Custom as an Apparent Excuse for Negligence
The Yale law journal
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... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact firstname.lastname@example.org. YALE LAW JOURNAL YALE LAW JOURNAL fits are, before the time has arrived when he can compel specific performance. First, he is not entitled to possession, except by special contract, and then he usually pays an extra consideration, and becomes virtually a tenant.10 The vendor or his heir, therefore, is entitled to the rents and profits.11 Second, he is neither in the position of a mortgagor or of a cestui que trust, though many cases infer that he is, and on that basis decide that he ought to bear the loss. The vendor has a beneficial interest, namely, the right to the rents and profits, which the trustee and the mortgagee, generally speaking, have not, and, conversely, the vendee has not the beneficial interest which the cestui que trust and the mortgagor have. In the absence of recording acts, the vendee is at the mercy of the bona fide purchaser for value and without notice, while the mortgagor at least, in the American form of mortgage, is not. It is a strange misuse of language to call one who can neither have the use of certain premises in the present, nor be certain of having it in the future, the beneficial owner of those premises. It is therefore suggested that the rule stated in the beginning ought to be amended as follows: "The risk of loss by accidental injury to or destruction of the property is upon the buyer from the moment that the latter has it in his power to demand and get specific performance of the contract." CUSTOM AS AN APPARENT EXCUSE FOR NEGLIGENCE.