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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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As to many miscellaneous matters as to sales, see note § 1721,
ante.

For C«::;aiissioricrs' comment on this section, see Kerr's Cyc.
C. C. § 1758, note par. 1.

Offer of performance — When to be made. — See Kerr's Cyc.
C. C. §§ 1490, 1491 and notes.

Reasonable hour for delivery. — See 12 A. D. 574, 575.



968



Tit.I,ch.II,art.IIT.] what a warranty. § 1763

ARTICLE III.

WARRANTY.

§ 176.3. Warranty, what.

§ 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.

§ 1773. Other marks.

§ 1774. Warranty on sale of written instrument.

§ 1775. Warranty of provisions for domestic use.

§ 1776. Warranty on sale of good-will.

§ 1777. Warranty upon judicial sale.

§ 1778. Effect of general warranty.

§ 1763. WARRANTY, WHAT. A warranty is an engage-
ment by which a seller assures to a buyer the existence of
some fact affecting the transaction, whether past, present, or
future.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 29 pars, annotation.

66 C. 238, 239, 5 P. 160 (cited); 4 C. A. 249, 254, 87 P. 410,
413 (cited).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

As to rebutting implied presumptions, see Kerr's Cyc. C. C.
§ 1765 and note par. 14.

Breach of warranty — Remedies, pleading and practice. — See
Kerr's Cyc. C. C. § 1786 and note pars. 21, 22.

Damages for breach of warranty of quality. — See Kerr's Cyc.
C. C. §§ 3313, 3314 and notes.

Defects amounting to breach of warranty of soundness. — See
53 A. D. 173-179.

Effect of acceptance of goods. — See 12 L. 399.

Express warranty. — See 6 L. 374.

Oral and written warranties. — See 12 L. 694-696.

969



§§ 1764, 1765 CIVIL CODE. [Div.III.Pt.IV.

Parol evidence to show warranty outside of contract. — See
5 A. S. 197-199; 41 A. S. 606.

Price paid as affecting implication of warranty. — See 43 A.
D. 680.

Representations as warranties. — See 15 A. R. 382-386.

Set-off allowed in action for price. — See Kerr's Cyc. C. C.
§ 1776 and note par. 6.

Soundness of horse warranted. — See 3 L>. 184; 12 L. 695.

§ 1764. NO IMPLIED WAERANTY IN MERE CONTRACT
OF SALE. Except as prescribed by this article, a mere con-
tract of sale or agreement to sell does not imply a warranty.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

65 C. 273, 274, 3 P. 889 (cited); 66 C. 238, 239, 5 P. 160 (cited);
92 C. 117,^123, 28 P. 98, 99 (applied); 47 P. 684, 686 (referred
to), commissioners' decision reversed in 120 C. 228, 52 P. 496;
139 C. 564, 584, 96 A. S. 169, 73 P. 456, 457 (cited); 145 C. 272.
280, 78 P. 722 (cited); 4 C. A. 249, 255, 87 P. 410, 413 (referred
to).

As to application of doctrine when tliere is express warranty,
see Kerr's Cyc. C. C. § 1763 and note par. 6.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Agreement to sell — No implied warranty. — See Kerr's Cyc. C.
C. § 1763 and note par. 2.

Caveat emptor applies. — See 90 A. D. 424-431.

Exchange of money — Warranty of genuineness. — See Kerr's
Cyc. C. C. § 1807 and note.

Implied warranties. — See 1 A. D. 84-86, 6 A. D. 113-115, 54 A. D.
145, 55 A. D. 328, 24 A. R. 181-183; 1 L. 645, 646; 6 L. 374, 375.

Implied warranty of fitness of property bought for special
purpose. — See 22 L. 187-198.

