Page:Harvard Law Review Volume 9.djvu/149

THE RISK OF LOSS. 121 horse, on the other hand, would remain at the risk of the seller till the end of the season. Surely the intention of the parties as to the time of transfer is the same in both cases. If it be suggested that in both cases the parties contemplate an immediate transfer of ownership, but that in the case of the carriage-horse equity cannot effectuate this intention, in the case of the race-horse it can, the answer is, that if the parties meant a present transfer and lease back during the season they would say so. It would be perfectly easy to express such an intention, and in the case of personalty the intention, if expressed, would be perfectly effectual without any formality. In truth, the argument for throwing the loss upon the purchaser in an executory contract of sale where possession is not given to the purchaser cannot be put more strongly than this. Equity gives to the vendee, whatever his intention, assurance far greater than a court of law can give, that the specific subject of the sale will become his, and, if not at the time fixed by the contract, yet with damages sufficient to pay for the delay. In return for this assur- ance equity demands as a price that the vendee take the risks of accidental loss. The propriety of such a requirement depends on the answer to three questions: Is it in accordance with natural justice? Is it of practical advantage? Is it in conform- ity with the principles of law in analogous cases? Views of natural justice vary so much that it is not very profit- able to discuss the topic, but certainly in dealing with contracts no general rule can be more just than to aim to follow the inten- tion of the parties, and therefore to throw the loss on the vendee if the parties intend a present transfer, on the vendor if they intend a future transfer.^ no possible theory can be suggested for distinguishing such a contract in this connec- tion from a contract to sell real estate. 1 It is frequently suggested that, as the vendee gets the benefit of any chance im- provement of the property, he should therefore suffer for a chance loss. There are several answers to this. In the first place, it proves too much, for it is as applicable to personal property as to real property. In the second place, there are practically no chance improvements analogous to chance destruction. In the third place, it is not certain that the vendee would get the benefit of an advantageous change in the prop- erty of such a character as to alter its nature, whether the subject of the sale were realty or personalty. A few analogies suggest themselves. In the case of accession, where the nature of property has been changed by work done upon it, if there has been no wilful conversion, the owner loses his right to the property itself and has only a right to its money value in its original form. Gray's Cases on Property, vol. i. pp. 65- 104. It is true that in such cases the increased value is due, not to chance, but to