THE MGILL
LAW JOURNAL
VOLUME 1
WINTER 1954-55
NUMBER 4
THE TRANSFER OF PROPERTY AND RISK
IN THE SALE OF FUNGIBLES
Gerald E. LeDain*
I.
By the sale of fungibles we are to understand the sale of those goods, mainly
primary products and food-stuffs, which are estimated by weight, number or
measure.’ Article 1474 of the Quebec civil code 2 divides the sale of such goods
into two categories: the sale by weight, number or measure, and the sale
en bloc,3 but it does not define either of them. Since they differ in their effect
on the transfer of property and risk, it is important to be able to distinguish
them. The precise nature of the distinction has been, however, one of the most
controversial questions in the doctrine and jurisprudence of Quebec. A similar
conflict of opinion has existed in France since the enactment of the French
code.
The sale is clearly one by weight, number or measure when the particular
goods to be sold have not been identified at the time of the contract, but are,
*B.C.L. (McGill), D. de l’U..(Lyon), Assistant Professor oi Law, McGill University.
1ERSKINE, PRINCIPLES OF THE LAW OF SCOTLAND (12th ed.). 296: “Whatever receives
its estimation in number, weight, or measure, is a fungible, as corn, wine, current coin
&c.” The term “fungibles”, though not strictly applicable to a sale of specific goods, is a
convenient designation of the kind of goods under consideration.
2 Art. 1474: “When things moveable are sold by weight, number or measure, and not
in the lump, the sale is not perfect until they have been weighed, counted or measured;
but the buyer may demand the delivery of them or damages according to circumstances.”
“Lorsque des choses mobilires sont vendues au poids, an compte ou a la mesure, et
non en bloc, la vente n’est parfaite que lorsqu’elles ont 6t- pes~es, compt~es ou mesures;
mais l’acheteur peut en demander la d~livrance ou des dommages-ntr~ts, suivant les
circonstances.”
3 The French expression will be used throughout in preference to the English transla-
tion “in the lump”.
McGILL LAW JOURNAL
[Vol. I
in the language of the civil code, uncertain or indeterminate. 4 The sale is
unquestionably one en bloc when a specific lot of fungible goods is sold for a
lump sum. The difficulty is presented by a third case: the sale of a specific
lot of goods, not for a lump sum, but for a price which is estimated at so
much per unit. It is necessary to weigh, count or measure the goods in this
case, not to determine the thing sold, but to ascertain the total price. The
time at which property and risk will pass to the buyer in such a sale depends on
whether it is a sale by measure or one en bloc.
It is the purpose of the present article to examine the answer which the
Quebec courts have given to this question, and then to pass to a brief con-
sideration of the rules which govern the transfer of property and risk in sales
by measure.
II.
The distinctive character which the civil law problem of sale en bloc has
assumed in Quebec derives in part from the necessity of reconciling several
articles in the code: the general provisions in the title of Obligations as to
when ownership is transferred in contracts for the alienation of things, both
certain and uncertain, and the particular provisions in the title of Sale.,
The general rules are found in articles 1025, 1026 and 1027 C.C. The
alienation of a thing certain’and determinate makes the purchaser owner of
it by the consent of the parties, without the necessity of delivery.0 On the
other hand, if the thing to be delivered is uncertain or indeterminate, the
creditor does not become owner of it until it is made certain and determinate
and he has been legally notified that it is so.7 Where a person has obliged
himself to two persons t6 deliver to each of them a thing which is purely
moveable property, that one of the two which has been put in actual posses-
sion…is preferred and remains owner of the thing although his t-l
be
posterior in date, provided, however, that his possession is in good faith.8
Articles 1472 and 1474 C.C. in the title of sale do not speak of the transfer
of ownership as such, but of the perfection of the sale. The general rule is that
the sale is perfected by the consent alone of the parties, although the thing
sold is not then delivered. 9 When, however, things moveable are sold by
weight, number or measure, and not in the lump, (en bloc), the sale is not
perfect until they have been weighed, counted or measured; although the
4Art. 1026 C.C.
5Art. 1138 of the French code- does not present quite the same problem in relation to
arts. 1583, 1585 and 1586. There is no French article corresponding to article 1026 of the
,Quebec code.
GArt 1025 C.C.
7Art. 1026 C.C.
SArt. 1027 C.C.
9Art. 1472 C.C.
1954-55]
TRANSFER OF PROPERTY
buyer may demand the delivery of them or damages according to the
circumstances.’ 0
The transfer of risk in Quebec civil law takes place, in the absence of
agreement or usage to the contrary, at the same time as the transfer of
ownership. The maxim res perit domino is thus applicable to the contract of
sale in Quebec. This is nowhere explicit in the code, but it is clearly to be
inferred from the title of obligations where the question of risk is dealt with.
There, it is provided that when the certain specific thing which is the object
of an obligation perishes, or the delivery of it becomes from any other cause
impossible, without any act or fault of the debtor, and before he is in default,
the obligation is extinguished.” It is also extinguished although the debtor is
in default, if the thing would equally have perished in the possession of the
creditor, unless in either of the above mentioned cases the debtor has expressly
bound himself for fortuitous events. 1 2 Similarly, it is provided that the debtor
of a certain specific thing is discharged by the delivery of the thing in the
condition in which it is at the time of the delivery, provided that the deterior-
ation in the thing has not been caused by any act or fault for which he is
responsible, and that previously to the deterioration he was not in default.’ 3
Until delivery the debtor is obliged to keep the thing with the care of a prudent
administrator (bon p re de fanzille) .4
That the codifiers were adopting the principle of res perit domino is clearly
indicated, moreover, by their comments on article 1474 C.C., where they
show themselves anxious to avoid any mistaken separation of ownership and
risk such as certain French authors were led to advocate in sales by measure
as a result of the peculiar wording of article 1585 CN. 15 This particular
passage in the codifiers’ report has had an important bearing on the discus-
sion of what constitutes a sale en bloc. This question will now be examined
in some detail.
III.
The problem of sale en bloc, or the transfer of ownership in a specific lot of
merchandise which is sold, not for a lump sum, but at so much per unit of
weight, count or measure, is surely one of the most interesting in the field of
comparative law. It illustrates in English law the operation of stare decisis on
1OArt. 1474 C.C.
11Art. 1200 C.C.
l2Ibid.
13Art. 1150 C.C. See also art. 1087 C.C.
14Art. 1064 C.C.
15Art. 1585 C.N.: “Lorsque des marchandises ne sont pas vendues en bloc, mais au
poids, au compte ou i la mesure, la vente n’est point parfaite, en ce sens que les choses
vendues sont aux risques du vendeur jusqu’3 ce qu’elles soient pes6es, compt6es ou mesu-
ries; mais l’acheteur pent en demander ou la d~livrance ou des dommages-intr~ts, s’il
y a lieu, en cas d’inexcu+’on de l’engagement.”
McGILL LAW JOURNAL
[Vol. 1
the early reception of an imperfectly digested civil law rule; in the law of
France and Quebec, the eventual abandonment of that rule by the courts
because a satisfactory rationale, grounded in principle rather than mere weight
of authority, could not be found for it. While the change in the French
jurisprudence seems to have attracted little or no attention in the common
law world, it has had a decisive influence in Quebec.
In Quebec until 1923, although the jurisprudence was by no means
uniform, 16 the weight of judicial opinion was that such a sale did not transfer
ownership until the goods had .been weighed, counted, or measured and the
total price ascertained.’ 7 This view rested on an assumption –
drawn from
that the expression “vente en
the codifiers’ comments on article 147418 –
bloc” was to be interpreted by reference to Pothier 19 and authors like Trop-
long2 and Marcad621 who had adopted his definition of the sale per aversionem
as one “en bloc pour un seul et m8me prix,” and like, him, treated the sale
of a specific lot of merchandise at so much a unit as a sale by measure.