§1765. WARRANTY OF TITLE TO PERSONAL PROP-
ERTY. One who sells or agrees to sell personal property,
as his own, thereby warrants that he has a good and unen-
cumbered title thereto.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 15 pars, annotation.
113 C. 345, 353, 45 P. 680 (construed and applied).
As to many miscellaneous matters as to sales, see note § 1721,
ante. ■•

970



Tit.I,ch.II,art.III.] ON SALE BY SAMPLE. §§1766,1767

As to yielding- possession of land, see Kerr's Cyc. C. C. § 1731
and note.

As to yielding- possession upon failure of title, see Kerr's Cyc.
Q. C. § 1765, note par. 9.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Damag-es for breach of warranty of title to personal property.
— See Kerr's Cyc. C. C. § 3312 and note.

Warranty of title implied on sale. — See 62 A. D. 460-468; 16
A. S. 758, 759.

§1766. WARRANTY ON SALE BY SAMPLE. One who

sells or agrees to sell goods by sample, thereby warrants the
bulk to be equal to the sample.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 12 pars, annotation.

145 C. 272, 278, 78 P. 722 (referred to as inapplicable); 147 C.
313, 327, 81 P. 964 (cited in dis. op.).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Sale by sample.— See 7 A. D. 125-132; 55 A. D. 328, 329.

§1767. WHEN SELLER KNOWS THAT BUYER RELIES
ON HIS STATEMENTS, ETC. One who sells or agrees to sell
personal property, knowing that the buyer relies upon his
advice or judgment, thereby warrants to the buyer that
neither the seller, nor any agent employed by him in the
transaction, knows the existence of any fact concerning the
thing sold which would, to his knowledge, destroy the buyer's
inducement to buy.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cj^c.
C. C. § 1786 and note.

Damages for breach of warranty of quality for special pur-
poses. — See Kerr's Cyc. C. C. § 3314 and note.

971



§§1768,1769 CIVIL CODE. [Div.III.Pt.IV.

§1768. MERCHANDISE NOT IN EXISTENCE. One who

agrees to sell merchandise not then in existence, thereby war-
rants that it shall be sound and merchantable at the place of
production contemplated by the parties, and as nearly so, at
the place of delivery, as can be secured by reasonable care.
History: Enacted March 21, 1872.

See Kerr s Cyc C. C. for 7 pars, annotation.

75 C. 558, 561, 17 P. 687, 688 (referred to); 76 C. 212, 214, 218,
9 A. S. 199, 18 P. 248, 249, 251 (construed and applied); 116 C.
239, 245, 48 P. 62 (construed and applied); 119 C. 442, 51 P.
689, 690 (referred to with other sections — sale of hams).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

§1769. MANUFACTURER'S WARRANTY AGAINST LAT-
ENT DEFECTS. One who sells or agrees to sell an article
of his own manufacture thereby warrants it to be free from
any latent defect, not disclosed to the buyer, arising from the
process of manufacture, and also that neither he nor his
agent in such manufacture has knowingly used improper
materials therein.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

67 C. 610, 613, 8 P. 440, 442 (construed and applied); 75 C.
558, 561, 17 P. 687, 688 (referred to); 119 C. 442, 51 P. 689, 690
(referred to); 134 C. 324, 328, 66 P. 311 (applied); 152 C. 31, 40,
91 P. 983 (not applicable); 4 C. A. 249, 255, 256, 87 P. 410, 413
(doubtful whether prune trees are an article of defendant's
own manufacture).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Commissioners' note cites: 78 A. D. 163.

Complaint — Latent defect must be alleged as cause of injury.
— See Kerr's Cyc. C. C. § 1786 and note par. 19.

Damages — For breach of warranty of quality for special pur-
poses. — See Kerr's Cyc. C. C. § 3314 and note.

972



Tit.I,ch.II,art.III.] particular purpose. § 1770

Same — 'For personal injuries are recoverable. — See Kerr's Cyc.
C. C. § 1770 and note pars. 7, 8.

