Page:Harvard Law Review Volume 8.djvu/455

Rh (6) Offers to buy or to sell where the time of delivery is fixed by the happening of some future event.

Common forms of such offers are offers to buy or to sell securities "seller opening of books," "to arrive" or "when issued." If an offer of this kind is accepted, delivery of the securities must be made by the seller as soon as the event stated in the offer happens.

The nature of all the different kinds of offers permitted to be made on the floor of Stock Exchanges being described, the nature of all contracts made by the acceptance of any of such offers can now be determined. All these contracts are alike in being contracts to buy or to sell a specified amount of securities for a money price to be paid on the delivery of the securities. They differ only with respect to the time when delivery of the securities must or may be made by the seller or may be called by the buyer, and in all cases this is postponed until some time after the contract is made. In all of these contracts it is clear that the intention of the parties is to postpone the passing of the title of the securities contracted to be bought or sold until they are delivered and the purchase price paid. In no case is an immediate transfer of title contemplated. All of them look to the occurrence of this result when, and not until, they are performed, and the only difference between them is as regards the time when they are to be performed. Hence, as no actual sale of personal property can occur without a complete transfer of title from the seller to the buyer, these contracts do not constitute actual purchases and sales, but are contracts to make purchases and sales at the time when they are to be performed by the delivery of the securities and the payment of the purchase price. All of them are what are called "executory contracts of sale," in which the actual purchase and sale does not take place until the contract is performed. It is, however, usual for stockbrokers to call contracts to buy or to sell securities "for cash," or "regular," "purchases" or "sales," and only to call contracts where the delivery may be postponed for longer than three days, "Stock Exchange contracts" or "contracts for the receipt or delivery of securities." Contracts to buy or to sell securities where the time of delivery may be or is postponed until a fixed time not further off than three days stand by themselves. They are never