b—
The Common-Law Sales Paradigm.

(1) Horsing Around with Karl

Anyway . . . after much screaming and yelling and horsing around, . . . we had a Uniform Revised Sales Act.^[205]

Llewellyn's other related critique of the common law of sales was that it did not and could not deal with modern commercial transactions because its underlying imagery was obsolete. According to Llewellyn, the legal analyst is informed by "his problems, his illustrations, the tacit and often unconscious fact-pictures against which he tests the meaning and bearing of words, the whole stock of implicit orientations to solution which are the life of active work with law. . . ."^[206] For there to be a significant change in the law it is necessary for "the facts and their connotations of practice, need and context [to be] effectively iterative, cumulated without interruption, . . . so clustered as to become moderately familiar to the run of relevant lawyers."^[207] This is because "[o]ur fields of law, our patterns of legal thinking, our legal concepts, have grown up each one around some 'type' of occurrence or transaction, felt as a typical something, seen in due course as a legally significant type, and, as a type-picture, made a standard and a norm for judging."^[208]

To translate Llewellyn's point into Kuhnian-Lakotosian language, Llewellyn thought that law is governed by specific, implicit images of the typical transaction which are shared by the legal community—a paradigm.^[209] Under the theory of sophisticated falsification as developed by Imre Lakatos,^[210] paradigm shifts do not occur merely because the community observes inconsistent empirical evidence which falsifies the original hypothesis. Rather, the community formulates an "auxiliary" hy-

[205] So Soia Mentschikoff described the process of drafting the U.C.C. under the supervision of her husband, Karl Llewellyn. Soia Mentschikoff, Reflections of a Drafter , 43 Ohio St. L.J 537, 538 (1982). Apparently, equine metaphors were popular in the Mentschikoff-Llewellyn household. She uses this expression at least three times in her short reminiscence.

[206] Karl N. Llewellyn, The First Struggle to Unhorse Sales , 52 Harv. L. Rev. 873, 874 (1939) [hereinafter Llewellyn, The Struggle to Unhorse Sales ].

[207] Id . at 875.

[208] Id . at 880.

[209] Needless to say, Llewellyn was writing more than thirty years prior to the publication of Kuhn's seminal work and could not have been influenced by Kuhn's theory. Nevertheless, I believe one can find certain similarities between Llewellyn's and Kuhn's ideas.

[210] Lakatos preferred the more modest "research programme" to Kuhn's "paradigm." Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Criticismand the Growth of Knowledge 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination , 70 Tex. L. Rev. 109, 168–71 (1991) [hereinafter Schroeder, Abduction from the Seraglio].

pothesis to explain away the apparent anomaly. Paradigms eventually degenerate when they become so encrusted with "protective belts" of auxiliaries that they begin to explain less and less as more and more empirical evidence is explained away as exceptions which prove the rule. Although degenerative paradigms are ripe to be overthrown, this cannot occur until a revolutionary paradigm is devised.

Llewellyn posits that significant changes in the law only occur when a new image (paradigm) of the typical transaction becomes dominant in the profession. The early-twentieth-century paradigm of sales was what Llewellyn called a "farmer's transaction."^[211]

In the traditional agrarian economy, an individual seller sells a readily identifiable and unique good to an individual buyer whom he already knows, in an isolated face-to-face cash transaction, probably for the buyer's personal consumption or use.^[212] The quintessential "good" in this picture was a horse.^[213]

In this archetypical sale of a horse between farmers, property rules are very simple.^[214] Old MacDonald and Mr. Greenjeans know each other and have a basis to make a judgment on their relative honesty and creditworthiness. MacDonald shows Dobbin to Greenjeans. Greenjeans has ample opportunity to look the horse in the mouth at the MacDonald farm or at a public market established for this purpose and, therefore, has no need for MacDonald to warrant Dobbin's qualities. If Greenjeans decides to buy Dobbin, he will hand cash to MacDonald. MacDonald will take the cash and hand the reins over to Greenjeans, who will then ride Dobbin home. The contract and the conveyance happen simultaneously. The time of the sale and the time of the passing of "Title" are clear. MacDonald had all rights in Dobbin until Greenjeans paid the purchase price, and

[211] So also of the peculiar problems of case-law in remodelling its concepts and its rules; for by what is an extraordinary series of accidents this branch of our mercantile law took off with farmer's eyes and farmer's tools; and though it has shown something of a farmer's handiness in effective tinkering (albeit with poor equipment) it retains to this day the old-time farmer's unreadiness to follow a leader in his theory as distinct from his practice.

Llewellyn, Across Sales on Horseback, supra note 202, at 727.

[212] "The picture begins in terms of a community whose trade is only one step removed from barter. . . . " Llewellyn, Sales, supra note 191, at 204.

[213] Hence the punning names of two of Llewellyn's articles—Across Sales on Horseback, supra note 202, and The Struggle to Unhorse Sales, supra note 206.

[214] Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 881–82.