Expert testimony is admissible. — See Kerr's Cyc. C. C. § 1770
and note pars. 10, 11.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Rescission by buyer upon breach of warranty is permissible
where machine sold breaks down. — See 67 C. 610, 613, 8 P. 440.

Rights of buyer upon breach of warranty. — See Kerr's Cyc.
C. C. § 1786 and note.

Starting machine. — See Kerr's Cyc. C. C. § 1763 and note
par. 27.

Warranty implied upon sale of article by manufacturer. —
See 24 A. R. 104-114.



§1770. THING BOUGHT FOE PARTICULAR PURPOSE.

One who manufactures an article under an order for a par-
ticular purpose, warrants by the sale that it is reasonably fit
for that purpose.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 17 pars, annotation.

63 C. 575, 576 (referred to); 65 C. 273, 274, 3 P. 889, 890 (con-
strued); 67 C. 610, 613, 8 P. 440, 442 (construed and applied);
75 C. 558, 561, 17 P. 687, 688 (referred to); 76 C. 212, 214, 9
A. S. 199, 18 P. 248, 250 (construed); 119 C. 442, 51 P. 689, 690
(referred to); 120 C. 228, 229, 231, 52 P. 496 (construed), revers-
ing commissioners' decision, 47 P. 684; 134 C. 324, 328, 66 P. 311
(applied); 152 C. 31, 40, 91 P. 983 (not applicable).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1769, note par. 9, § 1786 and note.

Contract for sale of article to be manufactured and actual
bargain and sale. — See Kerr's Cyc. C. G. § 1721 and note.

Damages for breach of warranty of equality for special pur-
poses.- — See Kerr's Cyc. C. C. § 3314 and note.

Evidence that similar machines do good work. — See Kerr's
Cyc. C. C. § 1786 and note par. 8.

Implied warranty of article manufactured and sold for par-
ticular purpose.— See 6 A. D. 115-117; 54 A. D. 145; 22 L. 189-193.

Rebuttal of implied warranty is permitted. — ^See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Satisfactoriness to buyer is necessary, when. — See Kerr's Cyc.
C. C. § 1763 and note par. 24.

973



§§ 1771-1773 CIVIL CODE. [Div.III.Pt.IV.

§1771. WHEN THING CANNOT BE EXAMINED BY
BUYER. One who sells or agrees to sell merchandise inac-
cessible to the examination of the buyer, thereby warrants
that it is sound and merchantable.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 11 pars, annotation.

65 C. "?" 275, 3 P. 889, 890 (construed); 76 C. 212, 214, 9 A. S.
199, 18 P. 248, 250 (referred to); 119 C. 442, 51 P. 689, 690
(referred to); 145 C. 272, 280, 78 P. 722 (construed and held
inapplicable); 147 C. 313, 327, 81 P. 964 (cited in dis. op.).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Horse feed bought without inspection. — See Kerr's Cyc. C. C.
§ 1767 and note par. 4.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Rescission upon discovery of defects, etc. — See 86 A. D. 312-
314.

Sale of goods by description. — See Kerr's Cyc. C. C. § 1767
and note par. 5.

§ 1772. TRADE-MARKS. One who sells or agrees to sell
any article to which there is affixed or attached a trade-mark,
thereby warrants that mark to be genuine and lawfully used.

History: Enacted March 21, 1872, taken from Stats. 25 and

26 Vict. ch. 88, § 19.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — Sea Kerr's Cyc.
C. C. § 1786 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

§ 1773. OTHER MARKS. One who sells or agrees to sell
any article to which there is affixed or attached a statement
or mark to express the quantity or quality thereof, or the
place where it was, in whole or in part, produced, manufac-
tured, or prepared, thereby warrants the truth thereof.

History: Enacted March 21, 1872. See Stats. 25 and 26, Vict,
ch. 88.

