Page:Harvard Law Review Volume 9.djvu/147

119 THE RISK OF LOSS, IIQ contracts — a principle founded on natural justice — is to be set aside, the vendee cannot be called upon to perform his promise unless the vendor performs his counter promise, in substance at least, and it matters not that non-performance of the counter prom- ise is excused by the impossibility of performance.^ The vendor contracted to give a complete legal title, with all which that im- plies, — the right to dispose of the "pro^^rty, jus dispojiendi, 2ind the right of present enjoyment thtvQo^, jus fruendi. Unless the vendee acquires by the contract itself substantially this, it is at variance with sound legal principles to hold him liable on his own promise after destruction of the premises. It does not advance the argument to discuss equitable ownership unless it be also con- sidered how far that is the equivalent of the legal ownership for which the vendor contracted. In the United States, at least, the vendee does by the contract itself, as soon as it is recorded, acquire the full jus dispo7iendi, the substantial equivalent of a legal rever- sionary interest from the time when performance is due. In Eng- land he does not get nearly as much as this, for the vendor may by selling to a bona jide purchaser for value without notice de- prive the vendee of all right to the property. If the vendor wishes to do this, it is perfectly easy for him to do it. The vendee's right, therefore, is wholly dependent on the honesty of the vendor. Such a right is not the substantial equivalent of a legal title. Moreover, neither in the United States nor in this country does the vendee acquire by the contract the second great incident of ownership, — the right of present enjoyment. This may be a matter of great importance. If the contract is to convey at a day far in the future, it seems impossible to say in any sense that the vendor receives at the moment of the contract the equivalent of what he bargained for. If the day fixed for conveyance is near at hand, it is true, the possession is of less importance, but it is still to be considered, and a rule which is laid down as a general one must be able to stand the strain of hard cases. Though the arguments presented in the preceding paragraph are important, they do not touch the fundamental difficulty with the English rule, which is, that, whatever rights a vendee may ac- quire immediately after the contract, and even if such rights were the substantial equivalent of a legal title, the contract is for the 1 Taylor v. Caldwell, 3 B, & S. 826; Jackson v. Union Marine Ins. Co., L. R. 10 C. P. 125 ; Poussard v. Spiers, i Q. P. D. 410; Greene v. Linton, 7 Porter, 133; Remy v. Olds (Cal.), 34 Pac. Rep. 216; Johnson v. Walker, 155 Mass. 253.