Conveyance of Title in the Sale of
Corporeal Moveables
J. J. Gow *
Rumour has it that before too many years are out a new Civil
Code, apt in philosophy and language for the needs of the new Quebec,
will be promulgated. The observations which follow are made in the
hope that this rumour is not a lying jade. They will suggest that the
new codifiers should consider whether a restatement is required of
the law of sale in its application to corporeal moveables, otherwise
known as “goods”.
There has always been, and doubtless there will always be, a gap
between the practice of the market place and the relevant legal rules
and concepts. Commercial problems are functional in character and
cannot be forced into a procrustean bed of self-contained legal cate-
gories lovingly created by lawyers unwilling or unable to understand
the needs of the merchant and the public.1 Sometimes, as in the case
of rights in security over corporeal moveables, the gap grows so wide
as to become intolerable. Then, albeit reluctantly, the lawyer discards
the gown of the pathologist and, attired in the smock of the artist,
tries his hand at creation. For a time the gap appears to be closed.
A highly interesting attempt to close the gap, at least partially,
was made between 2nd and 25th April, 1964, by those 2 who, at The
Hague, participated in the Diplomatic Conference on the unification
of Law governing the International Sale of Goods. The Conference
produced two conventions, one relating to a uniform law on the in-
ternational sale of goods, the other relating to a uniform law on the
formation of contracts for the international sale of goods.8
Gale Professor of Roman Law, McGill University.
1 c.f. Ziegel –
“Legal Problems of Wholesale Financing of Durable Goods”,
(1963) XLI Canadian Bar Review at p. 57.
2 The representatives of the following 28 states – Austria, Belgium, Bulgaria,
Columbia, Denmark, Federal Republic of Germany, Finland, France, Greece,
Hungary, Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, Norway,
Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, United Arab Re-
public, United Kingdom, U.S.A., Vatican City, Yugoslavia.
3A convenient publication in English is “Some Comparative Aspects of the
Law Relating to Sale of Goods” being Supplementary Publication No. 9 (1964)
of the British Institute of International and Comparative Law, hereinafter
referred to as “S.P. 9, B.I. of I. and C.L.”.
No. 2]
SALE OF CORPOREAL MOVEABLES
245
The differences among the representatives were many 4 but, on
the whole, reason and good will triumphed. The conventions to some
extent make strange reading for a lawyer trained in the Anglo-
American Common law, but even stranger reading for a lawyer
trained in a system derived from the Civil law. A uniform law is
bound to displease, if not outrage every traditionalist.5
According to Professor Zweigert, Director of the celebrated Max-
Planck Institute for Comparative Law at Hamburg, one of the
reasons why “in many a point the authors of the draft Uniform Law
on International Sales of Goods have fairly close.y followed the
common law” is “that in England the law of sale has at all times
been regarded as a body of law designed for merchants to serve as
an efficient means to handle problems arising in a context of trade
and commerce. ‘ 6 Professor Zweigert also makes a point very perti-
nent to the aspect of the law of sale which this article seeks to discuss.
He says –
I have tried to demonstrate on another occasion 7 that the difference between
the continental systems and the common law is first of all a difference in
the legal approach to problems. All the legal systems with the heritage of
Roman law are characterised by a tendency to develop abstract legal rules,
by a desire to get hold of entire branches of the law through building up
well arranged conceptual systems and finally, by a preference for logical
deduction from pre-existing legal concepts. The common law, on the other
hand, being sceptical of sterile generalisations, has developed in a continuous
process of paying tribute to the peculiar features of individual cases thus
“stumbling forward in its empirical fashion blundering into wisdom,” as…
Maitland has put it. Are these basic attitudes also reflected in the law of
sales of both these legal systems ? In my opinion they are.8
These observations have a considerable bearing on one difficult
problem of the law of sale upon which the participants at the Diplo-
matic Conference were unable to reach agreement, namely, of the
transfer from seller to buyer of the former’s proprietary interest in
4 See “Some Comparative Aspects of the Law relating to Sale of Goods”, I. &
C.L. Quarterly, Supplementary Publication No. 9: Honnold. “The Uniform Law
for the International Sale of Goods” and “Critique” thereon by Berman both
in Law and Contemporary Problems. Vol. XXX, No. 2: Nadelmann, “The Uni-
form Law on International Sale of Goods”, and Tunc’s “Reply”, 74 Yale L.J.
449 and 1409, respectively.
5 Tunc, The Uniform Law on International Sale, 74 Yale L.J. 1409, at p. 1414.
6 Anglo-American law of sale was undoubtedly a law for merchants but in
this century has developed warranties for consumer protection.
7 “Zur Lehre von den Rechtskreisen”, XXth, Century Comparative and Con-
flicts Law, Legal Essays in honour of Hessel E. Yntema (1961) p. 42 et seq.
SThe quotations are from Zweigert, Aspects of the German Law of Sale,
S.P. 9, B.I. of I. & C.L., pp. 12-15.
McGILL LAW JOURNAL
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the goods,9 otherwise variously described as “ownership”,10 “property
in the goods”,” and “passing of title”. 12 As will be shown the Roman
law of sale did not function in this context with a concept of “title”. 13
The Anglo-American law does. German law still adheres to the Roman
but French law with the Code Napol6on adopted a concept of title
and Quebec followed suit in the Code of 1866. The apparent similarity
between the French and the Anglo-American approaches may conceal
a gulf between them considerable enough to make the problem of
uniformity more difficult of solution than appearances suggest.
The Roman law drew a clear distinction between the contract of
a sale and the conveyance which, at least so far as the seller was
concerned, consummated the bargain. This distinction is of consider-
able importance and in this article, unless the context demonstrates
otherwise, “sale” means the transfer to the buyer of the seller’s
proprietary interest in the goods, and “contract for a sale” means
the convention preceding, or synchronous with the sale -and which
is the legal basis upon which the sale proceeds. Furthermore, for
there to be in Roman law a synallagmatic or mutual “consensual”‘ 4
contract for a sale the contract (not the sale) had to be “perfect”,
that is, the goods had to be certain and determinate and the price
certain. 15 This requirement of perfection had several important con-
sequences, namely, –
(i)
unless the contract were perfect there was no contract at all,
that is, the seller was under no obligation to sell;
9 Arts. 52 & 53 of the general convention deal only peripherally with the
problem by entitling the buyer to require the seller to free the goods from a
right or claim of a third person.
