Cash on delivery would best please a vendor—or even earlier! But the commercial realities make this impossible in most cases. So the seller has parted with his property, thus fulfilling his obligation under a simple contract of sale, and has in return at that time only a promise to pay. That promise is a primary legal obligation under the contract and will, if need arise, be specifically enforced by the court upon an action for the price. In such a context the secondary obligation, the obligation to pay damages for failure to implement the agreement, does not arise. However, the vendor who has parted with his property remains at risk until he actually receives the price, and if he is forced to embark upon litigation is put at the further risk of his costs.

Under s. 25 of the Sale of Goods Act the unpaid seller who remains in possession has a lien for the price upon the goods, but no rights are afforded to the seller who has parted with possession, neither at common law nor by statute. The title to the goods (technically called the property in the goods) passes when the parties so intend. For specific goods already in existence at the time the contract is made the property in them passes then. Generally speaking, the property passes as soon as the goods are appropriated to the contract, either by coming into existence (by manufacture or some creative process) or by being earmarked for the contract. It is open to the parties to evince an intention for title to pass at some other time, but this needs specific wording in the contract. What should be borne in mind is that in all cases where no specific agreement is made the passing of title will not even wait upon delivery but will have taken place earlier. Where a specific agreement is made that the title shall remain with the seller until a certain event occurs (e.g., payment or resale) it is called reservation or retention of title.

Once title has passed to the vendor the goods become liable to be seized in a bankruptcy or liquidation and the seller ranks merely with the other unsecured creditors. If the buyer is bankrupt (i.e., he is not a limited company) goods in his ostensible ownership with the true owner’s consent are liable to be included in the assets available to creditors. However, this rule does not apply in liquidations. The seller may also lose the title to the goods he has reserved where the buyer makes good title under the Factors Act or the Sale of Goods Act to a third party taking in good faith without