Bacon, George W.

English

St. John's University School of Law

St. John's Law Review Volume 15 Number 2 Volume 15, April 1941, Number 2 Article 35 August 2013 Outline of the Law of Sales (Book Review) George W. Bacon Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Bacon, George W. (1941) "Outline of the Law of Sales (Book Review)," St. John's Law Review: Vol. 15 : No. 2 , Article 35. Available at: https://scholarship.law.stjohns.edu/lawreview/vol15/iss2/35 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWconnection it should be noted that pertinent statutory sections from manystates, including New York, are quoted and compared.For the most part the criticisms above outlined are not directed to thescholarship displayed by Professors Hall and Glueck, but to the adaptability ofthe work in the usually limited course in the subject. Unless additional coursesin procedure and idministration are made available to students, the organizationof the single course in criminal law compels an economy of materials and aprudent distribution of emphasis upon the fundamentals of the criminal law, intheory and in practice, which have not been observed in this work. Neverthe-less, until a more utilitarian product appears in the field, this reviewer willcontinue to use this course book in his own classes.G. ROBERT ELLEGAARD.*OUTLINE OF THE LAW OF SALES. By Frederick A. Whitney. Brooklyn: NewYork, 1941 .pp. xii, 309.Professor Whitney modestly calls the new edition of his book on Sales an"Outline". He is doing himself an injustice by doing so. To students andlawyers who visit the lawbook stores and see stacks of "Outline of This" and"Outline of That" the term has come to mean a pamphlet containing a set ofrules of thumb not articulated to the principles underlying them, covering single-issue, run-of-the-mine factual situations and without critical analysis or com-mentary. Outlines of this sort have given the term a bad name. Tliey areextremely light lunches to be partaken of only when in desperate haste orbecause of intellectual loverty and are likely to cause at least indigestion if notptomaine poisoning.Now this book which Professor Whitney pleases to call an "outline" isnothing of the above sort. It is a full meal to be eaten at leisure. It is not apamphlet but a book into which the author has packed a surprising amount ofinformation. It is written chiefly to the New York law and the citations areoverwhelmingly of New York cases. This might be thought by some to be apoint for criticism, Yet the facts are that New York is a great commercialstate and that its courts have been called upon to decide almost every variety ofquestion that might arise in the field of Sales. So its reports are rich in illus-trative cases and uncommon problems. When an interesting question has pre-sented itself in another jurisdiction and has not been passed upon by the NewYork courts the author cites the case. But most of the time he is satisfied touse as authority the New York courts of high and low degree. His painstakingcanvass has turned up over four hundred New York cases on different points;citations from other sources bring up the number he uses to nearly five hundred.The ferment that has taken place in other fields of the law in recent yearshas shown plenty of signs of developing in the field of Sales also. The histori-cal approach to the subject has been through the Title-concept; now advocates* Instructor in Law, St. John's University School of Law.[ VOL. 15BOOK REVIEWSof the Contract-concept approach are taking their places on the forensic stage.1One authority has taken the "remedy" approach in his book.2 No doubt thereare others who would throw on the garbage heap concepts of any kind.Professor Whitney has steered a middle course. As he says in the preface:"Since the Uniform Sales Act is written largely in terms of title passing, andsince the courts in deciding cases have uniformly used the Title-concept approachin cases in replevin, trover or reclamation proceedings, considerable space in thisbook is devoted to the question as to when title passes in sale transactions." Inthis I think he is wise; it will be a long time before the Title-concept approachloses its vitality.The author not only sets out the rule applicable to a set of facts but alsofrequently examines into the reason for the rule. He does not hesitate to pointout the unsoundness of some of the cases, and of authoritative ones too. I wasglad to see his criticism of those which hold that when the' buyer pdys by checkit is to be presumed that title is not intended to pass until the check is paid,even though the buyer is given possession of the goods.3 He also condemns theline of cases, mostly English, which appear to hold that when the buyer fur-nishes receptacles the property in each portion of the goods put into a receptacleeo instanti passes.4 It is not clear how New York will go on this question.The Court of Appeals has cited some of the English cases without criticism.5Of course, if the buyer assents to a series of performances by the seller, suchas the sending off of his tank cars as fast as the seller loads them, it is readilyfound that he assented to a piecemeal performance since that