Greenjeans had all rights thereafter. Risk of casualty loss was also perfectly correlated with the sale and therefore seemed to be a function of "Title." If Dobbin was killed in a barn burning the night before the sale, that was MacDonald's problem. If Dobbin fell and broke his leg when Greenjeans rode him home, it was Greenjeans's loss. In the life of a farmer, a sale is an event.^[215]

The agricultural imagery of "Title" analysis reflects the solid physical metaphor which imagines that archetypical property relationship is possession reduced to the sensuous grasp of a solid, physical thing. The correlative imagery of a conveyance or transfer of property is the handing over of a solid object from one person to another, such as the passing of a baton from runner to runner in a relay race or the passing of the reins of a horse from farmer to farmer. Such a transfer of a solid thing takes place instantaneously. Accordingly, this imagery reflects the longing for the real. The real is the collapse of all castrating distinctions of time and space into an ideal, immediate uterine unity. The real is, therefore, an event, not a process.

Although this imagery conflates the property right in the thing with the thing-in-itself, this theoretical confusion arguably causes few practical problems in an agricultural economy where most property transactions in fact concerned tangible objects such as horses, when all property interests in the object tended to reside in the person who had actual physical custody of the object, and where conveyances of property tended to be accomplished through transfer of physical custody of the tangible objects.

This premodern agricultural imagery is poorly suited to the commercial reality of twentieth-century mercantilism.^[216] Llewellyn was not im-

[215] This imagery also determined the common law of warranty. In the farmer's transaction, not only do the buyer and seller know each other, the buyer had the chance to inspect a preexisting good before the sale. In such a world, warranties have little place. See, e.g ., Llewellyn, Sales, supra note 191, at 204.

[C]ontract, payment, and delivery will be as close to simultaneous as man can make them. And [the Buyer] can then walk away with the chattel—it is his—title has leaped into him. No one saw it leap; but that occasions no confusion. Bargain, payment and delivery have occurred; the deal was single; and it is unambiguously closed.

Id . at 561.

[216] And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions ) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by nonmerchants, or to distinguish, where needed, sales to nonmerchants (the ultimate consumer) from both.

Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 879.

Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships—which still characterized the economy of the South—and a "modern" mercantile model—which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism , 55 Ohio St. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's.

Farmers have historically regarded property as something tangible to be physically held and used—primarily land and its products—its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time. . . .

To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange.

Id . at 304–05.

plying that the common law was totally blind to the mercantile nature of many sales.^[217] His point was that the common law continued to treat the agricultural transaction as the norm upon which exceptional mercantile rules were layered—that is, a protective belt of auxiliary merchant rules was added to the basic agricultural paradigm.^[218] In Llewellyn's metaphoric words:

[217] Llewellyn briefly traces the development of mercantile law starting from Coke. His point is not that these great judges were unable to develop rules which addressed the unique needs of mercantile transactions, but that they developed them as exceptions to or special circumstances of a law designed for agricultural transactions. Llewellyn, Across Sales on Horseback, supra note 202, at 732–46.

[218] Since at least the eighteenth century, smart judges would occasionally arrive at decisions which were better adapted to mercantile practice. Yet, because the underlying agricultural paradigm remained in place, these decisions were interpreted as exceptions to the general rule unique to specific and unusual fact situations rather than broadly applicable precedent. Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 876.

The half-analysis made, painful to make, more painful still to carry forward, loses impetus. The courts lapse back into the farmer's simple concept; not every court, but too many courts; not every time, but too many times. The thread of the growth is broken. The job of making merchants' law fit merchants' work must be re-begun.

Id . at 894.

Unless the stock intellectual equipment is apt, it takes extra art or intuition to get proper results with it. Whereas if the stock intellectual equipment is apt, it takes extra ineptitude to get sad results with it. And the work of the artist, accomplished with poor intellectual equipment, is not clearly intelligible to the inept reader. . . . [I]t does not help him focus issues.

Id . at 876. If the basic paradigm is inapt, good opinions are seen as uncharacteristic and not controlling. "They do not cumulate into stock equipment . . . . The getting of such stock equipment is a struggle." Id .

The mercantile rules of law—and they are solid—which I have been describing make their way through this like ivy through a wall, live, growing, spreading, finding cranny after cranny. But the wall is still there, it is still in the way.^[219]

(2)—
The Process of Mercantile Sales

The agricultural imagery sees sale as an event—a single, definitive, unique moment of time at which all aspects of the transfer of "Title" occur. In contradistinction, mercantile imagery sees sale as the process by which ownership rights are conveyed and other legal rights and obligations are created.^[220] It concentrates on exchange—the process by which possession changes. Unlike an event, which occurs instantaneously and, therefore, "in no time at all," a process takes place in time. The legal issues which arise during a mercantile sale involve how this process works over time. The agricultural paradigm is inadequate precisely because it does not include a concept of time.^[221] The agricultural paradigm is real, but legal relations are symbolic.