This assumption was seriously challenged for the first time in 1923 by the
decision of the Quebec Court of Appeal in what has since become the leading
case of Cohen v. Bonnier.2 2 It was held by the majority of the court, with
two judges dissenting, that ownership had passed at the time of the contract
in a specific lot of scrap iron sold at so much a ton, although the iron had
still to be weighed to determine its total price.
Dorion J., who delivered the principal opinion of the majority, denied that
there was any warrant in the report of the codifiers for applying Pothier’s
16 E.g., Brozvn v. Lauzon (1905), 28 Que. S.C. 10; (1906), 30 Que. S.C. 178.
. THurley v. Gamache (1919), 25 R.L. n.s. 432; Benoit v. Dienlefet et Messier (1919),
57 Que. S.C. 354.
18Cod. Rep. v. 2, p. 8: “Article 3 (1474)
follows article 1585 C.N., except that it
–
omits the words ‘in the sense that the things sold are at the risk of the ‘seller.’
This qualification of the rule declared in the article has occasioned much doubt and
conflict of opinion among the commentators. On the ‘one hand it has been contended
that the declaration that the sale of things to be weighed, measured or counted is not
perfect until this has been done was limited by the expression alluded to, simply to the
effect of continuing the risk of the thing in the seller –
but that the property passed
nevertheless to the buyer. On the other hand this expression is held not to limit the
general enunciation of the rule, but to be merely illustrative of it, –
and accordingly
that the sale passes no property and is in no sense perfect until the weighing, measuring
or counting has taken place. – This is the opinion of Troplong, Marcad6 and others,
and seems to have been the intention of the authors of the article as reported by Fenet.
– The Commissioners have adopted this view, which is indeed in harmony with Pothier’s
expression of the rule, and they have in consequence omitted the qualifying words cited,
in order to avoid any ambiguity upon the subject.”
19 Vente, Nos. 308, 309.
2 0 Vente, No. 90.
2 1EXPLICATION TH 0RIQUE ET PPATI.QUE DU CODE NAPOLMON, Vol. 6, p. 150 et seq.
22(1924), 36 Que. K.B. 1. For decision of Superior Court see (1922-23), 3 C.B.R.
241, 70 D.L.R. 85.
1954-551
TRANSFER OF PROPERTY
definition of the sale per aversionem2s to the interpretation of article 1474 C.C.
In his opinion, the codifiers’ comments on this article did not touch on the
question of sale en bloc; their references to Pothier, Troplong and Marcad6
dealt with quite another matter. The question which the court had to decide
was answered to his satisfaction by the text of the code itself. It was plainly
stated in article 1025 C.C. that ownership in a thing certain and determinate,
such as a specific lot of merchandise which is materially distinct from any
other, passed by consent alone. Article 1474 C.C. which merely contained the
particular rule applicable to the contract of sale, had to be reconciled with
this general provision. Why introduce the qualification for “vente en bloc”
into article 1474 C.C. at all, unless it were contemplated that weighing,
counting or measuring would at some point be necessary, which is not -the
case if the total price has already been determined?
At one point it was even said by Dorion J. that the qualification in article
1474 was conjunctive rather than disjunctive; a sale could be by measure and
en bloc at the same time.2 4 (The sale en bloc in such a case would be a special
kind of sale by measure, one in which measurement would be necessary to de-
termine the price, but not the thing sold.) This view has no grammatical found-
ation, for the phrase “and not in the lump” appears in both the English and
French versions as a non-restrictive modifier set off by commas. Nor is it con-
sistent with the earlier definitions by Dorion J. of the sale by measure and the
sale en bloc as separate and mutually exclusive things. “La vente a la mesure
c’est la vente de tant de mesures A tant la mesure : et c’est la mesure qui r~gle
toute ]a vente. La vente en bloc c’est la vente de tout pour le prix du tout,
m~me si ce prix doit 6tre calcul6 d’apr~s la quantit6.”
Though perhaps not essential to his conclusion, this particular argument
of Dorion J. forms part of the general attempt to demonstrate that there is
no significant difference between the texts of the Quebec and French codes
which would justify a difference in the jurisprudence of the two systems on
the question of sale en bloc. For after concluding that the Quebec codifiers
offer no guidance on the question and that it is one to be determined solely
by reference to the text of the code, Dorion J. is finally influenced to take the
position he does by the fact that it is the one which the French courts theni-
selves adopted after a long period in which Pothier’s definition was dominant.2 5
The argument from article 1474 that a sale can be both by measure and en
bloc is frankly designed to meet a possible objection to following the French
23The expression, as used ii Roman law, is usually translated “for a lump sum”.
24(1924), 36 Que. K.B. 1, 10.
25Dijon, 13 dcembre 1867, S. 68.2.311; Cass-Req. 18 mars 1902, S. 1902.1.519;
Lyon, ler juillet 1931. S. 1932.2.42; AuBRY ET RAu (6th ed.) vol. 5, p. 21, note (39-2) ;
COLIN & CAPITANT, COURS fLtMENTAIRES DE DROIT CIVIL FRANgAIs (10th ed.) vol. 2, No.
837 II; PLANIOL & RIPET, TRAITt PRATIQUE DE DROIT CIVIL FRANC.AIS (1932) Vol. 10, No.
299.
McGILL LAW IOURNAL
[Vol. I
decisions based on the fact that in addition to article 1585 C.N. which cor-
responds to article 1474 in Quebec, the French code contains an article 1586
which reads: “Si au contraire, les marchafdises ont 6t6 vendues en bloc, la
vente est parfaite, quoique les marchandises n’aient pas encore U6 pesges,
compt~es ou mesur~es.”26
There was a strong dissenting judgment in the Cohen case by Lafontaine
C.J. He took a different view of the facts, holding that the sale was not one
of a certain and determinate thing.2 7 His long opinion on the meaning of sale
en bloc is of interest, however, because once again it is based on the assump-
tion that the codifiers’ comments on article 1474 C.C. call for the application
of Pothier’s definition. It is, therefore, necessary to consider this disputed
passage in the codifiers’ report.2 8
On the face of it, the codifiers had but one purpose in the passage of their
report which deals with article 1474 C.C. and that was to explain and justify
the omission of the words “en ce sens que les choses vendues sont aux risques
du vendeur jusqu’A ce qu’elles soient pes~es, compt~es ou mesur~es,” found
in the corresponding article 1585 of the French Code. These words had given
rise to much difference of opinion in France and had led some to argue that
even in a sale by measure, ownership passed to the buyer at the time of the
contract, although risk remained with the seller until the goods were weighed,
counted or measured. 29 Our codifiers express themselves in favour of the
contrary opinion, that “the sale passes no property and is in no sense perfect
until the weighing, measuring or counting has taken place.” This, they say, is
the opinion of Troplong, Marcad6 and others, and it is “in harmony with
Pothier’s expression of the rule.”
The reference to Pothier is at first sight puzzling, because of course when
he wrote, a perfect sale did not have the effect of transferring ownership
without further formality, although it did transfer risk. It
is, therefore,
difficult to see how any “rule” which he expressed can have a direct bearing
on the controversy raised in France by the peculiar wording of article 1585
C.N., unless it be his repeated emphasis that as long as the goods sold must
26Italics are the author’s.
