CHAPTER IV.

Emptio generis.

CERTAIN SPECIAL SUBJECTS OF SALE.

Emptio generis. Sale of article to be made or procured by the vendor: doubts as to its true legal character. Emptio spei. Purchase of an inheritance. Purchase of a debt, or of a right of action, whether availing in rem or in personam : rules relating to assignment.

WHEN what is bought is not a specifically determined article, such as this particular estate Blackacre, or this particular horse, book, watch, or what not, but a quantity of goods of a certain description, determined by number, weight or measure (such as 100 quarters of red British wheat, 100 dozens of Château Lafitte claret, vintage 1883, colb. potatoes of the crop actually gathered from a particular field), or even a single thing not specifically determined, but by description merely (as an order for one of your patent rapid filters ') the transaction is called emptio generis. As a rule the goods belong to the class of things known as 'fungible,' but this is not necessary: and (according to the generally received opinion) it is immaterial whether the vendor already has such goods in his possession, or has to manufacture or procure them. Where the goods bought have to be selected from a larger quantity (as for instance where one orders a dozen shovels from an ironmonger's stock, or agrees to buy fifty out of a larger number of lambs born in the past season) the selection in cases of doubt rests with the vendor, who may, if the genus comprises different qualities, send the worst if he pleases1. As

1

Dig. 18. 1. 60, cf. ib. 25. I: 45. 1. 99. pr.: 17. 1. 52: 12. 6. 32. 3.

will be seen hereafter, this species of sale is an exception from the rule that the goods purchased are at the purchaser's risk from the moment of the conclusion of the contract 1.

article to

It has been already pointed out that an agreement by A Sale of to make an article for B out of his own (B's) materials 2, is be made or a sale, nor is there any doubt that an agreement to sell procured by the a certain thing or number of things out of a larger quantity vendor : actually belonging to the vendor is a good sale as well. It has however been questioned whether an agreement to procure and deliver a certain quantity of goods of a particular kind, or to make an article of a given kind out of materials to be procured by one from some one else, can be is it really deemed a sale on the principles of the Civil Law. It is urged that no contract of this kind can be considered to be performed at all, unless both (1) property is vested in the other party, so that one fundamental principle of the Civil Law-that embodied in the rules relating to eviction — has no application to the case, and (2) the article made or

According to English law, if there is an executory contract of sale, or an agreement to sell goods to be selected and appropriated to the buyer, the rule on the subject of selection is that when, from the nature of an agreement, an election is to be made, the party who is by the agreement to do the first act, which, from its nature, cannot be done till the election is determined, has authority to make the choice, in order that he may be able to do that first act, and when once he has done that act, the election has been irrevocably determined, but till then he may change his mind' (Benjamin, p. 319). Thus if A sells a thousand bricks out of a stack to B, who is to send his cart and fetch them away, B is to do the first act, and cannot do it till the election is determined: he may choose first one part of the stack and then another, and repeatedly change his mind... until he has put them in his cart to be fetched away. But if the vendor is to despatch the goods, or do anything to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be ' Benjamin, loc. cit. : cf. Blackburn on Sale, p. 128: Heyward's Case, 2 Coke, 36: Aldridge v. Johnson, 7 E. & B., 885, 901.

Dig. 18. 1. 35. 7.

2 Ex auro suo: Gaius, iii. 147: Inst. iii. 23. 4.

3 E. g. by Bechmann, Kauf, ii A. p. 332.

Sale?

Emptio

spei.

procured possesses the marks and attributes bargained for, so that a second fundamental principle-that of implied warranty of quality-is also excluded: and further that the application of the doctrine of periculum to the cases raises difficulties towards the solution of which the authorities give little or no assistance. This opinion seems to be gaining ground among modern writers on the Civil Law1, and it cannot be disputed that the texts contain no single case in which transactions of these kinds are clearly described as sales 2.

When what is bought is a thing which does not as yet exist, and which may never exist at all, or the quantity or value of which is so indeterminate that it may, as we say, come to nothing, the transaction is called emptio spei. If the intention of the parties is that the purchase money shall be paid in any case, whether the hoped for equivalent comes to anything or not, it is commonly termed, for the sake of distinction, emptio spei simplicis: if it is that it shall not be paid unless something at any rate is forthcoming, or shall only be paid in proportion to what the purchaser actually gets, it is termed emptio rei speratae. The first is presumed to be intended in such cases as where one agrees to buy the fish that shall be caught in such or such a net or nets, the game that shall be killed in such or such a battue,

1 Es mehren sich in neuer und neuester Zeit die Stimmen, welche den grundsätzlichen Gegensatz zwischen beiden Gebieten betonen und zugleich mehr oder weniger entschieden anerkennen, dass das Lieferungsgeschäft jedenfalls in den Quellen des römischen Rechts nicht als Kauf vorkommt:' Bechmann, op. cit. p. 331, note 4. On the other hand, it is said in Holtzendorff, Rechtslexicon, ii. p. 664, 'the defenders of the view that a "Lieferungsvertrag" is a contract of sale affirm that just as a thing to be made by one [out of one's own materials?] may be the subject of a sale, so can a thing which one has to procure. There is no doubt that this view is correct.' But on German or on Roman principles ?

