Page:Harvard Law Review Volume 9.djvu/104

76 76 HARVARD LAW REVIEW. 2. Immediately after the contract, the seller can no longer deal with the subject matter of it freely for his own benefit. His hands are tied. If an accident befalls the thing, and the loss is thrown upon the seller, he has incurred a loss because of holding the thing for the seller's benefit instead of disposing of it otherwise. But it must be observed that every bilateral contract, if the parties respect their promises, involves the consequence that neither party is as free as he was before ; and in a contract of sale the loss of freedom on the part of the buyer is just as real, and just as much for the benefit of the other party, as is the seller's sacrifice. True, the seller's obligation relates to a specific thing ; but, generally speaking, the only result of a failure by the seller to have the thing ready for delivery is liability in damages to the buyer, and the latter suffers the same consequence if he has not the price ready at the appointed time. 3. VVindscheid's explanation^ is that the contract of sale itself is from its very nature in effect an alienation of the thing sold* A contract of sale, he says, is an immediate declaration of sur- render of the owner's rights in a thing (Entausserungserklarung). " It has for its content that the thing sold is given ; it is not that an obligation is undertaken to give it An obligation on the part of the seller first arises when the actual state of affairs does not correspond to the declaration." It is another and somewhat less carefully analyzed way of saying the same thing, to say that when a contract of sale is entered into, an immediate completion is ordinarily expected and a delay is accidental. This line of argu- ment in a sense includes also the reason given in the preceding paragraph. It may be doubted whether the parties to a contract to sell at a future day, look at the matter in this way ; and it is not unlikely that Windscheid was led to adopt his view in order to furnish an explanation of the rule of the Roman law as to risk. The reasons brought forward in support of the doctrine of the Roman law seem generally to have been thought in- adequate by European legislators. In France the risk of loss now remains with the seller until the title passes ; ^ in Prus- 1 Lehrbuch, § 321, 3. A similar theory is expressed in Austin on Jurisprudence 4th ed. p. 1 001. 2 This change in the French law has been effected by putting back the time of the transfer of title to the time of the contract. Code Civ., art. 711, "La propriete des biens s'acquiert . . . par I'effet des obligations." Art. 11 38. " L'obligation de livrer la chose est parfaite par le seul consentement des parties contractantes. Elle rend le creancier proprietaire et met la chose k ses risques d^s I'instant ou elle a d{i etre livree,