Document Type

Article

Publication Date

1979

Source Publication

McGill Law Journal/Revue de Droit de McGill. Volume 25, Number 1 (1979), p. 32-63.

Abstract

Upon an authorized sale of goods, the owner's ability to recover the price from the buyer can be explained either by his property in the goods or by a contractual relationship. This article deals with the right to recover the price in the context of an historical and theoretical analysis of the right to the proceeds of a sale at common law. It is suggested that property is the basis of this right, rather than a contractual nexus. Part I presents the sale of goods by an agent of an undisclosed principal as a model situation in which the right of the owner is better explained by a property analysis than by means of the contractual relationship. Part II deals with debt both as an old remedy based on property and as a modern substantive legal relation, and shows how it underlies the owner's right to recover the price. Part III analyzes the eighteenth-century factor cases that are said to lay down the doctrine of the undisclosed principal; the -discussion is designed to demonstrate the proprietary basis of these cases and to show that they are not governed by a con- tract analysis. Finally, Part IV presents the right of an owner to the cash proceeds of a sale as a continuation of his right against the buyer. The discussion presents the proprietary basis of the right as an explanation of its scope and limits, and illustrates the different effects of sale by factor, by consignee on "sale or return", and by an agent extending credit to the buyer.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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