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1. Sale or exchange.

2. Bailment.

3. Hiring and borrowing.

4. Debt.

1. Sale or Exchange. This is a transmutation of property from one to another, in consideration of some price or recompense in value. There must be a quid pro quo. If it be a commutation of goods for goods, it is more properly an exchange, but if it be a transfer of goods for money, it is termed a sale. Money is the universal medium established for the convenience of mankind, which may be exchanged for all sorts of other property, whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be most burdensome. Hence all civilized nations adopted very early the use of money, though the practice of exchange still exists among several savage nations. But as the law treats sales and exchanges alike, we shall speak of them both, under the head of sales.

Restricted, Pending Writ of Execution. Where the vendor has in himself the property of the goods sold, he may dispose of them to whomever he pleases, at any time and in any manner, unless execution has issued against him on a judgment for a debt or damages, and the writ of execution has been actually placed in the hands of the sheriff. In such event, the sale would be fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the goods. Formerly it was bound from the teste or issuing of the writ, and still remains so between the parties, but was altered in favor of purchasers.

Removal of Goods. If a man agree with another for goods at a certain price, he may not remove them without paying for them, for it is no sale without payment, unless the contrary be expressly agreed. But if he pays a part of the price, the property of the goods is bound by it, and the vendee may recover the goods by action, as also may the vendor recover the price of them.

Requisites to Validity of Sale. By statute of Charles II, no contract for the sale of goods to the value of ten pounds or more shall be valid, unless the buyer actually receives part of the goods sold, by way of earnest on his part, and pays part of the price to the vendor to bind the bargain, or in part payment, or unless some note in writing be signed by the party or his agent, who is to be charged with the contract. With regard to goods

under that value, no contract therefor shall be valid, unless the goods be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith.

Hand-shaking a Symbol of Sale. Anciently among the northern nations, shaking hands was held necessary to bind the bargain, a custom we still retain in many verbal contracts. This was called a hand-sale, till in time, this word was used to signify the price or earnest then given.

Effect of Tender. As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed upon. But if he tenders the money, and the vendor refuse it, the vendee may seize the goods, or have an action against the vendor for detaining them.

Sale without Delivery. By a regular sale, even without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B, who pays him earnest, or signs a note of the bargain, and afterwards before the delivery of the horse, or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because by the contract the property was in the vendee.

Sales in Market Overt. But property may also in some cases be transferred by sale, though the vendor has none at all in the goods, for it is expedient, that the buyer, by taking proper precautions, may be secure of his purchase, otherwise commerce would soon end. Hence the rule of law is, that all sales and contracts of things vendible in fairs or markets overt, that is, open, shall not only be good between the parties, but also binding on all those, who have any right or property therein.

Saxon Custom. In ancient times, private contracts were discountenanced by law, and our Saxon ancestors prohibited the sale of anything above the value of twenty pence, unless in open market.

Locality of Market. Market overt in the country is only held on special days, provided by charter or prescription for particular towns, but in London, every day, except Sunday, is market-day, and every store in which goods are publicly exposed for sale, is market overt, for such things only as the owner professes to trade in.

Goods Stolen. If my goods be stolen and sold out of market overt, my property is not altered, and I may take them, wherever I find them. And even in market overt, if the goods be the king's property, such sale will not bind him, though it binds infants, femmes covert, idiots, lunatics, and men beyond sea or in prison. If the goods be stolen from any one, and then taken by the king's officer from the felon, and sold in open market, still if the owner has used due diligence in prosecuting the thief, he loses not his property in the goods. So likewise, if the buyer knows that the property is not in the seller, or that there is fraud in the transaction, or that the seller is an infant, or feme covert, not usually trading for herself, or if the sale be not made in the fair or market, or not at the usual hours, the owner's property is not bound thereby.

Horses Stolen. Property in horses is not easily altered by sale, without the express consent of the owner. A purchaser gains no property in a horse that has been stolen, unless it be bought in a fair or market overt. Nor shall such sale divest the property of the owner, if within six months after the stealing, he presents his claim before a magistrate, near where the horse be found; and within forty days thereafter proves his property by the oath of two witnesses, and tenders to the person in possession such price as he has bona fide paid for the animal in market overt.

