Page:Harvard Law Review Volume 9.djvu/107

THE RISK OF LOSS. 79 one who has entered into a contract for the purchase of real estate may, in some jurisdictions, by recording his contract, acquire a right against any one who thereafter takes title.^ These changes in the law do not seem, however, to have been considered by writers as making any difference in the risk after a contract of sale. Registration laws and specific performance are not referred to in that connection. It is obvious that the extent of the right to the thing itself which a buyer acquires immediately on the completion of a con- tract might well be a consideration of great importance. If the buyer acquires by a recorded contract for the purchase of an estate an absolute right against the world to have that property upon paying the price, there is given to the argument of Windscheid quoted above, that a sale is itself an alienation of the property, a force which it does not otherwise possess. It has been because of the control which the buyer of real estate acquires immediately upon the formation of a contract of sale that the English court of chancery and the courts of some of the United States have held that the contract makes the buyer at once the owner in equity, and the loser by the injury or destruction of the property. But this reasoning seems peculiar to English and American law. Samuel Williston. 1 In France, in 1855, ^ ^^^ ^^^ passed having the same general effect as the regis- tration laws generally in force in this country. See Aubry & Ran, Cours de Droit Civil, 4th ed. ii. p. 56 et seq., 286 et seq. Under this law contracts to sell real estate as well as conveyances may be recorded ; and consequently, if recorded, insure the purchaser a right against any one who in fraud of the contract thereafter obtains a conveyance. In Germany registration laws are now generally in force. In some States registration is a necessary element in the transfer of title ; in other States it has no more importance than in this country. In Prussia title passes by registration, even though the buyer knows of a previous contract ; and so in some other States. Stobbe, Handbuch des Deutsches Privatrecht, § 95. By the draft civil code, Mr. Mack informs me, a contract is not recognized as a document to be recorded.