Some consequences
The preceding two sections illustrated the rejection by Scots law of two rules of Roman law: an implied term on payment of the price, and a lex commissoria with effect in rem (maintained at least by some of the Roman jurists).
The rejection of the implied term followed - illogically - from a hostility towards securities over moveables without possession. The rejection of the lex commissoria - and possibly also of the implied term - was associated, rightly or wrongly, with a fondness for the maxim traditionibus et usucapionibus dominia rerum non nudis pactis transferuntur.From the rejection of those two rules, it followed that the only way still open to a seller under Scots law was to incorporate into the contract an express term suspending the transfer of title until payment was received. There is no shortage of cases discussing how certain conditions are to be construed.57 But the fact that Scots law had rejected the other Roman rules meant that the questions it asked were different from those of the Roman jurists.
First, for Scots law the crucial question was whether a sale had been made on credit or under a suspensive condition. If it was the first, property would have passed to the buyer; under the second it would not:
56 Bell, Commentaries, 1.260 (239).
57 For example Macartney v. Macredie's Creditors (1799) M.App. s.v. Sale No. 1; Brandt &
Co. v. Dickson (1876) 3 R.375; Clarke & Co.
v. Miller & Son s Tr. (1885) 12 R.1O35. that was an end of the matter.58 It is true that those conclusions would also follow in Roman law. But, on the one hand, Roman law was of no particular assistance in devising types of suspensive clause, since the implied term on payment of the price had made it unnecessary ever to do so. On the other hand, in Roman law there was an additional question. Property would only have passed if credit had been given. Attention therefore had to be directed to the question whether in fact credit had been given. There is evidence of this in systems which followed more closely upon Roman law than Scots law had done.59Secondly, since Roman law had no rule against security over moveables without possession, the jurists show little interest in intention so far as transfer of title and the validity of a contract of sale are concerned. Both Roman and Scots law required that there be intention, as well as delivery, for the transfer of dominium in moveables.60 But broadly speaking, the only interest Roman law had in intention was to see that there was actually a causa for the traditio, so that property could pass. In particular, the fact that property in the goods was not to pass on delivery did not suggest to a Roman jurist that the transaction was not a sale. Scots law, because of the rule against security over moveables without possession, had to be more vigilant about the actual nature of transactions which purported to be sales. Early on, there was some concern about the nature of the contract, if title was reserved under it; thus Bell could speak of the buyer, where title had been reserved, as a ‘mere depositary’; while Lord Young could not ‘conceive a contract of sale in Scotland, followed by bona fide delivery, yet leaving the property unpassed’.61 Statements such as that of Lord Young are no longer of any authority; there is now no difficulty about treating such a contract as a sale even if parties do not intend title to pass on delivery.62 But with the advent of the Sale of Goods Act in Scotland the question of intention has assumed a new importance, since it is critical not just to the question when title in the goods is to pass, but to the question whether, if the contract provides for title to be
58 See Wright v. Mitchell (1871) 9 M.516, where the point is made expressly.
It is also worth noting that at 518 L. P. Inglis makes reference to the mutuality rule, and then goes on to deal with express terms suspending the transfer of title: ‘in one sense every sale is conditional on payment of the price, for the seller is not bound to deliver the article sold except for payment of the price... If it is intended that payment of the price in a particular way shall be made a condition of the contract, so that the contract shall be in suspense until the condition is purified, it is easy to say so.’59 Pothier, Traite du contrat de vente, para. 324.
60size=1 face="Times New Roman"> Stair, Institutions, 3.2.4 and 5; Carey Miller, Corporeal Moveables in Scots Law, para. 8.03.
61 Bell, Commentaries, 1.258 (238). Bell would not, however, have meant that the contract was deposit; Clarke & Co. v. Miller & Son's Tr. (1885) 12 R.1O35, 1042.
62 Murdoch & Co. Ltd. v. Greig (1889) 16 R.396; Cowan v. Spence (1824) 3 S.42; other cases are cited by the court in Armour v. Thyssen Edelstahlwerke A.G. 1989 S.L.T. 182. retained until the occurrence of a certain event, the contract falls under the Act at all.[406] [407] This type of focus on intention is foreign to Roman law.
In conclusion, two general observations. First, Scots law rejected the implied term on payment of the price because it regarded it as tantamount to a hypothec over the goods delivered to the buyer. The objection to the term, however, appears to have been not that it was an implied or tacit security, but purely that it was a security without possession, and so destructive of commerce.
If that is right, then precisely the same objection applies to an express term reserving title until payment: it constitutes in the seller the same right to his property after delivery to the buyer. In order to salvage some logic, therefore, the law ought either (and preferably) to have accepted that retention of title in goods delivered to a buyer did not amount to a hypothec; or else that, if it did, it was one which was recognised by the law of Scotland. Even if the life of the law has been experience, it should not be too much to expect a little logic.Secondly, Stair’s reasoning on the effect of the lex commissoria depended on a maxim. The maxim was broadly true, but his reasoning was defective. There is a proper place for maxims. To arguments they may add the appearance of elegance and learning; but a resounding maxim is all too liable to seduce the writer himself into error. As Cinus and, more recently, Peter Stein have warned, haec via est brocardica et idea semper dubia.M