ble o f fpe-
cihcation and
fall lhort, the
purchafer
may either
take it, or
undo the bargain:
but i f it exceed,
the fale
is binding to
the amount
agreed for.
I f the quantity
be fo ex-
p relied as to
relate both to
defeript ion and
to fubfiance,
the purchafer
may either
hundred dirms, on condition of' its meafuring one hundred yards,_-
and a deficiency afterwards appear, the purchafer has in that'cafe the
option either of cancelling the bargain entirely, or of taking the ground,
or.cloth, thus defective, at the ftipulated price; for the fpecification
o{yards is a mere defeription of the length and breadth; and no part of
the price' is oppofed to the defeription of the wares;—in the fame
manner as in cafes with refpect to animals-,— in other words, if a
perfon purchafe a goat, which afterwards appears to want an ear, he
would have the option of taking the defedtive goat for the price ffipu-
lated, or of undoing the bargain: but he would have no right to dimi-
nifh the price on account of fuch defect, becaufe no part of the price
is oppofed to the ear in particular, fo as to admit of any fixed diminution
on account of its deficiency;— and fo alfo in the cafe in quef-
tion. It is- otherwife in the preceding cafe, relative to wheat; becaufe
there the deficiency comes under the head of the quantity and
not the defeription of the wheat ; and the price being oppofed to
quantity, a proportionate diminution is accordingly made from it.
Still, however, the purchafer has the option of undoing the contradt
if he pleafe, on account of the difference from the terms; his confent
having bepn given to the purchafe of one hundred Kafeez's, If,
however, the ground or the cloth fhould pro we. larger than the defeription,
in this cafe the excefs becomes the property of the purchafer,
and no option remains to the feller, becaufe (as has been already explained)
the fpecification of yards relates merely to defeription and not
to fubfiance. The cafe, in fhort, becomes the fame as if he had
fold a Jlave on the fuppofition of his being defedtive, but who afterwards
proves to be perfedt.
If a perfon fell a piece of cloth, by declaring “ I have Ibid this
“ piece of cloth, which meafures one hundred yards, at the rate of
“ one dirm for each yard,” and a deficiency fhould afterwards appear,
in this cafe the purchafer has the option, either of taking it,
with a proportional dedudtion from the price, or of diffolving the
contradt
contra# entirelybecaufe, although the fpecification of yards comes
under the head of defeription, yet in this cafe the yards, are confidered gain, whether
as relating to the fubfiance, the feller having oppofed; the price to each
of them, which renders each.(as it' were) a fepamte piece o f cloth, the amount'
Befide'S j if the feller fhould take the defedtive quantity at the rate pro- p
pofed for the whole, it would follow that the terms of the contradt
(namely the payment of one dirm per yard) did not take place :— if,
on the other hand, the amount of the cloth exceed one hundred yards,
the purchafer has the option, either of taking the whole, at the rate
of one dirm (os each yard, or of diffolving the. bargain ; for although
he has an advantage in the receipt of more* cloth than he had contradted
for, „yet this being tempered with a lofs, in the neceflity it
lays him under off paying an additional fum, he is therefore left at
liberty either to abide,, by the contradt on thefe conditions, or to
undo it.
If a perfon purchafe ten yards of a houfe or bath meafuring one .j^e gje 0f-a
hundred yards, fuch purchafe is invalid, according to Haneeff, whe-
ther the buyer may or may not have known the meafurement of the of a tenement
whole houfe. The two difciples maintain that it is. valid; If, on the
contrary, ..a perfon purchafe ten Jhares of a houfe or bath containing fale of ajha rt.
one hundred jhares, it is valid, in the opinion of all our dodtors; The
argument adduced by the two difciples in fupport of their opinion is,
that ten yards of a houfe of an hundred yards in capacity are in fadt
the fame as ten Jhares out of an hundred Jhares. Hanecfa, in fupport
of his dodtrine, argues, that a yard, in its original meaning, is a flick
applied to the purpole of meafurementbut it is .alfo uled to denote
the thing meafured, and the thing fo meafured muff be relative and not
an abfraci idea o f the mind, fuch as a fhare : now it is impoffible, in
this cafe, to render fuch yards relative, fince there exifts an uncertainty,
as no mention is made of Hot particular fide of the houfe from which
they have been meafured; and fuch uncertainty would occafion contention
between the parties. It is otherwife with refpedt to Jhares,
Vox,. II. B b b for