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HARVARD LAW REVIEW.

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even though he knew of the prior contract, was apparently under no liability.^[1] In the modern civil law the remedy of specific performance seems to be generally adopted;^[2] and, since the adoption of a system of registering deeds and contracts, relating to land,

↑ This is still the law to a great extent. It is true that Pothier says of the original purchaser in such a case (Contrat de Vente, § 320), " He cannot reclaim the thing against the second buyer, who purchases it in good faith, inscius prioris venditiottis." Pothier, however, does not make the positive statement that the thing nlight be reclaimed from one who purchased the thing in bad faith. On the other hand, in Aubry & Rau, Cours de Droit Civil Franjais, 4th ed , ii. p. 55, in discussing the doctrine of modern French law, that a second purchaser, in good faith, to whom the thing is delivered acquires a superior right to the first purchaser, to whom no delivery was made, though the latter has title, the authors say : "D'ailleurs il ne faut pas perdre de vue que la préférence n'est accordée au second acquéreur qu'autant qu'il est de bonne foi ; et cette condition nese comprendrait pas en principe,si la propriété des meubles corporels ne vait se transférer à l'égard des tiers que par la tradition." That is, the fact that the original purchaser has a remedy against a second purchaser with notice necessarily implies that the original purchaser had title as distinguished from a contractual right. See also Knox v. Payne, 13 La. An. 361. In Germany, according to the old common law, the purchaser of real estate was protected more fully than by the English law. Stobbe (Handbuch des Deutsches Privat-recht, § 175) says : "If the owner of an estate engages to transfer it to another, and afterwards conveys it to a third person, according to the law of the middle ages, the first appears to have been preferred to the second purchaser, and to have had an action against him for surrender of the estate, in case he had not acquired through lapse of time lawful seisin. To a certain extent this principle belongs to later law also, but with this limitation that the second purchaser is only liable in case of bad faith." Mr. Julian W. Mack of Chicago, whose studies in Germany have made him fully acquainted with the matter, writes me that the new draft civil code, intended to apply to the whole German Empire, but not yet adopted, " is to retain as far as possible Roman theories, modified only by such regulations as result from the 'Grundbuch ' (land registration). At least in the original edition of the code, the contract was not recognized as having any binding effect on the property, either real or personal, even as against the purchaser with notice." Further, creditors of a seller by the Roman law might seize the thing sold at any time before delivery, even though the price had been paid. Pothier, Contrat de Vente, § 321. This was the law of Scotland until 19 & 20 Vict. c. 60, §§ i & 2. See Moyle, Contract of Sale, 135 ; Bell, Principles of the Law of Scotland, § 86.
↑ A learned reviewer of the third edition of Fry on Specific Performance, questioning an opinion expressed in that work, that specific enforcement of contracts probably has a more extensive application in England than on the Continent of Europe, says (8 Law Quarterly Review, 251) : " If we had to express the difference between English and Continental law in this respect in a few words, we should say that in England specific performance is granted where damages are not an adequate remedy, whilst on the Continent damages are awarded when specific performance is impossible, and also that the means of enforcement are more varied on the Continent than in England." This statement seems borne out by quotations from French and German authorities. Demolombe, Traite des Contrats, 2d ed. vol. i. p. 486; Dernburg, Preussisches Privatrecht, 3d ed. vol. i. p. 276 ; Forster-Eccius, Preussisches Privatrecht, 4th ed. vol. i. pp. 551, 899; German Code of Civil Procedure, §§ 769-779.

[1] This is still the law to a great extent. It is true that Pothier says of the original purchaser in such a case (Contrat de Vente, § 320), " He cannot reclaim the thing against the second buyer, who purchases it in good faith, inscius prioris venditiottis." Pothier, however, does not make the positive statement that the thing nlight be reclaimed from one who purchased the thing in bad faith. On the other hand, in Aubry & Rau, Cours de Droit Civil Franjais, 4th ed , ii. p. 55, in discussing the doctrine of modern French law, that a second purchaser, in good faith, to whom the thing is delivered acquires a superior right to the first purchaser, to whom no delivery was made, though the latter has title, the authors say : "D'ailleurs il ne faut pas perdre de vue que la préférence n'est accordée au second acquéreur qu'autant qu'il est de bonne foi ; et cette condition nese comprendrait pas en principe,si la propriété des meubles corporels ne vait se transférer à l'égard des tiers que par la tradition." That is, the fact that the original purchaser has a remedy against a second purchaser with notice necessarily implies that the original purchaser had title as distinguished from a contractual right. See also Knox v. Payne, 13 La. An. 361. In Germany, according to the old common law, the purchaser of real estate was protected more fully than by the English law. Stobbe (Handbuch des Deutsches Privat-recht, § 175) says : "If the owner of an estate engages to transfer it to another, and afterwards conveys it to a third person, according to the law of the middle ages, the first appears to have been preferred to the second purchaser, and to have had an action against him for surrender of the estate, in case he had not acquired through lapse of time lawful seisin. To a certain extent this principle belongs to later law also, but with this limitation that the second purchaser is only liable in case of bad faith." Mr. Julian W. Mack of Chicago, whose studies in Germany have made him fully acquainted with the matter, writes me that the new draft civil code, intended to apply to the whole German Empire, but not yet adopted, " is to retain as far as possible Roman theories, modified only by such regulations as result from the 'Grundbuch ' (land registration). At least in the original edition of the code, the contract was not recognized as having any binding effect on the property, either real or personal, even as against the purchaser with notice." Further, creditors of a seller by the Roman law might seize the thing sold at any time before delivery, even though the price had been paid. Pothier, Contrat de Vente, § 321. This was the law of Scotland until 19 & 20 Vict. c. 60, §§ i & 2. See Moyle, Contract of Sale, 135 ; Bell, Principles of the Law of Scotland, § 86.

[2] A learned reviewer of the third edition of Fry on Specific Performance, questioning an opinion expressed in that work, that specific enforcement of contracts probably has a more extensive application in England than on the Continent of Europe, says (8 Law Quarterly Review, 251) : " If we had to express the difference between English and Continental law in this respect in a few words, we should say that in England specific performance is granted where damages are not an adequate remedy, whilst on the Continent damages are awarded when specific performance is impossible, and also that the means of enforcement are more varied on the Continent than in England." This statement seems borne out by quotations from French and German authorities. Demolombe, Traite des Contrats, 2d ed. vol. i. p. 486; Dernburg, Preussisches Privatrecht, 3d ed. vol. i. p. 276 ; Forster-Eccius, Preussisches Privatrecht, 4th ed. vol. i. pp. 551, 899; German Code of Civil Procedure, §§ 769-779.

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