CHAPTER ly Merchantability a condition Fitness for intended use a Difference in legal effect between

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CHAPTER ly. OF PERFORMANCE OF CONDITIONS BY THE SELLER. 03. In generl 04. Performnce by seller of express condions, 05. Performnce by seller of implied condions, often clled implied wrrnties. 06-08.

1 CHAPTER ly. OF PERFORMANCE OF CONDITIONS BY THE SELLER. 03. In generl 04. Performnce by seller of express condions, 05. Performnce by seller of implied condions, often clled implied wrrnties Stipultions in executory contrcts s condions. 09. Identy of kind condion precedent. 0. Correspondence to description condion precedent.. Opportuny for inspection.. Conformy to smple condion precedent. 3. Merchntbily condion precedent. 4. Fness for intended use condion precedent. 5. Time, plce nd qunty s condions precedent Time Qunty. Plce. 8. Dference in legl effect between condion nd wrrnty. 9, 0. Condion precedent becoming wrrnty fter cceptnce. 03. In generl. It the duty of the seller not only to trnsfer the tle nd deliver possession of the goods sold, but lso to comply wh nd perform ll the stipultions nd greements which hve been expressly or impliedly mde condions of the libily of the buyer. These condions my be eher express or implied, nd, lso, eher precedent or subsequent. 04. Performnce by seller of express condions. The seller must, of course, perform, unless they re wived, ll the cts which by express terms hve been mde condions of the sle. If he does not do so, nd the condion precedent one, the libily of the buyer will not ttch ; nd, condion subsequent, the buyer my repude the sle. These express condions my be ttched eher to executed 048

2 CH. IV.] PEKFOKMA^XE OF C0XDTI0>'S BY SELLER. [^ 05-7^ or executory contrcts of sle, nd they my be of ny lwful ct or event which the prties see f to designte.^ well Cses of th nture, however, depend upon principles so settled tht no extended dcussion of them necessry. 05. Performnce l)y seller of implied condions, often clled implied wrrnties. There however, clss of duties incumbent upon the seller, not expressly imposed by the prties s forml condions, but growing out of the very fct nd essence of the contrct of sle, the performnce of which by the seller in lw condion precedent to ny obligtion on the prt of the buyer. Thus, for exmple, sle being the trnsfer of the bsolute or generl tle to the chttel, cler tht condion precedent l^'ing t the very threshold of the whole contrct tht the seller hs such tle which he cn so convey., 06. Stipultions in executory contrcts s condions. So, where the contrct executory nd the chttel not yet scertined, but the seller hs undertken to suppl\^ chttel of certin kind, eqully condion precedent, to ny libil}'' on the prt of the buyer, tht the seller shll in fct supply chttel of tht kind. Th duty of the seller usully spoken of in the Uned Sttes s n implied wrrnty; but wrrnty be n incidentl contrct collterl to principl one s usully defined, cler enough tht th duty of the seller to trnsfer the tle, or suppl}^ the chttel of the kind stipulted, not collterl or incidentl one, the primry one the very essence of the contrct the contrct. 07. Thus, in cse'^ often ced. Lord Abinger sid: " Two thino-s hve been confounded together. A wrrntv n express or implied sttement of something which the prty undertkes shll be prt of contrct; nd, though prt of the contrct, yet collterl to the express object of. But in mny of the cses, some of which hve been referred to, the See nte, 65. Chnter v. Hopkins (838), Mees. & Wels. 399.

3 ' ^.08.] LAW OF SALE. [book IV. circumstnce of prty selling prticulr thing by s proper description hs been clled wrrnty, nd brech of such contrct brech of wrrnty; but would be better to dtinguh such cses s non-complince wh contrct which prty hs engged to fulfill ; s, mn offers to buy ijes of nother, nd he sends him hem, he does not perform h contrct: but tht not wrrnty; there no wrrnty \\i'^\, he should sell him pes; the contrct to sell pes, nd he sell him nything else in their sted non-performnce of. So, mn were to order copper for shething ships tht prticulr copper, prepred in prticulr mnner, the seller send him dferent sort, in tht cse he does not comply wh the contrct; nd though th my hve been considered wrrnty, nd my hve been rnged under the clss of cses relting to wrrnties, yet not properly so.", g08.. So, in cse^ before the supreme court of the Uned Sttes, sid sle not in extence, or not scertined t the time of the contrct, n undertking tht shll, when exting or scertined, possess certin qulies, not mere wrrnty, but condion, the performnce of which precedent to ny obligtion upon the vendee under the contrct, becuse the extence of those " When the subject-mtter of : qulies being prt of the description of the thing sold becomes essentil to s identy, nd the vendee cnnot be obliged to receive nd py for thing dferent from tht for which he contrcted. So, in " recent cse decided by th court, ws sid by Mr. Justice Gry: 'A sttement,' in mercntile contrct, descriptive of the subject-mtter or of some mteril incident, such s the time or plce of shipment, ordinrily to be regrded s wrrnty in the sense which tht term used in ^ Pope V. AU (885), 5 U. 363, Woodle v. Whney, 3 W. 55; 37. Bootbby v. Scles, 7 W. 66; Fir- Cing Chnter v. Hopkins, miw; field v. Mdon Mfg. Co., 38 W BiT V. Gibson, M. & W. 390; Gom- ]stq^.j.iqgton y. Wright, 5 U. pertz V. Brtlett, El. & Bl. 849; 88. See lso Filley v. Pope, 5 U. Okell V. Smh, Strk. N. P. 07; 3. 3 S S. S.

