Report No. 61
1.5. Narrow concept of "sale".-
It may be that the narrow concept of sale in the common law, and in the statute based thereon1, is due to the fact that sale was originally a "cash and carry" transaction. Perhaps, the most dramatic illustration of the difficulties in breaking with the past in this respect is the long struggle of warranty law with the principle of caveat emptor-the principle that "he who does not open his eyes, opens his purse"-a maxim reflecting a phase in the history of sales law when a sale was a "cash and carry" transaction2 This may account for the fact that the emphasis is on the passing of property-though the position in regard to payment of the price and other aspects has undergone modification.
1. Paras. 1.4A and 1.4B, supra.
2. (a) Hamilton The Ancient Maxim Caveat Emptor, (1931) 40 Yale U 1133. (b) Kessler Protection of the Consumer, (1964-65) 74 Yale Ij 262, 263.
1.5A. Some transactions which do not amount to 'sale'.-
This requirement as to the passing of property being essential, it is well-established1 that a transaction lacking transfer of property cannot be taxed as a sale by creating a legal fiction in the shape of a deeming clause which seeks to extend the concept of 'sale'.
1. Dy. C.T.O. v. Enfield India Ltd., AIR 1968 SC 838 (840): (1968) 2 SCR 421.