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Src. 1729

to sell and

buy.

An agreement to sell and buy is a contract Agreement by which one engages to transfer the title to a certain thing to another, who engages to accept the same from bim and to pay a price therefor.

N. Y. C. C., Sec. 860.

SEC. 1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not.

N. Y. C. C., Sec. 861.

what may ject of the

be the sub

contract.

to sell real property.

SEC. 1731. An agreement to sell real property is an Agreement executory contract, which binds the seller to execute a grant in the form and manner prescribed by the chapter on Transfers of Real Property and by this article.

N. Y. C. C., Sec. 862.

of agent to execute executory

SEC. 1732. The authority of an agent to execute an Authority executory real instrument must be in writing, subscribed by the principal, or by an agent of the principal, duly contract authorized by writing.

[New section.]

must be in writing.

SEC. 1733 An executory contract to grant real prop- Form of erty obligates the seller to convey by grant

grant required by such con.

1. If no covenants are required by the terms of the tract. executory contract, then by grant in form prescribed by Sec. 1102.

nants.

2. If Special Code Covenants are required by the terms Code Coveof the contract, then by grant in form prescribed by Sec. 1107.

3. If General Code Covenants are required by the terms of the contract, then by grant in form prescribed by Sec. 1108. [New section.]

NOTE. The following sections, taken from the New York Civil Code, show how this matter of covenants is disposed of there. They are entirely consistent with the Code Covenants. Both can be retained in the Code and the conveyancer can take his choice; or either can be omitted.

mon Law

Covenants such con

required by

SEC. 1734. An agreement on the part of a seller of Usual Comreal property to give the usual Common Law Covenants, binds him to insert in the grant covenants of "seizin," "quiet enjoyment," "further assurance," "general warranty," and "against encumbrances."

N. Y. C. C., Sec. 863.

tracts, when

Form of such covenants.

NOTE. The words "common law" are interpolated, in contradistinction to "code" covenants.

It is observed that the covenant of "right to convey' is omitted by the New York revisers. Why?

SEC. 1735. The covenants mentioned in the last section must be as follows: "The party of the first part cov enants with the party of the second part, that the former is now seized in fee simple of the property granted; that the latter shall enjoy the same without any lawful dis turbance; that the same is free from all encumbrances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same."

This provision is new. Its object is the same as that of Sec. 485, namely, to reduce the length of conveyances, and to provide a plain and sufficient form, as is done by the English statute (8 and 9 Vic., Chap. 119). The Commissioners believe that the form here given is sufficient to cover all the intricately worded stipulations usually given in such cases.

N. Y. C. C., Sec. 854.

ARTICLE III.

Contract for

sale of personal prop

erty.

FORM OF THE CONTRACT.

SECTION 1739. Contract for sale of personal property.

1740. Contract to manufacture.

1741. Contract for sale of real property.

SEC. 1739. No sale of personal property, or agreement to buy or sell it, for a price of two hundred dollars or more, is valid, unless

1. A memorandum of the contract, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed by the party to be charged; or,

2. The buyer accepts and receives part of the thing sold, or, when it consists of a thing in action, part of the evidences thereof; or,

3. The buyer, at the time of sale, pays a part of the price. "Fraudulent Conveyances and Contracts," Sec. 13; N.

Y. C. C., Sec. 865.

manufacture

SEC. 1740. An agreement to manufacture a thing, Contract to from materials furnished by the manufacturer or by another person, is not within the provisions of the last section.

N. Y. C. C., Sec. 866.

SEC. 1741. No agreement for the sale of real property, or of any estate therein, is valid, unless a memorandum thereof, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed by the party to be charged, or unless the contract has been partially performed by the party seeking to enforce it, and such part performance has been accepted by the other.

These particulars are specifically mentioned, in order to avoid the possibility of an interpretation requiring the consideration to be stated.

2 R. S., 135, Sec. 8; except that "the party to be charged" is substituted for "the vendor," so as to establish a rule uniform with that concerning sales of personal property.