CH. IV.] PERFORMANCE OF CONDITIONS BY SELLER. [ 09. insurnce nd mrime lw, tht to sy, condion precedent, upon the filure or non-performnce of which the prty o-o-rieved my repude the whole contrct.

4 CH. IV.] PERFORMANCE OF CONDITIONS BY SELLER. [ 09. insurnce nd mrime lw, tht to sy, condion precedent, upon the filure or non-performnce of which the prty o-o-rieved my repude the whole contrct.' " And so, when contrct for the sle of goods mde by smple, mounts to n undertking on the prt of the seller wh the buyer tht ll the goods re similr, both in nture nd quly, to those exhibed; nd, they do not correspond, the buyer my refuse to receive them, or, received, he my return them in resonble time llowed for exmintion nd thus rescind the contrct." ^ 09. Identy of kind condion precedent. Where, therefore, there n greement for the sle of prticulr thing, cler tht the seller's enggement to supply tht thing condion precedent to the buyer's libily. Thus where there ws contrct for the sle of certin kind of steel scrp,- the court sid: " It mtke to ssume tht doctrines pplicble to wrrnties hve ny reference to or cn be invoked in th controversy. The contrct, whether treted s evidenced lone by the wrings referred to, or s consting of both the wrings nd the prol interviews, obviously not n greement wrrnting the steel scrp to be of designted or prescribed quly; but in whichever light the contrct my be viewed, impossible to escpe the conclusion tht ws n greement for the purchse by the ppellee nd for the sle by the ppellnt of specic, designted thing; nd tht thing ws, not steel of described grde free from nmed percentge of sulphur nd phosphorus, hut steel scrp from the pltes, lerns wl mjles of Uned Sttes cruers built by the ppellnt. Th ws the nmed nd designted the specic nd identicl- thing contrcted for; nd the substution of ny other or dferent mteril, no mtter wht s Cing Lorymer v. Smh. B. & (886), 84 Ky. 558, S. W. R. 48; Cr - Mgee v. Billingslev, 3 Al Wolcott v. Mount (873), 36 Is J. L. Columbin Iron Woi^s v. Doug- 6, 3 Am. R. 438; Jones v. George lss (896), 84 Md. 44, 34 Atl. R. 8, (884), 6 Tex. 34o, 48 ^^ ^^ ^ 57 Am. St. R. 36, 33 L. R. A. 03. Vrley v. Whipp (900), Q. B. olo. To like effect: Fogg v. Rodgers 05

0,.] LAW OF SALE. [book IV. <]uly or chemicl test might be, ws cler brech undertking entered into by the prties." of the 0. Correspondence to description condion precedent.

5 0,.] LAW OF SALE. [book IV. <]uly or chemicl test might be, ws cler brech undertking entered into by the prties." of the 0. Correspondence to description condion precedent. " When person buys prticulr thing," continued the court,^ "he cnnot be compelled to tke some other thing, even like the thing bought. He hs right to inst on the terms of h contrct. If he hs unwtingly received tht which he hs not bought he hs the right to return, or, keeping to recoup, when sued for the stipulted price, the dmges which filure to comply wh the contrct hs cused him; or finlly, he hs pid the purchse price he hs tlie leo-l riofht to sue for nd to recover bck the dference in vlue between the price which he pid for n rticle he did not get nd the mrket price of the substuted rticle delivered to nd retined by him. He cnnot, he hs purchsed crgo of pes, be required to tke crgo of bens. Before defendnt cn be compelled to tke nything in fulfillment of contrct of sle, must be shown not merely tht eqully s good s the rticle tht ws sold, but tht the, sme rticle he hs brgined for nd none other. " In other words, the sle of described rticle, the tender of n rticle nswering the description condion precedent to the purchser's libily, nd th condion be not performed the purchser entled to reject the rticle, or, he hs pid the purchse price, he entled to recover bck the price s money hd nd received for h use. "It cn mke no possible dicrence whether the filure of the plintf to receive wht he contrcted to get grew out of the frud of the defendnt or out of n ccident unmixed wh bd fh.". Opportuny for inspection. In nother cse - the court sid: description When " vendor sells n rticle by prticulr condion precedent to h right of ction In Columbin Iron Works v. Fogel v. Brubker Douglss, supr. St. 05 7, 5 Atl. R. 69. (888), P.

