2 HORSES AS THE SUBJECT OF SALE. 



eiTor,(a) constraint,(6) or fraud,(c) of such a degree as to 

 show that the consent and engagement have not been the 

 deliberate act of the parties, the sale is void,((i) and may be 

 set aside, (e) 



The seller binds himself, under the contract of sale, to 

 deliver the animal purchased, and the buyer to pay the 

 price ; but the property does not pass till he has delivered 

 the animal to the buyer, or to some one on his 

 behalf (/) 



2. Horses as the subject of Sale. — It is necessary to the 

 validity of the contract of sale that the horse or horses pur- 

 chased be determinate, or capable of being determined ; but 

 it is not necessary to the contract that they be identified ((/), 

 — that is to say, the horse or horses may be specific animals, 

 clearly distinguished, or set apart, out of a lot, for the 

 buyer ; or they la&j be a determinate number of animals, 

 described generically, as occurs — e.g., in the case of a sale of 

 so many out of a consignment of ponies. When a definite, 

 or specific horse, capable of being identified, is sold, it lies at 

 the buyer's risk ; the property of it passes, according to 

 English law; and the title to demand it, passes to the buyer, 

 in Scotland, but not the property till it is delivered, (/t) 

 But where a certain number of ponies, say, is sold, neither 

 the property in England, nor the right to them in Scotland, 

 passes, nor does the risk of them fall on the buyer, until the 

 stipulated number is measured off and separated from the 

 bulk.(i) When a pair of animals is sold, or a greater num- 



(a) B.C. i. 314, §§ 4, 30. 

 (6) B.C. i. 314. 



(c) B.C. i. 316, §§ 30-35. 



(d) As to when the contract is not void, but only voidable, see § 30. 



(e) See § 36. 



(/) Ersk. iii. 3, 2. In England, the property passes when the contract is com- 

 plete, 2 Blackst. 398. 



ig) B. Pr. 91 ; B.C. i. 461, note. 



(A) §§ 13-18, provided that in sale in open market, in England, the conditions 

 of sale have been adhered to. 



(i) B. Pr. 91 ; Ersk. iii. 3, 7 ; Brown on Sale, 44, et seq. 



