Ziegel, Jacob S.

English

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 1 (April 1964) Article 16Book Review: Cases and Material on Sale of Goodsand Sales Financing, by Ivan R. FelthamJacob S. ZiegelFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationZiegel, Jacob S.. "Book Review: Cases and Material on Sale of Goods and Sales Financing, by Ivan R. Feltham." Osgoode Hall LawJournal 3.1 (1964) : 145-148.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss1/16Book ReviewsProf. Beaulieu's outline of Labour Legislation in Quebec israther too short to give the reader a comprehensive view of the sub-ject. It is to be hoped that in a future volume the subject will betreated more fully.LORNE INGLE. 'Cases and Material on Sale of Goods and Sales Financing. BY IvANR. FELTHAVt, PROFESSOR, OSGOODE HALL LAW SCHOOL. TORONTO:OSGOODE HALL LAW SCHOOL. 1962. 2 VOLS. Mimeographed. (no priceindicated).There is a great dearth of teaching materials on commercialtransactions suitable for use in Canadian law schools. Of texts (ifone eliminates those on bills of exchange and banking) there arenone, and the English and American texts require a great deal ofadaptation. The casebook position is hardly much better. DeanFalconbridge's collection of cases on the sale of goods was publishedin 1927, and is now both out of date and out of print. The only othercase-book known to this reviewer is Professor Thompson's, whichdeals with commercial law generally, and it is apparently only beingused at the Alberta law school. That the gap in the availableCanadian literature is so conspicuous is the more surprising in viewof the far reaching changes in the techniques of retail selling andbusiness financing, and the legal problems to which they give rise,which have occurred since the end of the Second World War. Thedynamic character of the subject is reflected in the steady stream ofjudicial decisions, though much of the applicable law is now foundin the statute book and in the private agreements of the parties them-selves.For all these reasons, therefore, Professor Feltham's casebook isa most welcome addition to the law teacher's library. Within thelimitations he has set himself, Professor Feltham has brought togethera well balanced list of cases and, on a much more modest scale, non-judicial materials. I was impressed with the large number of recentdecisions in both volumes and I especially welcome the inclusion, inthe second volume, of references to Private Members' Bills in theHouse of Commons and of extracts from the Senate debates onSenator Croll's now heroic Disclosure Bill. It is, however, indicativeof the dynamic character of this branch of the law that even in theshort period which has elapsed since the casebook was publishedthere have occurred, or are pending, significant changes in the law.Thus at the judicial level we have been presented with such majordecisions as Century Finance v. Richards, [1962] O.R. 815; In re the*Mr. Ingle is a member of the law firm of Joliffe, Lewis and Osler inToronto.19641OSGOODE HALL LAW JOURNALUnconscionable Transactions Relief Act (1962), 35 D.L.R. (2d) 449,now reversed by the Supreme Court of Canada; and Hedley Byrne& Co. v. Heller & Partners Ltd., [1963] 3 W.L.R. 101 (H.L.). In thelegislative realm we have the (Molony) Report on Consumer Protec-tion, a new Hire-Purchase Bill, a Consumer Council, and the LawReform Committee's Report on the law of innocent misrepresenta-tion - all this from the United Kingdom alone. In Canada the im-pending report of the Ontario Select Committee on Consumer Creditand the now completed work of the Attorney General's specialcommittee on a Personal Property Security Act, to mention but afew examples, presage equally important developments in the law.These, of course, are the risks inherent in any legal publication.But the teacher who is conducting a full year's course in commercialtransactions may well encounter another obstacle: namely, thatProfessor Feltham's casebook is only designed to meet the needs ofa single semester's course of 36 hours in the subject (and this it doesmore than adequately). Consequently the teacher may feel the needto "flesh out" the casebook with cases and materials of his own.My own hope is that Professor Feltham can be persuaded to enlargehis already very acceptable work so that it will meet the needs oflaw teachers elsewhere even in this respect. With this possibility inmind I have jotted down below some of the new material which Ipersonally would like to see incorporated in a revised edition. Mynotes also include a number of other changes which, in my opinion,deserve to be considered in any event:Sale of Goods.There should be at least some cases dealing with the questionof the certainty of terms, especially those involving the price. I alsothink that the distinction between sales and other transactions ismore important than the few pages devoted to this topic would seemto suggest. In particular I would like to see some references to hire-purchase agreements and equipment leases and to the conflict betweenthe various land title acts and the sale of goods act concerning thesale of goods which are still attached to the soil at the time of sale.The decision to omit cases on the Statute of Frauds section (s.4) was, I think, entirely justified, though Professor Feltham is per-haps unduly optimistic in basing it on the ground that students maybe expected to have mastered the section in their contracts course.What does puzzle me is the fact that he has included any cases onthe subject at all (viz. Thames Canning Co. v. Eckardt (1915), 34O.L.R. 72; Woods v. James, [1946] 2 D.L.R. 69; and In re a Debtor,[1939] 1 Ch. 225). Would it not have been better to omit all casesand to refer the student instead to the general literature on the sub-ject and the Law Reform (Enforcement of Contracts) Act, 1954?The question of the seller's obligations and his attempt to limitor exclude them by means of disclaimer clauses is such a dominantone that I think the section dealing with it should be enlarged by[VOL. 3:137Book Reviewsadding some American material and some references to legislationwhich deals directly with disclaimer clauses. I have in mind suchcases as Henningsen v. Bloomsfield Motors Inc. (1960), 161 A2d69 (N.J.) on disclaimer clauses (it is surely one of the very bestjudgments on the subject to have been written by a common lawcourt anywhere) and such cases as Torpey v. Red Owl Stores (1955),228 F2d 117 and Sams v. EzyWay Foodliner Co. (1961), 170 2d160 (Me) as to the meaning of "sales by description" in the UniformSales Act Under the heading of statutory materials I would includes. 