3.1.164 to 3.1.165

[1] The Mohammedan law provides that the declaration and acceptance by vendor and purchaser is all that is requisite to conclude a sale, and render it binding. It is considered preferable to make the statement in the past tense, and that both the articles and the price should be at hand. The amount of the purchase-money must be certain, but where an exchange —which is to be held to be a sale —takes place, absolute certainty is not necessary. "Sell anything that is in exchange for a different kind, in whatever manner you please, and without regard to the quality." (The Hedaya XVI, 1.) The Ottoman Code defines a sale to be "the interchange of one thing with another." (The Medjille, Art. 105.) Under the Mosaic Law, payment of the purchase-money caused the title to the object of the sale to at once vest in the purchaser. The rule of the Talmud changed this, however, and the property passed as soon as the vendor obtained possession, whether the price was, or was not paid. Actual transfer of possession was therefore indispensable. (Mishnah, Introduction to Chap. IV.) In England, the transfer of title to specific articles depends upon the agreement of the parties; where they are not specified, it does not pass until their identity has been determined. Where the sale is for cash, the purchaser has no right to the property till he tenders the entire amount. (Stephen, Commentaries on the Laws of England II, II, V, 3.) It is of the essence of the contract of sale in American law that the price must be certain, the article capable of identification, and that both parties must concur in the agreement. The sale must be complete for the right of ownership to pass without question. Delivery is not essential, as it was under the Roman system. (Parsons, The Law of Contracts, I, III, 4.) —ed.