. "According to the Roman Law, a contract of sale worked a jus ad rem, but did not, by the mere effect of consent, as in England, work a jus in re, a transference of the property (dominium) in the thing sold: 'qui rem nondum emptori tradidit adhuc ipse dominus est.'* And again, 'traditionibus et non nudis pactis dominia rerum transferuntur.' It was a necessary result of this maxim, that either party might withold performance of his obligation on the other becoming unable to perform his part." "The Law of Continental Europe adopted, pretty generally, the rule that a seller was entitled, in all cases, and even after actual delivery, to have restitution of his goods, if unchanged in form, and capable of being distinguished from the stock of the buyer. The Scotch Law allowed restitution to the seller, on the ground of presumptive fraud, within three days of the bankruptcy of the buyer. This right of the seller, according to Continental Law, was called the right of revendication.” "A right closely analagous to that of revendication was introduced, by the reason of the thing and the exigencies of commerce, into the English Law at the end of the seventeenth century, and into Scotland at the end of the eighteenth century, it was called, and is now universally known as the right of stoppage in transitu. It has been adopted by France in her Code de Commerce, in the place of the old revendication." "The Law" (Lord Wensleydale observed, in a leading case on this subject) "is clearly settled, that the unpaid vendor has a right to retake the goods before they have arrived at the destina"tion, originally contemplated by the purchaser, *Instit. III. T. XIV. 3. English Decisions. "unless in the meantime they have come to the "actual or constructive possession of the vendee. "If the vendee take them out of the posses"sion of the carrier into his own before their "arrival, with or without the consent of the "carrier, there seems to be no doubt that the "transit would be at an end; though, in the case "of the absence of the carrier's consent, it may be "a wrong to him, for which he would have a "right of action. This is a case of actual pos"session, which certainly did not occur in the "present instance. A case of constructive pos"session is, where the carrier enters expressly, or by implication, into a new agreement, distinct "from the original contract for carriage, to hold "the goods for the consignee as his agent, not "for the purpose of expediting them to the place "of original destination, pursuant to that contract, "but in a new character, for the purpose of "custody on his account, and subject to some "new or further order to be given to him." "The right of stoppage in transitu is, Lord Stowell observed, 'not only the doctrine of the Law of England but the general expression of the Mercantile Law on the subject.' The consignor has what Lord Mansfield called 'a proprietary lien' upon goods in transitu for which payment has not been received. This doctrine was transplanted from the lex mercatoria into the Common Law of England. Great doubt and dispute have prevailed, and, perhaps, still do prevail, as to whether this right of stoppage amounts to a rescinding of the contract, or to a mere extention of the doctrine of the seller's lien upon the thing sold." "It may be well to state that the English decisions appear to have established the following propositions as incident to this right." "1°. The right of stoppage in transitu can only be exercised by a seller or person standing in the position of a seller of goods," (that is a trader, §58). "2°. The right is limited to cases in which the bankruptcy or insolvency of the vendee has taken place. A partial payment by the vendee does not prevent the exercise of this right." "3°. As a general rule the transitus is not at an end until the goods arrive at the actual or constructive possession of the consignee; during this period, as well as while they are in the vendor's possession, the vendor's right of stoppage remains." "4°. Notice on the part of the vendor, by himself or agent, to the carrier not to deliver the goods, suffices to cause the right of stoppage to attach." "5°. The better opinion seems to be that the effect of the exercise of the right is merely to replace the seller in the same position as if he had not parted with the possession of the goods, and not to rescind the contract; but the point cannot be said to have been decided." "6°. The right of stoppage is defeated when a bill of lading has been indorsed to a bonâ fide purchaser, without notice, for valuable consideration, and with the authority of the original seller." governs the right transitu. "What Law is to decide as to whether this What Law right of stoppage exists or not? The lex loci con- of stoppage in tractus, Mr. Burge says,* relying on Casaregis† and on English and North American United States decisions. It is a lien, Story says, which has rightfully attached in rem, and ought not to * 3 Burge, 770. † Disc. 179 N. 53-55. . be locally displaced by the mere change of the local situation of the property. The reason of things seems to be in favour of these opinions. In a recent case, determined by the tribunal of the German decisiou. German Empire, merchandise sent from Bohemia to London fell into the hands of an agent for transmission (expéditeur de Hamburg) at Hamburg at the moment when the consignee (le destinataire de Londres) became bankrupt. The consigner therefore claimed (une demande en revendication) a right of stoppage in transitu against the transmission-agent at Hamburg. The latter maintained that he had a right of detention as a set-off against debts due to him from the London consignee. The tribunal, taking the laws of Hamburg as its basis, decides against the Hamburg claim Stoppage in transitu by the buyer. General The right of stoppage in transitu is in the seller, not in the buyer. The buyer may countermand the order, if in time, and with the consent of the seller he may rescind the sale; but if in insolvent circumstances, he cannot stop the goods in transitu without committing an act of improper preference to the vendor to the prejudice of other creditors (§ 79). † XII.-Of Insurance. 61. Insurance is an agreement whereby the insurer bind shimself to the assured, in consideration of a premium, to indemnify him for loss, damage, or the missing of an expected profit, which he may have to sustain in consequence of an uncertain event. *Cette décision fortement motivée, est d'une importance toute particulière en raison du caractère international du Right of Stoppage. Journal du Droit Intern. Privé. V. III. N. 131. SIR ROBERT PHILLIMORE. Comm. on Int. Law. Vol. IV. Priv. Int. Law p. 643 et seq. + LEONE LEVI. International Commercial Law. Vol I. Chapt. X Sect. 6. Insurance. Subjects of insurance may, amongst other Sugicets of things be the following contingencies, viz., danger of fire; damages to which growing crops are exposed; the life of one or more persons; dangers of the sea (in which case insurance is called marine insurance); dangers of conveyance by land, or by rivers and inland waters. Marine insurance is specially treated in the next section. The rules of the lex mercatoria, generally adopted with regard to insurances, are as follow. 1o. The insurer is in no case liable for damage or loss directly occasioned by any defect or deterioration peculiar to the species or nature of the thing insured, unless the risk thereof be explicitly included in the insurance. 2°. The insurer is not bound to indemnify, if he, who had insurance made on his own behalf, or for whose account insurance has been effected by another, has no interest in the subject-matter insured at the time of insuring. 3o. The insurance is made null and void by every wrong or untrue statement, or by reticence regarding circumstances known to the assured, even when bonâ fide committed on his part, provided such misstatement or reticence be of such a nature that the agreement would not have taken place, or would not have been entered into on the same conditions, if the insurer had been acquainted with the real state of things. 4°. As a general rule, no second insurance may be made for the same time and the same risk on things already insured to their full value, on pain of nullity of such second insurance (see rule 20). General Rules. |