2 R. S., 135, Sec. 9. retains the equitable doctrines of part performance. This provision is doubtless rather broader than the rules of equity would sustain, as it has always been required that, to take the case out of the statute, the party seeking to enforce an oral contract must show that he cannot be replaced in his former position (Malins vs. Brown, 4 N. Y., 403; Bennett vs. Abrams, 41 Barb., 619; Williston vs. Williston, id., 635; Lowry vs. Tew, 3 Barb. Ch., 407; Rhodes vs. Rhodes, 3 Sandf. Ch., 279; Wolfe vs Frost, 4 id., 72; German vs. Machin, 6 Paige, 238; Frame vs. Dawson, 14 Ves., 386.)

But it is to be remembered that the equitable doctrine of part performance was always in contradiction of the letter of the statute, and that the Courts might therefore well hesitate to go so far as their sense of abstract justice would have dictated. In reducing their doctrines to the form of a statute, it seems only proper to adopt the principle which lies at the foundation of those decisions, without the restrictions which were imposed from a regard for the adverse provision of the statute of frauds.

This provision is inserted in this place, instead of being left to the chapter on Specific Performance, because it thought that the fusion of law and equity makes this the proper course.

N. Y. C. C., Sec. 867.

NOTE.-See Secs. 1091, 1092 and 1732, of this Code.

Contract for property.

sale of real

CHAPTER II.

RIGHTS AND OBLIGATIONS OF THE SELLER.

ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY.

II. DELIVERY.

III. WARRANTY.

ARTICLE I.

When seller must act as depositary.

When seller may resell.

RIGHTS AND DUTIES BEFORE DELIVERY.

SECTION 1748. When seller must act as depositary.

1749. When seller may resell.

SEC. 1748. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable opportunity to remove it.

N. Y. C. C., Sec. 869.

SEC. 1749. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller, after payment is due, the seller may rescind the sale, or may enforce his lien for the price in the manner prescribed by the Title on Liens.

N. Y. C. C., Sec. 870.

ARTICLE II.

Delivery on

demand.

Delivery, where made.

Expense of transportation.

DELIVERY.

SECTION 1753. Delivery on demand.

1754. Delivery, where made.

1755. Expense of transportation.

1756. Notice of election as to delivery.

1757. Buyer's directions as to manner of sending thing sold.

1758. Delivery to be within reasonable hours.

1759. Sale of personal property, when void.

SEC. 1753. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and deliver it to the buyer within a reasonable time after demand, unless he has a lien thereon.

N. Y. C. C., Sec. 871.

SEC. 1751. Personal property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or, if it is not then in existence, it is deliverable at the place where it is produced.

N. Y. C. C., Sec. 872.

SEC. 1755. One who sells personal property must bring it to his own door, or other convenient place, for its

acceptance by the buyer, but further transportation is at the risk and expense of the buyer.

N. Y. C. C., Sec. 873.

SEC. 1756. When either party to a contract of sale has an option as to the time, place or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived.

N. Y. C. C., Sec. 874.

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rections as

to manner of sending

SEC. 1757. If a seller agrees to send the thing sold to Buyer's dithe buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk thing sold. during its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. N. Y. C. C., Sec. 875.

SEC. 1758. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day.

N. Y. C. C., Sec. 876.

SEC. 1759. A sale of personal property in the possession or under the control of the seller must be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, or such sale is void as against the creditors of the seller, or subsequent purchaser in good faith and for valuable consideration.

[New section.]

NOTE. Based on "Fraudulent Conveyances," Sec. 15, "and for valuable consideration," added to harmonize in effect of non-recording of real property.

Delivery to be within reasonable hours.

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1764. No implied warranty in mere contract of sale.

1765. Warranty of title to personal property.

1766. Warranty on sale by sample.

1767. When seller knows that buyer relies on his statements, etc.

1768. Merchandise not in existence.

1769. Manufacturer's warranty against latent defects.

1770. Thing bought for particular purpose.

1771. When thing cannot be examined by buyer.

1772. Trade marks.

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