27This was the view taken in the Superior Court (see note 22, supra) on the ground
that the agreement stated, “The entire lot of scrap is 350 tons.” This was held to mean
that the intention was to purchase 350 tons and no more. The majority in the Court
of Appeal seem to have attached no particular significance to this statement. They
declared the appellant to be the owner of the entire lot of scrap and to have the right
to delivery of the excess over 350 tons upon payment of the additional price.
28See note 18, supra.
29For a list of these authors see MARcADf, op. cit. pp. 151-153. See also LAURENT, VOl.
24. Nos. 136 et seq; Colmet de Santerre, Vol. VII, p. 11. No. 7, bis II; MOYLE,
CONTRACT OF SALE IN THE CIVIL LAW, (Oxford 1892), p. 85; note to Dijon, 13 d6-
cembre 1867, S. 68.3.311; Valery, note to Aix, 11 juin 1908, D. 1910.2.305; note to
Lyon, ler juillet 1931, S. 1932.2.42.
1954-55]
TRANSFER OF PROPERTY
be weighed, counted or measured, the sale “n’est point parfaite.”30 The passage
in which he discusses the requirements of a perfect sale does, on the other
hand, contain a very clear expression of the rule that the sale of goods
estimated by weight, number or measure is not perfect until not only the thing
sold but the total price has been made certain and determinate. Is this the
“rule” to which the codifiers refer?
However that may be, it is important to realize that there was in France
at the time of Troplong and Marcad6 a difference of opinion, not only as to
whether ownership was separable from risk in sales by measure, but as to
whether the sale of a certain lot of merchandise at so much per unit of weight,
count or measure was a sale en bloc; and a closer examination of the first
question suggests that it was not altogether unrelated to the second one, at
least in the minds of certain authors. Duvergier,31 one of those who contended
on the basis of the wording of article 1585 C.N. that ownership passed at the
time of the contract, although risk remained with the seller until the goods
were measured, seems to have confined this opinion precisely to the sale of a
certain, determinate lot of merchandise at so much per unit of weight, number
or measure. Indeed, it is difficult to understand how anyone could have
seriously argued that ownership could pass in unascertained goods, although
the separation of ownership and risk also seems to have been applied to
what certain authors have called a genus limitatum, –
the sale of a certain
quantity only in a specific lot of merchandise. 32
It may, therefore, be reasonable to assume that in their consideration of
article 1585 of the French Code, there was present to the minds of our
codifiers the difference of opinion which existed even in the time of Troplong
and Marcad6, and was fully ripened when the code was drafted, as to what
constituted a sale en bloc; and hence to argue that by adopting the opinion of
these authors, the codifiers must be understood to have rejected the suggestion
that even ownership should pass in the sale of a certain lot of fungible goods
before they have been weighed, counted or measured.
Whether this is a plausible inference or not, it is at least significant that
while citing Troplong and Marcad6 in connection with the separation of
ownership and risk, the codifiers did not see fit to make any reference to the
question of sale en bloc, although both these authors express very decided
opinions in favour of Pothier’s definition of such a sale after a full review of
the authorities for and against it. It should be pointed out, however, that in
addition to citing Troplong and Marcad6 to support their conclusion on the
question of ownership and risk, the codifiers rely as well on Fenet. There
Treilhard is reported to have said during the discussions in the Conseil d’Etat
that article 1585 C.N., as originally proposed, was not sufficiently precise,
3OVente, No. 308.
311 Vente, Nos. 83, 90; Cf. GUILLOUARD, Vente I, No. 29.
32 DURANTON, Vol. 16, No. 92. Cf. LAURENT, Vol. 24, No. 139.
McGILL LAW JOURNAL
[Vol. I
“car, si l’on ach~te tout ce qui se trouve dans un magasin A raison de tant la
mesure, il ne reste d’incertitude que sur la quotit6; la chose et le prix sont
d6termin6s.’ 33 It is this remark, apparently, which caused an express exception
to be made in article 1585 C.N. for the sale en bloc. Moreover, in the list of
authorities consulted by the codifiers34 and cited under article 1474 C.C.
itself, as distinct from the passage of comment in their report, the specific
reference to Troplong, unlike that to Pothier (and possibly Marcad6) is not
to a section in which the sale en bloc is discussed.
In so far, therefore, as the report of the codifiers is concerned, the evidence
can hardly be said to be conclusive for either side of the controversy, although
it is probably fair to ay that the weight rather tends towards those who claim
that Pothier should be our guide on this question. There is at least a strong
presumption that the codifiers did not intend to make any change in the law.
Reference to the codifiers, however, presupposes that the text of the code
is not clear. This was denied by Dorion J. in Cohen v. Bonnier, and the pre-
vailing view today is succinctly summed up by his statement: “Nous ne
croyons pas qu’un texte de Pothier puisse l’emporter sur le texte du code
civil.” The argument is that while the code does not define what it means by
sale en bloc, and it is necessary to look elsewhere for a definition, the definition
must be one which accords with the other provisions of the code concerning
the transfer of property. As the majority in Cohen v. Bonnier see it, the
problem is how to reconcile an interpretation of article 1474 C.C. which is
based on Pothier’s definition of the sale en bloc with article 1025 C.C. which
provides that ownership in a thing certain and determinate passes by consent
alone.
The exponents of Pothier’s view are obliged, it would seem, to argue that
they cannot be reconciled except by recognizing that article 1474 C.C. contains,
for the case of sale, a qualification of the general principle in 1025. Article
1474 C.C. is concerned not merely with the determination of the thing sold,
but with what is called the “perfection” of the sale. The sale of a thing un-
certain or indeterminate is not exactly synonymous with a sale by weight,
number or measure. They are not co-extensive expressions. A sale by weight,
number or measure is one in which weighing, counting or measuring is in any
way to determine the perfection of the sale by perfecting or completing the
essential obligations of the parties to it: the seller’s obligation to deliver the
thing sold; the buyer’s obligation to pay the price. This is only achieved by
rendering the objects of such obligations, thing and price, certain and de-
terminate. And it is only the perfect sale in this sense which passes ownership
and risk.
3 3 FENET, VOI. XIV, p. 21.
34L. 8, De periculo et comm. rei venditae; L. 35.5, De. contr. erupt. –
POrHIER, Vente,
No. 308; MARCADA, vol. VI, p. 149. TROPLONG, Vente, Nos. 86, 87; 14 FENET, pp. 4, 21,
85, 153, 182, 183; C.N. 1585.
1954-55]
TRANSFER OF PROPERTY
Thus the sale of a specific lot of merchandise at so much per unit of weight,
number or measure is the sale of a thing certain and determinate (unless one
is prepared to argue, as some have done, that the thing is not “determinate”
until its quantity or “importance” is known),5 but it is at the same time a sale
by weight, number or measure. It is precisely because a sale of fungibles –
unlike a gift, for example –
is imperfect until not merely the object to be
transferred but the total price has been made certain and determinate that
there is any need at all for an article 1474 C.C. to complete the general rules
of 1025 and 1026 C.C. Article 1474 C.C. is a provision applying to fungible
goods whether they be specific or unascertained.
Various attempts have been made to discover and formulate the principle
underlying Pothier’s rule, but none of them, judging by the measure of dis-
agreement, has been entirely satisfactory. In any approach to an under-
standing of the rule it is important to treat the expression “perfect sale”
with some caution. It is necessary to make three essential distinctions. First,
there is the formation of the agreement to sell, or what the common law
calls an “executory agreement”, a contract giving rise to obligations, but not
of itself transferring property. For this “imperfect” sale to have binding
effect, it is only necessary that the price be ascertainable.3 6 Then there is the
sense in which the word “perfect” is used to state that a sale produces its
principle effect, the transfer of property. (The word “sale”
itself is fre-
quently used in this sense, to denote not so much the contract or agreement
as the transfer of property pure and simple.) And indeed, it would seem that
this is the sense in which “perfected” and “perfect” are used in articles 1472
and 1474 of the Quebec code. Finally, the word “perfect” is used, as it is
by the Romans and Pothier to characterize the contract which produces
this effect.