2 The nearest are Dig. 18. 1. 20: 18. 6. 15. 1. Of course there is no doubt that they are sales both in Scotch (Bell, §§ 90, 147) and in English law: Hibblewhite v. McMorris, 5 M. & W. 462, Benjamin, p. 311.

the minerals that shall be extracted from such or such a mine to be opened:

aliquando tamen et sine re venditio intellegitur, veluti cum quasi alea emitur. Quod fit, cum captum piscium vel avium vel missilium emitur: emptio enim contrahitur etiam si nihil inciderit, quia spei emptio est1.

The second, which is in fact the purchase of a future thing conditionally on its coming into existence, is presumed to be intended when one buys a thing which may reasonably be expected to come into existence in the ordinary course of nature: e. g. the offspring of a slave woman now actually with child, the lambs to be born in the following spring on a particular sheep run, or next season's yield from a certain farm, garden or vineyard. In such a case the quality of the produce has no effect upon the amount of the purchase money, which, as it cannot be increased because the quality is better, similarly cannot be diminished because it is worse in fact than was expected. The presumption, however, in favour of either construction can be rebutted by evidence of a contrary intention. For instance, if one were to agree to buy for a fixed sum the whole of next year's vintage on a particular vineyard, this

1 Dig. 18. 1. 8. 1: cf. Dig. 19. 1. 11. 18: ib. 12. The case is criticised by Benjamin, p. 87. The Scotch law is the same: Bell, § 91 (2). Cette espèce donna lieu à cette fameuse contestation, rapportée par Plutarque dans la vie de Solon. Des Milésiens se trouvant dans l'Isle de Cos, avoient acheté de quelques pêcheurs leur coup de filet: ces pêcheurs pêchèrent un trépié d'or: les acheteurs le prétendirent. On doit décider qu'ils étoient mal fondés: les vendeurs et les acheteurs n'avoient entendu vendre ou acheter que le poisson qui seroit pris le trépié d'or auquel aucune des parties contractantes n'avoit pensé, ne faisoit donc pas partie du marché et c'est une bonne fortune dont les pêcheurs seuls doivent profiter. Cette décision est plus juste que celle de l'Oracle, qui, consulté sur cette contestation, adjugea le trépié au plus sage des mortels; afin qu'aucune des parties n'osant s'attribuer cette qualité, le trépié d'or demeurât aux Prêtres : Pothier, 6.

:

Purchase

of an in

would be an emptio spei1; but if the agreement were for ten casks of the wine which so and so should make next year from his vineyard, it would be an emptio rei speratae, and if only five casks were made, or none at all, the purchaser would have to pay only for five or none: while conversely the vendor would not be liable to deliver more than was made in fact, though he might have agreed to sell more 2.

The purchase and sale of an inheritance, that is to say, heritance of the whole estate of a deceased person, or of some aliquot share of such estate as one is entitled to as coheir, is a peculiar transaction requiring some brief explanation. An inheritance may be sold either before or after it is 'delata' to the heir, in other words, either before or after the time has arrived at which he may accept it. If, for instance, one is a substitute under a will, and sells before the event occurs upon which one's right to accept is to accrue, or if one is instituted subject to a suspensive condition, and sells before the condition is satisfied, the sale is an

2 Dig. 18. 1. 39. I. For the different ways of interpreting this passage see Glück, Pandekten, 4. p. 189, sqq.: Vangerow, Pandekten, § 632, note i. I.

'In relation to things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other can only be the subject of an agreement to sell, of an executory contract. Things not yet existing which may be sold, are those which are said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor. A man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, and the sale is valid. But he can only make a valid agreement to sell, not an actual sale, where the subject of the contract is something to be afterwards acquired, as the wool of any sheep, or the milk of any cows that he may buy within the year, or any goods to which he may obtain title within the next six months:' Benjamin, pp. 82 and 83: Grantham v. Hawley, Hob. 132: Wood and Foster's case, 1 Leon. 42: Robinson v. Macdonnel, 5 M. & S. 228: Reed v. Blades, 5 Taunt, 212, 222.