"If the thing which it has been agreed to buy and sell has, unknown to both parties, ceased to exist at the time at which the contract is made, the contract is void. The vendor must return the purchase money, if he has been paid; and if he alone knew that the property no longer existed he is further liable to compensate the purchaser in damages for any loss which he may sustain through nonperformance, whereas if the purchaser alone knew it, he is bound to pay the purchase money, and has charge the person who carried it off, from the obligation of restoring its value," 17
13 In Scott v. Littledale, 8 E. & B. 815, 820, a contract was made to sell the cargo of the "Star" and it was agreed that the cargo was equal to a certain sample. The sample on which the contract was made was by mutual mistake supposed to be a sample taken from the cargo which was bought and sold, whereas it was not. The consequence was that the defendants could not possibly perform the contract. Though they might have purchased tea equal to the sample and delivered it, that would not have been a fulfilment of this contract, which was for the purpose and sale of a specific cargo ex Star. In an action by the buyer for non-delivery of the cargo, the defendants set up these facts by way of equitable defence. In the argument for the defendants, Cromp-ton, J., interposed: " The plaintiff by his declaration says that he was always ready and willing to accept the cargo ex Star; if he was, were not you bound at least to deliver that cargo? Do you not claim too large a relief? " Counsel replied: " In the contemplation of a court of equity there was no contract, because the contract was founded on a mistake of both parties to it;" but Lord Campbell, C. J., delivering the opinion of the court, said: " We are all of opinion that the plea cannot be supported. It is founded on the assumption that in equity this contract would be void at the option of the vendor. But we are of opinion that the contract would be held to be still subsisting, and that the relief in equity, if any, would be partial or conditional. We have no authority in this Court to settle such equities." no rights himself against the vendor. If both were aware that the property no longer existed, the contract is void. Where the thing has ceased to exist only in part, the contract is void, and the purchaser can recover any purchase money which he has paid, only where less than half of it is left, or where the portion wanting is the portion for which mainly the purchaser can show that he bought it. Otherwise the contract stands, the purchase money being proportionately abated. On the same principle a sale of the inheritance of a living third person, or of a person who does not and never has existed, is void, though Justinian legalized sales of the inheritance of a living person to which the vendor hoped to succeed, provided that person assented, though he was not thereby bound to leave it to the vendor at all." 14 It may be assumed that the modern Civil law would follow the same principles except in so far as express Code provisions may modify them. In France the Civil Code provides: "If at the moment of the sale the thing sold had wholly perished, the sale shall be void. If a part only of the thing has perished it is at the option of the buyer to abandon the sale or to demand the remaining part, having the price determined by valuation." 15 The German Code contains no specific provision in regard to the matter, but it is covered by the general provisions in regard to impossibility, mistake, and dependency of the obligations in bilateral contracts.16 The Code of Louisiana contains the following provision: "When the certain and determinate substance, which was the object of the obligation, is destroyed, is rendered unsaleable, or is lost, so that it is absolutely known not to exist, the obligation is extinguished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in default. Even when the debtor is in default, if he has not taken upon himself fortuitous accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the possession of the creditor, if it had been delivered to him. The debtor is bound to prove the fortuitous accident he alleges. In whatever manner a thing stolen may have been destroyed or lost, its loss does not dis-
14 Moyle, Contract of Sale in the Civil Law, 21. 15 Art. 1601.
16 German Civ. Code, Secs. 306, 319, 320,323.