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Bluebook 21st ed.

Daniel E. Murray, Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents, 1962 Wis. L. REV. 93 (1962).

ALWD 7th ed.

Daniel E. Murray, Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents, 1962 Wis. L. Rev. 93 (1962).

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Murray, D. E. (1962). Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents. Wisconsin Law Review, 1962(1), 93-103.

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Ancient Antecedents," Wisconsin Law Review 1962, no. 1 (January 1962): 93-103

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Daniel E. Murray, "Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents" (1962) 1962:1 Wis L Rev 93.

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Daniel E. Murray, 'Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents' (1962) 1962 Wisconsin Law Review 93.

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Ancient Antecedents." Wisconsin Law Review, vol. 1962, no. 1, January 1962, p.
93-103. HeinOnline.

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Daniel E. Murray, 'Sale or Return and Sale on Approval of Goods: Modern Law with
Ancient Antecedents' (1962) 1962 Wis L Rev 93

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Sale Or Return and Sale On Approval
of Goods
Modern Law With Ancient Antecedents
DANIEL E. MuRRAY*

It is a commonplace concept in the Anglo-American law that the

passing of title to goods is governed by the intention of the parties.'
When goods have been sold on "sale or return" or "on approval,"2
certain statutory tests have been developed in order to determine
the time of the passing of title. In England these two terms have
been equated with the result that title passes to the buyer' when
he has signified his approval or acceptance to the vendor, or has
adopted the transaction by acts or by a failure to act. 4 The English
view is that since the property does not pass until acceptance, the
risk of destruction or injury to the goods is borne by the vendor. 5
This acceptance concept has been termed a "suspensive" condition,
since acceptance is a condition precedent to the passage of title
whether it be a sale or return or a sale on approval. 6
In America, a distinction has been drawn between these two
terms. Generally, a sale or return signifies that title passes to the
vendee upon delivery. However, the vendee has an option to re-
turn the chattel and thereby revest title in the vendor.7 When the
*Assistant Professor of Law, Univ. of Miami.
'UNIFORM SALES ACT § 18-19 (hereinafter cited as US.A.); UNIFORM COM-
MEkCIAL CODE §§ 2-326 -327 (hereinafter cited as U.C.C.); SALE OF GOODS ACT
W 17-18 (1893). All references to the UNIFORM COMMERCIAL CODE are to the
1958
2 OFFICIAL TEXT
WITH COMMENTS.
For a terse classification of these provisions and other somewhat similar
provisions in ambiguous contracts, see HAWKLAND, SALES AND BULK SALES UNDER
THE UNIFORM COMMERCIAL CODE 88-90 (1958).
It should he stressed that a sale or return or on approval is a transaction
created by the particular terms of the contract of sale. It has no connection
with the general right conferred by the various sales acts on the vendee to re-
turn the goods when they do not conform with the contract as to quality, etc.
U.S.A. § 69; U.C.C. § 2-326, comment 1; 2 WILLISTON, SALES OF GOODS § 270
(rev. ed. 1948); WHITNEY, THE LAW OF MODERN' COMMERCIAL PRACTICES 740
(1958).
5
SALE OF GOODs AT § 18(4) (1893).
42 WILLISTON, op. cit. supra note 2, § 270; BENJAMIN, SALE OF PERSONAL
PROPERTY 315-21 (8th ed. 1950).
5 BENJAMIN, op. cit. supra note 4, at 321, 398, 1006. This also was the com-
mon law rule. Elphick v. Barnes, 5 C.P.D. 321 (1880) (sale on approval); Heady
v. Tattersail, L.R. 7 Ex. 7 (1871) (sale or return).
eBrown, The Contract of Sale or Return, 17 JURID. REv. 221, 232-33 _(1905).
7VOLD, SALES 382-83 (2d ed. 1959).
 WISCONSIN LAW REVIEW [Vol. 1962

