§ 83. What Is Necessary to the Contract of Sale A contract of sale (or contract to sell) must have the same elements as any other contract. In other words, there must be: I. Parties who are competent to contract. 2. An agreement between those parties. 3. Consideration for the agreement. 4. A legal contract. 5. A subject matter. These elements have all been explained at length in the preceding chapters relating to contracts in general. (See Part II.) A few peculiarities which concern sales alone will be taken up in the following sections. Note: I. A sale is completed when the goods are transferred, but, if the buyer was not competent to make a contract, or the contract was illegal, the seller could not collect the price. § 84. The Agreement This has been fully explained under contracts (§ 42). In the sale and in the contract to sell, there must be the proposal of terms on the one hand, and the acceptance of those terms on the other. Notes: I. To make a legal sale, there must be an agreement of the parties which can be proved. 2. A written contract signed by both parties is the best evidence of such an agreement. 3. A letter making an offer, which is accepted by another letter, is the simplest form of written con tract. § 85. Sales to Persons Incompetent to Contract The rules which have been laid down under the subject of contracts (§ 38) with regard to the contracts of certain persons who are by law made incompetent or are given only a qualified power to contract, apply also to the contract of sale. The exception to the rules laid down, is an actual sale of (not a contract to sell) necessaries. A person who sells necessaries to a person who is not competent to make a contract may recover a reasonable price (not necessarily what he asked) for them. The Uniform Sales Act says that the goods must be necessary at the time they are delivered. If a merchant furnishes necessaries to a married woman or an infant, he may charge them (1) to the woman or the infant, or (2) he may charge them to the husband or the father. He cannot charge them to both. He must make his choice and afterward bring suit against the party charged. In this country necessaries include only food, clothing, and shelter of a grade suited to the means of the person to whom they are furnished; and in this connection it is well to bear in mind that such things as riding horses and automobiles are not necessaries. Notes: I. In supplying necessaries to a minor or a married amount to the father or the husband, he should § 86. The Consideration A sale or a contract of sale which did not name a price might still be good, because the court which was asked to enforce it would assume that the goods were to be paid for at a reasonable price and charge the buyer accordingly. The price fixed may be dependent on outside circumstances that would affect it, as for instance the market price at the time and place of delivery. The general question of consideration has been very fully dicussed under "Contracts" (§ 44). Note: I. Parties in making a sale should agree on the price. Neither the seller nor the buyer may be satisfied with what the law will consider reasonable. § 87. Nature of Subject Matter A person might make a contract to sell a crop which he had just planted, or grass which might grow in the future on land which he owned, or chickens to be hatched from eggs which his hens might lay; but if he had not the land or the hens, he could not make a contract to sell grass on land which he might buy in the future, or eggs from hens which he might later acquire. Goods which are already in existence and in shape to be delivered may be contracted to be sold, and also: I. Goods which still require some process to render them 2. Goods to be acquired by the seller in the future; i.e., of some condition; i.e., the same commission merchant selling so many dozens of eggs provided that he can obtain that number from the producers. 4. An undivided share in goods; i.e., a tenth part of a crop of wheat. 5. A definite number, weight, or measure of goods in mass; i.e., a bushel of oats out of a bin of oats. Under the Uniform Sales Act, the goods mentioned in 1, 2, and 3 cannot be the subject of a sale, but only of a contract to sell, since they are not yet in shape to deliver. § 88. Destruction of Subject Matter When the goods which the seller is offering for sale have been entirely destroyed without his knowledge at the time the agreement is entered into, the contract of sale does not take effect. When they have been partly destroyed, the buyer may refuse to take any of them, or he may take those which are left and pay the full price which was agreed upon. In the last case, if the price was divided up, as so much a quart, a barrel, etc., he may pay for what he gets. If there was one lump price named for the entire lot, he must pay the entire amount, because the court will not attempt to split it up for him. To do so would be to make a new contract for the parties. If there has been an actual sale and the ownership of the goods has passed to the buyer, the loss falls on him if they are destroyed without fault of the seller, even though they remain in the seller's possession. If the ownership still remains with the seller, the loss would fall on the seller, wherever the goods may be, even though on their way to the purchaser. Goods are sometimes sold with the privilege of returning if not sold at a certain time. In such a sale the title passes and in event of destruction by fire, the buyer would lose. The agreement to take the goods back is a condition subsequent. The case is to be distinguished from that in which the goods. are sent on consignment. (See § 93.) Where the contract was not for any specific articles, but only for so many feet of lumber, bushels of wheat, etc., the destruction of the wheat or lumber which the seller had at the time the contract was made would not excuse him from performing it. He must go out and buy more to replace what was lost. Note: I. The agreement of sale should be very definite as to the time when the ownership is to pass from the seller to the buyer. Much may depend on this fact. § 89. Sales to Arrive Contracts are made at times for the sale of specific goods to arrive on a named ship. This arrival is a condition precedent. If the goods do not arrive, or if they arrive on another ship, the contract is nullified. § 90. A Contract of Sale Must Be Legal Every contract must be legal to be enforceable. A contract for the sale of liquor in a prohibition state could not be enforced, and, if liquor had been sold, the seller could not recover the purchase price. This is also true where a license is required to sell any particular commodity. An unlicensed seller could not collect. (See general discussion of illegal contracts, $$ 39, 57.) Note: I. Where there has been an illegal contract, the courts will leave both parties just where they found them, and refuse to help either. |