S. 61 (5).

Interpretation

of terms.

S. 62 (1).

Different senses in

which the term "delivery" is used,

the landlord's right of hypothec or sequestration for rent in Scotland.

Re-enacts s. 4 of the 19 & 20 Vict. c. 60, repealed by this Act. See Schedule of repealed enactments, post, p. 316.

62.-(1.) In this Act, unless the context or subject-matter otherwise requires

"Action" includes counter-claim and set-off, and in Scotland condescendence and claim and compensation.

Action. See ss. 4 (1), 49, 50, 51, 52, 53 (1) (b), 53 (4), 57.

"Bailee" in Scotland includes custodier.
"Buyer" means a person who buys or agrees to
buy goods.

See ss. 1 (1) (3), ante, p. 6.

"Contract of sale" includes an agreement to sell as well as a sale.

Some instances of the use of the terms as meaning only "agreement to sell are found in ss. 5 (2) and (3), 16, 18, Rules (2), (3), and 5 (1).

"Defendant" includes in Scotland defender, respondent, and claimant in a multiplepoinding.

"Delivery" means voluntary transfer of possession from one person to another.

Mr. Benjamin draws attention to the confusion which has arisen from the different senses in which the term " delivery" has been used (r). After referring to its occasional use to denote transfer of title, he proceeds, "Even where 'delivery' is used to signify the transfer of possession, it will be found that it is employed in two distinct classes of cases, one having reference to the formation of the contract [under s. 4]; the other to the

(r) Benj. p. 677.

performance of the contract [under s. 27]. When questions S. 62 (1). arise as to the actual receipt' which is necessary to give validity to a parol contract for the sale of chattels exceeding 107. in value, the judges constantly use the word 'delivery' as the correlative of that actual receipt.' [See notes to s. 4, ante, pp. 36, 39.] After the sale has been proven to exist, by delivery and actual receipt, there may arise a second and distinct controversy upon the point whether the seller has performed his completed bargain by delivery of possession of the bulk to the buyer" (s).

Again, the term "possession," of which the Act does not and the term attempt a definition (t), is open to a variety of meanings. It "possession." may be actual, when it is used to denote physical control, or constructive, when it seems to be correctly applied to a "right to possess" as distinct from possession (u). For certain purposes the right to possess is treated as equivalent to possession; e.g., when goods are sold on credit, the buyer is described as being in constructive possession of them, although the seller retains the actual custody, and, if the buyer become insolvent, is entitled to retain possession under s. 41; or, again, when goods have been delivered to a carrier for transmission to the buyer, they are said to be in the buyer's constructive possession. But the term constructive possession is sometimes less correctly applied to cases "where the legal possession of the goods is with one person and the custody with his servant, or some other person for the time being in a like position "(x); e.g., when the carrier has himself attorned to the buyer, or has delivered the goods to the buyer's agent to be held at the buyer's disposal. Hence arises the confusion between one kind of constructive possession by delivery to the carrier which is sufficient to divest the seller's lien, and "another kind of" constructive possession, by attornment of, or delivery by, the carrier, which is sufficient to divest the seller's right of stoppage in transitu (y).

Professor Pollock says, with reference to the transfer of possession, "Difficulties which often appear to be, and sometimes really are, formidable, arise in dealing with delivery of possession. They will be found to turn more on the estimation of matters of fact than on any uncertainty of legal principle. In

(8) Benj. p. 677.

(t) Cf. the definition given in 8. 1 (2) of the Factors Act, Appendix of Statutes, post, p. 325.

(u) Pollock and Wright on Pos

session, pp. 25, 27.

(x) Ibid. p. 27.

(y) See per Brett, M.R., in Kendal v. Marshall (1883), 11 Q. B. D. at p. 364.

S. 62 (1).

all cases the essence of delivery is that the deliveror, by some apt and manifest act, puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he held himself immediately before the act" (z).

Delivery also may be constructive, i.e., when there is a change of possession without any change of the actual custody (a). This may take place either by attornment, under s. 29 (3), ante, p. 184, or by "symbolical" delivery, e.g., the transfer of a bill of lading (b), ante, p. 174.

For delivery, and the rules relating thereto, see ss. 27-34.

"Document of title to goods" has the same mean

ing as it has in the Factors Acts.

See ss. 25, 47, and notes thereon. The definition is given in s. 1 (4) of the Factors Act, 1889, Appendix of Statutes, post, p. 325.