974



Tit.I,ch.II,art.III.] WRITTEN INSTRUMENT, OF. §§ 1774, 1775

As to many miscellaneous matters as to sales, see note § 1721,

ante. ,

Breach of warranty as ground for rescission. — See Kerr s Cyc.

C. C. § 1786 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

§1774. WARRANTY 0> SALE OF WRITTEN INSTRU-
MENT. One who sells or agrees to sell an instrument pur-
porting to bind any one to the performance of an act, thereby
warrants that he has no knowledge of any facts which tend
to prove it worthless, such as the insolvency of any of the
parties thereto, where that is material, the extinction of its
obligations, or its invalidity for any cause.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Am'dts. 1873-4, p. 244. Originally this section contained a
further provision, which was stricken out in 1874, that seller
warrants instrument to be what it purports to be and to be
binding according to its purport upon all parties thereto. See
103 C. 319, 324, 42 A. S. 117, 37 P. 401.

See Kerr's Cyc. C. C. for 9 pars, annotation.

86 C. 184, 188, 24 P. 1005, 1006 (construed); 92 C. 117, 124, 127.
128 28 P. 98, 99, 100 (construed); 96 C. 160, 161, 31 P. 14 (con-
strued); 103 C. 319, 324. 42 A. S. 117, 37 P. 401 (cited with
§3116); 139 C. 564, 585, 96 A. S. 169, 73 P. 456, 457 (construed
and applied).

As to liability of indorser of negotiable instrument, see Kerr s
Cyc. C. C. § 3116 and note.

As to many miscellaneous matters as to sales, see note § 1721,

ante.

Breach of warranty as ground for rescission.— See Kerr s Cyc.
C. C. § 1786 and note.

Implied warranty on sale of corporate stock.— See 53 L.
153-156.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

§1775. WARRANTY OF PROVISIONS FOR DOMESTIC
USE. One who makes a business of selling provisions for
domestic use warrants by a sale thereof, to one who buys
for actual consumption, that they are sound and wholesome.

History: Enacted March 21, 1872.
975



§§1776,1777 CIVIL CODE. [Div.III.Pt.IV.

See Kerr's Cyc. C. C. for 7 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

As to sale of unwholesome food for stock, see Kerr's Cyc.
C. C. § 1708, note pars. 10-18.

As to sale of unwholesome provisions for food, see Kerr's
Cyc. C. C. § 43, note pars. 64-86.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. g "'VSfi and note.

Horse feed bought without inspection. — See Kerr's Cyc. C. C.
§ 1767 and note par. 4.

Provisions sold for domestic use impliedly warranted. — See
43 A. D. 680, 681.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.



§ 1776. WARRANTY ON SALE OF GOOD-WILL. One who

sells the good-will of a business thereby warrants that he
will not endeavor to draw off any of the customers.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

71 C. 142, 148, 11 P. 856, 859 (construed and applied); 114 C.
635, 665, 667, 46 P. 742, 34 L. 265 (cited); 124 C. 429, 432, 71
A. S. 94, 57 P. 468, 46 L. 142 (cited).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Definition of good-will. — See Kerr's Cyc. C. C. § 992 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Remedies for breach. — See Kerr's Cyc. C. C. §,1786 and note.

Rescission of sale unnecessary to entitle buyer to damages
for breach of warranty. — See 71 C. 142, 148, 11 P. 856.

Transfer of good-will. — See Kerr's Cyc. C. C. § 993 and note
pars. 45-53.

§1777. WARRANTY UPON JUDICIAL SALE. Upon a
judicial sale, the only warranty implied is that the seller
does not know that the sale will not pass a good title to the
property.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

976



Tit.I,ch.II,art.III.] GENERAL WARRANTY. § 1778

As to title which purchaser is entitled to, see Kerr's Cyc.
C. C. § 1731 and note.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

Rebuttal of implied warranty is permitted. — See Kerr's Cyc.
C. C. § 1765 and note par. 14.

Void and voidable sales. — See 47 A. S. 707.

