PRICE. 1 1 



expressly sold for a specific and particular purpose, in which 

 case the seller shall be considered without such warranty 

 to warrant that the same are fit for such purpose.(a) 



10. Price. — The rule is, Xo price, no sale. (6) If there 

 be a material error as to price there is no sale ; (c) but if 

 there be merely a misconception regarding the price, and 

 delivery have taken place, the parties are held to have had 

 in contemplation the market value of the animal sold.(c?) 



The price must also be certain in amount, or capable of 

 being made certain by reference to some standard,(e) such 

 as the award of a third party ,(/) or the price to be fixed by 

 the hi\jer,(g) or of one of the parties, subject to the control 

 of equity (h) or the market value ; or again the price may, 

 by the contract, be made to vary according to events, (i) 

 It must not be illusory ,(j) else the contract is one of barter, 

 not sale, and it must be fixed in money payable in legal 

 tender, (/t-) 



A bargain, however, is frequently made where a horse and 

 so much money is given for another horse. This is regarded 

 as a sale ; (I) and where two horses were exchanged for one, 

 delivery of one of the two does not preclude the owner's 

 lien on the other till the dehvery of the one horse for which 

 the two were to be exchanged, (rji) 



11. Payment of Price. — When the bargain is simple and 

 without special stipulation, the price must be paid immedi- 



(a) See §§ 39, 58. 



(6) Ersk. iii. 3, 4 ; Stair, i. 10, 13 ; 9, 14. 



(c) S'vorcl V. Sinclairs, 1771, M. 14,241. 



(d) Wilson V. Marquis of Breadalbane, 1859, 21 D. 957 ; followed by Stuart v. 

 Kennedy, 1885, 13 R. 221. 



(e) Er.sk. iii. 3, 4 ; Hunter v. Buff, 1831, 9 S. 703. 

 (/) Stair, i. 14, 1. 



{fj) Lavurjrji V. Pirie, 1872, 10 M. 312. 



(A) Ensk. iii. 3, 4. 



(i) B. Pr. 92 (1). 



(j) Ersk. cit. ; Stair, cit. (k) 33 Vict. c. 10, § 6. 



{I) Brydon v. Macfarlane, 1864, 3 M. 7. 



(m) Hanson v. Mytr, 1805, 6 Ea.st, 614. 



