20 REMEDIES ON BREACH OF SALE. 



In all such cases the interpretation of the special condi- 

 tions will depend upon the intention of the parties making 

 them.(rt) 



20. Respective remedies on breach of Sale. — In Scotland 

 the buyer's remedy on the seller's failure (in the absence of 

 fraud or essential error) to deliver, is twofold — either to 

 rescind the contract, withholding the price if unpaid, or 

 claiming repetition of it if paid ; or to insist for performance 

 with or without damages, as the case may be ; (6) but he 

 cannot avail himself of both these remedies, (c) — that is to 

 say, hold to the contract of sale, and claim damages for 

 non-performance by the seller. In England, however, the 

 general rule that jurisdiction for specific performance is not 

 entertained regarding personal property, is limited to cases 

 " where a compensation in damages furnishes a complete and 

 satisfactory remedy." (f?) In the majority of cases, therefore, 

 in that country, a buyer must hold to his contract of sale, 

 accepting damages for its breach ; but this rule is subject 

 to many exceptions, and specific performance will be ordered 

 by the Court wherever damages does not afford an adequate 

 remedy, (e) 



The seller's remedy is to retain the horse in security of 

 the price. Where the buyer refuses to take delivery, and 

 the seller wishes to claim damaofes, he should in the cfeneral 

 case apply to the Sheriff for a judicial warrant to sell(/), 

 horses forming an excej)tion to the general practice that no 

 judicial warrant is necessary for reselling. ((/) If the seller 

 do not wish to claim damages, he may sue for the price and 



(«) See Cohin v. Short, 1857, 19 D. 890. 



(6) B. Pr. 120, as to the effect of fraud, see § 36. 



(c) M'Cormick v. Rittmcyer, 1869, 7 M. 854. 



(d) Snell's Equity, 6, 35, et seq. 



(e) White and Tudor's L.C. i. 912, ct seq., notes to Cuddle v. Ruttcr. 



(/) Bell on Sale, 109. This, however, it is thought, is only an expedient to 

 show that the sale is conducted bona fide, and does not appear absolutely 

 necessary, B. Pr. 128. Lee's Sh. Ct. Styles, p. 375, note. 



[g) B. Pr. 128. 