vendee tenders the chattel to the vendor, the vendee then becomes
a bailee under a mutual benefit bailment and is liable only for a
failure to exercise reasonable care.8 Under this arrangement, the
9
original contract of sale is subject to a condition subsequent. When
goods are delivered to the vendee "on approval", "on trial" or "on
satisfaction", the American law follows the English law, with the
result that title does not pass until there has been an actual or an
implied-in-law acceptance. 10 In such a case, the risk of loss falls
upon the vendor until title passes to the vendee, unless the contract
of sale is to the contrary."
The Uniform Commercial Code has made at least two major
changes in the former codification: (1) unless it is agreed otherwise,
in order for the contract to be a sale on approval the goods have to
be delivered "primarily for use' ' 1 2 or "primarily for resale"'1 in
order to be a sale or return. (2) In a sale or return contract an actual
4
return of the chattels by the vendee to the vendor is required' -
5
formerly a tender was sufficient.' In a sale on approval it would
appear that the vendee need only give notice of his election to re-
turn the goods in order to relieve himself of liability. 1 There seems
to be no change in the former rules that in a sale or return the risk
remains on the vendee, while in a sale on approval the risk is borne
7
by the vendor until the vendee accepts the goods.'
Most modern texts on the law of sales pay exiguous attention to
the underlying sources of sales on approval and sales or return. The
discussion seldom mentions any authority prior to the eighteenth
century.'8 It is the view of the author that the present American
law greatly resembles the Roman law and that this resemblance can
be traced through the evolution of the medieval English law into
the present law of England. It is not asserted that the Roman con-
cepts of separating risk from ownership by contract found their
way early into the medieval English law. The English focused their
attention upon possession and traced the risk of loss from that fact
8
Note, 24 So. CAL. L. REV. 125 (1950).
9A "resolutive condition" in the civil law. See ZULUETA, THE ROMAN LAW OF
SALE 59 (1945); MOYLE, THE CONTRACT OF SALE IN THE CIVIL LAW 82 (1892).
10Compare SALE OF GOODSAcT § 18 (4) (1893), with U.S.A. § 19 (3) (2).
U U.S.A. § 22; SALE OF GOODS § 20 (1893).
U.C.C. § 2-326 (1)(a).
IsU.C.C. 2-326 (1) (b).
I- U.C.C. 2-327 (2), comment 4.
U.S.A. § 19 (3).
'. U.C.C. 2-327 (1) (c).
17U.C.C. § 2-327, comment 3; HAWKLAND. op. cit. supra note 2, at 102-03.
5
' See, e.g., GOODEVE, PERSONAL PROPERTY 104 (9th ed. Kersley 1949); BENJA-
MIN, op. cit. supra note 4, at 315-21.
January.] SALE OF GOODS

rather than from contractual or ownership principles. However,

the English law was able to follow the Roman view that a sale
could be made on conditions which had to be complied with before
the contract of sale was completed.
The Roman and early English law agreed that there could not
be a change of ownership until the goods were delivered '(traditio),19
and seemingly it was not until the fifteenth century that the Eng-
lish law recognized that the property in goods could be transferred
by agreement alone.20 The Roman law recognized that a contract
of sale of goods was concluded and the risk passed to the vendee as
soon as the bargain was made, even though there was no delivery
and no payment of all or a portion of the purchase price. Neverthe-
less; this usual rule could be altered. The Institutes provided: "A
sale may be conditional as well as absolute; for example, 'If you
approve the slave Stichus within such a time, you will be the pur-
chaser for so many aurei.' "21 It. would appear obvious' that this
provision was in the form of a condition precedent (suspensive
condition). A better illustration of the difference between condi-
tions precedent and subsequent was furnished in the Digest:
In Mela the following problem is put: suppose that I give you
some mules for trial, to be bought by you, if they give satisfac-
tion, and, if they do not, to be paid for at a daily rate, and sup-
ose that then within the period of trial they are carried off by
rigands, what is your liability? Is it for the price or only for
hire?. Mela says the answer depends on whether the sale was al-
ready complete or was deferred: if complete, the price can be
exacted, if deferred, the hire; but he does not specify by what
action. My [Ulpian's] opinion is that the action ex vendito lies
if the sale was perfect. (Emphasis added.)22
'9 Although the contract was concluded, title did not pass until delivery of
the goods. See LEE, THE ELEMENTS OF ROMAN LAW 310-11 (3d ed. 1952); BucK-
LAND & McNAIR, ROMAN LAW AND COMMON LAW (2d ed. 1952).
However, see the brilliant analysis of Professor Lawson, who suggests that
the property passed between seller and buyer "when the emptio became per-
fecta" in advance of delivery, and that delivery was merely designed to give
possession rather than title. Lawson, The Passing of Property and Risk in Sale
of Goods-A Comparative Study, 65 L.Q. REv. 352, 359, 364-66 (1949). See also
BUCKLAND & McNMR, op. cit. supra at 294.
20
Doige's Case, Y.B. Trin. 20 Hen. 6, f. 34, pl. 4 (1679), in FIFOoT, HISTORY
AND SOURCES OF THE COMMON LAW 349 (1949), per Fortescue, C.J.: "I would
agree that, if I buy a horse from you, now the property in the horse is in me,
and for this you shall have a writ of Debt for the money and I shall have
Detinue for the horse on this bargain." See, for a succinct analysis of this ques-
tion, Milsom, Sale of Goods in the Fifteenth Century, 77 L.Q. REv. 257, 270-72
(1961). See also 3 HoLDswoRTH, A HISTORY OF ENGLISH LAW 353-57, 439 (5th
ed. 1942), and 7 HOLDSWORTH, op. cit. supra, at 507-08.
' INSTITUTas 2.23A, transl. in LEE, op. cit. supra note 19, at 313. See transla-
tion given in ZULUETA, op. cit. supra note 9, at 83.
2DIGaST 19.5.20, transl. in ZULUETA, op. cit. supra note 9, at 139.
96 WISCONSIN LAW REVIEW [Vol. 1962