The Roman law, from which Pothier drew his rule, appears to have treated
the sale of a specific lot of goods for a price which is estimated at so much per
unit of weight, count or measure as a conditional sale.37 This is the view taken
by such French commentators as Domat,38 Troplong,3 9 and Pardessus.4 By
fixing the unit price only the parties are presumed to have made the perfection
of the sale subject to the suspensive condition of measurement by which the
total price is to be ascertained. Troplong 4′ goes further: in his view the parties
have agreed that it is to be a sale, not of the mass of goods which existed at
the time of the contract, but of each unit which is actually measured out
from the mass as it exists at the time of measurement, after shrinkage and
3 5 TROPLONG, Vente, No. 90: MARCADL, vol. 6, p. 151; Huc, vol. 10, No. 19.
36Beaudoin v. Rodrigue [1952] Que. K.B. 83.
‘7D. 18. 1.35.5. ZULuETA, The Roman Law of Sale (1945), p. 32.
381 Vente, II, 4, art. 7.
3 9Vente, No. 90.
4ODRorr COmImERCrAL, No. 292.
41Vente, No. 90.
McGILL LAW JOURNAL
[Vol. 1
other changes which may have taken place in the interval. The thing to be sold
is not truly certain and determinate before measurement has taken place.
There is a suggestion of this view in the Roman texts. 42
Whether or not one is prepared to go as far as Troplong, the view which
treats the sale as being a conditional one in the general sense expressed
above has the merit of relating the problem to the intention of the parties
rather than confusing it with formation or validity of contract. 43 The state-
ment that a perfect sale requires a price that is certain and determinate has
caused a good deal of argument at cross-purposes.44 The value of the term
“conditional,” as employed by Troplong and others, has been largely obscured,
however, by the confusion with which other authors have surrounded it in
their insistence on a separation of ownership and risk.45 Duvergier, who is one
of those holding that ownership, as distinct from risk, passes at the time of
contract, even though the total price has still to be determined, admits never-
theless that it is illogical to base this assertion on the view that the sale is
subject to a suspensive condition. 46 The effect of such a condition is to postpone
the transfer of ownership. Unfortunately, he is less convincing as to the basis
on which he allows ownership to pass while leaving risk with the seller.
In his use of the term “perfect” Pothier seems to be referring to the
character of the obligations at a given time. Risk (and since his time,
property) should not be transferred to the buyer until his obligation to pay
the price is perfect or complete, that is, until the object of that obligation
is made certain and determinate. By what logic or equity should a man be
burdened with a risk of which he does not know the extent? By what reasoning
should a seller have an action for the price before the buyer is obliged to pay
it? The buyer cannot be obliged to pay it before it has been ascertained,
according to the intention of the parties. It is not ascertained and the parties
are not in agreement as to what the risk is before the specific lot of goods
has been weighed, counted or measured, unless the quantity of the goods
and the total price have been estimated subject to correction by subsequent
measurement. In the latter case there is a sale per aversionem after Pothier’s
42D. 18.1.35.5: “Sabinus et Cassius tunc perfici emptionem existimant, cum adnu-
merata admensa adpensave sint, quia venditio quasi sub bac condicione videtur fieri, ut in
singulos metretas aut in singulos modios quos quasve admensus eris, aut in singulas
libras quas adpenderis, aut in singula corpora quae adnumeraveris.” D. 18.6.8: ” .
. . et
si id quod venierit appareat, quid quale quantum sit, sit et pretium et pure venit, perfecta
est emptio . . .”
4 3BAUDRY-LACANTINERIE ET SAIGNAT, Vente, No. 150; Huc, vol. 10, No. 17.
44Valery, note to Aix, 11 juin 1908, D. 1910.2.305. Cf. Dijon, 13 dic. 1867, S.
68.2.311: ” . . . le prix de la vente quoique non encore connu exactement, est certain
dans ses 6lments et doit r6sulter d’un simple calcul dont les bases sont immuablenient
fixies; que c’est la ce qui constitue le prix certain …
” See BLACKBURN, TREATISE ON
THE EFFECT OF THE CONTRACT OF SALE, (3rd ed. 1910) pp. 186, 265.
45See note 29, supra.
461 Vente, Nos. 82, 83, Cf. MIGNAULT, LE DROIT c(im. CANADIEN, Vol. 7, p. 20.
1954-55]
TRANSFER OF PROPERTY
own example.47 The parties have agreed on a price which shall determine
the buyer’s obligation in the event the goods are destroyed before they have
been finally weighed, counted or measured.
The fact that such a sale is made subject to the right of subsequent adjust-
ment in the price, should final measurement disclose the need,48 is perhaps
an answer to the argument of Dorion J. in Cohen v. Bonnier that it should
not be necessary to make any qualification for the sale en bloc in article 1474
C.C. if by that expression is understood a sale in which the total price is
fixed. It is this ultimate measurement, or verification, required despite the
estimate of total price that makes even the wording of article 1586 C.N.
reconciliable with Pothier’s rule. The sale en bloc can be one in which
weighing, counting or measuring is necessary for some purpose, but it is not
one in which these operations are necessary for the perfection of the sale.
The law is satisfied so long as the parties have shown an intention to transfer
risk immediately by estimating the total price.49 These are but inferences
drawn from Pothier’s remarks in an attempt to state the basis on which the
case for his view must be made. For while it may be permissible to argue
that article 1474 C.C. contains a qualification of the rule in 1025 C.C., there
must be an inner logic and consistency to article 1474 C.C. itself.
As with the remarks of the codifiers, so then with the text of the code:
neither side can claim that the evidence points conclusively to its own view.
Putting aside the argument of the last paragraph, –
if, as Dorion J. contended,
there is no need for the qualification in article 1474 when Pothier’s rule is
applied, it is equally true to say that the entire article is made unnecessary
by the court of appeal’s interpretation. Sales by measure are then fully
covered by article 1026 C.C. as sales of uncertain or indeterminate things.
What are the issues of policy and commercial convenience which should
influence the choice of a solution to this problem? Most of the authors writing
since the promulgation of the French code in support of Pothier’s rule have
emphasized the impossibility of determining the total price of the goods in
the event that they are destroyed before being weighed, counted or measured. 0
Others, while conceding the practical difficulty of proof, have insisted thai
47Vente, No. 309.
48This point, however, is not undisputed. See discussion by MARCADt, Vol. 6, p. 151;
TROPLONG, I Vente, No. 92; Huc, Vol. 10, No. 18; DUVERGIER, I Vente, No. 91;
PARDEssus, DROIT COMmERcIAL, No. 292. Cf. Arts. 1501-1503 C.C.
49Bertrand v. Blouin & Drouin & Deserres (1907), 32 Que. S.C. 396; La Compagnie
A Bois Bidard v. The Eaglc Lumber Company (1923), 35 Que. K.B. 483. BENJAMIN ON
SALE (8th ed. 1950) p. 310; Logan v. Le Mesurier (1847),
6 Moore’s P.C. 116;
Martineau et al v. Kitching (1872), 7 Q.B. 436.
5 0 Huc, Vol. 10, No. 17; BEAUDRY-LACANTINERIE ET SAIGNAT, op. cit., No. 148;
PLANIOL, (7th ed.), Vol. 62, No. 1363; LAURENT, Vol. XXIV, No. 139; LYoN-CAEN ET
RENAULT, TRArri- DE DROIT cOmMERcIAL, (5th ed.), Vol. 3, No. 132. This point is also
stressed by a Louisiana commentator, C. F. B. (1929-30), 4 Tulane Law Review 149.
