/2/ Even an express warranty
of quality in sales does not have this effect, and in England,
indeed, it does not allow the purchaser to rescind in case of
breach. On this last point the law of Massachusetts is different.
The explanation has been offered of the English doctrine with
regard to sales, that, when the title has passed, the purchaser
has already had some benefit from the contract, and therefore
cannot wholly replace the seller in statu quo, as must be done
when a contract is rescinded. /3/ This reasoning [332] seems
doubtful, even to show that the contract is not voidable, but has
no bearing on the argument that it is void. For if the contract
is void, the title does not pass.
It might be said that there is no repugnancy in the charterer's
promise, because he only promises to load a certain ship, and
that the words "now in the port of Amsterdam" are merely matter
of history when the time for loading comes, and no part of the
description of the vessel which he promised to load. But the
moment those words are decided to be essential they become part
of the description, and the promise is to load a certain vessel
which is named the Martaban, and which was in the port of
Amsterdam at the date of the contract.
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