Page:Harvard Law Review Volume 9.djvu/148

120 HARVARD LAW REVIEW. transfer of title at a future day. It is only by the transfer at that time that such a contract is fulfilled. Of course, voluntary accept- ance of a proffered equivalent at an earlier day would be sufficient to bind the vendee; but where the original intention of the parties to transfer ownership from one to the other at a future day has never been changed, nothing but transfer at that day is a fulfilment of the contract. It should be obvious that a present purchase of the reversion of an estate is a different thing from an executory contract to purchase an estate at a future day. It should be ob- vious that the intention of the parties is different in the two cases. It is, therefore, in clear disregard of the intention of the parties to hold that, since a court of equity assures to the purchaser in the latter case, to a greater or less extent, a right substantially equiva- lent to that secured by the purchaser, of a legal future estate, the loss should be similarly adjusted. The intention of the parties is the chief factor in any proper decision. It would be universally admitted that, if the contract expressly provided that the risk should be with one party or the other, this provision would be of controlling force. Parties do not frequently make such express provisions, but they do indicate whether they intend a present transfer of the rights of ownership or a future transfer, and there should be no doubt that they expect all the incidents of ownership, including risk to pass from the seller to the buyer at that time. That time will frequently not be when the legal title is transferred. If, as frequently happens, a purchaser is^ given immediate posses- sion under his contract, the title is retained merely as security for payment of the price. It is a short way of accomplishing the same end as would be achieved by conveying to the purchaser and tak- ing a mortgage back, as was suggested in regard to similar trans- actions in sales of personal property. When by the contract the beneficial incidents of ownership are to pass is the time which the parties must regard as the moment of the transfer. How little the intention of the parties is regarded by the English rule may be seen by comparing a contract to sell a carriage-horse at the end of the season and a contract to sell a race-horse at the end of the season. Equity would grant specific performance of the latter contract, and hence, while the seller sends the animal over the country to race for his own benefit, he would, according to the English rule, do so at the risk of the buyer.^ The carriage- 1 No cases seem to have arisen in regard to risk under contracts for the sale of per- sonal property of such a character that the contract would be specifically enforced, but