See also in Quebec, “Lex”. (1924), 2 Revue du Droit 265.
McGILL LAW JOURNAL
[Vol. I
it is not a sufficient reason for suspending the operation of the fundamental
principle according to which property and risk in a thing certain and de-
terminate pass by consent alone. The difficulty, they say, must be left to the
rules of evidence.51 The principle that risk should not pass until the parties
are agreed upon it according to the manner provided in their contract would
seem a stronger basis for criticism than the practical difficulty of proof.
Favouring the rule of the modem jurisprudence there is what seems to be a
more important consideration: the kind of right which the buyer is to have
in the event the seller goes bankrupt before the goods have been weighed,
counted or measured. It has been held in Quebec that where ownership has
not passed, the buyer does not have the right to demand delivery from the
seller’s trustee in bankruptcy, but has only a claim for damages, ranking
as an ordinary creditor.52 The trustee cannot be forced to execute the seller’s
contract, for that would be a payment. On the other hand, of course, if the
buyer had a jus in re and not a mere jus ad ren he could revendicate the
goods as owner.5 3 The distinction may not amount to much when the goods
are still in the possession of the seller and he is solvent. Then the buyer has
the right to demand delivery and, if necessary, to have the goods weighed,
counted or measured in the seller’s default; it is not a jus in re but it can be
converted into one. But as the issue arises most often when the seller is in
bankruptcy, it is not to be wondered that authors who could not contemplate
a transfer of risk before the extent of it had been established in the manner
prescribed by the parties should have tried so hard to justify a separation of
ownership and risk.54 We seem to have a case for
rvhich the maxim res pett
domino does not provide a very satisfactory answer.
If it were logically defensible in the present cbntext of the law, a separation
of ownership and risk would certainlyprovide a solution for the sale of a
specific lot of merchandise at so much per unit of weight, count or measure.
Indeed, there is a note of reservation in the judgment of”Rivard J., one of
the judges making up the majority in Cohen v. Bonnier, which suggests that
he might have had such a distinction in mind. “Sous l’empire de notre article
1474 C.C.,” he declares, “lorsqu’il s’agit simplement de savoir si la propri6t6
a 6t6 transferee, il doit suffire, pour parfaire la vente en bloc, que le prix de
l’unit6 de mesure ait 6t6 fix6.” 55 But such a distinction is clearly excluded by
the codifiers’ comments on article 1474 C.C. Moreover, –
and this is a further
argument from the text of the code in favour of the majority’s opinion in the
5’Guin.ouARD, I Vente, No. 30; PLANIOL ET RiPERT, (1932) Vol. 10, No. 300. For the
same opinion at common law see Martineau v. Kitchling (1872), 7 Q.B. 436, at 456-457;
Cf. WILLISTON, O CONTRACrs, Vol. 4, No. 950, note 6.
52Villeneuve v. Kenit (1892), 1 Q.B. 136; Curtis v. Millier (1898), 7 Q.B. 415. Cf.
In re Tardif Ex parte Boulanger (1922-23), 3 C.B.R. 169 (S.C.)
5 3DuRANT N, Vol. 16, No. 92.
54See note 29, supra.
55(1924), 36 Que. K.B. 1, at 15.
1954-551
TRANSFER OF PROPERTY
Cohen case –
it runs counter to article 1200 C.C., which provides that when
the certain, specific thing which is the object of an obligation perishes, or the
delivery of it becomes from any other cause impossible, without any act or
fault of the debtor and before he is in default, the obligation is extinguished.
Pothier himself clearly meant by this that the loss of the thing should fall on
the buyer.56 How are we to reconcile this with his theory of the sale en bloc?
In all probability the Romans and Pothier felt that the sale of a specific
lot of merchandise at so much per unit of weight, count or measure was a
proper case for attenuation of the much criticised rule of periculum emptoris.
But when ownership, and not merely risk, passes by consent alone, the same
considerations do not apply, at least not with the same force. The balance of
equity, commercial convenience and security are against depriving the buyer
of a right of ownership simply because the seller has not weighed, counted or
measured the goods. The practical difficulty of proof in the case of loss falls,
after all, on the seller.
The decision in Cohen v. Bonnier was followed by the Quebec court of
appeal two years later,57 but once again there was a strong dissent. Allard J.,
taking much the same view as Lafontaine C.J. had taken in the earlier case,
expressed the following opinion of the Cohen holding: “Cette d6cision me
parait renverser toute une jurisprudence solidement 6ablie par une suite
d’arr~ts rendus depuis le code. Elle me semble aussi faire table rase de tous
les principes pos~s dans l’ancien droit particuli~rement dans l’oeuvre de
Pothier, elle me parait faire une distinction oii notre article 1474 n’en fait pas,
elle me parait contraire A l’esprit et au texte de ce dernier article.”58
This was to be the last strong note of protest. The case of Tardif v. Fortier
& Moreau59 and other recent decisions 60 show the new line of jurisprudence to
be firmly established in the provincial courts. As in France, the authors appear
to be divided, but the weight of opinion is clearly against the view taken by the
courts.6 ‘ Writing in 1936, M. Antonio Perrault was still able to say, “La
question reste ouverte”,62 but that is no longer true of the provincial court of
appeal. If the question is to be re-opened it will have to be in the Supreme
Court of Canada.
56Vente, Nos. 56, 279.
57Pelletier v. Tremblay (1925), 39 Que. K.B. 473.
58At p. 482.
59[1946], Que. K.B. 356.
60National Fruit Exchange Inc. v. Greenshields [1946] Que. S.C. 263; Levesque v.
Tremblay [1947] Que. K.B. 684, 687; Beaudoin et Sylvain et I. W. MacDonald Limited
[1953] Que. S.C. 156; Cf. Lauriault v. Levesque et Boisee [1944] Que. S.C. 37, at 39,
40; Simard v. Quebec Veneer Industries Co. Limited [1945] R.L. 203, at 207, 214.
61 MIGNAULT, Vol. 7, p. 20, note 1; LANGELIER, CoUrs DE DRorr CIVIL, Vol. 5, p. 11;
Dorion, (1923), 2 Revue du Droit 116, 317; PERIUEAULT, TRAaTL DE DROIr COMMERCIAL
DE QUkBEC, Vol. 2, c. 3; TRUDEL, TRAIT’k DU DROIT CIVIL DE QUfBEC, Vol. 7, p. 361.
620p. cit., p. 38.
McGILL LAW JOURNAL
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The Supreme Court had an opportunity to decide the question of sale ei
bloc around 1890 in the case of Ross v. Hannan,6 but it was able to avoid the
necessity of doing so. The case involved the sale of 1643 boxes of cheese at
101
/ cents a pound. The buyer “selected, examined and set apart the cheeses,
ordered a large number to be removed from the second floor to the ground
floor and coopered a large number of boxes.” The cheese was to be weighed
later to determine its total price. As far as one can judge from the account
of the facts contained in the reported decisions of all three courts, the case
was definitely one in which the goods to be sold had been made certain and
determinate. At any rate, all but one of the judges appear to have proceeded on
this assumption. It was originally understood that the buyer would take the
cheese away on a Friday, but he asked permission to leave it in the seller’s
warehouse until the Monday. The seller agreed to this. Between Friday and
Monday, before the cheese could be weighed, it was damaged by flood. The
issue was who should bear the loss.