10 Code Napoleon, art. 1583, and indirectly Quebec C.0., arts. 1025, 1026, 1472.
11 English Sale of Goods Act 1893 S.S. 16 to 20.
12 American Uniform Commercial Code 2 – 401.
13 “Title” is preferable to “ownership”, the latter being much too absolute for
modern purposes.
14Roman law, at least during the period having direct influence on the Civil
law systems, had no theory of “contract” but of “contracts”, each genus having
its own “figure”. Apart from the “consensual” contracts of sale, hire, partner-
ship and mandate the other important genus was the verbal stipulation, but
it was an unilateral obligation, that is, a promise to sell could be made by
stipulation and also a promise to buy but the two together did not make a
synallagmatic contract of sale (emptio) and purchase (venditio) whereas the
consensual contract was “emptio venditio”.
1 Perhaps to distinguish the agreement as consensual from permutatio (ex-
change) an innominate (quasi-real) contract, see Lesage, Roman Private Law,
p. 376 et seq.
No. 2]
(ii)
SALE OF CORPOREAL MOVEABLES
the contract as a functional concept was in principle limited
to the transfer of specific goods; it was not designated .to deal
with transactions involving generic and future goods.16
In brief, it applied essentially to a market transaction of immediate
exchange of the goods for cash, and was not intended to cope with
the multi-faceted transactions which, outwith the dealer-consumer
field, are the bones and sinews of modern mercantilism. Zweigert
takes the point when, writing of the German law which still in form
adheres to the Roman, he states “the authors of the Code [were]
under the somewhat vague idea that the average sales contract was
for a specific thing such as an old picture by a Dutch painter or a
specific bottle of Liebfrauenmilch Aus’ese”. 17
To return to the separation of the contract and the sale the
consequences in Roman Law were –
(i)
the requirement of an overt and public act over and above the
private agreement of the parties. Ordinarily this act was of
physical handing over of the goods by the seller to the buyer,
traditio longu manu, what is now called “delivery”.’ It is true
that no physical change in the custody of the goods was
necessary if a documentary conveyance, the constitutum pos-
sessorium, were executed. This document effected traditio
brevi manu. It is the forerunner of the public declaration of
transfer of land, and perhaps of the Anglo-American chattel
mortgage.
it was consistent with and emphasized the importance of the
concept of possession as the badge of ownership. The seller
was not obliged to be owner, or procure ownership. His under-
taking was to transfer juristic possession, therefore, his war-
ranty was only against eviction. 19
“(ii)
16 The principle was clear enough. Of course there were exceptions, but as
Zulueta points out the needs of “big business” in Rome were better served by
stipulatio or locatio conduetio (hire) Roman Law of Sale, pp. 13-16. Bucldand,
Textbook of Roman Law, (3rd ed.), at p. 484 (editorial footnote) states that
throughout Asia Minor, over a vast period of time, sale of a genus was handled
as something juristically distinct from an ordinary sale. Kaser, Romisches Priva-
trecht s. 41, II, 2, states bluntly, “a (pure) generic sale was unknown”.
17 S.P. 9, B.I. of I. & C.L., p. 14.
Is A difficult concept which gave considerable trouble to the drafters of the
international uniform code. It is not without significance that the Quebec C.C.
on occasion uses the Roman term “tradition”, arts. 1025 (French) 1478 (French
and English).
19 Contrast the position of the transferor in per-nutatio, Leage, op, cit., p. 378.
McGILL LAW JOURNAL
[Vol. 13
In view of the changes in French law (1804) and Quebec
law (1866) and of the technical language and concepts em-
ployed by both these legal systems it is important to emphasize
that the seller was not under an obligatio dandi (A donner, to
give) but merely ren tradere. On the other hand the buyer’s
obligation in respect of the “currency” he handed over in
payment of the price was obligatio dandi, that is, to transfer
ownership.
the maxim nemo dat quod non habet had little, if any, appli-
cation. If A agreed to sell to B but, before tradition to B,
agreed to sell and delivered to C, as B never had ownership
C did not have to worry about title 20
(iii)
It is now time to turn to the changes made by the French
and the Quebec codifiers in the law of sale with respect to the passing
of title to the goods. These changes must be seen against the Roman
background because that background continued to influence both
French and Quebec legal thinking and language.
-Art. 1583 C.N. declares “Elle (]a vente) est parfaite entre les
parties, et la propri~t6 est acquise de droit A l’acheteur A l’6gard du
vendeur, d~s qu’on est convenu de la chose et du prix, quoique ]a
chose n’ait pas encore
t6 livrde ni le prix pay6″. Complementary is
article 1138 ‘Tobligation de livrer la chose est parfaite par le seul
consentement des parties contractantes. Elle rend le crdancier pro-
pri6taire et met les choses A ses risques d6s l’instant oti elle a dfi
ftre livr6e, encore que la tradition n’en ait point t6 faite, A moins
que le d6biteur ne soit en demeure de la livrer; auquel cas la chose
reste aux risques de ce dernier”.
A moment’s reflection should bring about the conclusion that
this change was fundamental to the structure of the law of sale, at
least, sufficiently so to make all the difference that there is between
a “high rise” modern apartment block and a sedate Outremont villa,
but the surprising thing is that some French writers tend to dismiss
the change as not all that important .Thus Professor Houin says that
the Code Civil only sanctions a custom based on the constituntnm
possessorium.21 That may well be, but the essential difference is that
a written conveyance, executed with some solemnity, is not only
20 Compare Quebec C.C., art. 1027, second paragraph.
21 S.P. 9, B.I. of I. & C.L. at p. 23; see also the footnote to article 1353 of
Planiol’s Traitg E1gmentaire (trans. Louisiana State Law Institute) where he
says that the only differences between the Roman and the French sale are: (i) in
transfer of ownership, (ii) that the sale of a thing of another was not null as
a contract.
