the vendor's lien, is not to be found explicitly stated in the texts relating to the contract, but is to be inferred from general principles. It would seem that there is only one case in which there can be any difficulty. Speaking generally, the unpaid vendor is not divested of his property in the goods even by delivery to the purchaser, and therefore if in the case of the latter's insolvency he can recover possession from him, he can obviously do the same from a bailee to whom the goods have been delivered as his agent for conveyance to him. If the vendor has given credit, or received some security for payment, it is material to consider who the person is to whom he entrusts the goods for transmission. Such person may be agent either for the vendor himself, or for the purchaser. In the first case the vendor can clearly revoke the agent's authority at any moment before the commission is executed by delivery of the goods, and he will naturally do so if, before such execution, he hears that the purchaser has become insolvent. But supposing that the bailee to whom he delivers the goods is the purchaser's agent, the vendor has no right such as that of stoppage in transitu, for conveyance to the agent vests the property in the principal if it was previously in the vendor himself. The latter can

(8) The right of stoppage in transitu may be determined by waiver thereof on the part of the unpaid seller.

48.-(1) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case, the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.

(2) When notice of stoppage in transitu is lawfully given to the carrier, or other bailee in possession of the goods, he must deliver the goods to or according to the directions of the seller.

CHAPTER XI.

Condi

tions in general distin

guished

into suspensive and resolutive.

CONDITIONAL SALES.

Conditions in general distinguished into suspensive and resolutive. Conditions distinguished from terms in the contract. Conditions affirmative and negative. Conditions attached for the benefit of the vendor. (i) Addictio in diem. What is a 'better offer'? Effects of addictio when the condition is suspensive, and resolutive. When is the condition satisfied? Sales by auction. (ii) Lex commissoria: the condition here always resolutive: when it is satisfied. Effect of a sale subject to a lex commissoria. Conditions attached for the benefit of the purchaser; (i) emptio ad gustum; (ii) pactum displicentiae. Common terms in sales; reservation by vendor of right of preemption; pactum de retrovendendo and de retroemendo.

WHERE the ordinary effect of a contract, whether of sale or otherwise, is either suspended until the occurrence or non-occurrence of some uncertain event, or is subjected by the agreement of the parties, express or implied, to some limitation, it is said to be made under a condition, and the theory of conditions is perhaps more fully worked out and exemplified in connection with sale than with any other disposition, whether belonging to the sphere of contract or to some other branch of law, such as inheritances and legacies. If the full effect of the contract is made to depend on such occurrence or non-occurrence (as e. g. on a purchaser's expressing himself satisfied with goods) the condition is said to be suspensive: if, while the contract produces at once its ordinary effects, it is agreed that they shall be cancelled, and that the avoidance shall relate back to the date of its conclusion, on such occurrence or non-occurrence, the condition is said to be resolutive-as,

upon the law of England. The doctrine was at variance with the Civil Law, which laid down that although the goods had been sold upon credit, and although the goods were in the possession of the vendee, there might be recaption by the vendor if the vendee became insolvent. The writer has been unable to find any text upon which this statement can be supported: but it is probable that the case of which the L. J. was thinking was one in which there had been a reservation of either dominium or hypotheca until the whole of the purchase money had been paid.

or ancillary to its main purpose, as where, for instance, in selling land the vendor promises to give the purchaser a lease of an adjoining estate'. To the lay mind it might appear a matter of indifference whether I agree to take your house at an annual rental of £100, if you paper and paint it throughout, or whether I agree to take it at that rental in consideration of your undertaking to do so; but the difference is this, that whereas one can be compelled to perform a term in the contract by the ordinary action upon it, one cannot be sued for non-fulfilment of a condition, even though its fulfilment be in one's own power 2. But pacta adiecta may, like the main contract, be themselves subjected to a condition, either suspensive or resolutive 3.

A condition may be for the benefit of, or rather the contract may be conditional for, one of the parties only, as where one attaches a condition to his assent, while the other assents unconditionally: but unless this is clear, the condition is to be deemed to affect both, and cases are conceivable in which it is quite uncertain, at the moment the contract was made, for whose benefit it will turn out to have been annexed. Where it is for the benefit of one

1 E. g. Dig. 18. 1. 79.

2 Si vero sub conditione facta emptio est, non poterit agi ut conditio impleatur: Dig. 18. 1. 41. pr.

3 Whether a condition could by subsequent agreement be annexed to a sale originally unconditional is to be regarded as questionable. As to resolutive conditions there is no doubt: and, according to Paulus (Dig. 18. 5. 7. pr.), it was equally true that a suspensive condition subsequently agreed on was void. But it is difficult to deny to such a pact, if attached to a purely executory contract, the effect (in general beyond all doubt) of giving rise to an exception: and Paulus can hardly have meant that a party who agrees to annex a condition to a sale originally unconditional could enforce it before satisfaction of the condition if the other pleaded some such defence as exceptio doli: cf. Treitschke, Kaufcontract, pp. 144-146.

✦ E. g. where goods on board ship and in transit are bought subject to their arrival by a certain day. If they arrived late, and had risen

party, it can be waived by him alone: where it is imposed for the benefit of both, whether expressly or by implication, it can be discharged only by agreement.

tions affir

and nega

An affirmative or positive condition is one which is Condisatisfied by the happening of something: a negative condi- mative tion is one which is satisfied by something not happening, tive. and it is deemed to have been satisfied as soon as it is certain that the event, on whose non-occurrence the contract depends, cannot possibly happen, or (where a limit of time has been fixed) has not happened within that limit. A negative suspensive condition is liable to confusion with a resolutive one, and a negative resolutive one with a suspensive but their effects, as has been already indicated, are totally different. A resolutive condition does not in any way impede the existence of the ordinary effects of the contract, such as the duties which it engenders, and the passing of the risk to the purchaser : whereas none of these effects ensue when the condition is suspensive until it is fulfilled. Consequently a party who has made a contract under a suspensive condition cannot be sued upon it until the condition is satisfied; while on the other hand where the condition is resolutive there is no need to wait until it is certain that it will not occur, but the contract can be enforced at once, although on its occurrence (if affirmative), or on its becoming certain that it cannot occur (if negative) both parties, or the party in whose favour the condition was annexed, can sue for the recovery of the property or of the purchase money, as the case may be, on showing himself to be ready to surrender the benefit which he may himself have derived from the performance of the contract. Sufficient

in value, the condition would be for the benefit of the vendor: in the converse case it would be for that of the purchaser.

1 Si res ita distracta sit, ut si displicuisset inempta esset, constat non esse sub conditione distractam, sed resolvi emptionem sub conditione: Dig. 18. 1. 3.