In the Superior Court 4 Torrance J. gave judgment for the seller after
declaring that the problem was not to choose between conflicting French
theories of the sale en bloc, but to discover the intention of the parties in the
particular case. His judgment was reversed in appeal by the Court of Queen’s
Bench6 5 with two judges dissenting. The sale was held to be one by weight
and not en bloc. Pothier’s definition was applied.
The seller’s appeal to the Supreme Court was unanimously dismissed, but
Pothier’s rule was not the common ground of judgment. Of the five judges
who decided the case, Sir Ritchie C.J., Fournier J. and Taschereau J. took the
position that even if one assumed ownership to have passed, the loss should fall
on the seller because he could have prevented the damage had he exercised
the care of a prudent administrator.66 The Chief Justice, however, did not
even agree that the sale was one of a certain and determinate thing, though
this appears to have been a misunderstanding of the facts. Fournier J. declared
that the correct definition of the sale en bloc was the one which was found
in Pothier, Troplong and Marcad6 since these authors had been cited by the
codifiers. Taschereau J. expressed no opinion on this question.
Of the other members of the court, Strong J. agreed that the judgment
of the Court of Queen’s Bench should be affirmed but gave no reasons, and
Patterson J., deciding the case on completely different grounds from those
of his colleagues, had this to say about the question of sale en bloc: “The
authority of Pothier and other writers referred to by the respondent would
certainly put a sale of an entire lot at so much a pound on the same footing
as a sale at so much a pound of so many pounds out of a larger bulk, as
63(1890), 19 S.C.R. 227.
64M.L.R., 2 S.C. 397.
65M.L.R., 6 Q.B. 222.
66Art. 1064 C.C.
1954-55]
TRANSFER OF PROPERTY
opposed to a sale per aversionem or en bloc. I do not find it easy to grasp
the principle on which that doctrine rests, and there may be good ground for
the appellant’s contention against its being accepted as being now the law, but
the present case scarcely calls for a determination of the question.”
The question of sale en bloc has, therefore, still to be dealt with by the
Supreme Court. Today the court would have the larger perspective afforded
by a further half century of doctrinal and judicial examination of the problem.
At the time Ross v. Hannan was decided the change in the French juris-
prudence, by which the Quebec courts have since been- greatly influenced, had
only begun to take place and was hardly apparent.
IV.
Articles 2458 and 2459 of the civil code of Louisiana are English versions,
with only minor variation, of articles 1585 and 1586 C.N., but the courts of
Louisiana appear to have followed Pothier’s rule and to have been unaffected
by the change in the French jurisprudence. 67
The rule which the courts of France and Quebec have rejected has also
managed to survive, albeit in modified form,6 8 in the more protective judicial
atmosphere of the common law, where it has finally been codified in the Sale
of Goods Acts of England69 and the other provinces of Canada.” The rule
was criticized by Blackburn as one which had been “somewhat hastily
adopted from the civil law.’ 1 Indeed, it seems to have lost its doctrinal roots
in transplanting and instead of being defended on Pothier’s grounds as flowing
logically from an objective requirement of the perfect sale, has assumed the
67Goodwyn v. Pritchard 10 La. Ann. 249; Peterkin v. Martin 30 La. Ann. 894; Mil-
liken & Farwell v. American Sugar Refining Co. 143 La. 667; Kohler v. Huth Const.
Co. Inc. 168 La. 827; C.F.B. (1929-30) 4 Tulane Law Review 149; 77 CJ.S. p. 1035;
Williston on Contracts, v. 4, no. 950, note-5; Cf. Saunders, Lectures on the Civil Code of
Louisiana, 1925, p. 472.
68The courts came to adopt the view that the transfer of ownership should only be
suspended when the thing to be done for ascertaining the price was to be done by the
seller. For the progressive formulation of the rule at common law see: Hanson v. .VT’eyer
(1803) 6 East 614; Simmons v. Swift (1826) 5 B & C 857; Gilmour v. Supple (1858)
11 Moore P. C. 551; Turley v. Bates (1863) 2 H. & C. 200; Martineau v. Kitching
(1872) 7 .Q.B. 436. Chalmers’ Sale of C-oods Act, 12 ed. pp. 73-74.
01893, 56 & 57 Vict. ch. 71, s. 18, Rule 3: “Unless a different intention appears, the
following are rules for ascertaining the intention of the parties as to the time at which
the property in the goods is to pass to the buyer … Rule 3. Where there is a contract
for the sale of specific goods in a deliverable state, but the seller is bound to weigh,
measure, test, or do some other act or thing with reference to the goods for the purpose
of ascertaining the price, the property does not pass until such act or thing be done, and
the buyer has notice thereof.” (This rule was omitted from the United States Uniform
Sales Act).
70E.g. Ontario, 1950 R.S.O. c. 345, s. 19, Rule 3.
7 1 0p. cit. p. 185.
McGILL LAW JOURNAL
(Vol. I
form of a rule of interpretation for ascertaining the intention of the parties. 72
The fundamental rule of the Sale of Goods Act is that the property in specific
or ascertained goods is transferred to the buyer “when the parties to the
contract intend it to be transferred” ;7 the civil law posits such transfer as an
effect of what it calls the perfect sale. From a practical point of view, the
distinction is probably of little or no consequence; from the theoretical or
doctrinal point of view, it means that English law has not had to bother with
the civilians’ quarrel as to whether, in this particular case at least, a certain
and determinate price is essential to a sale, as distinct from a mere agreement
to sell. This may well explain the survival of the rule in English law.
It goes without saying, however, that the Quebec courts are just as
concerned to discover the intention of the parties, for the rules concerning the
transfer of property and risk are not rules of public order (although it is in
the very nature of things that ownership cannot be transferred before the
goods have been made certain and determinate.) Ordinarily, in a contract
for the sale of a specific lot of merchandise at so much per unit of weight,
number or measure, property and risk will pass to the buyer when the
contract is made, but the courts will give effect to the clear expression of a
contrary intention. In Logan v. Le Mesurier,74 a Quebec case decided by the
Privy Council before the enactment of the civil code, Lord Brougham laid
bare what was then and still is the common ground shared by the two
systems of law on this question: “The question must always be, what was the
intention of the parties in this respect; and that is, of course, to be collected
from the terms of the contract. If those terms do not show an intention of
immediately passing the property until something is done by the seller, before
delivery of possession, then the sale cannot be deemed perfected, and the
property does not pass until the thing is done. It is unnecessary to go through
the cases relating to these positions. None of them will be found at all to
impugn them. Indeed, taken together, they clearly support it, as does the old
French, and Civil Law.”’75
Today, when there is, in the language of the Sale of Goods Act, “a con-
tract for the sale of specific goods, in a deliverable state, but the seller is
bound to weigh, measure, test, or do some other act or thing with reference
to the goods for the purpose of ascertaining the price”, the presumption
of English law is that the parties did not intend the property to pass before
such thing or act be done; the presumption of Quebec law is that ownership
and risk are to pass when the contract is made.
72Martfineau v. Kitching (1872), 7 Q.B. 436.
73.K Act, s. 17.
74(1847), 6 Moore P.C. 116, at 132-133.
75For French authors emphasizing the intention of the parties as the only rule see
I, No. 91; PAWESSus, DRorr COMMERCIAL, No. 292; DELAMARRE Fr LE
Vol. 4, No. 120. See also Saper~v v. Simon et al, (1909), 15 R.L. n.s. 120 (C.A.)
DUVFRGrEl,
PorrvI,
1954-55]
TRANSFER OF PROPERTY
V.