When the sale was conditioned upon a condition precedent, ap-

parently all risk of destruction was borne by the vendor.23 The
Digest contained two illustrations (in addition to the one above) of
conditions subsequent (resolutive conditions). The first stated that
"[w]here a thing is sold on the terms that, if it be disapproved of,
the sale shall be avoided, it is clear that it is not the contract, but
its defeasance, that is conditional."24 (Emphasis added.) The sec-
ond illustration attempted to delineate the periods of time in which
the option to return could be exercised:
A term in a sale to the effect that, if the thing does not give
satisfaction, it may be returned within a specified time, is val-
id; but if no time has been agreed, the buyer is allowed, within
sixty available days at most, an action in factum for redhibi-
tion. If, however, the agreement is that the thing may be re-
turned at any time, it is, in my [Ulpian's] opinion, valid. 25
It should be noted that the Roman vendee in the absence of any
agreement to the contrary was to exercise his option to return
within a fixed period of time. The Anglo-American rules requiring
that the vendee must exercise his option "within a reasonable
time" 26 or "seasonably"27 would hardly seem to be an improve-
ment.
It would appear that in a contract subject to a condition subse-
quent (a sale or return in today's terms) the risk of complete loss
of the goods was to be borne by the vendor2 s unless there was some
pact to the contrary. This seems peculiar because the sale was
perfecta in that ownership was in the vendee upon the delivery. The
resolutive agreement was not truly a part of the sales contract it-
self, but rather an additional provision which served to abrogate a
"ZULUETA, op. cit. supra note 9, at 59; BUCKLAND, A TEXT BOOK OF ROMAN
LAW 494 (2d ed. 1932).
21DIGEST 18.1.3, transl. in ZULUETA, op. cit. supra note 9, at 87. See transla-
tion given in MACKINTOSH, THE ROMAN LAW OF SALE 13 (1907).
DIGEST 21.1.31, transl. in ZULUETA, op. cit. supra note 9, at 145.
-"U.S.A. § 19(3)(1), 19(2)(b); SALE OF GOODS ACT § 18(4)(b) (1893).
.2 U.C.C. §§ 2-327 (1) (b), 2-327 (2) (a).
BUCKLAND & MCNAIR, op. cit. supra note 19, at 288; BUCKLAND, op. cit. supra
note 23, at 496; ZULUETA, op. cit. supra note 9, at 59.
"[I]t is important to note that they [sale or return and sale on approval]
did not bear to each other or to the contract of sale the close relationship
to which we are now accustomed. Sale on approval was a sale subject to a
condition. On the other hand, sale or return was neither sale, nor a com-
dition of sale, nor an adjected pact of that contract. . . . It may at least be
said negatively that sale or return was not sale. It was generally treated by
Roman Jurists as an innominate contract, akin to, but differing from, each
of the consensual contracts (sale, hiring, gratuitous agency and partner-
ship), and it was therefore enforced by the actio praescriptisverbis." Brown,
supra note 6, at 221-22.
January) SALE OF GOODS