§ 1778. EFFECT OF GENERAL WARRANTY. A general
warranty does not extend to defects inconsistent therewith of
which the buyer was then aware, or which were then easily
discernible by him without the exercise of peculiar skill; but
it extends to all other defects.

History: Enacted March 21, 1872.

4 C. A. 249, 255, 87 P. 410 (inapplicable).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

For Commissioners' comment on this section, see Kerr's Cyc.
C. C. § 1778, note.



977



§ 1784 CIVIL, CODE. [Div.III,Pt.IV.

CHAPTER III.

RIGHTS AND OBLIGATIONS OF THE BUYER.

§ 1784. Price, when to be paid.
§ 1785. Right to inspect goods.
" i""r>. Rights in case of breach of warranty.

§ 1784. PRICE, WHEX TO BE PAID. A buyer must pay
the price of the thing sold on its delivery, and must take it
away within a reasonable time after the seller offers to

deliver it.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 39 pars, annotation.

76 C. 212, 215, 9 A. S. 199, 18 P. 248, 250 (cited); 82 C. 474, 479,
23 P. 118, 119 (construed and applied).

As to check not being tenderable, see Kerr's Cyc. C. C. § 1485
and note pars. 13-16.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Acceptance necessary — Contract for sale of article to be
manufactured. — See Kerr's Cyc. C. C. § 1770 and note par. 2.

Agent may bring action for price. — See Kerr's Cyc. C. C.
§ 1749 and note.

Breach of warranty — Rights of buyer in case of. — See Kerr's
Cyc. C. C. § 1786 and note.

Conditional sale. — See Kerr's Cyc. C. C. § 1753 and note par. 14.

Counterclaim upon breach of warranty in action for price. —
See Kerr's Cyc. C. C. § 1780 and note.

Culling by buyer not permissible. — See Kerr's Cyc. C. C. § 1753
and note par. 16.

Damage for breach of contract by buyer. — See Kerr's Cyc.
C. C. §§3310, 3311 and notes.

Depositary — When seller must act as. — See Kerr's Cyc. C. C.
§ 1748 and note.

Excessive quantity delivered. — See Kerr's Cyc. C. C. § 1753
and note pars. 27-29.

Forfeiture of instalments paid. — See Kerr's Cyc. C. C. §1749
and note.

Frauds, statute of — Delivery and acceptance required to
satisfy.— See Kerr's Cyc. C. C. § 1624 and note.

Immediate payment at time of making contract not essential
to validity of sale. — See Kerr's Cyc. C. C. § 1721 and note.

Inspection of goods before acceptance. — See Kerr's Cyc. C. C.
§ 1785 and note.

978



Tit.I,ch.IIL] RIGHT TO INSPECT. §§ 1785, 1786

Lien of seller for price.— See Kerr's Cyc. C. C. § 3049 and note.

Mutual and independent stipulations to deliver and make
payment. — See Kerr's Cyc. C. C. § 1753 and note pars. 41-43.

Receipt and acceptance of goods distinguishable. — See Kerr's
Cyc. C. C. § 1753 and note par. 56.

Recovery back of payment made. — See Kerr's Cyc. C. C. § 1749
and note.

Remedies of seller upon non-payment of price. — See Kerr's
Cyc. C. C. § 1749 and note.

Resumption of possession by seller upon non-payment of
instalment. — See Kerr's Cyc. C. C. § 1749 and note.

Stoppage in transitu. — See Kerr's Cyc. C. C. §§ 3076-3080 and
notes.

Transportation — Expense of. — See Kerr's Cyc. C. C. § 1755 and
note.



§1785. RIGHT TO INSPECT GOODS. On an agreement
for sale, with warranty, the buyer has a right to inspect the
thing sold, at a reasonable time, before accepting it; and
may rescind the contract if the seller refuses to permit him
to do so.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Breach of warranty as ground for rescission. — See Kerr's Cyc.
C. C. § 1786 and note.

