A feller may
difpofe o f the
price o f his
goods without
having
taken pof-
felfion o f it.
The parties
are at liberty
to make any
fubfequent
addition or
abatement,
with refpeft
either to the
goods or the
price;
and fuch addition
or a-
batement are
incorporated
in the contrail:.
A n y deeds of the feller with regard to the price of the merchan-
dife, prior to the adtual receipt of it, fuch as g ift, fale, hire, or be-
quejl, is lawful, whether the price be ftipulated in money or goods;— {
becaufe the caufe of legality, namely, right o f property, is eftablilhed
in the feller; and the act is attended with no unfairnefs, (fuch as has.
been Ihewn to exift in the cafe of felling moveable property prior to
the receipt of it ,,) becaufe the price, if exprelfed in dirms and deenars,
is indeterminate, and is therefore incapable of being deftroyed; and i f
it confift of any thing elfe, {till the fale is not invalidated by a deftruc-
tion, fince the value remains due from the feller.— It is otherwife
with refpedt to the article purchafed, as the fale of that before, receipt
of it induces fraud, as was. before explained.
I t is lawful for the- purchafer to make an increafe of the price in
favour of the feller; and for the feller to make an increafe in the
merchandife in favour of the purchafer;— and it is alfo lawful. for the
feller to make abatement from the price'in favour of the purchafer;
and this, increafe or abatement is. incorporated in the Original contradt;
(that is to fay, in cafe of an increafe,, the original and 'additional'form,
of the price or the article; and in cafe of an abatement, what remains'
after the dedudtion is the price of the article.) Hence, in thefir jl
cafe, the feller poffeffes a right to the original price, together with
the increafe fuperadded to it; and, in the jecond cafe, the purchafer
has a right to the original merchandife with the increafe fuppëradded.
Shafe'i and differ are both of opinion that fuch increafe is a mere adt
of favour, and therefore cannot'be incorporated in the original fale ;•
for, if fo, it muft neceffarily follow that a perfon gives his own property
in exchange for his own property, fince, previous to the increafe
of the price, the article was the property, of the purchafer in exchange,
for the original price; and, confequently, if the increafe be made in
the price, the property of the purchafer is given in exchange for what
was, before his property: in the. fame manner, alfo, in the Jecond. cafe,
as the price, previous to the increafe, was the property of the feller,
6 it
i f follows that in increafing'the wares,: he gives his own property in
exchange for his own property.— Neither can an abatement from the
price; by the feller, be incorporated with the ■ original contradt; but
it mull rather be confidered as an adt offavour; becaufe, prior to the
abatement, an exchange of the merchandife for the whole of the price
had taken place; and it is impoffible to fet afide any part of the price,
lince in fuch cafe it muft follow that sa part of the ' merchandife
had no correfpondent exchange oppofed to it ; and this■ is unlawful.
:;v
O b j e c t 10 N .7— This confequence does not follow; becaufe the remaining
fum, after the dedudtion of the abatement, is confidered as an
exchange for thé whole of the merchandife..
R e p l y .— It is impoffible to.coiifider the remainder as an exchange
for the whole, becaufe no new contract has' taken place with regal'd to
the diminijhèd price, and the old contradt relates only to the fu ll
price. -
— The reafoning of our doctors is, that the buyer and feller, by
means of the increafe and abatement, do only alter the contradt from
one lawful accident to another lawful accident; and that, as the parties-
poflèfs the power of annulling the contradt, they are, a fuperiori, entitled
to make an alteration in the non-elfential properties of it. The
cafe is therefore the fame as if the parties Ihould annul an optional
power, or ftipulate One after the conclufion of the contradt.— Now
fince it is lawful for the parties to; alter thé accident of the contradt by
means, of increafe or abatement, it follows that fuch increafe or abatement
is. incorporated with the original contradt; becaufe the accident
of a thing adheres to that thing, and does not exift abftradtedly o f itfelf.
It is otherwife where a feller abates the whole price; for fuch abate-
ment could not be incorporated with the original contradt, fince in
that cafe a change would take place in regard to what is an effential
property, and not an accident of the contradt.— It is alio to be obferved,
that from the increafe and abatement being incorporated-with the
original contradt, it does not neceffarily follow th*at a perfon gives his
own