Chapter: Liability for the Sold Item before Delivery

Should the merchandise perish, the sale is void and the price falls away. Even if the buyer releases the seller from liability, the seller is, according to the sounder view, not thereby released and the ruling remains unchanged. If the buyer himself destroys the item, that destruction counts as possession provided he knew what he was doing; if he did not, there are two opinions—parallel to the case of an owner who, as a guest, eats food he had previously usurped. The authoritative position is that destruction caused by the seller is treated exactly like the item’s own, natural loss.

The sounder opinion holds that destruction by a third party does not dissolve the sale; rather, the buyer may choose either to uphold the sale and recover damages from the third party, or to rescind, in which case the seller must pursue the outsider for compensation. If the item becomes defective before possession and the buyer is satisfied to keep it, he must pay the full price. Should the defect be inflicted—when no option otherwise exists—by the buyer himself, or by an outsider, the right of option arises; if the buyer opts to affirm the sale, the outsider owes the diminution in value. If the seller is the one who causes the defect, the school’s position is that the option stands, not