Conse

quences of

the purchaser's

mora.

cattle, or maintenance of slaves 2. If he fails to accept delivery of the property at the vendor's request, or if a time has been agreed upon for such delivery and he has not come to take it, the vendor is no longer bound to show any high degree of care in the charge of it, and is for the future answerable only for wilful misconduct and gross negligence 3. Moreover, where the goods are of a perishable nature, or where to retain them in his custody would entail on him excessive inconvenience, he may resell 5 them, and in that case, if he has been paid he must hand over what he gets for them to the original purchaser, who has no ground for complaint if this is less than he agreed to give for them himself, provided the vendor acts in good faith and without extreme negligence, and does the best he can for him consistently with his own interests: the purchaser is equally entitled to the money, or to the surplus if he has not paid the price which he promised himself, if the second sale realises more than the first. Finally, the purchaser is bound to save the vendor harmless from any loss or detriment which his own fraud may have occasioned him thus, if desiring to buy a certain property or lot of goods, he steals some of them, so as to induce the owner to sell the residue more readily".

1 Cod. 4. 49. 16.

2 Dig. 19. 1. 38. 1.

+ Dig. 18. 6. 1. 3.

3 Dig. 18. 6. 15. pr.: ib. 18: p. 107 supr. In the English law where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. Where the seller expressly reserves a right of resale in case the buyer should make default, and on the buyer making default, resells the goods, the original contract of sale is thereby rescinded, but without prejudice to the seller's claim for damages': Chalmers, Sale of Goods, p. 73: Benjamin, pp. 791-805. By the Code Civil, Art. 1653, the vendor can demand the rescission of the contract if the purchaser does not pay the price.

Dig. 19. 1. 13. 5.

Law on

lien,

A chapter on the purchaser's duties is perhaps the most The Civil appropriate place for a discussion of certain subjects which the subject are more commonly associated with the rights of the of vendor's vendor. English lawyers will look for some examination of the question how far the doctrines of the vendor's lien for unpaid purchase money, and of stoppage in transitu, are derived from or have any counterpart in the Civil Law.

The Roman vendor has substantially the same rights as are included in the English lien, but they belong to him as a matter of course, and are not the subject of any such detailed exposition in the texts as would correspond to the mass of authority in our own books, because of fundamental differences between the two systems which have been already explained.

By the English law, as has been seen, the property usually passes by the contract. If then the purchaser demands his goods from the vendor, who still has them in his possession, before he has paid the price, we have a kind of conflict between the logical consequences of a rule of law and the conclusions which would be suggested by considerations of abstract justice. The goods are no longer the vendor's, so he ought to give them up and yet on all grounds of equity he ought to be allowed to retain possession of them until he has received the purchase money. The English doctrine on the subject', which is derived by

1 Stated as follows by Chalmers, Sale of Goods, p. 59. sqq.: 43-(1) Subject to the provisions of §§ 44 & 45, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely:

(a) When the goods have been sold without any stipulation as to credit;

(b) When the goods have been sold on credit, but have been permitted to remain in the seller's possession until the term of credit has expired;

Story 1, in the case of purchases of land, from the Roman rule as to property not passing by delivery unless the price is paid, appears to be an equitable qualification of the unreasonable consequences which ensue from the rule as to the passing of the property by the contract, engrafted on that rule since its adoption about the beginning of the sixteenth century.

But by the Roman law the property did not pass by the contract it did not necessarily pass even by delivery. The goods remained the vendor's until he had delivered them, and he was not bound to deliver them until he had been paid or at least offered the purchase money 2, unless

(c) When the buyer becomes insolvent, whether the goods have been sold on credit or not;

(2) Where the buyer is insolvent, the seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer.

44. Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an intention of waiving the lien.

45.—(1) The unpaid seller of goods loses his lien thereon:

(a) When he delivers the goods to a carrier or other person for the purpose of transmission to the buyer without reserving the right of disposal of the goods;

(b) When the buyer or his agent obtains possession of the goods unless there be an agreement to the contrary;

(c) by waiver thereof.

(2) The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment for the price of the goods.

1 Equity Jurisprudence, §§ 1221, 1222.

2 In Dig 19. 1. 13. 8( offerri pretium ab emptore debet, cum ex empto agitur, et ideo etsi pretii partem offerat, nondum est ex empto actio: venditor enim quasi pignus retinere potest eam rem quam vendidit') the words 'quasi pignus' are misleading, for they suggest that (as in English law) the vendor is no longer owner. If the vendor was relieved by law (e.g. by bankruptcy, or novae tabulae) from the obligation to pay, he could not enforce delivery: but if delivery was made the vendor had no remedy: bona fides non patitur, ut cum emptor alicuius legis beneficio pecuniam rei venditae debere desisset

he consented to take some security instead, or to give the purchaser credit. The answer to the question, consequently, whether under ordinary circumstances he might retain possession until paid is obvious; his right to do so is merely an incident of his continuing ownership. Similarly, if he delivered the goods without either giving credit or receiving any security for payment, no property passed, and, if not paid, he could recover possession by action in rem: nor apparently in such a case could the purchaser acquire a prescriptive title to the goods, for he knew all along that he was not the owner, and moreover possession was not delivered to him with the intention of passing the property. Where, however, the vendor had expressly or by implication waived his right to immediate payment, the matter stood otherwise. He was bound to deliver at once, and by such delivery the property would pass.

The English lien in fact is a right which the possessing vendor has over the goods, notwithstanding that the property therein has passed to the purchaser, because the latter has not paid the purchase money. In Roman law the case cannot arise, except perhaps under circumstances where by his own conduct the vendor has, or must be taken to have, waived all possible claim to such a privilege— where in short he has sold on credit, or received some substitute for immediate payment, and the goods have been left in his possession as bailee or agent after actual delivery to the purchaser. On the question whether, in such a case, he would have any lien if the goods remained in his possession until the term of credit had expired, there seems to be no definite authority.

The right of stoppage in transitu is a right which the antequam res ei tradatur, venditor tradere compelletur et re sua careret possessione autem tradita futurum est, ut rem venditor aeque amitteret, utpote cum petenti eam rem [emptor exceptionem rei venditae et traditae opponere possit nec perinde sit, quasi eam rem] petitor ei neque vendidisset neque tradidisset: Dig. 19. 1. 50.

and

unpaid

money.

unpaid vendor, who has parted with the possession of, as purchase well as the property in, the goods to a carrier or other bailee for conveyance to the purchaser, has, under English law, of stopping the goods in transit, on hearing that the purchaser has become insolvent, with a view to resuming possession. The Roman law on the matter, as on that of

The law is thus stated by Chalmers, Sale of Goods, pp. 63, 8qq: 46. Subject to the provisions of §§ 47-49, when the buyer of goods becomes insolvent the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price.

47.-(1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee.

(2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end.

(3) If, after the arrival of the goods at the appointed destination, the carrier or other bailee attorns to the buyer, or his agent, and continues in possession of them as bailee for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.

(4) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.

(5) When goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent or servant to the buyer.

(6) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end.

(7) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods.