Sale of land by auction in lots.

Custody of title-deeds to several lots.

Sale of leaseholds in lots.

Sale in lots of freeholds subject to a rent.

(o) As to the incidence of such charges in the absence of special stipulation, see cases cited above, p. 50, n. (l); below, Chap. V.; Chap. XL Sec. 1; Chap. XII. Sec. 2. A special stipulation of this kind, casting the liability on the vendor or the purchaser according as the requirement or demand creating it is made before or after the sale, is contained in the common form conditions of sale of the Birmingham Law Society; and the Bristol, Liverpool, and Manchester Law Societies' conditions of sale contain a stipulation throwing these expenses on the purchaser where the requirement is made after the sale.

(p) See the form of stipulation given in Appendix A, below.

(q) Pp. 70-75.

(r) See below, Chap. XII. Sec. 3.

(s) See below. Chap. X. Sec. 2 at end.

Sale of land in lots sudject to restrictive covenants.

Purchaser of several lots entitled to one abstract only of the common title.

Having thus considered the conditions usually made on sales by auction, it remains to inquire what stipulations are generally inserted in formal agreements for sale by private contract. The practice in this respect has undergone remarkable fluctuation. We find that down to the end of the first half of the last century vendors were apparently content to undertake by express stipulation the obligations which the law cast upon them in the case of an open contract; notwithstanding that those obligations, including the duty of proving a good sixty years' title at the vendor's expense, were far more onerous than they are at present (A). After this, a time of exceptional prosperity brought about a brisk market for the sale of land, and purchasers could be found who would agree, not only on sales by auction (c), but on private sales, to stipulations limiting the time for deducing title, giving the vendor the right to rescind in case of a disagreeable requisition, tin-owing upon the purchaser the expense of procuring all evidence of title not in the vendor's possession and even of the concurrence in the conveyance of all necessary parties other than the vendor, and binding the purchaser to pay interest on delay in completion "from any cause whatever" (d). Then legislation took place, entirely in vendors' favour; and not only was the time for deducing title limited to forty years on open contracts (e), but the expense of procuring all evidence of title not in the vendor's possession was thrown on the purchaser in the absence of stipulation to the contrary (f). By this time the sale of land subject to special stipulations drawn entirely in the vendor's interest had become so much a matter of course that conveyancers engaged in settling contracts for sale on the purchaser's behalf had almost abandoned even the claim to protest (g). Recently, however, a change has again taken place. Judicial decisions upon the construction of the enactment making the purchaser pay for all evidence which the vendor has not, have shown that it may work most unfairly to the purchaser, who has been held liable to pay the expense of the production of title-deeds in the possession of the vendor's mortgagees (h), and of searching for a leading title-deed which was absent from the vendor's possession (i). It has also been shown that the contract to pay interest on delay in completion from any cause whatever (k) and the stipulation requiring the purchaser to pay the costs of getting in outstanding estates (/) may work great hardship on a purchaser. Owing to these decisions, it is thought that practitioners are again becoming sensible of the duties incumbent on them when acting for a purchaser; and when on private sales vendors propose the same stipulations as they would make on a sale by auction, it is no longer a matter of course that the purchaser's advisers shall receive the proposal with supine acquiescence. Of course bargaining about the conditions of sale is like bargaining about the price. The ultimate decision depends on the willingness of one party to give in rather than lose the contract. But a purchaser has such good reason for objecting, on a private sale, to the conditions usual on sales by auction that it appears foolish to agree to them without negotiation. He is likely to succeed in some, if not all of his contentions; and even where he finds himself reduced to the alternative of withdrawing his objection or abandoning the purchase, he will often have extracted valuable information showing why the vendor refuses to give way, and helping him materially in exercising his own judgment.

Stipulations in Formal contracts for private sale.

(t) See above, p. 81, n. (i). (u) See below. Chap. X. Sec. 12. (x.) Conveyancing Act, 1881, stat. 44 & 15 Vict. c. 41, 8. 3 (7).

(y) Such a stipulation was usual before the year 1882; 1

Dart, V. & P. 126, 5th ed.; 1 Davidson, Prec. Conv. 526, 640, 4th ed.

P. 56 sq. (a) Appendix A, below.

6(2)

(b) See 1 Bythewood & Jarman, Prec. Conv. 3rd ed. by Sweet (1841), pp. 490, 500; Sag. V. & P. 52, 1076, 11th ed. (1846).

(c) Above, p. 75, n. (a).

(d) See Juridical Society Papers, ii. 589 sq.; Davidson, Prec.

Conv. vol. ii. pt. i. 1-20, 4th ed. (1877).

(e) Stat. 37 & 38 Vict. c. 78, s. 1.

(f) Stat. 44 & 45 Vict. c. 41, s.3 (6).

(g) See 1 Key & Elphiastone's Prec. Conv. 283, n., 2nd ed.: 348, n., 4th ed.; 316. n., 6th ed.

(h) Re Willett and Argenti, 5

Times L. R. 476.

(i) Be Stuart, Olivant and sea-don's Contract, 1896, 2 Ch. 328.

(k) See above, p, 67.

(l) Re Willett and Argenti, 5 Times L. R. 476.

The main reasons why a vendor does not usually desire to sign an open contract are these: - he wants to obtain a deposit as a guarantee for the due performance of the contract; he probably does not want to make out the whole forty years' title as required by law; he desires above all to be able to rescind if a too onerous requisition be made; and he wants the time stipulation as to making requisitions (m) and the express contract to pay interest on delay from any cause whatever (n), in order to avoid the leisurely procedure sanctioned by the rule that time is not of the essence of the contract (o). But the purchaser has only one reason for avoiding an open contract, namely, the unfavourable position in which the law places him as regards the expenses of evidence not in the vendor's possession. In all other respects an open contract is decidedly advantageous to him; he pays no deposit, can insist on a good forty years' title without fear that a necessary but unwelcome requisition will be met by a notice to rescind, can require the vendor to get in outstanding estates or incumbrances at his own expense, and need pay no interest on delay in completion caused by the state of the title or the vendor's fault (p). On the whole, it seems advisable for an intending purchaser always to offer, and if he can, to procure the signature of an open contract. If the vendor be anxious to sell and satisfied with the price proposed, such an offer will bring home to him the advantage of binding the purchaser definitely and at once instead of disputing over special stipulations, each of which gives the buyer an opportunity of retiring. And if the purchaser profess his willingness to sign an open contract from the first, he will occupy a favourable position for negotiating as to any special stipulations. I am willing, he may point out to the vendor, to buy under the conditions imposed by law; you wish to modify them. Be it so: but it is, to say the least, unfair that every special stipulation should be in your favour. If you expect to have the great advantages of receiving a deposit and being enabled to rescind on receiving an unwelcome requisition, advantages which you can only acquire by special stipulation, you must at least purchase them by relieving me from part of the expense now cast on me by law, and you must not expect me to contract to pay interest on delay caused by your fault.