a—
Differentiating Property from Contract

In Llewellyn's words, "Title-thinking [is] Sales law viewed as property law. . . . "^[199] In contradistinction, he characterized his analytical approach as being rooted "in the proposition that the modern law of Sale is a law of contract for future delivery; that the present sale plays little part today in litigation; and that most problems commonly dealt with under the heading of 'title' are obscured rather than clarified by that dealing."^[200]

In other words, although sales, by definition, involve the conveyance of property, modern mercantile transactions cannot be reduced to conveyancing. There are aspects of sales relations which are purely contractual in nature—such as terms relating to production specifications, requirements, warranties, credit, transportation, storage, and so on. They should, therefore, be left to the general principle of freedom of contract.

Unfortunately, according to Llewellyn, the common law tended to assume that all legal issues relating to sales were property issues and that all property rights could be reduced to possession. This is why he entitled one of his critiques Through Title to Contract and a Bit Beyond and began it with the reminder that "[t]he law of Sales, as is well known, is in one

[199] Llewellyn, Through Title to Contract, supra note 193, at 191.

[T]he property concept is repeatedly used by courts as a device to settle various issues which in themselves are contract and not "property" issues: i.e ., they are matters which the parties have power to arrange at will by express contractual clauses, if they want to, and think about it.

Llewellyn, Sales, supra note 191, at 64.

Llewellyn first developed his critique of the common law in terms of a conflation of the concept of the sale (i.e., the conveyancing of a property interest in a good) and the contract for future sale in his great casebook on sales. Id . at xii-xiv. Hegel also makes a distinction between an executory contract and the performance of the contract and compares it to the parallel distinction between property and the possession. In both dyads, the former is potentiality and the latter is its actualization. Hegel, The Philosophy of Right, supra note 23, at 108.

[200] Llewellyn, Sales, supra note 191, at xiv.

phase part of the law of contract, in another phase part of the law of property."^[201] The common law of sales repressed contract and subordinated the contract aspects of sales to the property aspect.^[202]

The approach of prevailing Sales doctrine . . . is this: Unless cogent reason be shown to the contrary, the location of Title will govern every point which it can be made to govern.^[203]

In other words, Llewellyn denied neither the coherence or unity of the concept of property, generally, nor the property aspects of sales, specifically. But he condemned common-law property analysis for making the grave category mistake of trying to analyze contract issues in terms of property principles. He hoped that he could avoid this error by concentrating on the contract aspects of sales and deemphasizing the property aspects and by developing new language for the analysis of sales.^[204]

[201] Llewellyn, Through Title to Contract, supra note 193, at 159.

[202] Perhaps out of pure inertia, perhaps because one of the traditionally central problems of the field is whether a given agreement operates at the very instant of its making as a transfer, nobody has yet tried very hard to take the Contract parts of the "field" out of Sales, and to locate them over in Contracts.

Karl N. Llewellyn, Across Sales on Horseback , 52 Harv. L. Rev. 725, 728 (1939) [hereinafter Llewellyn, Across Sales on Horseback ].

Oddly enough, Llewellyn argued against moving contract law out of sales entirely so that the contract of sales would be analyzed under the general law of contract. He thought it was analytically necessary for there to be a separate law of sales, but wanted the contract aspects of the law of sales to be analyzed in terms of contract concepts rather than property concepts. This concern with identifying separate identifiable "fields" of law seems strangely archaic today. Nevertheless, it is reflected in Article 2 of the U.C.C., which governs contracts only insofar as they relate to the sales of goods.

[203] Llewellyn, Through Title to Contract, supra note 193, at 169.

[204] Llewellyn hoped to encourage a latent, but faltering, trend in early-twentieth-century judicial reasoning. Llewellyn acknowledges that new sales concepts were emerging in his day but thought that "the process is as groping and uncertain as it is stubborn; and . . . is often obscured, still more often hindered or twisted, by the traditional language used in discussing the situations." Llewellyn, Sales, supra note 191, at 562. This is related to Llewellyn's second critique of the obsolete imagery reflected in the common law.

To get along without the title concept, to get along without learning to use it, reason with it, argue from it, is impossible. But to accept it blindly as the basis of all sales discussion . . . is to lose perspective on modern developments, to cripple one's drafting technique and to load one's self up with a baggage of useless confusion. The courts have spent a century struggling through to recognition of issue after issue as severable from title. Surely the student should start with such clarity as is available today; not shackle his thinking with the very over-generalization from which the law is working free.

Id . at xiv-xv.