is for which hecontracted. But it is quite another thing to suppose that when he orders a lotof ten drums (which he furnishes), to be filled with oil and sent off when all tenare ready that he assents to take title piecemeal as each drum is filled. Theprinciple underlying Rules 1, 2, 4 and 5 of Section 100 of the Personal PropertyLaw is thai until the buyer gets the performance he bargained for, i.e,, com-pleted performance, it is not natural to assume that he assents to take title.This is good Contract-concept approach as well as good Title-concept approach.Book-reviewers, I have noticed, seem to feel that they must find somethingto criticize; they are a good deal like grandstand quarterbacks in this respect.I do not wish to be called a radical by reason of not abiding by the precedentsso I have sought for material to which I could take exception. The author, ashave many courts (and even Williston himself it seems), uses the term"divisible contract" as synonymous with "severable contract".6 I think this isapt to cause confusion because by reason of the definition of "divisible contractto sell or sale" in the Sales Act it is a term of art in Sales which bears adifferent meaning than as ordinarily used in Contracts.7 Under this definitionthe contract may be divisible although not severable in the contractual sense, as II The leader is Llewellyn. See his numerous articles in the law reviews.2 See John Barker Wait's Second Edition of his book on Sales.3 Pp. 43-46.4 Pp. 125-128.5 Procter & Gamble Co. v. Peters, 233 N. Y. 97, 134 N. E. 849 (1922).6 Pp. 29-30.7 "'Divisible contract to sell or sale' means a contract to sell or a sale inwhich by its terms the price for a portion or portion of the goods less than thewhole is fixed as ascertainable by computation." N. Y. PERS. PROP. LAW § 156.1941 ]ST. JOHN'S LAW REVIEWunderstand it. The definition says nothing about an intention to exchange per-formances as to a portion of the goods contracted for. It is a price term ratherthan a performance term. Consider its application to the cases where there hasbeen a partial destruction of specific goods before the title passes and the buyerelects to take title to the remaining goods.8Just as in the preceding paragraph re divisible contracts I, have probablyfailed to make my point clear by trying to compress too much into too little, theauthor here and there makes brief and rather dogmatic statements that requiremore elucidation to be correctly understood. Speaking of cash sales, forexample, he says that although in general the rule is that if the goods arespecific and nothing remains to be done by the seller, the presumption is thattitle passes at the time of the bargain, but "the parties show a different intentionwhere the contract requires the goods to be paid for cash on delivery." 9 Butmight it not be a sale with a vendor's lien? If nothing renmains to be done bythe seller I think it would and should be so construed. It is indeed difficult toput into definition the conception of a technical cash sale. If all the duties onboth sides are to be closed out simultaneously with the bargain, as in an over-the-counter bargain accompanied by delivery of the goods and payment of theprice, we have a cash sale. Again, if payment by the buyer is conditioned onsimultaneous completion of some positive duty by the seller and vice versa, e.g.,delivery by the seller to the buyer's place of business "cash on delivery", wehave a cash sale.'0 But if the buyer is to take delivery at some time subsequent tothe bargain and nothing remains to be done by the seller but to let the buyertake possession when he comes for the goods then the phrase "cash on delivery"imports that the seller does not propose to give up possession until he is paid.On principle it should be presumed that title passes.'1But enough of grandstand quarterbacking. Professor Whitney has steadilyenlarged and improved his book through three editions. The comprehensivecoverage of New York cases, of the Sales Act, of the Conditional Sales Act,of the Bulk Sales Act and of the Trust Receipts Act makes this edition excep-tionally useful for New York lawyers. Lawyers and students everywhere willfind it to be an excellent summary of the law, furnishing a wealth of illustrativecases.GEORGE W. BACON.*CASES ON RESTITUTION. By Edward S. Thurston. St. Paul: West PublishingCo.,' 1940, pp. xxviii, 964.Restitution is an act by which exact reparation so far as possible is madefor an injury which has been done to another. This is the definition of restitu-tion considered from a moral standpoint.8 N. Y. PERS. PROP. LAW §§ 88, 89.9 P. 41.10 Levin v. Smith, 1 Denio 571 (N. Y. 1845)."I The case which is regarded as laying the foundation for the rule thattitle is presumed to pass if the goods are specific and in a deliverable state atthe time of the bargain and nothing remains to be done by the seller did so hold.Tarling v. Baxter, King's Bench (1827) 6 Barn. & C. 360.* Professor of Law, Fordham University School of Law.[ VOL. 15

Outline of the Law of Sales (Book Review)

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Outline of the Law of Sales (Book Review)

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