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Bouvier's Law Dictionary, Revised 6th Edition (1856)

SALE, contracts. An agreement by which one of the contracting parties,
called the seller, gives a thing and passes the title to it, in exchange for
a certain price in current money, to the other party, who is called the
buyer or purchaser, who, on his part, agrees to pay such price. Pard. Dr.
Com. n. 6; Noy's Max. ch. 42; Shep. Touch. 244; 2 Kent, Com. 363; Poth.
Vente, n. 1; 1 Duverg. Dr. Civ. Fr. n. 7.
2. This contract differs from a barter or exchange in this, that in the
latter the price or consideration, instead of being paid in money, is paid
in goods or merchandise, susceptible of a valuation. It differs from accord
and satisfaction, because in that contract, the thing is given for the
purpose of quieting a claim, and not for a price. An onerous gift, when the
burden it imposes is the payment of a sum of money, is, when accepted, in
the nature of a sale. When partition is made between two or more joint
owners of a chattel, it would seem, the contract is in the nature of a
barter. See 11 Pick. 311.
3. To constitute a valid sale there must be, 1. Proper parties. 2. A
thing which is the object of the contract. 3. A price agreed upon; and, 4.
The consent of the contracting parties, and the performance of certain acts
required to complete the contract. These will be separately considered.
4.-Sec. 1. As a general rule all persons sui juris may be either buyers
or sellers. But to this rule there are several exceptions. 1. There is a
class of persons who are incapable of purchasing except sub modo, as
infants, and married women; and, 2. Another class, who, in consequence of
their peculiar relation with regard to the owner of the thing sold, are
totally incapable of becoming purchasers, while that relation exists; these
are trustees, guardians, assignees of insolvents, and generally all persons
who, by their connexion with the owner, or by being employed concerning his
affairs, have acquired, a knowledge of his property, as attorneys,
conveyancers, and the like. See Purchaser.
5.-Sec. 2. There must be a thing which is the object of the sale, for
if the thing sold at the time of the sale had ceased to exist it is clear
there can be no sale; if, for example, Paul sell his horse to Peter, and, at
the time of the sale the horse be dead, though the fact was unknown to both
parties: or, if you and I being in Philadelphia, I sell you my house in
Cincinnati, and, at the time of the sale it be burned down, it is manifest
there was no sale, as there was not a thing to be sold. It is evident, too,
that no sale can be made of things not in commerce, as the air, the water of
the sea, and the like. When there has been a mistake made as to the article
sold, there is no sale; as, for example, where a broker, who is the agent of
both parties, sells an article and delivers to the seller a sold note
describing the article sold as "St. Petersburg clean hemp," and bought note
to, the buyer, as "Riga Rhine hemp," there is no sale. 5 Taunt. 786, 788; 5
B. & C. 437; 7 East, 569 2 Camp. 337; 4 Ad. & Ell. N. S. 747 9 M. &, W. 805.
Holt. N. P. Cas. 173; 1 M. & P. 778.
6. There must be an agreement as to the specific goods which form the
basis of the contract of sale; in other words, to make a perfect sale, the
parties must have agreed the one to part with the title to a specific
article, and the other to acquire such title; an agreement to sell one
hundred bushels of wheat, to be measured out of a heap, does not change the
property, until the wheat has been measured. 3 John. 179; Blackb. on Sales,
122, 5 Taunt. 176; 7 Ham. (part 2d) 127; 3 N. Ramp. R.282; 6 Pick. 280; 15
John. 349; 6 Cowen, 250 7 Cowen, 85; 6 Watts, 29.
7.-Sec. 3. To constitute a sale there must be a price agreed upon; but
upon the maxim id certum est quod reddi certum potest, a sale may be valid
although it is agreed that the rice for the thing sold shall be determined
by a third person. 4 Pick. 179. The price must have the three following
qualities, to wit: 1. It must be an actual or serious price. 2. It must be
certain or capable of being rendered certain. 3. It must consist of a sum of
money.
8.-1. The price must be an actual or serious price, with an intention
on the part of the seller, to require its payment; if, therefore, one should
sell a thing to another, and, by the same agreement, he should release the
buyer from the payment, this would not be a sale but a gift, because in that
case the buyer never agreed to pay any price, the same agreement by which
the title to the thing is passed to him discharging him from all obligations
to pay for it. As to the quantum of the price that is altogether immaterial,
unless there has been fraud in the transaction. 2. The price must be certain
or determined, but it is sufficiently certain, if, as before observed, it be
left to the determination of a third person. 4 Pick. 179; Poth. Vente, n.
24. And an agreement to pay for goods what they are worth, is sufficiently
certain. Coxe, 261; Poth. Vente, n. 26. 3. The price must consist in a sum
of money which the buyer agrees to pay to the seller, for if paid for in any
other way, the contract would be an exchange or barter, and not a sale, as
before observed.
9.-Sec. 4. The consent of the contracting parties, which is of the
essence of a sale, consists in the agreement of the will of the seller to
sell a certain thing to the buyer, for a certain price, and in the will of
the buyer, to purchase the same thing for the same, price. Care must be
taken to distinguish between an agreement to enter into a future contract,
and a present actual agreement to make a sale. This consent may be shown, 1.
By an express agreement. 2. By all implied agreement.
10.-1. The consent is certain when the parties expressly declare it.