[219] Llewellyn, Across Sales on Horseback, supra note 202, at 736.

[220] [In] a credit and industrial economy [o]verseas trade in seaports introduces cargolot dealing, and dealing in goods at a distance, before they can be seen. Markets widen with improved transportation—internal water ways, railroads. This means reliance on distant sellers. Middlemen's dealings mean, sometimes, the postponement of inspection; always they mean some ignorance in the seller of the history of the goods. Industrialization grows out of and produces standardization, grading and sizing of lumber, grading and branding of flour or hardware, a certain predictability and reliability of goods. Contracts made by description, or by sample, which is a form of description, or by specification, which is an elaborate description, become the order of the day. Contracts come increasingly to precede production. Sellers begin to build for good will, in wide markets, to feel their standing behind goods to be no hardship, no outrage, no threat to their solvency from a thousand lurking claims, but the mark of business respectability and the road to future profit. The law of seller's obligation must change, to suit.

Llewellyn, Sales, supra note 191, at 204:

Elsewhere, Llewellyn illustrates this in detail by following the history of the institution of "factoring" in sales practice and the struggle of sales law to adapt to it. Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 883–94. Llewellyn's specific examples are now perhaps only of historic interest since sales practice (and, in large part due to Llewellyn, law) has changed considerably in the last fifty-eight years.

[221] Our concern is to observe that we have here complex structures of certain part-way stages occurring so frequently between the time when property was just "in the seller" and the time when property is finally just "in the buyer" that we have special and complex rules about the part-way stages as such. Evidently this "passing " process can be quite a process. Evidently it is not always a matter of one terrific stroke of the hydraulic press of law: here a fine sheet of steel, "property in the seller"; the Law plunges, rises; lo, a car-body, "property in the buyer"—take it away.Llewellyn, Across Sales on Horseback, supra note 202, at 730–31.

This does not mean property or "Title" analysis is always useless in mercantile paradigm.^[222] One can successfully use a paradigm which lacks an account of time to analyze those static legal issues which do not take place over time. But applying common-law "Title" analysis to the property issues which arise during a sale begs the question by assuming that the ongoing process to be analyzed—the passing of property—has already been completed: title has passed. A sale is the temporary disruption of "Title."^[223]

The precise situation to which "the property" is the key is not suited to the situation of commerce-in-action, the situation in which "the property" is not static but in motion, not in one fist, but in the spread interlocked fingers of at least two different hands; not lumped and obvious with its history a firm key to its location, but scattered and divided, with its history showing only where it is not to be at the end.^[224]

To give an analogy, suppose I, who live in New York City, wished to visit my in-laws in Irvine, California. Until we invent a teletransporter like the one in Star Trek , this trip will not be an event but a process that can take hours or even days, depending on the mode of transportation. If we were to analyze my trip in terms of "Title" concepts which analyze changes as instantaneous events, we would declare that I was either "in New York" or "in California" when certain conditions were met. If, for example, this were analogized as an FOB point of shipment contract, then I would "leave" New York, and "arrive" in California, when I had hailed the cab to the airport. This proposition is so intuitively ludicrous that it is virtually incomprehensible. Obviously, during the trip one can speak meaningfully of my speed, my direction, my estimated time of arrival, and my relative position with respect to my home and my destination. But it is nonsense to say that I am at either location during my journey. Nevertheless, it does roughly describe the problems with the law of "Title" in

[222] "Title" analysis is perfectly appropriate and useful to a wide variety of issues such as "when (a) there is no question who has the property in the chattels, and when (b) the absence of doubt lies between the obvious man who is concerned and his neighbor who is obviously not." Id . at 731.

[223] Now this [i.e., title analysis] would be an advisable way to go at it if the Title concept (or other basic integrated concept used) had been tailored to fit the normal course of a going or suspended situation during its flux or suspension . But Title was not thus conceived, nor has its environment of buyers and sellers had material effect upon it. It remains, in the Sales field, an alien lump, undigested. It even interferes with the digestive process.

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

[224] Llewellyn, Across Sales on Horseback, supra note 202, at 732.

the sense of an instantaneous moment in which all rights in property are deemed transferred.

Notice that the obverse side of this is that before and after my journey it is meaningful for me to speak of being in New York or in California. And so, before and after a sales transaction it remains meaningful to speak of one party or another as having "title" in (i.e., in the sense of ownership of) the good. As I shall discuss in the last chapter of this book, in the context of the Takings Clause of the U.S. Constitution the fact that the change from being the owner to not being the owner (when viewed from the position of the seller), or from not being the owner to being the owner (when viewed from the position of the buyer), is gradual does not in itself mean that the concept of property or ownership is incoherent. Rather, in Hegelian terms, having and not having ownership are qualitatively different. Having more and having fewer indices of ownership, however, are quantitatively different. Changes in quantity eventually become changes in quality through sublation. As we shall see, the pragmatic problem for the lawyer and the judge is that it is logically impossible for there to be an exact point at which this change happens.^[225]