No. 2]
SALE OF CORPOREAL, MOVEABLES
249
extrinsic evidence that a proprietary transfer has taken place but
also a conveyancing mechanism other than the contract itself.22
There are many important consequences which flow from such a
change, for example,
(i)
it does lead to the concept of an abstract title capable of
movement in space and time, no matter where the goods are,
who has them under immediate control, or when and to whom
ultimate “delivery” is made.
the seller’s warranty against eviction tends to develop into an
obligation to transfer title, that is, the shift is from an
obligation rem tradere to an obligation & donner. Planiol
asserts this though the French code (and the Quebec) does
not say so directly.23 If a warranty of title is imposed on the
seller, the result in English law is that the buyer is entitled
to have the contract set aside although he is under no threat
of eviction.2
it disturbs the security of the rule that possession Oaut titre.
Professor Houin thinks not and maintains that
(ii)
(iii)
it has no force in the relationship between the purchaser and third parties.
With regard to these, the purchaser jonly becomes owner on the day when he
‘enters into possession of the thing (arts. 1141 and 2270 C.N.). If, for instance,
the seller has sold a specific thing to two purchasers successively, it is he
who is put in possession first who will have the better right, even though
he was the second purchaser, provided at least that he is in good faith;
the first will not be able to set up his own purchase against him, since he
cannot rely on possession of the thing. That is one of the effects of the
rule “En fait de meubles possession vaut titre”.25
This is to put the cart before the horse, because the security
of the rule is only preserved by express legislation. Even so, to
assert that the consensual conveyance only applies between
seller and buyer and does not affect third parties is misleading.
The fact that the buyer has bought, that is, become “owner”,
enables or may enable him to deal significantly with third
parties in commercial matters. Conversely, a seller in possession
who has “sold” but remains unpaid must be secured by a
privilege. The goods are no longer his and may not be immune
22 According to Rabel “Merchants everywhere, whether under legal necessity
or not, used official registers as in London and Bordeaux, other records of
brokers and very often notarial instruments. Even at fairs, notaries documented
transactions on which a debt remained due” –
“Statute of Frauds and Com-
parative Legal History”, (1947) 63 L.Q.R., at p. 177.
230p. cit., art. 1353.
24 Butterworth v. Kingsiway Motors Ltd. [1954] 2 All E.R. 694.
25 S.P. 9, B.I. of 1. & C.L., p. 24.
McGILL LAW JOURNAL
[Vol. 13
to claims by third parties against the buyer-owner..2
0 Finally,
(although this may may not be true of French law), exceptional
provisions have to be made to protect bona fide buyers from
possessors who have no title to transfer.2 7
(iv) The remedies of the buyer against the seller and third parties
are altered. A buyer who is “owner” is, for the purposes of
enforcing a claim in respect of “his goods”, in a somewhat
different position from one who can only assert that he is
the creditor of an obligation on the part of the debtor to
deliver the thing to him. It is true that by a variety of ex-
pedients the difference can be ignored or eliminated but
because subtle, the difference can confuse. In Quebec law much
of the dispute over the effect of a promise of sale may be
traced to a failure to attach sufficient weight to it.
(v) Most important of all, it blurs, or can blur, the vital distinction
between the contract and the sale.
It is worth considering whether both the French and Quebec laws
have blurred this distinction in such manner as to cause unnecessary
difficulties and sterile disputes.
It will be recalled that for the Roman consensual contract for a
sale to come into being as a synallagmatic or mutual bargain it had
to be perfect. “Perfect” meant an enforceable obligation. It did not
mean a completed sale. Both the French and Quebec codes retain
“perfect” but use it to denote the sale.28 In their search for what
Professor Zweigert calls an “abstract legal rule” the French con-
verted a custom 29 which the parties could take or leave into an
absolute legal rule “the contract must be the sale”. Thus, I-ouin
says “the first effect of the sale 3 … is to transfer property in the
thing to the purchaser, automatically and immediately”. 31 As Planiol
puts it: “the contract to give is of itself translative of ownership”,
but, most important is his deduction –
“the modern French sale
does no longer consider tradition a juridical act, as effecting the
transfer of ownership, but only as a simple delivery, a material act,
26 See Zulueta, op. cit., pp. 52 & 53.
27 Compare articles 1487, 1488, 1489 of the Quebec C.C. with the English Sale
of Goods Act, 1893, s.s. 23 to 26, Factors Act, 1889, and, in the case of motor
vehicles, Hire Purchase Act, 1964, s.s. 27 to 29.
2sArt. 1583 C.N. with arts. 1025 and 1472 Quebec C.C.
29 Houin, S.P. 9, B.I. of I. & C.L., p. 23, where he speaks of the conveyancing
clauses in contracts of sale before the promulgation of the Code Napoleon.
OPresumably he means the bargain.
3’ Op. cit., loc. cit.
No. 2]
SALE OF CORPOREAL MOVEABLES
not having any other effect than to transfer possession”.32 Thus
even a contract to deliver is, so far as the legal effects of the delivery
is concerned, consummated by the contract.33
The consequences of creating such an apparently absolute rule
can lead at best to ludicrous arguments, at worst to misunderstand-
ings. For example, Planiol asserts “It would be an improper act of
sale, or a poorly drafted one in which the parties stated: ‘I promise
to sell . . . I promise to buy’ instead of “I sell . . . I buy”. 34 In a
sense he is correct, if speaking of a formal conveyance, in which
the narrative or inductive clause might commence, “I, A having pro-
mised or agreed to sell”, then flow into the dispositive clause “and I
hereby sell and convey”, but, as Mignault, equally correctly, points
out, given the rule that the contract is the sale “lorsque les parties
disent : je promets vendre, je promets d’acheter, c’est tout comme si
elles avaient dit: je vends, j’achte”.3
6 Again the rigidity of the rule
makes it difficult to interpret such a bleak statement as “la promesse
de vente vaut vente, lorsqu’il y a consentement r6ciproque des deux
parties sur la chose et sur le prix.” 3 6 It may be that this refers to an
option to buy, agreed to by the parties so that upon the buyer exer-
cising his option there is a complete sale, with the usual consequences,
but Mignault records a dispute upon the facts that A promises to
sell to B who promises to buy from A, the “sale” to take effect in
one year, and that some had argued that upon the exchange of pro-
mises the sale was immediately effected. He adds “Je crois qu’il ne
s’agit d’interpr~ter la volont6 des parties, et qu’aucune solution ab-
solue ne peut 6tre admise a priori .”