completed transaction. 29 In short, it would appear that the Roman

vendor bore the risk of loss or destruction in sales on approval and
sales or return. This view, based on contract principles, would ap-
pear to be in accord with the modern Anglo-American view, even
though the latter is based upon notions of property.
It is interesting to note that the Uniform Commercial Code has
evidenced a definite departure from the former concentration on
the concept of "title", wherein the risk followed the title. Under
the Code, specific rules detail the incidence of the risk in various
factual situations.30 Unfortunately, section 2-327 (1) (a), dealing
with sales on approval, has continued the use of the phrase "the
risk of loss and the title do not pass to the buyer until acceptance.
(Emphasis added.)
Apparently the Roman vendee's right to reject goods was not
predicated upon good faith unless the contract of sale made it
mandatory. 3' Under the Uniform Commercial Code good faith
would seem to be an implicit requirement. 32 Under the Roman law
any risk of deterioration which occurred while goods were in the
hands of the vendee under conditions precedent or subsequent were
in effect borne by the vendor because of the vendee's right to reject
them.
The first inkling of the infiltration of the Roman law into the
English law on this facet of the law of sales made its appearance in
Glanvill (c. 1187), who obviously used the Institutes33 as a model for
his statement that in a contract of sale, neither party can withdraw
after delivery and the payment of the price "in whole or in part
or at least that something is given and received by way of earnest."''
He immediately qualified this broad statement by stating that
" The drafters of the UNIFORM COMMERCIAL CODE have consciously or uncon-
sciously perpetuated this principle in a different context by stating:
"Any 'or return' terms of a contract for sale is to be treated as a separate
contract for sale within the statute of frauds section of this article (Section
2-201) and as contradicting the sale aspect of the contract within the pro-
visions of this Article on parol or extrinsic evidence (Section 2-202)." U.C.C.
§ 2-326 (4).
Of course, the Roman law did not require that contracts of sale be in writing,
although it would appear that the infiltration of Greek commercial practices
made the use of written contracts very common. BUCKLAND & McNAIR, op. cit.
supra note 19, at 280.
30HAWKLAND, op. cit. supra note 2, at 90-91.
1
3 ZULUETA, op. cit. supra note 9, at 58. See also YARON, SALE OF WINE, ROMAN
LAW OF SALE 71, 75 (Daube ed. 1959).
- U.C.C. § 1-203.
"See note 21 supra.
3GLANVILL, DE LEGIBUS ET CONSUETUDINIBUs REGNI ANGLIAE, bk. X, ch. 14,
pp. 143-44 (Woodbine ed. 1932), transl. in FiFOOT, op. cit. supra note 20, at
234-35. See 2 POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW 208-09 (2d ed.
1952) for the difference between part payment and earnest.
 WISCONSIN LAW%REVIEW [Vol. 196Z
neither party could withdraw, "save for some lawful, and reason-
able cause; and so, if it is agreed between them that either may with-
draw with impunity within a certain time, then-either can thus
withdraw within that time according to the agreement." 85 . '
The text further stated that upon the breach of an express state-
ment as to quality the vendor was obliged to take back the goods,
but this was conditioned upon -the vendee proving that the de-
fects existed. at the time of the sale.: "But it is enough that the thing
was in good condition at..the time of the contract, whatever may
afterwards happen to it." 36 Glanvill was in.doubt, as to the time:
when the complaint had to be. made in. the absence of. any pact. The
reference to the condition.of the-goods at the date of..sale may have
referred solely to breaches of express warranties, or it. may have:in-
cluded also the concept. that 'a vendee could withdraw only because
of defects existing at the time. of. sale. If this interpretation be cor-
rect, then risks of loss or destruction would fall upon the vendee
after delivery unless, perhaps,. the sales agreement provided other-
wise. This postulate Would seem to receive support from Glanvill's
final statement in .this chapter that "[t]he risk of. the thing bought
and sold is generally with him who holds it; unless . otherwise
agreed." 7 Under this theory, the risk was a concomitant of posses-'
sion, unless varied by agreement.
The views of Bracton (c. 1256) were-obviously influenced in part
by the writings of Glanvill on the buying and selling of movables.
It is well known that Bracton viewed the contract of sale as a "real'
rather than a "consensual" concept in the Roman sense that the
property could not be transferred by contract alone; delivery was
required.38 Under Bracton's view, when the contract of sale had
been perfected "both before and after delivery the risk of the thing
bought and sold is generally with him who holds it, unless otherwise
agr6ed at the outset, because in truth a seller who has not yet de-
livered the thing to the buyer is'still the owner of it... ." (Emphasis
added.) 39 It would appear that under this reasoning the risk could
not pass until delivery, since the property (ownership) would not
pass to the vendee until then; Bracton completely identified the
3 GLANVILL, op. cit. supra note 34, transl.. in FIFOOT, op. cit. supra note 20,
at 235.
Ibid.
t
7Ibid.
Is Compare 2 BRACrON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE, f. 62, pp. 182-83
(Woodbine ed: 1922) with id., atf. 100b, p. 287, both transI. in FIFoor, op. cit.
supra note 20, at. 236-38. See Bracton and Azo, 8 SELDEN Soc'Y 157 (1894).
8 2 BRACTON, op. cit. supra note 38, at f. 62b,.pp. 183-85, transl. in. FIFOOT,
op. cit. supra note 20,.:at 238.
Jarnuary] a SALE OF GOODS