§ 1786. RIGHTS IN CASE OF BREACH OF WARRANTY.

The breach of a warranty entitles the buyer to rescind an
agreement for sale, but not an executed sale, unless the
warranty was intended by the parties to operate as a condi-
tion.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 27 pars, annotation.

96 C. 84, 92, 31 A. S. 181, 30 P. 1016, 1019, 21 L. 406 (applied-
breach of warranty entitles buyer to rescind).

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Acceptance of goods — Effect of. — See Kerr's Cyc. C. C. § 1784
and note pars. 18, 19.

Damages for breach of warranty of quality. — See Kerr's Cyc.
C. C. § 3313 and note.

979



§ 1786 CIVIL CODE. [Div.III.Pt.IV.

Expert testimony as to sufficiency of machine warranted. —
See Kerr's Cyc. C. C. § 1770 and note pars. 10, 11.

Failure of title as defense in action for price. — See Kerr's
Cyc. C. C. § 1765 and note par. 11.

Necessity to allege express warranty. — See Kerr's Cyc. C. C.
§ 1764 and note par. 3.

Remedies of buyer for breach of warranty. — See 54 A. D.
146; 16 A. S. 759.

Rescission of c-.n tract.— See Kerr's Cyc. C. C. §§ 1688-1691 and
notes.

Rescission of contract for breach of warranty. — See 4'L.. 370.

Yielding possession upon failure of title. — See Kerr's Cyc.
C. C. § 1765 and note par. 9.



980



Tit.I.ch.IV.] AUCTION, SALE AT. §§ 1792-1794

CHAPTER IV.

SALE BY AUCTION.

§ 1792. Sale by auction, what.

§ 1793. Sale, when complete.

§ 1794. Withdrawal of bid.

§ 1795. Sale under written conditions.

§ 1796. Rights of buyer upon sale without reserve.

§ 1797. By bidding.

§ 1798. Auctioneer's memorandum of sale.

§ 1792. SALE BY AUCTION, WHAT. A sale by auction is
a sale by public outcry to the highest bidder on the spot.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

Auctioneers — As to ag-ency of. — See Kerr's Cyc. C. C. §§ 2362,
2363 and notes.

Same — Regulations concerning. — See Kerr's Cyc. Pol. C.
§§ 3284-3324 and notes.

Same — Unlawfully acting as. — See Kerr's Cyc. Pen. C. § 436 and
note.

Auctions — General provisions governing. — See 96 A. D. 264-272.

Mock auctions — Penal provisions concerning. — See Kerr's Cyc.
Pen. C. § 535 and note.

Withdrawal of property from auction sale. — See 57 L. 784-789.

§ 1793. SALE, WHEN COMPLETE. A sale by auction is
complete when the auctioneer publicly announces, by the fall
of his hammer, or in any other customary manner, that the
thing is sold.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

As to opening biddings, see 17 Encyc. L. 1006-1010.

§ 1794. WITHDRAWAL OF BID. Until the announcement
mentioned in the last section has been made, any bidder may

981



§§ 1795-1797 CIVIL CODE. [Div.III.Pt.IV.

withdraw his bid, if he does so in a manner reasonably suffi-
cient to bring it to the notice of the auctioneer.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

§ 1795. SALE UNDER WRITTEN CONDITIONS. When a
sale by auction is made upon written or printed conditions,
such conditions cannot be modified by any oral declaration
of the auctioneer, except so far as they are for his own

benefit.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

As to many miscellaneous matters as to sales, see note § 1721,
ante.

§1796. RIGHTS OF BUYER UPON SALE WITHOUT
RESERVE. If, at a sale by auction, the auctioneer, having
authority to do so, publicly announces that- the sale will be
without reserve, or makes any announcement equivalent
thereto, the highest bidder in good faith has an absolute right
to the completion of the sale to him; and, upon such a sale,



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