SALE, is the exchange of a commodity for money;
barter, or permutation, is the exchange of one commo-
dity for another. When the bargain is concluded, an
obligation is contracted by the buyer to pay the value,
and by the seller to deliver the commodity, at the time
and place agreed on, or immediately, if no time be spe-
cified.
In this, as well as other mercantile contracts, the
safety of commerce requires the utmost good faith and
veracity. Therefore, although, by the laws of England,
a sale, above the value of 10 L. be not binding, unless
earnest be paid, or the bargain confirmed by writing, a
merchant would lose all credit who refused to perform his
agreement, although these legal requisites were omitted.
When a specific thing is sold, the property, even be-
fore delivery, is in some respect vested in the buyer;
and if the thing perishes, the buyer must bear the loss.
For example, if a horse dies before delivery, he must
pay the value: but if the bargain only determines the
quantity and quality of the goods, without specifying
the identical articles, and the seller's warehouse, with
all his goods, be burned, he is intitled to no payment.
He must also bear the loss if the thing perish through
his fault; or when a particular time and place of deli-
very is agreed on, if it perish before it be tendered, in
terms of the bargain.
If a person purchase goods at a shop without agree-
ing for the price, he is liable for the ordinary market-
price at the time of purchase.
If the buyer proves insolvent before delivery, the sel-
ler is not bound to deliver the goods without payment
or security.
If the importation, or use of the commodities sold,
be prohibited by law, or if the buyer knows that they
were smuggled, no action lies for delivery.
The property of goods is generally presumed, in fa-
vour of commerce, to belong to the possessor, and cannot
be challenged in the hands of an onerous purchaser. But
to this there are some exceptions. By the Scots law,
stolen goods may in all cases be reclaimed by the pro-
prietor, and also by the English law, unless they were
bought bona fide in open market; that is, in the accu-
stomed public places, on stated days in the country, or
in a shop in London; and horses may be reclaimed, un-
less the sale be regularly entered by the book-keeper of
the market. In all cases, if the goods be evicted by
the lawful proprietor, the seller is liable to the purcha-
ser for the value.
Actions for payment of shop-accounts, as well as other
debts not constituted by writing, are limited in England
to six years. The testimony of one witness is admitted;
and the seller's books, although the person that kept
them be dead, are good evidence for one year. In Scot-
land, merchants books may be proved within three
years of the date of the last article, by one witness, and
the creditor's books and oath in supplement. After
three years, they can only be proved by the oath or
writ of the debtor. A merchant's books are in all cases
good evidence against him.