Legal Thesaurus

Oculis et effectu

Any formal act, intended as a delivery, will be sufficient to transfer the title, although the property be not touched. Thus, where the subject of sale was ninety three tons of iron, lying by itself; and the parties met at the place where the iron was, and agreed upon the price and the mode of payment, and they then stepped up to the iron, and the vendor said to the vendee, “I deliver you this iron at that price,” after which, before the iron was moved, it was claimed and taken away by a third person, it was held, that this was an actual delivery by the vendor and a receiving by the vendee [Calkins v. Lockwood, 17 Conn 154].

This species of delivery, is generally recognised in cases where anything was sold which, on account of its great size and weight, could not be removed, as columns, casks of wine. In such cases no actual delivery was necessary: the vendor could take possession “oculis et effectu” [Dig Lib xli, tit 2 art 1, 21].

So, also, the delivery of the keys of a cellar of wine, or of a barn filled with grain, was held to be a sufficient delivery if made in sight of the cellar or barn; but it seems to have been necessary that the place or article should be in sight. [Vining v. Gilbret, 39 Maine 496].

Leave a Comment