Page:Harvard Law Review Volume 9.djvu/101

73 THE RISK OF LOSS. 73 In order to transfer the risk to the buyer, it was necessary that there should be emptio perfecta. The obligation of the parties to go forward might be complete, yet the sale might not be perfect. To make a perfect sale it was necessary for the bargain to be unconditional, to relate to specific goods, and for the price to be certain.^ If a sale was subject to a suspensive (or precedent) condition, and the subject matter was destroyed before fulfilment of the condition, the loss fell on the seller, since the obligation could never become complete ; but if the injury to the subject matter did not destroy it or change its identity, the loss fell on the buyer, if the condition was fulfilled, for the fulfilment was held to relate back to the time when the agreement was concluded. If a resolu- tory (subsequent) condition was attached to a bargain, the risk of destruction nevertheless passed immediately, but the risk of injury not amounting to destruction did not necessarily pass for such in- jury, would not prevent the rescission of the contract by the hap- pening of the condition ; and if the condition were dependent on the will of the buyer, he would naturally exercise his right.^ A sale was also imperfect if the amount of the price was not exactly determined, or if the goods were not exactly defined. Thus, in sales by count, weight, or measure, the risk did not pass to the buyer till the goods were counted, weighed, or measured. This was so where a definite quantity or proportion of a specified mass was sold at a price to be determined by calculation when the goods should be counted, weighed, or measured ;^ and it has even been held that though the whole of such a mass were purchased, the transaction should be regarded in the same way,* but the contrary view certainly seems more sensible.^ So if a fixed proportion of a specified mass were 1 " Si id quod veneriet appareat quid quale quantum sit, sit et pretium, et pure venit, perfecta est emptio." Dig. iS, 6, 8. Pothier, Contrat de Vente, § 309; Moyle, Con- tract of Sale in the Civil Law, 77. 2 Moyle, Contract of Sale, 78-82; Pothier, Contrat de Vente, §§ 311-313; Voet, Compendium Juris, Lib. 18 Pandectarum, Tit. vi. 4. Compare Code Civil, § 1182. 8 Moyle, Contract of Sale, 84, 85^; Pothier, Contrat de Vente, § 309; Code Civil, § 1585- p. 10; Pothier, Contrat de Vente, § 309. So in Peterkin v. Martin, 30 La. An. 894, 896, it is laid down : " There can be no sale in lump except for a lumping price." This is because by the civil law to make a perfect sale it is necessary that the price as well as the goods should be ascertained. » Aubry & Rau, Cours de Droit Civil Franjais, 4th ed. iv. § 349, p. 341, citing Duvergier, i. 90, Dijon, 13 decembre, 1867, Sir., 68, 2, 311. As delivery is no longer necessary in France for the transfer of title, the title in the case supposed would in that country pass to the buyer ; and if the risk remains with the seller, the curious case is 10
 * Moyle, Contract of Sale, 84, citing Demante, Cours Analytique de Code Civil, vii.