It is worth noticing that in the Civil law the seller in entitled to recover the full price when the buyer is in default. By the classical Civil law the property never passed until delivery of the goods.96 So that in any case to allow the seller to recover the full price when the buyer refused to accept delivery necessarily involved recovery of the price by one who had not transferred the property in the goods.97 The Roman law, indeed, went fur-

95 It should perhaps be said, in order to prevent misapprehension, that the rule contended for is applicable only where the contract has been broken by the buyer after the goods have been procured or manufactured. If the buyer repudiates his contract or countermands his order before the goods have been manufactured or procured by the seller, he ought not to be allowed, and generally is not allowed, to enhance the damage of the buyer by manufacturing or procuring the goods. See supra, Sec. 1298.

96 Moyle, Contract of Sale in the Civil Law, 110.

97 Pothier, Contract of Sale, Sec.280: "When the contract contains no provision for credit, the seller may immediately commence this action {actio vendili) against the buyer upon makther than this. Even though the goods had been destroyed by accident before delivery, and, therefore, before transfer of the property, the risk was thrown on the buyer, and the seller was allowed to recover the price.98 It. may, therefore, be urged that the Roman law virtually made the promises of buyer and seller independent, and that as such a doctrine is not only clearly inconsistent with our law, but also with fundamental principles of justice, no desirable suggestion or analogy can be derived from that system of jurispridence. The rule of the classical Roman law in regard to risk is, however, generally abolished to-day in Europe;" and the recognition of the dependency of the promises in a bilateral contract is as completely recognized, perhaps more completely recognized, on the Continent of Europe than in England.1 But in spite of this, the rule in regard to the recovery of the price persists. This is true in France.2 So the old German Commercial Code, which was in force not simply in Germany but also in Austria, and is still in force in the latter country, provides: " If the buyer is in default in accepting the goods, the seller may deposit them, at the risk and expense of the buyer, in a public warehouse or otherwise in a safe manner."3 The new Commercial Code in force throughout the German Empire since 1897 copies this provision.4 Even in Scotland the same rule prevails to-day, for the rule of the Civil law is thfere. preserved by the Sale of Goods Act.5 ing the offer which he ought to do to deliver the thing, provided it is not already delivered. If after the contract the thing ceases, without the fault of the seller, to be in a situation to be delivered, the seller is not thereby deprived of his right of commencing his action for the payment of the price. But while the seller is in default in delivering the thing sold, he cannot demand the price of it.

98 See supra, Sec.947

99 Supra, {953.

1 Supra, {Sec.899 4 009.

2 Code Civil, Arts. 1138, 1652; 2 Itoplong, Vante, par. 603.

3 Handelsgeeetsbuch, Sec.343.

4 Handelsgesetsbuch of 1897, 1373. In commenting upon this provision

Lehmann and Ring say in their Kom-mentar sum Burgerlichen Geseto-buche und seinen Nebengesetse (Berlin, 1901), ii, 101: "Since the seller is no longer responsible for the goods, he acquires the right to the price and must only make allowance for what he saves in consequence of being freed from performance, or what he acquires or wrongfully fails to acquire through other application of his labor. He can also recover from the buyer indemnity for the necessary expenses for the care and custody of the goods. He must even be allowed a claim for storage if he is a merchant."

5 "Section 49. (3) Nothing in this section shall prejudice the right of the seller in Scotland to recover in-