risk as passing only as an incidence of ownership. The Roman con-

cept of "splitting" risk from ownership was not adopted even
though the basic principles of the Roman method.of buying and
selling were adopted-a borrowing of the framework without the
refinements,
Bracton illustrated his notion of risk by stating:
Thus, if the man or thing sold should die before delivery, or be
destroyed by fire, or drowned in the river or (in any other way),
partially or totally damaged, whatsoever the reason for the loss,
the risk of it is on the vendor. To the contrary-if, after sale
•but before delivery, the thing sold is improved by-alluvion or.
_any- other form of accretion the value. comes to the vendor on
0
the exchange.
The only way that the early English vendee could vary the risk.
of loss would be to contract "at the outset". that the risk was to re-
main-with. the vendor. This might have some' reltionship to Brac-
tonis views of sales contracts on conditions: "The, purchase-sale
may be pure or on conditions. It is on condition if the .thing. sold
must be delivered Within a certain- number of days, if the price is
to be paid in.gold then on a failure of, the condition restitution
must be made to the purchaser..41 This is an 'extremely limited
view of the risk factor in conditions. According to the previous
statements all risk of loss or destruction would be borne by the
vendor in advance of delivery in any event. It is to be noted that
while Glanville concentrated upon the fact that risk should attach
to the person who "held the goods, Bracton took the next step by
statiiig that the reason that the risk falls on the "holder'. is because
he is the "owner"-a gradual transistion from a physical fact to a
juridical postulate.
By the use of the word "conditions" it would appear that Brac-
ton did not intend to imply that his example was to be the only
appropriate one. For example, the approval of..the buyer could
40 "Ut si homo venditus mortuus fuerit ante traditionem, vel aedes incendio
consumptae, vel fundus vi fluminis in toto vel in parte consumptus vel
'ablatus, et huiusmodi, quibus rationibus videtur quod totum periculum
.pertineat ad venditorem. A .contrario vero videtur quod si post emptionem
ante. traditionen fundo vendito aliquid per alluvionem vel alio modo
accreverit, quod cornmodum ad venditorem pertinebit. Ipsum enim sequi
debent, commoda quem sequuntur incommoda, et commodum eiuss esse
debebit cuius est periculum." 2 BAcroN' op..cit. supra note 38, at f. 62., pp.
" 183,.transl. by the author.
•"Item poterit emptio et venditio contrahi inter aliquos tam sub condi-
cione quam pure. Sub condicione'ita ut si talis res empta intra certum
diem emptori placuerit, sit ei empta aureis tot, et si displicuerit emptori
restituatur." 2 BRACrON, op. cit. supra note 38, at f. 46b, pp. 143-44, transl.
by the author. ,
 WISCONSIN LAW REVIEW [Vol. 1962

