.L.R. 489 (goods in deliverable state: nothing further to be done by seller).

Lea v. Tangye, 1919 (Alta.), 49 D.L.R. 52 (buyer not to use straw until payment).

The rule does not apply if by the terms of the contract the sale is not to take place until the goods are received and paid for.

Rex v Chappus, 1920, 48 O.L.R. 189, 55 D.L.R. 77.

Examples of the application of rule 2:

Rugg v. Minett, 1809, 11 East 210, 23 R.C. 295 (casks to be filled by seller).

Acraman v. Morrice, 1849, 8 C.B. 449 (parts of trunks of trees agreed to be sold, but destroyed before severance).

Anderson v. Morice, 1876, 1 App. Cas. 713, L.R. 10 C.P. 609, 23 R.C. 302 (goods to be loaded on ship).

Seath v. Moore, 1886, 11 App. Cas. 350, at p. 370, 23 R.C. 257, at pp. 277-8.

Boehner v. Smith, 1916, 49 N.S.R. 435, 26 D.L.R. 511 (logs to be safely boomed).

McDill v. Hilson, 1920, 30 Man. R. 454, 53 D.L.R. 228 (furniture to be polished).

The words "and the buyer has notice thereof" in rule 2 are borrowed from the Scottish law and in the United States have been omitted from the corresponding provision of the Uniform Sales Act.

Even though something remains to be done to the goods by the seller to put them into a deliverable state, the property will pass at the time of the contract if such is the intention of the parties Young v. Matthews, 1866, L.R. 2 C.P. 121.

Examples of the application of rule 3.

Hanson v. Meyer, 1805, 6 East 614 (goods to be weighed).

Logan v. Le Mesurier, 1847, 6 Moo. P.C.C. 116 (goods to be measured).

In the following cases the principle of rule three did not apply because there was nothing to be done by the seller, although the buyer had the right to measure, etc.:

Furley (or Turley) v. Bates, 1863, 2 H. & C. 200. Gilmour v. Supple, 1858, 11 Moo. P.C.C. 551.

The words "and the buyer has notice thereof" in rule 3 are borrowed from the Scottish law. In the United States the whole rule is omitted from the Uniform Sales Act.

In any case the rule is inapplicable if it appears to have been the intention of the parties that the property should pass. Wilson v. Shaver, 1901, 3 O.L.R. 110 (subsequent measuring and stamping).

White v Greer, 1916, 36 O.L.R. 306, 30 D.L.R. 70 (goods inspected, measured and branded).