Encyclopaedia Britannica > Volume 21, ROT-Siam

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Hen. VIII. c. 9. The sale of land to be held in mortmain
would be void as contrary to the policy of the Mortmain Acts
(see Charities, Corporation). The rights and liabilities
of vendors and purchasers have been considerably affected
by recent legislation, the principal Acts dealing with the
subject being the Vendor and Purchaser Act, 1874, and the
Conveyancing Act, 1881. A period of forty years has
been substituted for the period of sixty years previously
necessary as the root of title,—that is to say, in most cases
an abstract showing title for forty years is sufficient. In
an abstract of title to leaseholds, the title is to commence
with the lease or underlease, in an abstract of title to
enfranchised lands, under a contract to sell the freehold,
with the deed of enfranchisement. Recitals twenty years
old are evidence, except so far as they can be proved to
be inaccurate, and recitals of documents dated prior to
the commencement of the abstract are to be taken as
correct, and their production is not to be required. The
expenses of evidence required in support of the abstract
and not in the vendor’s possession are thrown upon the
purchaser. The Conveyancing Act, 1881, further protects
the purchaser by implying in a conveyance by a beneficial
owner on sale for valuable consideration covenants for
right to convey, quiet enjoyment, freedom from encum¬
brances, and further assurance. In a conveyance of lease¬
holds a covenant for the validity of the lease is implied.
These covenants protect the purchaser much in the same
way as the implied warranty in the sale of personalty.
The Act also gives the mortgagee, where the mortgage is
by deed, the power of sale generally inserted in mortgage
deeds (see Mortgage).
The remedies of the vendor are an action for the price
or for specific performance according to circumstances.
There is also a remedy by mandamus against public com¬
panies refusing to complete. Specific performance is a
remedy introduced by the Court of Chancery to enforce
contracts for the sale or purchase of real estate, it being
considered that in such cases the common law action for
damages was an insufficient remedy. Strictly, it is only
an exercise by the court of its jurisdiction over trustees,
the vendor being after the contract, as has been said, a
trustee for the purchaser. By the Judicature Act, 1873,
actions of specific performance are specially assigned to
the Chancery Division. A county court has jurisdiction
where the purchase money does not exceed .£500. In
spite of the Statute of Frauds, specific performance may in
some cases be decreed where a parol contract has been
followed by part performance and where the position of
the parties has been materially altered on the faith of the
contract. Actions for the price or for specific performance
are subject to the purchaser’s right to compensation for
deficiency of quality or quantity or of the vendor’s interest
in the property. The question whether in a particular
case the purchaser is entitled to rescind the contract or
only to compensation is often a very difficult one. The
remedies of the purchaser are an action for specific perform¬
ance, for rescission of the contract or for damages (in case
of fraud), for a return of the deposit, or for expenses. On
the principle of caveat emptor, the sale is not avoided by
mere commendatory statements, statements of opinion, or
non-disclosure of patent defects. Non-disclosure of latent
defects or material misrepresentation of facts, on the faith
of which the purchaser entered into the contract, will as
a rule be a ground for rescission or for damages, and this
irrespective of fraud, as a contract for the sale of land is a
contract uberrimse Jidei. Where the sale goes off or the
vendor without fraud fails to make a good title, the pur¬
chaser can only recover the deposit, if any, and any ex¬
penses to which he may have been put; he cannot recover
damages for the loss of his bargain. Certain frauds by a
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vendor or his solicitor or agent in order to induce the pur¬
chaser to accept a title render the offender guilty of a
misdemeanour, as well as liable to an action for damages
(22 and 23 Yict. c. 35, s. 24). By the Vendor and Pur¬
chaser Act, 1874, either a vendor or a purchaser of real
or leasehold estate in England may obtain on a summary
application the decision of a judge of the Chancery Division
on any question connected with the contract, not being a
question affecting its existence or validity. (See Sugden,
Vendors and Purchasers; Dart, Vendors and Purchasers '
Fry, Specific Performance^)
Personal Estate.—At common law, as in the case of
real estate, writing was not essential to the validity of a
contract of sale. The common law is thus stated by
Blackstone : “ A contract of sale implies a bargain, or
mutual understanding and agreement between the parties
as to terms; and the law as to the transmutation of
property under such contracts may be stated generally as
follows. If the vendor says the price of the goods is £4
and the vendee says he will give £4, the bargain is struck ;
and, if the goods be thereon delivered or tendered, or any
part of the price be paid down and accepted (if it be but
a penny), the property in the goods is thereupon trans¬
muted and vests immediately in the bargainee; so that
in the event of their being subsequently damaged or de¬
stroyed he and not the vendor must stand to the loss.
This supposes (it will be observed) the case of a sale for
ready money; but, if it be a sale of goods to be delivered
forthwith, but to be paid for afterwards, the property
passes to the vendee immediately upon the striking of the
bargain without either delivery on the one hand or pay¬
ment on the other” (Stephen, Commentaries, vol. ii. bk.
ii. pt. ii. ch. v.). Earnest may have been originally the
same as the Roman arrha; it was never, however, part
payment, as arrha might have been,—in fact, the Statute of
Frauds specially distinguishes it from part payment. The
giving of earnest has now fallen into disuse. The price
need not be fixed; if not fixed, a reasonable price will be
presumed. Though writing was in no case necessary at
common law, it has become so under the provisions of
various Acts of Parliament, prominent among which is the
Statute of Frauds, ss. 4 and 17 (see Contract, Fraud).
Section 17 of the Statute of Frauds was extended to execu¬
tory contracts of sale by Lord Tenterden’s Act, 9 Geo. IV. c.
14. The sale of horses in market overt must be entered in
a book kept by the toll-keeper (2 and 3 Ph. and M. c. 7,
31 Eliz. c. 12). The sale of ships must by the Merchant
Shipping Act, 1854, be made by bill of sale in a certain
form. Contracts for the sale of shares in a joint-stock
banking company are void unless the contract sets forth
in writing the numbers of the shares on the register of the
company or (where the shares are not distinguished by
numbers) the names of the registered proprietors (29 and
30 Viet. c. 29). Bills of sale of goods must be in writing
in a certain form and registered under the Bills of Sale
Acts, 1878 and 1882.1 As a general rule the property in
goods passes by the contract of sale. This general rule is
subject to the following important exceptions : (1) where
the vendor is to do anything to the goods for the purpose
of putting them into that state in which the purchaser is
bound to accept them, the property does not pass until
performance of the necessary acts; (2) the same is the
case where the goods are to be weighed, tested, or measured;
(3) where the purchaser is bound to do anything as a
condition on which the passing of the property depends,
the property does not pass until the condition is fulfilled,
even though the goods may be actually in the possession
of the buyer; (4) where an executory contract for the
1 Bills of sale have been included here solely on account of their
name ; they are in reality mortgages.