3
A more concrete and recent illustration of the clumsiness of the
rule is the Quebec case of Inns v. Gabriel Lucas Ltd.38
There, Mrs. M. and Lucas agreed that the latter should, from
precious stones belonging to or to be acquired by him, manufacture
a brooch and earrings for her at a price of $8,250. Subsequently,
Lucas was able to obtain stones superior in quality, to those upon
which he had been working and it was agreed between the parties
that he should use the better stones. No new price appears to have
been fixed at this time. On completion of the work Lucas telephoned
32 op. cit., art. 1148: note that the seller’s obligation is changed from rem
tradere to rem dare. (& donner).
33 Art. 1138 C.N.
34 Op. cit., art. 1400.
35 Droit Civil, vol. 7, p. 32.
3
6 Art. 1589 C.N.
37 Op. cit., Joc. cit.
38 [1963] B.R. 500.
McGILL LAW JOURNAL
[Vol. 13
Mrs. M., who then went to his office, and expressed herself as
satisfied with the ornaments. The “price” came to $9,820, plus $589
sales tax. Mrs. M. gave Lucas a cheque for $1,000, which he accepted,
told him that her husband would pay him the difference the following
day, and left with the ornaments. Mrs. M’s cheque was dishonoured,
her husband refused to pay the difference and Mrs. M. went into
bankruptcy. Her trustee in bankruptcy claimed the ornaments as
being her property. Lucas claimed them as his.
Rivard, J. classified the agreement as “un contrat d’entreprise
pour une part et de la vente d’une chose future qui n’est encore ni
d6termin6e, ni accept6e” to which the rules of the contract of sale
concerning the passing of the property by consent did not apply.
Ownership in the ornaments passed only by delivery and as that
delivery had been obtained by fraud it was a nullity. Bissonnette, J.
concurred. Taschereau, J. was of much the same opinion. He held
that articles 1025, 1026 and 1472 did not apply to mixed contract of
work and sale and that by inference from article 1684189 delivery
was necessary to pass the property.
Tremblay, C.J. (with whom Owen, J. concurred) disagreed. He
examined the history of articles 1025 and 1026, reached the conclusion
that “la jurisprudence et la doctrine frangaises n’ont done aucune
application” and added –
“Revenant A l’article 1026 C.C., je crois
que ]a livraison n’est pas n6cessaire pour op6rer le transfert de pro-
pri6t6. II suffit que la chose vendue soit devenue certaine et d6termi-
n~e et que l’acheteur en ait 6t6 l~galement notifi6.” He was of the
opinion, therefore, that the property in the ornaments passed by
consent to Mrs. M. before delivery took place and was unaffected by
her misrepresentations.
Whether the codifiers had the clear intention which Tremblay,
C.J. attributes to them is debatable; what is not is that there is no
necessary reason why the rule of consensual conveyance cannot
apply when the agreement is of a kind which contemplates the even-
tual transfer of ownership in a corporeal moveable yet to come into
being in exchange for payment of money. On the other hand, just
because consensual conveyance is possible, it does not follow that
there can be no “contract” of “sale” unless the conveyance is effected
consensually and, with the exception of the classical conditional sale,
contemporaneous.y with the making of the contract.
The irony of the reasoning in Inns v. Gabriel Lucas, supra is that
just because the Roman law requirements for a perfect consensual
contract for a sale were, in terms of there being a constract, so rigid,
89 Requiring delivery to pass the property in the thing.
No. 2]
SALE OF CORPOREAL MOVEABLES
the very same dispute raged among the jurists. On the facts of such
a case it was difficult in Roman law to decide whether in law the
agreement was for a sale or of letting and hiring. The Sabinians
classified it as a sale, the Proculians as a contract for work (locatio
rei) and Cassius as mixed, but, contrary to the reasoning of the
majority in the In=s case, a sale of the materials and a hire to the
manufacturer’s services. 40 The explanation of the reasoning of the
majority of the Quebec court seems to have been this, that, having
decided to find for Lucas, they were fearful lest 1026 C.C. compelled
them to reach the same result as the minority.41 If the rule of
arts. 1025 and 1472 C.C. were that the contract can be the sale if
such be the intention of the parties, express or implied, and that
transfer of title may be either consensual or by delivery, the courts
would be free to exercise a little responsibility. It is a healthy legal
system which has sufficient confidence in its judges to permit within
the frame-work of principle every action to be an action on the case.
In a curiously involuted way the Quebec controversy over promise
of sale has its origins in this belief that the contract must be the sale.
There are three aspects of this problem –
(i) What is a promise of sale ?
(ii) Depending upon the answer to (i) – what is the remedy of
(iii)
the promisee should the promisor fail to perform ?
If the promisor is willing to perform how must he transfer
title to the buyer ?
The relevant articles of the Quebec code are:
1025 – A contract for the alienation of a thing certain and deter-
minate makes the purchaser owner of the thing by the consent
alone of the parties, although no delivery be made…
If the thing to be delivered be uncertain or indeterminate,
the creditor does not become the owner of it until it is made
certain and determinate, and he has been legally notified
that it is so.
1026-
1472 – Sale is a contract by which one party gives a thing to the
other for a price in money which the latter obliges himself
to pay for it… It is perfected by the consent alone of the
parties, although the thing sold be not then delivered…
40 See Gai Institutiones 3.
41 For wholly different reasons there has been the same fruitless controversy
in English law. When the Statute of Frauds applied to a contract of sale, to
escape the consequences of the Statute the plaintiff would argue and the court
might hold that the action was not for a price in sale, but for the cost of work
and labour done. No legal principle is involved, only ingenuity.
McGILL LAW JOURNAL
[Vol. 13
1476- A simple promise of sale is not equivalent to a sale, but the
creditor may demand that the debtor shall execute a deed of
sale in his favour according to the terms of the promise,
and, in default of so doing, that the judgment shall be equi-
valent to such deed and have all its legal effects; or he may
recover damages according to the rules contained in the title
Of Obligations.