6 H. IV.] PEKFORMANCE OF CONDITIONS BY SELLER. [ -3., tht the thing which he offers to deliver, or hs delivered, should nswer the description. If th condion be not performed the purchser entled to reject the rticle, or, he hs pid for he my recover bck the price s money hd nd received to h use. The right to repude the purchse for non-conformy of the rticle delivered to the description under which ws sold universlly conceded; nd comports wh sound legl principles to tret such enggements s condions in order to fford purchser more enlrged remedy by rescsion thn he would hve on simple wrrnty; nd, s n inspection of the goods necessry to enble the buyer to scertin whether they nswer the description by which they were sold, follows tht seller bound to give the buyer n opportuny to mke such inspection, nd n cceptnce by buyer for tht purpose will not be wiver of h right to reject the goods do not nswer the description.". Conformy to smple comlion precedent. For like resons, where goods hve been sold by smple lso condion precedent to the seller's libily tht the bulk, ^ both in nture nd quly, shll correspond to the smple. If does not the buyer need not receive nd on exmintion fter receipt, nd for th purpose the buyer entled to resonble opportuny, proves not to corrrespond, lie my reject,^ 3. Merchntbily,, condion precedent. So, lso, " in every contrct to supply goods of specied description which the bu^^er hs hd no opportuny to inspect, the goods must not only nswer the specic description, but must lso be slble or mrketble under the description." Even in the Usully clled icrrnty; s to Wring v. Mson (837), 8 Wend, see post. -ivhich, 30 et seq. (N. Y.) 45; Bch v. Levy (886), 0 Heilbutt V. Hickson (87), L. R. N. Y. 5, N. E. R 345, nd mny C. P. 438; Mgee v. Billingsley other cses ced under the sme <84), Al. 679; Beirne v. Dord heding in the following chpter on <85), N. Y. 95, 55 Am. De 3 ;Wrrnty

4, 5.] LAW OF SALE. [book IV. bsence of ny express stipultion, "th n implied term'^ in every such contrct," ^ If they re not such the buyer my reject them. 4. Fness for intended use condion precedent.

7 4, 5.] LAW OF SALE. [book IV. bsence of ny express stipultion, "th n implied term'^ in every such contrct," ^ If they re not such the buyer my reject them. 4. Fness for intended use condion precedent. And gin, where mnufcturer or deler undertkes to furnh n rticle which he mnufctures or in which he dels, in order tht the buyer my pply to some purpose which he dcloses to the seller, nd the contrct mde under such circumstnces s to indicte purpose to put upon the seller the responsibily of furnhing n rticle f for the purpose so dclosed, n implied condion^ tht the rticle supplied shll be resonbly dpted to the purpose to be so subserved.^ If the rticle be not so f, the buyer my refuse to ccept when tendered, opportuny for exmintion, my reject. or, on dcovery fter resonble 5. Time, plce nd qunty s condions precedent Time. So, s hs been seen in the preceding chpter on delivery, stipultions in executory contrcts concerning the time nd plce of shipment or delivery nd the mount to be so shipped or delivered re usully regrded s being of the essence of the contrct, nd complince condion precedent to the buyer's libily. To recll rule lredy quoted,^ sid by Mr. Justice Gry in the supreme court of the Uned Usully denominted trrrnf?/, ^Jones v. Just, L. R. 3 Q. B. 97; nd so delt wh in the following Gerst v. Jones (879), 33 Grtt. (V.) chpter, 340 et seq. 58; Jones v. Pdgett, 4 Q. B. Div. -' Jones V. Just, L. R. 3 Q. B. 97; 650; Bieen v. Morn (89), 5 Minn. AVrner v. Arctic Ice Co. (883), 74 55, 53 N. W. R. 755; Best v. Flint Me. 475; Hood v. Bloch (886), 9 W. (886), 58 Vt. 543; Hight v. Bcon V. 44; Fogel v. Brubker (888), (878), 6 Mss. 0, nd mny other P. St. 7, 5 Atl. R. 69; Swett v. cses ced under the sme heding Sliumwy (869), 0 Mss. 365, nd in the following chpter on Wrmny other cses under the sme rnty. heding in the following chpter on ^See ie, 9-53, where the Wrrnty. question of the time of delivery 3 Usully designted wrrnty, fully considered, nd s such fully considered in the following chpter, 343 et seq. 054