perhaps be stipulated as a condition of the sale. This conjecture

may be supported by Fleta's (c. 1290) obvious gloss upon Brac-
ton's statements. Fleta stated:
Again, buying and selling can be contracted between parties
conditionally as well as absolutely. An example of a condition-
al contract is where such-and-such a thing is sold for such-and-
such a number of gold pieces, if it is approved by the buyer
within a stated time, and if it is not approved by the buyer, it
is to be returned. (Emphasis added.)42
Although this statement is not free from ambiguity, it would ap-
pear that Fleta was referring to sales on approval in the modern
sense of a condition precedent. Fortunately, Fleta obviated any
nice questions of interpretation about the shifting of risk by stat-
ing:
When buying and selling are made the subject of a contract,
as aforesaid, the risks attending the thing bought and sold, be-
fore delivery and afterwards, are generally the concern of the
one who has it in his possession unless a different agreement has
been reached from the start, for plainly one who has not yet
delivered the thing to the buyer will still himself be its owner,
as, for example, if a slave who has been sold should die before
being handed over or a building be destroyed by fire... ; and
for these reasons it seems that the total risk belongs to the seller.
On the other hand, however, it appears that, if a piece of land
is sold and then enlarged by alluvion or other means after be-
ing bought and before being delivered, the gain will belong to
the seller. For the advantages ought to attend the person who
has the disadvantages and the profit ought 3
to belong to him
who takes the risk. (Emphasis added.)4
As a result of this accentuation of the possession aspect, it would
appear that a vendee under a sale on approval would assume all
risk upon receipt of the goods even though he had the right to re-
turn them. Presumably the right to return would not affect the
vendor's right to claim damages for the loss or diminution in value
of the goods while in the possession of the vendee.
An apparent illustration of a case of "sale or return" occurred in
the Fair Court of St. Ives in the year 129 1.4 4 A vendor brought suit
for the sales price of two barrels of salt haddock. The fish were
sold on credit and delivered to the vendee after he made a down
payment to bind the purchase. The vendee admitted the fact of
4 FLETA 2.58, transl. in 72 SELDEN SOC'v 194, 196 (1953).
, Ibid.
"Case transl. in Select Cases Concerning the Law Merchant, 23 SELDEN SOC'Y
50 (1908).
January] SALE OF GOODS

the contract and the payment of earnest money, but claimed that
the contract was made:
on condition that if the said fish should be suitable, as the
said Hamon assured him that it was, and not corrupt, the con-
tract and covenant between them should stand; but because
the said William found the fish corrupt and fetid, he refused
to accept it and wholly rejected it and remised it'into the
hands of the said Hamon, who did therewith as he pleased....
Afterwards they make concord, and William puts himself
4
in
mercy 12d.; pledge, his body; he has paid [the fine]. "
The words "the contract and covenant between them should stand"
and "rejected and remised it" would seem to indicate a sale or re-
turn (condition subsequent) under modern notions.
Only one reference to sales of goods on condition is found in the
Year Books, and this reference was dictum. In 1428, Cheine, J.
stated: "As if I appromps a horse to you, to have and to hold to
the feast of Christmas, from then to give the horse or ten pounds
to me, at my election, since the day [Christmas] I am able to have
a writ of debt or a writ of detinue." 4 6 Fritz-Herbert in his Natura
Brevium (c. 1534-37) restated this concept with more particularity
as to the form of the remedy by the vendor: "If a man lend another
man a horse until a certain day, and then he to redeliver the horse
or ten pounds at the same day, after the day if the horse be not
delivered, it is in his election to bring an action of debt for the
horse in the detinet, or an action of debt for the ten pounds in the
47
debet."
It is not clear why Cheine chose to give the example of an agree-
ment drawn in favor of the vendor rather than the vendee. Glan-
vill merely hinted that the contract of sale could give the vendor
the right to withdraw. Fleta's examples all concerned the vendee's
rights to approve or disapprove of the sale. Cheine may have had
the pactum de retrovendendo of the Roman law in mind. This pac-
turn gave the vendor an election to re-purchase the goods at an
agreed price and usually within an agreed period of time.4" The
pactum was a contractual right which did not act as a condition to
the sale. Therefore, the risk of loss and benefit of the gain would