If a promise of sale be accompanied by the giving of earnest,
each of the contracting parties may recede from it; he who
has given the earnest, by forfeiting it, and he who received
it, by returning double the amount.
1477-
1478- A promise of sale with tradition and actual possession is
equivalent to sale.
The interpretation of the expression “promise of sale” has given
rise to much recent literature.42
The immediate dispute is over the commencing phrase of article
1476-
“A simple promise of sale is not equivalent to a sale” –
and the outlines of
the controversy can be seen in this statement upon articles 1476 and 1478
by Archibald C.J. –
“It is perfectly plain that both of these articles of our
Code refer to a bilateral promise of sale, where the vendor has promised
to buy, because nobody pretends that a sale takes place before the acceptance
of the purchaser; so that these articles are of very little assistance, except
to show that in one respect, our Code hesitates to go the length of the Code
Napoleon in the application of the doctrine that a contract of sale is perfect
by the mere consent of the parties.” 43
Taken at its face value this would seem to mean that whenever
and I here
the contract is not expressed as “I here and now sell …
and now buy” but as “I promise to sell if and when you accept…
and I now accept and hereby promise to buy”, (although possibly in
the Roman sense the contract may be perfect or nigh thereunto),
there can be no sale unless and until either a formal conveyance has
been executed by the seller or he has “delivered” the goods to the
buyer. Generalised out this would mean that whenever the bargain
is not of present sale and purchase, articles 1025 and 1472 do not
apply and the pre-1866 requirement of tradition still applies.
42 A. M. Honor6: La promesse de vente dans les droits romains et qudbecois
(1961) 11 Th~mis, No. 40, p. 199; G. E. LeDain: The Real Estate Broker (1958)
4 McGill L.J. 219 at p. 235-242; D. Lefebvre L.: La vente en droit qu~becois est-
elle un contrat consensuel (1962) 22 R. du B. 181; J. Pineau: Le problhme de la
promesse de vente (1965) 67 R. du N. 387.
43 Clendenning v. Cox (1915) 49 C.S. (Que.) 71 at p. 75; the reference is to
article 1589 of the Code Napoleon which declares –
“Promise of sale is equivalent
to sale when there is a reciprocal consent of the two parties upon the thing and
upon the price.”
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SALE OF CORPOREAL MOVEABLES
On the other hand it has been argued (as, in the case of the ana-
logous article 1589 C.N., has been argued by Planiol) that promise
of sale is, in this context, confined to the circumstances where A
offers to sell to B and declares that his offer is irrevocable for a
period of ten days. On the fifth day A changes his mind and informs
B that his offer is withdrawn. On the ninth day B purports to accept
the offer. A refuses to perform –
quid iuris ?
The preliminary difficulty is whether and if so why, A is bound
by his promise to keep open his offer, because Quebec law, or so it
is said, whilst it accepts the doctrine of contract rejects the doctrine
of the unilateral juristic act.
Amos and Walton usefully describe an obligation as
a legal bond between two persons in virtue of which one of them is bound,
in favour of the other, to do a certain act or to abstain from doing an act…
The person who is bound to make the performance –
including under that
term an abstention –
is called the debtor, and the person who has the right
to compel the performance is called the creditor… It is of the essence of an
obligation in this sense that the rights arising under it should not only be
recognized by the law, but also be enforced by it.4 4
A voluntary obligation is one created by the will of the debtor and
with his consent. This concept of voluntary obligation is common
to the legal systems of the West, but the circumstances which must
occur in order to create or give rise to such an obligation vary among
these systems. The variations depend to some extent on the theory
or theories which a particular system has or is said to have adopted.
The principal dispute has been upon the question whether for the
creation of a voluntary obligation, as above described, the act of
the debtor alone is enough or whether for all obligations the
participation of both creditor and debtor is required. If the latter
theory applies then, in principle, there can be no obligation without
a minimum agreement between the parties. Cutting across the dispute
is the word “contract” with its several meanings.
“Contract” comes from the Latin noun “contractus”. Both “con-
tractus” and the verb “contrahere” were terms of art in Roman law
but it is by no means certain that throughout the development of
that law they were coincident terms. The latter was wide enough to
include lawful conduct resulting in the liability of an obligation,
that is, which was not only unilateral in its enforceability but also
unilateral in its creation. The former was or became restricted to
a civilly actionable agreement. Such an agreement involved in princi-
ple a concurrence of two wills as to the future conduct of one or
both of the parties, and was a contract although the obligation it
44 Introduction to French Law (2nd ed.) 138.
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created might be unilateral as in the stipulatio or bilateral (synallag-
matic) as in sale. In Roman law, the causa contrahendi was form
(which in the case of some contracts meant “consent”); therefore,
in many contracts provided the requirements of form were complied
with it was not strictly necessary that there should have been true
psychological consent.45
English law speaks of contract under seal and a simple contract.
The former refers to an obligation arising out of and created by a
written instrument called a deed. To such an obligation agreement
is not necessary, and it has been held that the grantor may by his
deed become debtor in an obligation to a creditor who is unaware
of its existence. 46 The latter involves agreement to this extent at
least that for there to be an obligation enforceable against the debtor
consideration must have moved from the creditor.47 In either case
consent is not the formal caus obligandi or contrahendi. It is true
that in the cases of France and Quebec there is the small matter of
“cause” but, for present purposes, what has been judicially described
as “a nightmare of confusion” may be ignored. In these systems the
doctrine of consent omne verbum in ore fideli cadit in debitum has
been the seed bed of a very protracted controversy whether an
obligation can be created by an unilateral juristic act or there must
be conventio. In this controversy “contract” has been used in the
narrower sense as meaning agreement, or, at least, participation by
both debtor and creditor in the creating of the obligation.
Castel attributes the doctrine of the unilateral juristic act to
Siegel, an Austrian jurist.48 In its modern form this may be accurate
enough, but the problem itself and the discussions about it are much
older. Grotius gave the problem a great deal of attention and con-
cluded that a promissio to become perfecta and be enforceable re-
quired to be met by acceptance. 49 On the other hand, in 1681 the
Scottish jurist, Stair, was maintaining that a promise which is
45 Buctdand, Text Book of Roman Law (3rd ed.) ch. X, CXLIV, CXLV. Kaser,
46 Fletcher (1844) 4 Hare, 67; Xenos v. Wickham (1867) L.R. 2, H.L. 296:
Romisehes Privatrecht (Dannenbring’s translation) 5 II & 38 I.