The time at which ownership and risk will pass in goods which are sold
by weight, number or measure, and not en bloc, will depend, first of all, on
the terms of the particular contract, including frequently the implied terms
of commercial usage. There are few general principles to be drawn from a
study of the reported cases. Lord Brougham’s dictum in Logan v. Le Mesurier
that it is always a question of the intention of the parties to be collected
from the terms of the contract is particularly true of what the common law
calls the appropriation of unascertained goods. The oft-quoted characterization
of the common law on this subject by Cresswell J. in Gilmour v. Supple78
would not be an unfair description of the Quebec cases. “It is impossible,”
he said, “to examine the decisions on this subject without being struck by the
ingenuity with which sellers have contended that the property in goods
contracted for had, or had not, become vested in the buyers, according as it
suited their interest; and buyers, or their representatives, have, with equal
ingenuity, endeavoured to show that they had, or had not, acquired the
property in that for which they contracted; and Judges have not unnaturally
appeared anxious to find reasons for giving a judgment which seemed to
it
them most consistent with natural justice. Under such circumstances,
cannot occasion much surprise if some of the numerous reported decisions
have been made to depend upon very nice and subtle distinctions, and if some
of the mshould not appear altogether reconcileable with each other.”
There are, nevertheless, in the code, the doctrine and the jurisprudence
one or two general rules for the guidance of the courts where the parties have
not determined the question by their own stipulations. According to article
1474 C.C. the sale is not perfect so as to transfer ownership until the goods
have becn weighed, counted or measured. The precise manner in which a
particular kind of goods must be weighed, counted or measured is a matter
for agreement or usage,7 7 subject always to the federal legislation regulating
weights and measures.7 8 Despite the terms of this article, however, it is not
enough simply to make the goods certain and determinate; the buyer will not
become owner until he has been “legally notified” that they are so. This
additional requirement is found in article 1026 C.C., the general provision
governing all contracts for the alienation of things which are uncertain or
indeterminate at the time the contract is made.
Article 1026, which has no counterpart in the French code, was apparently
inspired by a passage in Toullier”9
that criticizes article 1138 C.N. for its
failure to distinguish between certain and uncertain goods and suggests that
73(1858), 11 Moore P.C. 551.
77Joyal v. Beaucage (1921), 59 Que. S.C. 211; Bellavance v. Black Lumber Man-
ufacturing (1929), 35 R.L. n.s. 368; Fugure v. Tremblay (1944), Que. K.B. 673
781952 R.S.C. c. 292.
7 9DROIT CIVIL FRANCAIL, Vol. 7, No. 460.
McGILL LAW JOURNAL
[Vol. 1
it would be made more complete by the addition of a paragraph such as the
following: “Quant aux choses incertaines ou ind6terminfes, le crfancier n’en
devient propri6taire que lorsqu’elles sont devenues certaines, ou lorsque le
dfbiteur les a dfterminfes et lui a valablement fait connaitre sa d6termina-
tion.”
In drafting article 1474 C.C. the Quebec codifiers followed, with certain
modifications to which reference has already been made, the wording of
article 1585 C.N., and they neglected to reproduce the requirement of notice
found in article 1026. Our courts have not, however, attached any particular
significance to this discrepancy “between the two articles, and where the
question of notice has arisen they have taken it for granted that the rule of
1026 applied to the contract of sale.80 The reason for the rule is obvious
enough. The buyer has a right to know when his responsibility as owner
negins; it would be wrong to invest him with the ownership and risk of
property before he is aware of the fact and able to insure the goods or take
other measures which he may consider necessary for his protection.81
The absence of the requirement of notice in article 1474 C.C. and 1585
C.N., and the tendency of the courts when stating the rule governing the
transfer of ownership in sales by measure to use in most cases the terms of
article 1474 alone, is probably explained by the existence of another rule, long
recognized by the doctrine and the jurisprudence. It is the rule that in the
absence of an express agreement or usage to the contrary, the operations by
which unascertained or generic goods are made certain and determinate must
be carried out in the presence of both parties or their representatives. In a
word, the definitive operations by which ownership and risk are to pass must
be, to use the French expression, “des operations contradictoires”.8 2
In the ordinary case envisaged by the doctrine the buyer will, therefore,
necessarily have knowledge of the moment at which ownership and risk
pass. But in practice the selection or determination of the goods is very often
left to one of the parties, usually the seller,8 3 with the buyer reserving his
recourses on arrival. (It will be noted that in the paragraph proposed by
80The King v. Dominion Cartridge Company Ltd. [1923] Ex. C.R. 93; F. A. Rodden
& Co. Limited, Ross, es-qualitg v. Cohn Hall Marx Co. and Bryce and Terminal Ware-
housing Co. Limited (1929), 46 Que. K.B. 42; Levesque v. Tremblay [1947] Que. K.B.
684, 687, 690, 694.
81TRUDEL, op. cit. p. 357.
82GuILOUARD, I Vente, No. 35; BAUDRY-LACANTINERIE ET SAIGNAT, Vol. 17, No. 152;
PLANIOL ET RIPERT, Vol. 10, No. 301; La Compagnie Champoux v. The Brompton Pulp
and Paper Company (1910), 38 Que. S.C. 261; Paradis v. Duclos (1911), 20 Que. K.B.
97; loyal v. Beaucage (1921), 59 Que. S.C. 211; Simard v. Quebec Industries Co.
Limited [1945] R.L. 203, at 210; Beaudoin & Sylvain & I. W. Macdonald Ltd. [1953]
Que. S.C. 156, at 165. Cf. C6t9 v. The James Richardson Company Ltd. (1906), 15 Que.
K.B. 359; Rivard v. Gallichan [1947] R.L. 1, at 3.
831n CotM v. The James Richardson Company Ltd., supra, it was held that the seller
had waived his right to an “operation contradictoire”.
1954-55]
TRANSFER OF PROPERTY
Toullier notice is specified for the case where the debtor, or seller, has made
the determination of the goods.) The parties may agree that ownership
shall not pass until the weight, count, or measurement of the goods has been
verified by the buyer at destination, 4 but a right to inspect the goods on
arrival does not necessarily suspend the transfer of ownership and risk.8 5
As long as the buyer has had actual knowledge of the appropriation of the
goods to the contract it is unimportant how he obtained such knowledge;
the sufficiency of the notice given by the seller will only be in issue when it
is proved that the buyer did not have knowledge in fact.8 6
In sales F.O.B. and C.I.F., where out of necessity the selection and ap-
propriation of the goods is left by a well established usage to the seller,87 the
carrier is the buyer’s agent to receive the notice required by article 1026 C.C.,88
though not, of course, to accept the goods as conforming in point of quantity
or quality to the contract. Ownership will pass, therefore, in the usual sale
F.O.B. or C.I.F. of unascertained goods at the time of 8hipment by operation
of the civil law rules. Independently of ownership, however, the risk of loss or
damage in transit is assumed by the buyer as a matter of contract.8 9 At
84 Paradis v. Duclos (1911), 20 Que. K.B. 97; Braithwaite v. Keddy (1925), 38 Que.
K.B. 404.
85It has been held thdt in a sale F.O.B. when the buyer is not present or represented at
the shipping point or because of the nature of the goods it is impractical to inspect them
there, he has a right to inspect them on arrival: Brownim v. Gagnon (1921), Que. S.C.
102 (C.R.) ; Goudreau v. Standford Ltd. (1923), 61 Que. S.C. 83. Cf. Brace, McKay &
Co. Ltd., v. Shmidt (1921), 31 Que. K.B. 1, at 17. The term “F.O.B.” is defined in the
standard confirmation of sale used in the fruit and vegetable industry as follows: “The
buyer has the right of inspection at destination before the goods are paid for, but only
for the purpose of determining that the produce shipped complied with the terms of
the contract or order at time of shipment, subject to the provision covering suitable
shipping condition. This right of inspection does not convey or imply any right of re-
jection by the buyer because of any loss, damage, deterioration, or change which has
occurred in transit” On the other hand, “F.O.B. Subject Inspection and Acceptance
Arrival” means that -the seller is “to assume all risks of loss or damage in transit not
caused by the buyer who has the right to inspect the goods upon arrival and-to reject
them if upon such inspection they are found not to meet the specifications of the contract
of sale at destination.”
