1911 Encyclopædia Britannica/Bargain and Sale

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BARGAIN[1] AND SALE, in English law, a contract whereby property, real or personal, is transferred from one person—called the bargainer—to another—called the bargainee—for a valuable consideration; but the term is more particularly used to describe a mode of conveyance of lands. The disabilities under which a feudal owner very frequently lay gave rise to the practice of conveying land by other methods than that of feoffment with livery of seisin, that is, a handing over of the feudal possession. That of “bargain and sale” was one. Where a man bargained and sold his land to another for pecuniary consideration, which might be merely nominal, and need not necessarily be actually paid, equity held the bargainer to be seised of the land to the use of the bargainee. The Statute of Uses (1535), by converting the bargainee’s interest into a legal estate, had an effect contrary to the intention of its framers. It made bargain and sale an easy means of secret or private conveyance, a policy to which the law was opposed. To remedy this defect, a statute (called the Statute of Enrolments) was passed in the same year, which provided that every conveyance by bargain and sale of freehold lands should be enrolled in a court of record or with the custos rotulorum of the county within six months of its date. The Statute of Enrolments applied only to estates of inheritance or for life, so that a bargain and sale of an estate for years might be made without enrolment. This in turn was the foundation of another mode of conveyance, namely, lease and release, which took the place of the deed of bargain and sale, so far as regards freehold. Bargain and sale of copyhold estates, which operates at common law, is still a mode of conveyance in England in the case of a sale by executors, where a testator has directed a sale of his estate to be made, instead of devising it to trustees upon trust to sell.

See also Conveyancing.

  1. From O. Fr. bargaigne, a word of doubtful origin, appearing in many Romance languages, cf. Ital. bargagno; it is connected with Late Lat. barcaniare, to traffic, possibly derived from barca, a barge.