Warranty. By the civil law, an implied warranty was annexed to every sale as to the title of the vendor; and in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own and the title prove deficient, without any express warranty. But with regard to the goodness of the wares, the vendor is not bound to answer, unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise, and used art to disguise them.

2. Bailment. This term, from the French bailler, to deliver, is a delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee. As if cloth be delivered to a tailor to make a suit of clothes; he takes it upon an implied contract to render it again when made, and that in a workmanlike manner. So if goods be delivered to a common carrier, he is under a contract to safely deliver them to the person named. So goods delivered to an innkeeper or his servant must be safely kept and delivered to the guest, when he claims them.

Examples of Bailment. If a man takes horses to graze on his grounds, which the law calls agistment, he takes them on an implied contract to return them to the owner. A pawnbroker's contract to restore goods pledged, on payment of a certain sum at a specified time, is an express contract. If a landlord distrain for rent, or an officer for taxes, the goods for a time are only a pledge in the hands of the distrainors, who are bound to return them, if the debt and costs are paid before the time of sale, or when sold, to return the overplus. If a friend deliver anything to a friend to keep for him, the receiver is bound to restore it on demand. A general bailment will not charge the bailee with any loss, unless it happen by gross neglect, which is an evidence of fraud; but if he undertakes specially to keep the goods safely, he is bound to take the same care of them, as a prudent man would take of his own.

Right of Suit by both Parties. In all these instances, there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of his contract for restitution; the bailor having left in him the right to a chose in action, grounded upon such contract. The bailee, as well as the bailor, may maintain an action against those who injure or take away these chattels. The bailee may vindicate, in his own right, his possessory interest against a third person; for he is responsible to the bailor, if the goods are lost, or damaged by his wilful default or gross negligence, or if he do not deliver up the goods on lawful demand; hence he should have a right of action against all other persons, who may have purloined or injured them, that he may always be ready to answer the call of the bailor.

3. Hiring and Borrowing. These are contracts, by which a qualified property may be transferred to the hirer or borrower; in which there is only this difference, that hiring is always for a price or recompense, while borrowing is merely gratuitous. They are both contracts, whereby the possession and a transient property are transferred for a particular time or use, on condition to restore the goods at the expiration of the time or the performance of the use; and in case of hiring, together with the price, expressly agreed upon, or left to be implied by law.

Position of the Parties. By this mutual contract, the hirer or borrower gains a temporary property in the thing hired, with an implied condition to use it with moderation, and the

owner or lender retains a reversionary interest therein, and acquires a new property in the price or reward.

Interest on Money Loaned. The most usual species of this reward caused many good men in former times to doubt its legality in foro conscientiae. This was the question of interest, where money was lent on a contract to repay not only the principal sum, but also an increase by way of compensation. Some termed this increase, interest, others denominated it usury. This opposition to any increase on the original sum was founded on the prohibition of it by the law of Moses, and by the saying of Aristotle, that money is barren, and cannot breed money. The canon law has proscribed the taking of even the least increase for the loan of money as a mortal sin.

Morality of Accepting Interest. In answer to this, it is noticeable, that the Mosaical precept was clearly a political and not a moral precept. It only prohibited the Jews from taking usury from their brethren, the Jews, but permitted them to receive it from a stranger, which proves the taking of such reward for the use, for so the word usury signifies, is not malum in se. The barrenness of money, as mentioned by Aristotle, might be also said of houses, which never breed houses, and many other things which are let for hire. Though money was first used only as a medium of exchange, yet the law of a state may well allow it to be turned for the purpose of profit, for the convenience of society.

Necessity for Paying Interest. Unless money can be borrowed, trade cannot be carried on, and if no premium was allowed for the hire of money, few persons would lend it, or at least borrowing at short warning, which is the life of commerce, would be entirely at an end. In the dark ages, when interest was laid under an interdict, commerce was at its lowest ebb, and fell entirely into the hands of the Jews and Lombards, and commerce only grew, when the taking of interest was again introduced. As all other conveniences of life may be bought or hired, while money can only be hired, there can be no oppression in taking a recompense or price for this.

Usury. To demand an exorbitant price is contrary to conscience, while a reasonable equivalent for the use of money is not immoral; but a distinction must be made between a moderate and an excessive profit, the former of which we call interest, and

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