8 GTRUDEL, op. cit. Vol. 2, p. 358.
8 7Vipond v. Montefusco (1917), 26 Que. KB. 490, at 494.
8SF. A. Rodden & Co. Limited, Ross, es-qualitj v. Cohn Hall Marx Co. and Bryce
Terminal Warehousing Co. Limited (1929), 46 Que. IKB. 42. Morin, La Vente C.I.F.
dans notre droit civil, (1945), 5 Revue du Barreau p. 108 at 110.
8 9Stock v. Inglis (1884), 12 Q.B.D. 564. It is doubtful, however, whether the term
F.O.B. by itself is enough to postpone the transfer of risk. It has been held in several
American cases that the mere stipulation of F.O.B. with nothing more did not prevent
risk from passing in specific goods at the time of contract: Washington Electric Cooper-
ative Inc. v. Norry Electric Corp. 193 F. 2d. 412; Sadler Machinery Co. v. Ohio Nat.
Inc. 202 F. 2d. 887. See also the Ontario case of Craig v. Beardmore (1904), 7 O.L.R.
674. Cf. C.J.S. Vol. 77, p. 1084. Revised American Trade Definitions, 1941, Knauth, Ocean
Bills of Lading (4th ed. 1953) p. 342.
McGILL LAW JOURNAL
(Vol. I
common law it is recognized that the risk in such contracts will pass to the
buyer upon shipment even though the transfer of ownership has been post-
poned, 90 and there is no reason in Quebec law why such a separation of
ownership and risk should not be applied where it is clearly the, intention
of the parties. But it has been held by the Quebec courts that the transfer
of ownership in a sale FO.B. of unascertained goods is not suspended by the
mere fact that the seller has the bill of lading made out to his own or his
agent’s order to assure payment or acceptance of the draft before the goods
are released to the buyer. 1 This practice does not create a presumption, as in
the law of England and the other provinces of Canada, that the right of
disposal or-jus dispondendi has been reserved. 92
Where the seller’s obligation is not merely to deliver the goods to a carrier
but to put them down at destination, ownership will not ordinarily pass to
the buyer until he has received them. Such is the case usually where goods are
ordered from a manufacturer and there is no special agreement concerning
ownership and risk. This is true whether one applies the rule of article 1026
C.C.,9 3 or, as may sometimes be the case,94 the transaction can be treated
as a contract “A faire” – what the Romans called a lease and hire of work
per averionem, but which recognized as partaking more of the nature of a sale.
In such a contract where the manufacturer or workman supplies the materials
and the thing is to be perfected and delivered as a whole for a fixed price, the
risk of the thing before delivery is on the workman, according to the principle
of res perit domino.”5
It is difficult to go further in the realm of general principle. Each case
turns on its own facts. Most of the reported cases in Quebec deal with the
sale of lumber or pulpwood, which constitute the basis of the province’s
most important industry. These cases frequently involve not only the applica-
tion of articles 1026 and 1474, but of article 1027, which provides that where
a thing has been sold to two or more persons, that one who has taken pos-
session of it in good faith is deemed to be the owner. When lumber is not sold
en bloc it is often extremely difficult to decide according to the terms of the
contract, the conduct of the parties and all the circumstances of the case, what
operations must be considered definitive for the purpose of transferring
ownership and risk.
90HALsBuRY, vol. 29, pp. 223-224; 226.
91Vipond v. Montefusco (1917), 26 Que. K.B. 490, at 492; Brace McKay & Co. Ltd.
v. Shmidt, (1921), 31 Que. K.B. 1, at 5-6; Eastern Fruit Co. v. Associated Growers of
British Columbia (1933), 55 Que. K.B. 104, at 107-108. Cf. MacGillivray v. Watt (1886)
31 L.C.J. 49, 278.
92Sales of Goods Act, 56 & 57 Vict. c. 71, s. 19 (2).
93The King v. Dominion Cartridge Company Ltd. [1923] Ex. C.R. 93.
94Quyon Milling Company v. Eddy Company (1925), 39 Que. K.B. 341, at 350;
Landry Pulpwood Company Ltd. v. La Banquc Canadienne Nationale [1927] S.C.R. 605,
at 614.
951684 C.C. MIGNAULT, Vol. 7, pp. 401-402.
1954-55]
TRINSFER OF PROPERTY
The fact that cut lumber has been marked or stamped with the purchaser’s
sign has been held to raise a presumption that he is the owner of it 9 6 –
it is
certainly an important circumstance – but it does not always mean that the
7 It may have been
sale is perfect or that the buyer has taken possession .
done simply for purposes of identification to protect the buyer for advances
which he has made to the seller. As a general rule, lumber or pulpwood sold
by description is only made certain and determinate so as to transfer owner-
ship and risk by a measurement and counting after it has been culled and
properly sorted for size, quality and other specifications of the contract.
Until the sorting or triage is complete, and the actual quality contracted for
has been measured and counted out, ownership does not pass. Preliminary
or approximate measurements to verify whether there is sufficient wood to
meet the requirements of the contract, 98 to determine the right to advances,99
pour fins de droit de coupe,100 or other reasons, do not make the goods certain
and determinate. The final measurement must take place at the precise time
and place agreed upon in the contract.10 1
The Quebec cases on the sale of lumber and pulpwood show that while
our law underwent an important change when ownership in a certain and
determinate thing was made to pass by consent alone, in commercial trans-
actions where the sale of unascertained goods predominates, delivery does
in fact still play an important role in determining the issue of ownership and
risk. Technically, there need be no delivery or displacement of the goods for
ownership to pass, so long as they have been made certain and determinate
and the buyer has been legally notified that they are so. But in the absence of
special agreement, the rule is that the goods must be weighed, counted or
measured where they are to be delivered,0 2 and in practice final determin-
ation does not usually take place before the point of delivery, actual or
constructive. Because of the requirement of notice and an “op6ration con-
tradictoire” the courts often have difficulty deciding that ownership has
passed before the buyer is actually put in possession and is conclusively
presumed to have accepted the goods.
403404.
96Dallaire v. Gauthier (1903), 24 Que. S.C. 495; King v. Dupuis 28 S.C.R. 388 at
97Quyon Milling Company Limited v. The E. B. Eddy Company Limited [1926] S.C.R.
194; Landry Pulpwood Company v. Banque Canadienne Nationale [1927] S.C.R. 605;
Bellavance v. Black Lake Lumber Manufacturing Co. (1929), 35 R.L. 368; Cote v.
Brisson (1930), 49 Que. K.B. 117; Simard v. Quebec Veneer Industries Co. Limited
[1945] R.L. 203. Cf. Rivard v. Gallichan [1947] R-L. 1; Gallichan v. Rivard [1947]
R.L. 4; Lauriault v. Levesque & Boisse (1944), Que. S.C. 37.
98Villeneuve v. Kent (1892), 1 Que. Q.B. 136.
09 Curtis v. Millier (1898), 7 Que. Q.B. 415; Thiber.qe v. Lavoie (1908), 15 R. de J.
279.
100Simard v. Quebec Veneer Industries Co. Limited [1945] R.L. 203.
101Loiselle v. Boivin (1910), 16 R. de J. 50.
2o2Joyal v. Beaucage (1921), 59 Que. S.C. 211.