19 of the Saskatchewan Conditional Sales Act (which is copiedfrom s. 8 of the English Hire-Purchase Act), the appropriate pro-visions in the Sask. Agricultural Machinery Act, UCC 2-302, andthe recommendations of the U.K. Committee on Consumer Protection.Finally, there should also be some references to the importantAmerican developments in the field of the manufacturer's liabilityfor "implied warranties" and to Professor Prosser's excellent articleon the subject in 69 Yale L.J. 1099 (1959/60).Perhaps I may be permitted a comment of my own on the problemof sales "by description". It seems to me that the alleged difficultiesare much exaggerated. In the first place, Lord Wright's admittedlyslightly tautologous dictum in Grant v. Australian Knitting MillsLtd., [1936] A.C. 85 at p. 100 that "a thing is sold by description,though it is specific, so long as it is sold not merely as the specificthing, but as a thing corresponding to a description... "is supportedby the pre-1893 case law: see, for example, Josling v. Kingsford(1863), 143 E.R. 177. Secondly, the Sale of Goods Act itself clearlysupports the proposition that a sale may be by description notwith-standing that the goods are specific. This is because s. 14(3) of theImperial Act excludes the seller's liability for unmerchantable goodsin a case where the buyer has examined the goods and ought to haveseen the defects. Of necessity this must presuppose goods whichare specific and identified at the time of the sale. Nevertheless section14(2) still speaks of a sale "by description". (Surprisingly this ob-vious point appears to have been overlooked by such writers asWilliston, Professor Honnold and Mr. Atiyah, and in a number ofAmerican decisions). Additional support to the same effect maybe drawn from s. 15 of the Act, which deals with sales by sample.A sample, of course, is specific and identified, yet it is well settledthat the bulk must correspond not only with the sample but also withthe "description". See Mody v. Gregson (1868), L.R. 4 Ex. 49,esp. at p. 55 (It is true that s. 15 (c) does not say this expressly, butthis is because the term "unmerchantable", which it does use, wasemployed in the pre-1893 cases to cover both the quality of the goodsand correspondence with description).To return to the review itself, under the heading of the seller'sright to sue for the price Professor Feltham reproduces Home GasLtd. v. Streeter, [1953] 2 D.L.R. 842 (Sask.). In so far as the court'sdecision turned on the combined effect of s. 11(1) (c) and s. 18, rule1964]OSGOODE HALL LAW JOURNAL1, however, it is inconsistent with such English decisions as Varleyv. Whipp, [1900] 1 Q.B. 513 and Oflett v. Jordan, [1918] 2 K.B. 41.Ought the student's attention not be drawn to this fact?SalZes Financing.An initial question arises as to the desirable scope of a casebookon "sales financing". The term itself is of American origin andappears to have been originally confined to retail sales on credit andto trust receipt, i.e., inventory, financing. It is now generally rec-ognized, however, that neither conceptually nor functionally canthese forms of secured transactions be logically distinguished fromother forms of secured transactions in personal property. Accordinglythe most recent American casebooks on "sales financing" have nowextended the term so that it covers all forms of secured short andmedium term financing. I think this is the correct approach and thatit should also guide the future editions of Professor Feltham's case-book. This means that it should include cases and materials dealingwith such financing techniques as "section 88" of the Bank Act,floating charges, and accounts receivable financing. Some introductorymaterial on the various financial institutions providing consumer andinventory financing in Canada and the principal acts by which theiractivities are governed would also be welcome. So long as thevarious security devices remain unintegrated in Canada, a sectionshould also be added to illustrate their conceptual differences. Thestudent may otherwise fail to see the wood for the trees.The cases on inventory financing should be brought togetherunder a single heading and amplified. Holroyd v. Marshall (1862),10 H.L.C. 191 is a surprising omission. Re Smith & Hogan Ltd.,[1932] S.C.R. 661 and Re Grand Rivers Motors Ltd., [1933] S.C.R.591 deal with financing techniques that are obsolete, and the casescan be safely omitted: a footnote reference would suffice.Under the heading of registration problems, some referenceshould be made to the certificate of title legislation in the UnitedStates and the recommendations of the Ontario Select Committeeon the same subject. Under the heading of competing claims to thesame chattel, subsections should be added dealing with fixtures,accessions, and artisans' claims. The section dealing with the rightsof the buyer and secured seller inter se should be enlarged by includingappropriate references to the statutory provisions in the other Prov-inces, other Commonwealth countries, and the United States. In thisway the student will obtain a better appreciation of the importantpart which legislation plays in this field and of the diversity of thelegislative response to the needs of consumer protection. Finally,a section should also be devoted to conflict of laws problems, sincethese are of considerable practical importance and are bound to be-come more so in the future.JACOB S. ZIEGEL,College of Law,University of Saskatchewan.[VOL. 3:137

Book Review: Cases and Material on Sale of Goods and Sales Financing, by Ivan R. Feltham

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Book Review: Cases and Material on Sale of Goods and Sales Financing, by Ivan R. Feltham

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