is the exchange of a commodity for money; barter, or permutation, is the exchange of one commodity 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 specified.
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 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 before 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 entitled to no payment. He must also bear the loss if the thing perish through his fault; or when a particular time and place of delivery is agreed on, if it perish before it be tendered, in terms of the bargain.
If a person purchase goods at a shop without agreeing for the price, he is liable for the ordinary market-price at the time of purchase.
If the buyer proves insolvent before delivery, the seller 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 favour 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 proprietor, and also by the English law, unless they were bought bona fide in open market; that is, in the accustomed public places, on stated days, in the country, or in a shop in London; and horses may be reclaimed, unless 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 purchaser for the value.
Actions for payment of shop accounts, as well as other debts not constituted by writing, are limited in England to five 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 Scotland, merchant's 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.