Nass V. Westminster Bank [1940] A.C. 366.
47 “When, in the sixteenth century, the common lawyers evolved a general law
of contract, they based it unhesitatingly upon the idea of bargain.” Cheshire &
Fifoot, Law of Contract (6th ed.) p. 60.
Per DeVilliers, AJ.A. in Conradie v. Roussow, 1919 A.D. 279 (South Africa).
There is also ignored, although probably much more important than cause, the
impact upon the causa of requirements as to writing, or more generally, restric-
tions on testimony.
4s The Civil Law System of the Province of Quebec, 249.
49 De Jure Belli ac Pacis 2.11.14 – 16.
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SALE OF CORPOREAL MOVEABLES
simple and pure, and has not implied in it as a condition, the ac-
ceptance of another, is binding unless the promise rejects and
renounces the right thereby conferred on him.50 Whatever the merits
of the differing views, there seems little disagreement that whereas
the German Civil Code by its concept of Rechtschaft probably
accepts the doctrine of the unilateral juristic act, French and Quebec
laws do not. 1
The essence of a contract of sale is agreement, or, the mutual
assent of the parties to an alleged bargain consisting of reciprocal
promises, that is, each promise is the counterpart of the other. The
facts of life notwithstanding, lawyers are accustomed to analyse the
contract (oral, written or silent) in the context of the categories of
offer and acceptance. Assuming the parties speak as lawyers would
wish them to, a contract of sale complying literally with article
1472 might be as follows –
A -I
hereby offer to sell to you, B, this certain and determinate
motor car, being a 1960 Rambler Station Wagon, engine no.
123456, for price in money of $3,000 dollars, payment in ex-
change for delivery, delivery to be here and now if you accept
this offer of present sale.
I hereby accept the offer which you, A, have made to me in
respect of this Rambler Station Wagon upon the terms as to
price, payment thereof and delivery of the motor car as stated
by you.
B –
The parties are face to face, and, all being well, upon B’s ac-
ceptance he becomes (in manner later to be commented on) the
owner of the motor car and upon payment of the price he takes de-
livery. Life, of course, is not that simple. It may be that, subject to
minor but necessary textual amendment, A writes out his offer on
a sheet of notepaper and leaves it at B’s office. Until B accepts the
offer there can be no contract of sale, but can A withdraw or revoke
the offer ? The answer is “yes”. Suppose, however, A adds to his
“I promise to keep this offer open for ten days expiring at
offer –
noon on the 25th day of December”, can A withdraw or revoke the
offer during the stipulated time ? In Scots law the answer is “no”, 52
but that system adheres to the doctrine of the unilateral juristic
act, whereas French and Quebec laws do not, or so it is said. How
does Quebec law get over the difficulty ?
50 Institutions 1.10.4: specialties of writing or exclusions of testimony prevent
Scots law from being quite as uncomplicated as this.
&1 Castel, op. cit., loc. cit.: Amos and Walton 141.
52 A. & G. Paterson V. Highland Rly. Co. 1927 S.C. (H.L.) 32 per Viscount
Dunedin at p. 38: proof may be difficult.
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Castel says, “The person to whom the principal offer is made has
no reason not to accept the collateral offer 53 that is to his advantage.
His acceptance is therefore presumed and a contract is formed if it
has a lawful cause. ‘ 54 If it be the policy of the legal system to enable
B to act in reliance upon A’s undertaking to keep the offer open
this fiction may be an unnecessary complication, but like all fictions,
useful enough, provided it does not mislead. But, as Castel points
out, it leads to a subtle argument if A before the expiry of the ten
days tells B (who till then has not accepted the offer to sell) that
he does not intend to consider himself bound. Clearly A is in breach
of his obligation to keep the offer open but he is not the debtor of
an obligation to sell, therefore, the logicians argue, B can only get
damages for breach of the promise to keep the offer open, because
he cannot accept an offer which no longer exists. One reply to this,
as Castel points out, is that the effect of the “contract” not to with-
draw the offer is to “freeze” the offer for the period of time “agreed
upon” so that the offer does exist at the time of acceptance by B.
Such conceptual gymnastics are, of course, time wasting and
fruitless. For example, were it the theory of the general law (what-
ever the practice) that the primary remedy was damages and specific
performance a matter for the discretion of the court “on the case”,
this controversy would never have arisen. It so happens that in the
legal systems based on the Roman law specific performance is re-
garded as the remedy of the buyer whereas in English law the remedy
is damages. But, as Zweigert points out, the practical results, at
least so far as German law is concerned, are much the same, “the
[German] buyer, having instituted proceedings for specific per-
formance, will, as a rule, switch over to a claim for damages once
it has become apparent that the seller is not really willing or not
able to deliver.” 55 The reason for the English rule may well be that
as a law of sale primarily designed for the transactions of merchants
dealing with each other (and not a retailer-consumer law)
it is a
consequence of the rule fundamental to remedies in sale that the
party not in breach must take all reasonable steps to mitigate his
loss, that is, if buyer, he must go out and buy in. Even so, there is
something incongruous in legal reasoning which refuses to regard
as binding per se an unqualified promise to sell, but is prepared to
53 That is, the promise to keep the offer to sell open.
54 Op. cit., p. 260.
55 S.P. 9, B.I. of I. & C.L., p. 5: the difference between the Civil and Anglo-
American systems
is conceptually significant enough, or, so the lawyers con-
cerned believed, therefore agreement on this point was not reached in the matter
of the Uniform Law on International Sale of Goods.
No. 2]
SALE OF CORPOREAL MOVEABLES
enforce as a contract a promise not to withdraw a “conditional”
promise to sell. This incongruity may be the cause of the lack of
agreement as to the nature of the “promise” to which articles 1476,
1477 and 1478 refer. An aggravating factor is that the phrase “pro-
mise of sale” and “sale” are by no means unequivocal terms. 56
The unfortunate feature of the first chapter of the fifth title of
the Civil Code is the lack of adequate description of the facts and
legal concepts involved when, in -real life, events take place calcu-
lated to result in a sale by or from one person of a thing to another.