8 CH. IV.] PERFORMANCE OF CON'DITIONS BY SELLER. [ 6-7. "In the contrcts of merchnts time of the essence. Sttes: The time of shipment the usul nd convenient mens of fixing the probble time of rrivl, wh view of providing funds to py for the goods, or of fulfilling contrcts wh third persons. A sttement descriptive of the subject-mtter, or of some mteril incident, such s the time or plce of shipment, ordinrily to be regrded s wrrnty in the sense in which tht term used in insurnce nd mrime lw, tht to sy, condion precedent, upon the filure or non-performnce of which the prty ggrieved my repude the whole contrct." ^ g 6. Qunty. And in the sme cse^ sid: " The seller bound to deliver the qunty stipulted, nd hs no right eher to compel the buyer to ccept less qunty, or to require him to select prt out of greter qunty; nd when the goods re to be shipped in certin projiortions monthly, the seller's filure to ship the required qunty in the first month gives the buyer the sme right to rescind the whole contrct tht he would hve hd hd been greed tht ll the goods should be delivered t once." g 7. Plce. Like effect usully to be given to stipultions respecting l\\e jjlce of delivery. The contrct my be silent s to the plce, nd then the lw supplies the deficiencv,^ or there my be n express stipultion concerning the plce, nd then the contrct previls. Where the plce t which the seller to deliver thus stipulted, performnce by delivery t tht plce unless wived, condion precedent to the buyer's libily.* The severl mtters of time, plce nd qunty hve, however, been so fully delt wh in the preceding chpter tht, iln Norrington v. Wright (885), *See preceding chpter, 4-5 U. S. 88, 03. 8, s to plce of delivery. Norrington v. Wright, mpr, Vn Vlkenburgh v. Gregg (895), pp. 0, 0j. See lso s to qunty 45 Neb. 654, 63 N. W. R 949. the full dcussion in preceding chpter, i^ 57 ef seq *

S^ 8-0.] LAW OF SALE. [book IV. nothing more necessrj^ here thn to oll ttention to their nture s condions. 8, Dference in legl effect between condion nd wrrnty.

9 S^ 8-0.] LAW OF SALE. [book IV. nothing more necessrj^ here thn to oll ttention to their nture s condions. 8, Dference in legl effect between condion nd wrrnty. The dtinction in legl effect between condion precedent nd wrrnty importnt. The non-performnce of the condion, unless be wived, prevents the buyer's libily from ttching; justies him in rejecting the goods, repuding the contrct nd treting s t n end. The brech of wrrnty, however, s will be seen in the following chpter, hs no such effect. The buyer's libily ttches, he my not usully reject the goods or rescind the contrct, nd he must find h remedy in n ction for dmges for the injury cused him by the brech. 9. Condion precedent becoming wrrnty fter cceptnce. But my th condion precedent hve ny other effect thn to give the buyer the right of rejection? Supposing tht the goods when tendered by the seller re obviously not such s the contrct contemplted, the buyer ccepts them does he thereby wive ny right of recovery or recoupment becuse of such defects? Supposing tht the goods when tendered re pprently in conformy to the contrct nd the buyer ccepts them only to dcover lter tht they re subject to ltent defects not dcoverble by ordinry exmintion hs he now ny remedy? As will be seen in lter chpter ^ in which th subject fully dcussed, there much dference of opinion. g 0.. It held in certin cses tht s to ll defects t lest which were dcoverble upon exmintion, the buyer, in the bsence of frud, conclusively estopped by h cceptnce, nd cn fterwrds neher reject the goods nor recover upon ny surviving wrrnty.^ By other cses, however, held tht the buyer's cceptnce even s to dcoverble defects I Post, ch. VII, on Acceptnce by -See these eses fully collected, the Buyer, 3G3 et seq. post, % 39 et seq. 056

10 CH. IV.] PEKFOEMAXCE OF CONDITIONS BY SELLER. [ 0. not necessrily conclusive, nd, unless cler from the circumstnces tht the buyer intended to wive the defects, the former condion " survives," s sid, s n implied wrrnty, which, while not justying rescsion, will sustin clim for the dmges which the buyer hs sustined by reson of the defect.^ The weight of uthory, s will be seen, seems to be wh the ltter view. See these cses fully set forth in 393, post, 057

Unusable for. a transaction. Specimen REPRESENTED BY. (hereinafter called the AGENCY or the BROKER ) (hereinafter called the SELLER ) DATE

Unusable for. a transaction. Specimen REPRESENTED BY. (hereinafter called the AGENCY or the BROKER ) (hereinafter called the SELLER ) DATE NOTE This form is to be used when brokerge contrct is signed with nturl person. MANDATY FM EXCLUSIVE BROKERAGE CONTRACT SALE CHIEFLY RESIDENTIAL IMMOVABLE CONTAINING LESS THAN 5 DWELLINGS EXCLUDING CO-OWNERSHIP