sia[1] and Austria[2] until delivery, which is also generally the moment when the title passes.[3]
If the risk remain with the seller until delivery or transfer of title, few subsidiary questions can arise ; but if the general doctrine of the Roman law is followed, endless arguments are still open as to the correctness of the conclusions of that law in the case of conditional contracts.[4] A favorite matter of dispute also is the case of successive agreements by a seller with two persons to sell each the same thing. Every possible view has its champions, that the seller can recover the price from the first buyer only, from the second buyer only, from neither buyer because the seller can prove against neither that the thing was being held for him, that the decision depends on whether the second sale was made in good faith,[5] and finally Ihering maintains that whether the seller has acted in good faith or not, he may recover the price from either buyer he wishes.[6] This seems almost a reductio ad absurdum of the Roman theory.
No difference was made by the Roman law, or seems to be made by the modern civil law, on this subject, between movable and immovable property. By the Roman law a contract of sale before actual transfer of title, gave the purchaser a purely personal right against the seller ; and if the contract was not performed, the buyer could only be compelled to pay damages. He could not get the thing itself.[7] If the seller, in violation of his contract, sold and
delivered the thing to a third person, the latter acquired title, and
- ↑ Gesetzbuch, § lOO, I. Teil, XI. Titel. ; Hofmann, p. 46.
- ↑ Gesetzbuch, §§ 1048-1050, 1064; Hofmann, p. 52. If a time for delivery is fixed by the contract. After that time the risk is transferred to the buyer.
- ↑ The case may arise, certainly in the case of real estate, where delivery is made but title has not passed, because a necessary formality has not been complied with. In such a case it is held, in Prussia at least, that the risk is upon the buyer. Entscheidungen des Rechtsgerichts, Civilsachen, vol. 7, p. 241.
- ↑ See ante, p. 73.
- ↑ This case is not so improbable as appears at first sight. Thus an owner of property might contract to sell it after an authorized agent had made a similar contract.
- ↑ For the learning on this subject see Hofmann, pp. 137-153 ; Martinius, Der Mehrfache Kauf (Halle, 1873); Windscheid, Lehrbuch, § 390, clause 3; Ihering, Jahrb. f. Dogm. iii. 474.
- ↑ This is expressed by the maxim Nemo Potest prcecise cogi ad factum. Pothier, Obligations, Part i. ch. ii. art. 2, § 2 ; Fry, Spec. Perf., § 6 ; Holland, Jurisprudence, 6th ed. pp. 283, 284.
encore que la tradition n'en ait point ete faite." The French law is, therefore, now quite similar to the English; and the rule of French law that en fait de meubles possession vaut titre bears some analogy to the rule generally prevailing in this country, that as regards an innocent third person, delivery is necessary, though unnecessary so far as the buyer and seller are concerned.
