CHAPTER I. General Provisions.

II. Rights and Obligations of the Seller.

III. Rights and Obligations of the Buyer.
IV. Sale by Auction.

CHAPTER I.

GENERAL PROVISIONS.

ARTICLE I. SALE.

II. AGREEMENTS FOR SALE.

III. FORM OF THE CONTRACT.

ARTICLE I.

SALE.

Sale, what.

Subject of sale.

SECTION 1721. Sale, what.

1722. Subject of sale.

1721. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property.

NOTE. A sale is an agreement by which one of the contracting parties, who is called the seller, gives a thing, and passes the title to it, in exchange for a certain price in money, to the other party, called the buyer or purchaser, who on his part agrees to pay the price. The contract of sale differs from that of barter in this, that in the latter the price, instead of being paid in money, is paid in property susceptible of valuation; from accord and satisfaction, because in that contract the thing is given, not for a price, but for the purpose of quieting a claim; and from a gift in this: that a gift is without consideration. To every valid sale there is necessary: 1. Proper parties; 2. A thing which is the object of the contract; 3. A price agreed upon; and, 4. The consent of the contracting parties, and the performance of certain acts required to complete the contract.

1722. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer.

NOTE.-The thing sold must be in existence at the time of the sale. If the sale be of a horse, and the horse has died before the sale, or if of merchandise, and it has been destroyed before the sale, both parties being ignorant thereof, the sale is void. Where a substantial part of the thing sold is non-existent, it seems

to be the rule that the buyer has his option to rescind
the sale or to take that which is in existence, with a
reasonable abatement of the price.-2 Kent's Com., p.
469; Code Napoleon, Art. 1601. "But," observes Mr.
Parsons, in commenting upon this rule (1 Parsons on
Contracts, p. 522), "where the parties are equally inno-
cent we think the meaning and effect of this rule is
that the buyer should have only his choice between en-
forcing or rescinding the contract; and if he enforces
the contract, and claims the remainder, he should pay
for it the price of the whole. For, if the remainder is
to be taken at a proportionate reduction, or any reduc-
tion from the whole original price, it should be a new
bargain. Perhaps, however, he may take the remain-
der, if he will pay for it the original price, with an
abatement which can be made exact by a mere numeri-
cal proportion; as where goods were all of one quality,
and a certain part was wholly destroyed and the resi-
due left uninjured. But if a new price is to be made
for the remainder, by a new estimate of its value, it
must be certain that this can be done only by mutual
consent." See, also, Farrer vs. Nightingal, 2 Esp., p.
639.

ARTICLE II.

AGREEMENTS FOR SALE.

SECTION 1726. Agreement for sale.

1727. Agreement to sell.

1728. Agreement to buy.

1729. Agreement to sell and buy.

1730. What may be the subject of the contract.

1731. Agreement to sell real property.

1732. Form of grant required by such contract.

1733. Usual common law covenants required by such con

tracts, when.

1734. Form of such covenants.

1726. An agreement for sale is either:

1. An agreement to sell;

2. An agreement to buy; or,

3. A mutual agreement to sell and buy.

Agreement

for sale.

to sell.

1727. An agreement to sell is a contract by which Agreement one engages, for a price, to transfer to another the title to a certain thing.

Agreement to buy.

Agreement to sell and buy.

What may be the

subject of

the contract.

Agreement to sell real property.

Form of grant required by such contract.

Usual

common

law

covenants

required

by such contracts, when.

NOTE. The distinction between a sale and an agreement to sell is this: that in the former the thing which is the subject of the contract becomes the property of the buyer as soon as the contract is concluded; in the latter the property in the thing remains in the vendor until the contract is executed; in the former one sells to another, in the latter he only promises to sell.

1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing.

1729. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor.

1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not.

NOTE.-Hale vs. Rawson, 4 C. B. (N. S.), p. 85.

1731. An agreement to sell real property binds the seller to execute a grant in the form and manner prescribed by the Chapter on Transfers of Real Property.

NOTE. This provision, in connection with that to which it refers, is intended to provide a uniform mode of transfer. There can be very little question that no more could, even now, be required from the seller. This section will give the buyer a right to insist upon a simple and well known conveyance, if he desires it.

1732. An agreement to sell real property binds the seller to execute a grant in the form prescribed by Section 1092.

1733. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seizin," "quiet enjoyment," "further assurance," "general warranty," and "against incumbrances."

1734. The covenants mentioned in the last sec

of such

tion must be in substance as follows: "The party of Form the first part covenants with the party of the second covenants. part, that the former is now seized in fee simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all incumbrances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same."

NOTE.-Its object is the same as that of Sec. 1092; namely, to reduce the length of conveyances, and to provide a plain and sufficient form, as is done by the English statuté, 8 and 9 Vie., Chap. 119. It is believed that the form here given is sufficient to cover all the intricately worded stipulations usually given in such

1739. No sale of personal property, or agreement to buy or sell it, for a price of two hundred dollars or more, is valid, unless:

1. A memorandum of the contract, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed by the party to be charged;

or,

2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof; or,