9. Such of the documents of title in the possession of the Vendor as relate exclusively to any lot shall be delivered to the Purchaser of that lot. Such as relate to more than one lot, but not to property not comprised in this sale or to other matters, shall be delivered to the Purchaser of the largest part in value of the lots to which the same relate after the completion of the sale of all such lots. The last-mentioned documents until such completion and all other documents of title in the possession of the Vendor will be retained by him, and he will give to each Purchaser concerned the proper statutory acknowledgment and undertaking as to production and delivery of copies and safe custody thereof.

10. Lot 1 is sold subject to the existing tenancy and the several lots to all easements, tithe rent-charge, quit rents, fee farm rents and other incidents of tenure (if any) affecting the same.

11. No evidence other than such as is in the Vendor's possession shall be required of the redemption of any land tax on the property intended to be sold, and if such evidence shall consist of a contract for the redemption of the land tax no requisition shall be made or objection taken that the contract does not sufficiently identify the land redeemed, and no information which shall be given by the Vendor shall be a waiver of this condition; and where no contract or certificate for such redemption or other evidence shall be in the Vendor's possession the Purchaser shall be satisfied with the production of a certificate by the Clerk of the Commissioners of Land Tax for the District that no land tax is assessed on the property beyond any amount mentioned in the particulars of sale, such certificate, if required, to be obtained at the Purchaser's expense.

12. The quantities of the lands forming the several lots are believed and shall be taken to be correctly stated in the particulars, and no compensation or other relief shall be allowed for an error in quantity. If any other material mistake in the particulars shall be discovered before the completion of the purchase a fair compensation shall be made in respect thereof to or by the Purchaser as the case may require, the amount to be settled in case of difference by arbitration; but such compensation (if any) shall be claimed and the amount thereof settled at or before the completion of the purchase, and no compensation under this condition shall be claimed or allowed by or to either party after the completion,of the purchase.

Lastly. If any Purchaser shall fail to comply with these conditions his deposit money shall be forfeited to the Vendor, who shall be at liberty to proceed to another sale either by public auction or private contract with or without notice to the Purchaser at the present sale, and the deficiency (if any) occasioned by such second sale together with all charges attending the same shall immediately after such sale be made good by the defaulter at this present sale, and in case of nonpayment of the same the whole shall be recoverable by the Vendor as and for liquidated damages and it shall not be necessary for the Vendor to tender a Conveyance.

Memorandum

I, Arthur Andrews, of 105, Lothbury in the City of London, do hereby acknowledge that at the sale by auction this day, I was the highest bidder for and declared to be the Purchaser of the property described as Lot 1 in the within particulars of sale, at the sum of 7500, and that L have paid the sum of ,750 as a deposit and in part payment of the said purchase-money to Messrs. Box and Cox the Auctioneers, and L hereby agree to pay the balance of the said purchase-money, and to complete the purchase according to the Conditions printed within.

Witness my hand this 17th day of July, 1906.

A. Andrews.

Purchase-money ...

7500

Deposit ...

750

Balance

6750

As Agents on behalf of the Vendor Mr. Berkeley Burt (a) we hereby confirm this sale and acknowledge the receipt of the said, deposit.

Box & Cox.

Each person who bids at the auction makes an offer, which may be revoked at any time before the auctioneer's hammer falls; the offer is accepted when the hammer falls after the highest bid.

The contract is complete as soon as the hammer falls, but it cannot be enforced until there is a memorandum in writing. The buyer and the auctioneer therefore usually sign the memorandum at the end of the conditions (see form on p. 274).

If the buyer refuses to sign, the auctioneer can sign it for him, as he is deemed to be the agent of both parties.

Note particularly the following points in the form of Conditions of Sale on pp. 270-274.

Condition 1 deals with the procedure at the auction sale. The provision that no bid shall be retracted is probably void.

Condition 2. The deposit is forfeited if the buyer does not carry out the purchase.

Condition 3 fixes a date for completion. The outgoings would be apportioned as from that date without any express provision.

Condition 4. This clause fixes the date for the commencement of the title. The title here offered to all the lots except Lot 1 is a very short one and would probably deter many persons from bidding (b) except as to any of the lots which are very small.

This is a "special condition," i.e. one which applies a special rule applicable only to this particular case. Most of the others are "common form" conditions, and are found (with some alterations) in most conditions of sale.

Condition 5. Conditions used to contain a clause that the buyer should not object to defective stamps on the deeds. In this way the duty of stamping was frequently avoided. But

(a) In order to satisfy the Statute of Frauds the Vendor must be named or sufficiently indicated.

(b) A condition which is likely to deter buyers is said to be " depreciatory." since the act mentioned in the condition such a condition is void except as to deeds dated before the 17th of May, 1888, the date of the commencement of the Act.

Condition 6. This releases the seller from the duty of proving strictly that the property described in the deeds is the same as the property agreed to be sold.

It does not however compel the buyer to take the property where the documents show no satisfactory proof of identity (o).

Condition 7. A Statutory Declaration is a statement on oath made by the seller or some other person, declaring that certain events have happened, e.g. verifying a pedigree.

The declaration cannot be used as evidence in a court of law; but it is accepted as prima facie evidence by conveyancers. If the person who made the declaration is dead, then it may be valuable as evidence, e.g. in the case of a pedigree, if it was made by a member of the family.

Condition 8. This fixes the time within which the requisitions must be sent in. If they are not sent in within the time specified, the seller need not reply to them, and the title will be deemed to have been accepted. This result is obtained by the words "time shall be of the essence of the contract." If these words are not inserted, equity will always allow a reasonable time, even after the time fixed has elapsed.

"The vendor shall be at liberty to rescind." This means that if there is some concealed defect of title, which appears on the examination of the title, and which the seller finds impossible or very difficult to remove, he may declare the whole contract to be at an end.

The seller cannot rely on this provision if -

(i.) he has made misrepresentations (p), or

(ii.) if he had no title at all to any part of the property (q), or

(iii.) if it would be unreasonable to allow him to withdraw (r).

Condition 9. Merely states the law which would apply even under an open contract.

(o) In some cases it has been held to amount to an undertaking to show identity; so as to enable the buyer to refuse to complete if identity is not properly proved. Flower v. Hartopp, 6 Beav. 476.

(p) Holliwell v. Seacombe, [1906], 1 Ch. 426.

(q) Bowman v. Hyland [1876], 8 Ch. D. 588.

(r) Quinion v. Home, [1906] W. N. 44.

Contracts for the Sale of Land 277

The last condition is very important, as it gives the seller a power to sell the land again if the first buyer fails to complete his purchase. Without this clause the seller is in a very difficult position, as he will find it hard to sell the property again unless he first gets a judgment for specific performance, and then rescinds the contract for non-compliance with the order. He can then sell, but he cannot recover his loss (if any) from the first buyer, as he cannot both rescind the contract and also claim damages for its breach.