"Factors Acts" mean the Factors Act, 1889, the Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same. Factors Act, 1889, 52 & 53 Vict. c. 45. (See Appendix of Statutes, post, p. 325.)

"Fault" means wrongful act or default.

See notes to s. 7, ante, p. 60; to s. 9 (2), ante, p. 64; to s. 20, ante, p. 145.

"Future goods" mean goods to be manufactured

or acquired by the seller after the making of the contract of sale.

See s. 5 (1) (3), and s. 18 Rule 5 (1). The acquisition may further depend on a contingency under s. 5 (2), ante, p. 55.

"Goods" include all chattels personal other than things in action and money, and in Scotland all corporeal moveables except money. The

(2) Pollock and Wright on Possession, p. 46.

(a) Ibid. p. 72.

(b) Benj. p. 704; per Bowen, L.J.,

in Sanders v. Maclean (1883), 11 Q. B. D. at p. 341. The question of symbolical delivery is treated fully by Prof. Pollock, pp. 61 et seq.

term includes emblements, industrial growing S. 62 (1).
crops, and things attached to or forming part

of the land which are agreed to be severed
before sale or under the contract of sale.

The term "goods" is used throughout the Act. In s. 4 it is substituted for the term "goods, wares, and merchandise" used in s. 17 of the Statute of Frauds.

"Goods" includes "wares and merchandise" in s. 1 (3), of the Factors Act, 1889, post, p. 325, and comprehends "all corporeal moveable property" (c).

Things in action.-Include shares (d), scrip (e), and negotiable securities; in fact, all other incorporeal personal property (f). Emblements, industrial growing crops, &c.-See s. 4 and notes thereon, ante, p. 23.

"Lien" in Scotland includes right of retention. See s. 39 (1) (a), and note (m), ante, p. 216; and Benj. p. 384.

"Plaintiff" includes pursuer, complainer, claimant in a multiplepoinding and defendant or defender counterclaiming.

"Property" means the general property in goods, and not merely a special property.

A contract of sale is defined in s. 1 (1). It involves the transfer of the ownership of the thing sold. "It is essential that there should be a transfer of the absolute or general property in the thing sold, for, in law, a thing may in some cases be said to have in a certain sense two owners, one of whom has the general, and the other a special, property in it; and a transfer of the special property is not a sale of the thing" (g). So when goods are delivered in pledge, a transaction which is further excluded from the operation of the Act by s. 61 (4), supra, the general property remains in the pledgor, and a special property is transferred to

(c) Benj. p. 111.

(d) Humble v. Mitchell (1839), 11 A. & E. 205; Duncuft v. Albrecht (1841), 12 Sim. 189.

(e) Knight v. Barber (1846), 16 M. & W. 66.

(f) Benj. p. 111, and per Lindley, L.J., in Colonial Bank v. Whinney (1885), 30 Ch. D. at p. 283.

(g) Benj. p. 2, citing Jenkyns v. Brown (1849), 14 Q. B. 496; 19 L. J. Q. B. 286.

S. 62 (1)

S. 62 (2).

the pledgee (h). The term "property" has received the same interpretation under the Bills of Lading Act (i).

"Quality of goods" includes their state or condi

tion.

See s. 14, and notes thereon, ante, pp. 91, 97.

"Seller" means a person who sells or agrees to sell goods.

See s. 1 (1) (3), and notes, ante, p. 6.

"Sale" includes a bargain and sale as well as a sale and delivery.

See notes to s. 49, ante, p. 271.

"Specific goods" mean goods identified and agreed upon at the time a contract of sale is made.

See s. 6, ante, p. 58; s. 7, ante, p. 59; s. 17, ante, p. 115; s. 18 Rules 1-3, ante, pp. 117-125; s. 19, ante, p. 136.

"Warranty" as regards England and Ireland means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated.

As regards Scotland a breach of warranty shall be deemed to be a failure to perform a material part of the contract.

See s. 11, and notes, ante, p. 68, and s. 53, ante, p. 286.

(2.) A thing is deemed to be done "in good faith" within the meaning of this Act when it is in

(h) Halliday v. Holgate (1868), L. R. 3 Ex. 299.

(i) Burdick v. Sewell (1884), 10

Ap. Ca. 74; and the judgment of Bowen, L.J., in the Court of Appeal, 13 Q. B. D. at p. 175.