This, in some cases, it is requisite should be in writing. By the 17th
section of the English statute, 29 Car. II. c. 3, commonly called the
Statute of Frauds, it is enacted, "that no contract for the sale of any
goods, wares, or merchandise, for the price of �10 or upwards, shall be
allowed to be good, except the buyer shall accept part of the goods so sold,
and actually receive the same, or give something in earnest to bind the
bargain, or in part payment, or some note or memorandum in writing of the
said bargain be made and signed by the parties to be charged by such
contract or their agents thereunto lawfully authorized." This statute has
been reenacted in most of the states of the Union, with amendments and
alterations,
11. It not unfrequently happens that the consent of the parties to a
contract of sale is given in the course of a correspondence. To make such
contract valid, both parties must concur in it at the same time. See Letter,
com. law, crim. law, Sec. 2; 4 Wheat. 225; 6 Wend. 103; 1 Pick. 278 10 Pick.
326.
12. An express consent to a sale may be given verbally, when it is not
required by the statute of frauds to be in writing.
13.-2. When a party, by his acts, approves of what has been done, as if
he knowingly uses goods which have been left at his house by another who
intended to sell them, he will, by that act, confirm the sale.
14. The consent must relate, 1. To the thing which is the object of the
contract; 2. To the price; and, 3. To the sale itself. 1st. Both parties
must agree upon the same object of the sale; if therefore one give consent
to buy one thing, and the other to sell another, there is no sale; nor is
there a sale if one sells me a bag full of oats, which I understand is full
of wheat; because there is no consent as to the thing which is the object of
the sale. But the sale would be valid, although I might be mistaken as to
the quality of the tiling sold. 20 John. 196 3 Rawle, 23, 168. 2d. Both
parties must agree as to the same price, for if the seller intends to sell
for a greater sum than the buyer intends to give, there is no mutual
consent; but if the case were reversed, and the seller intended to sell for
a less price than the buyer intended to give, the sale would be good for the
lesser sum. Poth. Vente, n. 36. 3d. The consent must be on the sale itself,
that is, one intends to sell, and the other to buy. If, therefore, Peter
intended to lease his house for three hundred dollars a year for ten years,
and Paul intended to buy it for three thousand dollars, there would not be a
contract of sale nor a lease. Poth. Vente, n. 37.
15. In order to pass the property by a sale, there must be an express or
implied agreement that the title shall pass. An agreement for the sale of
goods is prima facie a bargain and sale of those goods; but this arises
merely from the presumed intention of the parties, and if it appear that the
parties have agreed, not that there shall be a mutual credit by which the
property is to pass from the seller to the buyer, and the buyer is bound to
pay the price to the seller, but that the exchange of the money for the
goods shall be made on the. spot, no property is transferred, for it is not
the intention of the parties to transfer any. 4 Wash. C. C. R. 79. But, on
the contrary, when the making of part payment, or naming a day for payment,
clearly shows an intention in the parties that they should have some time to
complete the sale by payment and delivery, and that they should in the
meantime be trustees for each other, the one of the property in the chattel,
and the other in the price. As a general rule, when a bargain is made for
the purchase of goods, and nothing is said about payment and. delivery, the
property passes immediately, so as to cast upon the purchaser all future
risk, if nothing remains to be done to the goods, although he cannot take
them away without paying the price. 5 B. & C. 862.
16. Sales are absolute or conditional. An absolute sale is one made and
completed without any condition whatever. A conditional sale is one which
depends for its validity upon the fulfillment of some condition. See 4 Wash.
C. C. R. 588; 4 Mass. 405; 17 Mass. 606; 10 Pick. 522; 13 John. 219; 18
John. 141; 8 Vern. 154; 2 Hall 561; 2 Rawle, 326; Coxe, 292; 1 Bailey 563; 2
A.K. Marsh. 430.
17. Sales are also voluntary or forced, public or private.
18.-1. A voluntary sale is one made without constraint freely by the
owner of the thing sold; to such the usual rules relating to sales apply. 2.
A forced sale is one made without the consent of the owner of the property
by some officer appointed by law, as by a marshal or a sheriff in obedience
to the mandate of a competent tribunal. This sale has the effect to transfer
all the rights the owner had in the property, but it does not, like a
voluntary sale of personal property, guaranty a title to the thing sold it
merely transfers the rights of the person as whose property it has been
seized. This kind of a sale is sometimes called a judicial sale. 3. A public
sale is one made at auction to the highest bidder. Auction sales sometimes
are voluntary, as when the owner chooses to sell his goods in this way, and
then as between the seller and the buyer the usual rules relating to sales
apply; or they are involuntary or forced when the same rules do not apply.
4. Private sales are those made voluntarily and not at auction.
19. The above rules apply to sales of personal property. The sale of real
estate is governed by other rules. When a contract has been entered into for
the sale of lands, the legal estate in such lands still remains vested in
the vendor, and it does not become vested in the vendee until he shall have
received a lawful deed of conveyance from the vendor to him; and the only
remedy of the purchaser at law, is to bring an action on the contract, and
recover pecuniary damages for a breach of the contract. In equity, however,
after a contract for the sale, the lands are considered as belonging to the
purchaser, and the court will enforce his rights by a decree for a specific
performance; and the seller will be entitled to the purchase money. Will. on
Real Prop. 127. See Specific performance.
20. In general, the seller of real estate does not guaranty the title;
and if it be desired that he should, this must be done by inserting a
warranty to that effect. See, generally, Brown on Sales; Blackb. on Sales;
Long on Sales; Story on Sales, Sugd. on Vendors; Pothier, Vente; Duvergier,
Vente; Civil Code of Louisiana, tit. 7; Bouv. Inst. Index, h.t.; and
Contracts; Delivery; Purchaser; Seller; Stoppage in transitu.