For example, article 1472 says “Sale is a contract by which one
party gives a thing to the other for a price in money ……..
is a confusion between “the sale” and the
Linguistically there
“contract”, which tends to give the impression that unless the
“contract” and the “sale” are synchronous, either there cannot be
a contract for a sale whatever, or if there can be such a contract,
it cannot subsequently consensually or notionally effect the “sale”
or conveyance. Finally, the “sale” of article 1472 is itself the product
of a promise of sale because what happened between seller A and
buyer B was an offer by the former accepted by the latter.57 That
offer had to be more than the expression of a willingness to chaffer,
or invitation to enter into negotiations, or mere statement of invita-
tion, if an unqualified acceptance so operated upon it that offer and
acceptance together made a contract for a sale. The offer had to be in
substance a promise by the offeror that if the offeree accepted his
proposal, he, the offeror was bound to perform the undertaking
contained in the proposal.
Upon this analysis the several species of “promise of sale” relevant
to this discussion are –
(i)
A promise to sell to B upon condition that B accepts the
promise.
(ii) As in (i) but A also promises to keep open his conditional
promise to sell for a stated period of time
(iii) A unconditionally promises to sell to B.
(iv) As in (i) but the thing is not certain and determinate (in-
cluding non existence)
in the sense of article 1025.
The problem is –
to which of these promises do or can the
relevant articles in the first chapter of the fifth title apply ?
56 See Mignault, op. cit., 23 to 32: an added factor may be that literal trans-
lations from French to English and conversely are unsatisfactory: for example,
it is doubtful whether “promise of sale” is good English or even an adequate
translation of “promesse de vente”.
57 The traditional approach is used, but, of course, it may have been the other
way round and, in any event much more complex on the facts than here supposed.
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Clearly article 1472 applies to (i) if B accepts. It also applies
to (ii) if A does not seek to withdraw and B accepts. Even if A
does in (ii) seek to withdraw within the time stated it should apply if,
by his promise to keep open his conditional promise to sell, A’s offer
is frozen. It should apply to (iii) if B under the general law accepts
the promise, for then there is a contract. It cannot apply to (iv)
even if there is acceptance by B, if it requires a “sale” or conveyance
which is synchronous with the contract, although article 1026 may
apply.
It can be argued that article 1472 does not apply to (ii) because
A can only be liable for breach of his obligation to keep his con-
ditional promise to sell open, that is, his liability is restricted to
damages. It can be argued that it cannot apply to (iii) because
what is called for by the unconditional promise is not acceptance
or a promise to buy but tender or payment of the price, in which
event A is bound to convey not because of a contract in terms of
article 1472 but because of performance by B of the act called for
in the promise.
If article 1472 does not apply to (ii) or (iii), or both, it follows
that there can be no consensual or notional conveyance by A of
the thing he has promised to sell. The same holds true in respect of
(iv) if article 1026 is construed as merely restrictive or expository
of article 1025 and not as capable of, in due course, giving effect
to a consensual conveyance. The result of all this would be that
the only contract for a sale upon which consensual or notional con-
veyance can operate in Quebec law is a contract for a present sale.
In all other cases, whether of promise or contract, or howsoever
called, the conveyance can only take place by tradition or transfer
of actual possession.
Is this so, or, because of the existence of articles 1026, 1476,
1477 and 1478, to what extent is it so ?
The answer to this question would be easy if there were little
doubt as to the interpretation to be placed upon these articles, but
no satisfactory interpretation is possible if each article is taken by
itself. The attempt is, however, worth making if only the better to
establish the point that the sooner the law of sale is restated the
better for all concerned.
Article 1476 says –
“a simple promise of sale is not equivalent
to a sale, but the creditor may demand that the debtor shall execute
.” The obvious comment is that no promise
a deed in his favour .
of sale can be equivalent to a sale because at best a promise can
be no more than an obligation and a sale at least involves a con-
veyance. This article is not, therefore, intended to apply to a promise
.
No. 2)
SALE OF CORPOREAL MOVEARLES
of sale which as above explained forms part of a contract of present
sale in terms of article 1472. It is arguable, therefore, that it is
applicable to a promise of sale thereby meaning a promise to keep
open a conditional promise of sale. This is possible, but preternaturally
clumsy, in that at the very least it raises all the wearisome argu-
ments whether the promisee is entitled only to damages and not
specific performance. Many of these difficulties would vanish if
the fiction of the “accepted” promise to keep an offer open were
abandoned and the plain rule adopted that where it is satisfactorily
proved that the offeror has stated that his offer will remain open
for a period of time by the general law of sale such offer is irrevo-
cable during that time, so that if the offeree accepts, there is a
contract for a sale to which article 1472 can apply. It is true that
this violates the prohibition of the doctrine of the unilateral juristic
act, but commercial needs cannot wait upon the resolution by jurists
of their metaphysical problems. If, in the sphere of sale, the Ameri-
cans can ignore the more formidable doctrine of consideration, 58
in Quebec the law of voluntary obligations will not collapse merely
because of such a small departure from orthodoxy.
Assuming article 1476 does not apply to a promise to keep
open a conditional promise to sell, it may nonetheless be applicable
to an unconditional 59 promise to sell. Again, such a promise cannot
of itself be a sale for reasons already stated, and the further reason
that the promisee cannot have a sale, which involves payment by
him of a price, thrust upon him. The difficulties of the relationship
between promisor and promisee are largely imaginary. Assuming
the rejection of the doctrine of the unilateral juristic act, one device
is to classify such a promise as an offer requiring acceptance from
the promisee if he is to be permitted to enforce it. At all events,
whatever the device used once the promisee has taken those steps
necessary to make the promise binding on the promisor, for example,
by formal acceptance or tender or payment of the price, there is
an obligatory relationship between the parties upon which a sale,
in terms of article 1472, can proceed.