' Ibid.
" Y.B. Mich. 7 Hen.VI, f. 7, pl. 9 (1429). "Come si jeo appromps a vous un
cheval, a aver tanquer al' Feste d' Nouel, a don quo a doner arermain a moy le
cheval a x V"a ma election, puis le jour jeo puisse aver bre de Debte or bre de
Detinue."
7
1 FiTZ-HERBERT, NATuRA BREviUM 279 (9th ed. with Hale's commentaries 1793).
"See BUCKLAND, op. cit. supra note 23, at 492,
 WISCONSIN LAW REVIEW [Vol.'1962

be cast upon the vendee. 49 The available evidence seems to indi-

cate that it was not in common usage under the Roman law.
In 1553 the Court of King's Bench was called upon to consider
a contract of sale which appeared to be a sale on approval. A man
bought animals (outside of any market overt) which were stolen
from the oxiginal owner. The vendee was to have the option of af-
firming or rescinding the sale by the next day before noon, and
he paid the vendor a crown in earnest. The next day the vendee
elected to keep the animals, and in the open market 50 he paid the
purchase price. The court was called upon to determine if the con-
tract of sale had occured in a market overt, so as to divest the origi-
nal owner of his property. The court ruled that:
the property is not changed, because the bargain was made out
of the market (s. overnight), and the assent given afterwards
shall have relation to the first communication; for it seems the
seller was completely bound to the contract on his part, and
could not start [apparently meaning withdraw] from it, but
he had given power to the buyer to mislike. 51
The market overt aspect of this case should not obscure the fact
that in order for the court to hold that the sale took place out of
the market, it had to recognize that the contract of sale on approval
Was valid between the vendor and the vendee. even though it
5 2
could not operate to alter the property of a third person.
The case of Mires v. Solebay53 seemed. to be factually similar to
Cheine's hypothetical case 250 years before. One H agreed with
Alston that Alston should pasture H's sheep for a weekly charge,
afid that if at the end of an agreed period Alston should pay an
a4greed price for the sheep, he was to have them. Before the expira-
tion of the agreed period, H. sold the sheep to Mires and Alston
sold them to another who through his servant took possession of
them. Mires brought an action of trover against the servant. The
servant won because the conversion was in law by the master. How-

"See ZULUETA, op. cit, supra note 9, at 58; MOYLE, op. cit. supra note 9, at
176-77.
60See generally, Murray, Sale in Market Overt, 9 INT'L & COMP. L.Q. 24 (1960).
"ISb. Anon. 1 Dyer 99b, 73 Eng. Rep. 217, 218 (1553). See also Plowden's
view that: "Wherefore contracts or agreements conditional shall be said good
after the condition is performed, but before that they are no more than com-
munications .... " Reniger v. Fogossa, 1 Plowd. 11, 75 Eng. Rep. 18 (1552).
Compare Cooke v. Oxley, 3 T.R. 653, 100 Eng. Rep. 785 (1790), where the
agreement was wholly executory. •
2 COKE, INSTiTumS 713, para. 9 (3d ed. 1669). "The contract'[of sale] must
be. originally and wholly made. in. the market overt, and not to have the. incep-
tion 'oUtof the market, ;and" the consummation in the market." .
032 Mod. 242, 86 Eng. Rep. 1050 (.1678).. -.. '. . .
January] SALE OF GOODS

ever, the court did rule that this agreement "[t]o have the sheep if
Alston would pay such a sum of money at a future day, will not
amount to a sale, and the new property is changed [?], and conse-
quently the sale by H. to the plaintiff before the day is good, and
so the property of the sheep is in him."5 4 Apparently the court con-
sidered this provision to be a condition precedent to the sale. It is
interesting to speculate as to what the decision of the court would
have been if the sheep had been stolen or destroyed while in the
possession of Alston prior to the agreed day. This case, although
not cited by Comyns, would . seem to support his view that "if a
personal thing be granted - upon a condition precedent; the proper-
,ty does not vest till the condition [is] performed." 55
In conclusion, it is most remarkable to observe the similarity be-
tween the Roman and the modern Anglo-American law even
though the Romans approached the question of risk from the
standpoint of contract while the English and Americans approach
it from the standpoint of the passing of the property. Despite the
different theories, it seems that on sales or return or on approval
both the Roman and the present day English view agree that the
risk of total loss rests upon the vendor. The American view is the
same when the transaction is a sale on approval. However, on a
sale or return the risk passes to the vendee as an incidence of title.56
The medieval English view that risk followed possession (because
usually the possessor was the owner) would seem to represent a
hodgepodge of Roman and Germanic laws-an attempted blend-
ing of contract and property principles which still plagues the
American courts.
Ibid.
55COMYNS, DIGEST 94, Conditions, § B3 (5th ed. 1825).
wThe American view would appear to be consistent with one Roman text,
that the risk is placed upon the vendee when a resolutive condition is involved.
See note 22 supra. Cf. note 29 supra.