Does article 1476 apply to an agreement for the sale and purchase
of a thing which is not certain and determinate at the time when
the agreement is made ? This seems to have been the opinion of
Archibald C.J.0 because article 1472 does not in terms apply to such
GsUniform Commercial Code s. 2-205.
59 That is, the promisor is not, as in an offer, calling for consensus ad idem
by way of acceptance.
00 Clendenning v. Cox (1915) 49 C.S.
(Que.)
’71 at p. ’75.
262
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[Vol. 13
an agreement. This construction leads to several absurdities, namely :
it refuses to concede that such an agreement can be classified
(1)
as a contract for sale, whereas, (2) there is no good reason why
the “sale” or conveyance of article 1472 should not take effect once
the thing has become certain and determinate and the contract for
a sale has fastened upon it, and (3) article 1026 seems to give to
such an agreement the status of a contract for the alienation of a
thing for a price. Of course, article 1476 does make sense if restricted
to land; there the transfer of the proprietary right requires a formal
conveyance, but the Code should have clearly stated conveyancing
provisions distinguishing between corporeal moveables and land.
“If a promise of sale
be accompanied by the giving of earnest, each of the contracting
parties may recede from it: he who has given the earnest by forfeit-
ing it, and he who received it by returning double the amount.”
Article 1477 is also bewildering. It says –
Earnest can perform two functions, as evidence that a contract
has been made 61 or as liquidated damages for failure to perform.
Here it seems to be performing the latter function. It is arguable
that it cannot apply to the contract of article 1472 for there the “sale”
or conveyance has taken place and the contract having been executed
there can be no recession from it. On the other hand it speaks of
a contract, therefore, it is capable of applying to the promise to
keep open a conditional promise to sell which has not been accepted
or an agreement for the sale of a thing not yet certain or determinate
which has not yet reached the point that a sale or conveyance has
taken place. In the former case there is no reason why the promisor
or the promisee should give earnest in terms of damages (as distinct
from evidence), but in the latter, as much may happen between the
time of the making of the agreement and the thing becoming certain
and determinate, earnest by either party can serve the function both
of potential damages and of evidence.
Article 1478 says –
“A promise of sale with tradition and actual
possession is equivalent to sale”. Archibald C.J., in the case already
referred to, was of the opinion that this article, along with article
1476, applied to a contract for a sale where the thing was not
certain and determinate. Leaving aside article 1026 this is tenable,
but article 1478 is capable of the wider generalisation that when-
ever the requirements of article 1472 are not fulfilled any promise
of sale, whether part of a contract or otherwise, cannot effect a
consensual “sale” or conveyance. This may be better than a rigid
61 As in article 1235 (4) but there it is arguable that the action contemplated
is against the buyer for payment of the price.
No. 2]
SALE OF CORPOREAL MOVEABLES
rule that all “sale” must be consensual and delivery never anything
more than a transfer of possession.62
The truth probably is that there can be no satisfactory inter-
pretation of articles 1026, 1476, 1477 and 1478 because, as already
stated, there is lacking in the Code a coherent statement and analysis
of the facts and concepts which in real life are involved in events
which culminate in the transfer from and by one person to another
of the title or right of property in a thing. Much of the confusion
which surrounds the relevant articles of the Code stems from the
(a)
fact that the codifiers failed : (i) sufficiently to distinguish
between a contract for a sale and the sale or conveyance itself, and
(b) a present sale and a future sale; (ii) to appreciate that when
they introduced into Quebec law the concept of conceptual or notional
there was no need either to limit the
sale (that is, conveyance)
term “sale” to a conveyance which was consensual only or to restrict
consensual “sale” to a contract for a present sale; and (iii) to state
clearly the circumstances in which article 1026 was to apply.
In this day and age, whatever may be their proper construction,
the several articles of the present Code are far too exiguous and
scanty for the needs of the continental entrep6t which is Montreal.
Concepts and rules adequate to a rural cash sale and static economy
may be a nuisance in the affluent and bewildering mobile consumer
society which now engulfs us.
The new codifiers should, indeed must, deal specifically with
many and difficult matters as, for example:
(i)
Formation of the contract for a sale including (if so decided)
a forthright declaration (whatever be the ground principle
of voluntary obligation) that where an offer states that it
is firm or irrevocable that the offeror is not free to revoke
there is no need to resort to any fiction;
The applicability of a doctrine of culp in contrahendo,
that is, that entering into contractual negotiations (even if
no contract ensues) requires the entrant to take due care
with respect to the truthfulness or accuracy of what he says
or does and the consequences of the “reliance expectations
thereby created”;
The clear distinction between the contract for a sale and
the conveyance;
(ii)
(iii)
62Planiol, op. cit., art. 1148: this is theory, practice may be otherwise; see
Houin, S.P. 9, B.I. of I. & C.L., p. 24.
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[Vol. 13
(iv)
(v)
The circumstances which must be satisfied before a con-
sensual 63 conveyance can take place, distinguishing between
a conveyance which is synchronous with the making of the
contract and that which is subsequent in time;
The effect upon third parties and the rule that posses&ion
vaut titre;
The transfer of risks;
(vi)
(vii) Whether there should be separate rules for a retailer –
consumer transaction; and
(viii) The desirability of wholly separate rules where land is in-
volved.
This list could be continued for long enough. The new codifiers
will have the benefit of the labours of the 1964 Diplomatic Confer-
ence. Upon the limited code there prepared, with the aid of the
literature thereon,64 and the results of thoroughgoing field research,
they can build a law of sale worthy to serve as a model for the
Atlantic Community and beyond. What they must avoid is ancestor
worship. Lawyers tend to venerate ideas whose corpses other men
have long since buried. Montreal cannot afford such piety.
W”Assuming that the codifiers do not decide to return to the pre-1866 law,
but that is another matter.
64 For example, “Some Comparative Aspects of the Law relating to Sale of
Goods”, I. & C.L. Quarterly, Supplementary Publication No. 9: Honnold, “The
Uniform Law for the International Sale of Goods and Critique” thereon by
Berman both in Law and Contemporary Problems, Vol. XXX, No. 2: Nadelmann,
“The Uniform Law on International Sale of Goods”, and Tunc’s Reply, ’74 Yale
L.J. 449 and 1409.
