BARGAIN AND SALE - The Law Mind Legal Dictionary

BARGAIN AND SALEAuthored

The Law Mind • 1326 words

Definition

A bargain and sale is a method of transferring property — most commonly real property — from one party (the bargainor) to another (the bargainee) upon valuable consideration, without requiring the formal livery of seisin that older common law conveyances demanded.

In its land conveyancing sense, the mechanism works in two steps: (1) the bargainor, having received or agreed to receive money or its equivalent, contracts to sell the land, which causes a use to arise in favor of the bargainee; (2) the Statute of Uses (1536) then executes that use, transferring legal seisin to the bargainee automatically. The result is a completed transfer of title without the physical ceremony of livery on the land itself.

In its goods and personal property sense, a bargain and sale denotes an executed contract of sale — one in which property passes immediately to the buyer — as distinguished from an executory agreement to sell at a future time.

In modern American practice, "bargain and sale deed" refers to a deed that conveys whatever interest the grantor holds but carries no express covenants of warranty. It implies the grantor has not previously encumbered the property but does not guarantee the quality of title against third-party claims.

Common Language

Wiktionary: "A form of conveyance by which the bargainor contracts to convey the lands to the bargainee and becomes by such contract a trustee for and seized to the use of the bargainee. The statute then completes the purchase."

The word "bargain" in ordinary English simply means a negotiated deal or an advantageous purchase. "Sale" is a straightforward transfer for price. Neither common-language meaning captures the technical mechanism that made "bargain and sale" significant as a legal term: the interplay between a use raised in equity and the Statute of Uses executing that use at law. A researcher encountering this term in historical sources must read it as a term of art describing a specific conveyancing structure, not merely a synonym for a commercial transaction.

Common Confusion

Bargain and sale is frequently confused with:

QUITCLAIM DEED — Both convey only the interest the grantor actually holds, and neither contains a general warranty. The distinction is formal: a quitclaim deed releases whatever interest exists without asserting any ownership at all, while a bargain and sale deed carries an implied covenant that the grantor has done nothing to encumber the title during the period of ownership.

COVENANT TO STAND SEISED — Both are uses-based conveyances operating under the Statute of Uses, but a covenant to stand seised requires a consideration of blood or marriage, not a pecuniary consideration. Bargain and sale requires valuable (monetary) consideration. Historical sources sometimes treat these as parallel mechanisms; researchers must identify which consideration type the document recites.

FEOFFMENT WITH LIVERY OF SEISIN — The older common law conveyance requiring physical ceremony on the land. Bargain and sale largely displaced feoffment precisely because it could be accomplished in writing, behind closed doors, without a public ceremony — a feature that generated pressure for the Statute of Enrollments (1536), requiring enrollment in a court of record to give the transaction public notice.

Core Elements

For a valid bargain and sale of land at common law, the following were required:

A bargainor with an interest capable of being transferred.
A bargainee capable of taking.
Valuable consideration — money or its equivalent. Love and affection alone were insufficient; that distinguished it from a covenant to stand seised.
An agreement or contract, typically in writing after the Statute of Frauds (1677).
A subject matter — lands, tenements, or hereditaments in the real property context.

The Statute of Uses then executed the use raised by these elements, vesting legal title in the bargainee without further ceremony.

Why It Matters in Research

Bargain and sale is a navigational term across two distinct research domains: historical conveyancing and modern deed practice.

In historical sources (pre-20th century), "bargain and sale" almost always appears as a term of art tied to the Statute of Uses. Researchers working with colonial American land records, English chancery materials, or 18th- and 19th-century treatises will encounter it as the dominant mode of conveyance that replaced feoffment. Understanding the Statute of Uses is prerequisite to understanding why the form worked at all. Sources that predate the Statute of Frauds may describe oral bargains and sales; after 1677, writing became standard.

The Statute of Enrollments created a trap for researchers: Parliament required bargains and sales of freehold estates to be enrolled in a court of record to be effective. In practice, conveyancers often used a lease and release combination to circumvent enrollment requirements, making the lease-and-release the dominant form in much 17th- and 18th-century practice. A historical document labeled "bargain and sale" may thus be one half of a lease-and-release package.

In modern American deed research, bargain and sale deeds are most common in certain jurisdictions (notably New York) and appear frequently in tax sales, foreclosures, and fiduciary conveyances. Researchers must recognize that the implied covenant in a modern bargain and sale deed — that the grantor has not encumbered — is narrower than a special warranty (which covers the grantor's acts and those of persons claiming through the grantor) and far narrower than a general warranty.

The term also appears in personal property contexts (see Rapalje & Lawrence), where it means a present, executed sale as opposed to an agreement to sell. Researchers encountering "bargain and sale" in commercial or mercantile materials should determine which sense controls.

Historical Dictionary Support

Black's (1st and 2nd editions) and Bouvier's converge on the real property definition: a contract by the owner of land to sell, raising a use in favor of the bargainee, executed by the Statute of Uses. Both cite Shepard's Touchstone and Washburn's Real Property, standard 19th-century conveyancing authorities. Their definitions are substantially identical and reflect the classical common law account.

Rapalje & Lawrence add the personal property dimension explicitly, noting that "bargain and sale" in its primary sense transfers property in goods immediately to the purchaser — a point Black's and Bouvier's largely subsume or omit. This is a meaningful gap: Rapalje & Lawrence's treatment reminds researchers that the term was not exclusively tied to real property doctrine and could appear in commercial contexts with a different meaning.

None of the historical dictionaries give significant treatment to the Statute of Enrollments problem or the lease-and-release workaround, which a researcher working with actual historical instruments will need to understand. Treatises such as Blackstone's Commentaries (Book II) and Coke on Littleton provide more complete accounts of why the bare bargain and sale of a freehold was often avoided in favor of the two-step lease-and-release.

The Wiktionary definition, while accurate in its mechanics, omits the goods-sale meaning and the enrollment complications — confirming that it reflects the standard modern-legal-reference account rather than the fuller historical picture.

Jurisdictional Note

In the United States, bargain and sale deeds remain in active use primarily in New York, New Jersey, and a handful of other states. The form is essentially obsolete in jurisdictions that have moved entirely to warranty deed or quitclaim frameworks. Researchers should not assume uniform treatment; a deed denominated "bargain and sale" in a New York chain of title carries implied covenants that would not appear in a quitclaim from the same period.

Encyclopedia Cross-Reference

realestate_18: Deeds — Types (General Warranty, Special Warranty, Quitclaim, Bargain and Sale) — The Law Mind Real Estate Transactions & Construction Encyclopedia

BARGAIN AND SALEmain

Black's Law Dictionary • 1891

In convey- ancing. The transferring of the property of a thing from one to another, upon valua- ble consideration, by way of sale. Shep. Touch. (by Preston,) 221. A contract or bargain by the owner of land, in consideration of money or its equivalent paid, to sell land to another person, called the "bargainee," whereupon a use arises in favor of the latter, to whom the seisin is transferred by force of the statute of uses. 2 Washb. Real Prop. 128. The expression "bargain and sale" is also applied to transfers of personalty, in cases where there is first an executory agreement for the sale, (the bargain,) and then an actual and completed sale. Duchy of Lancaster, for regulation of the C mines, and for deciding questions of title and other matters relating thereto. 3 Steph. Comm. 347, note b.

BARGAIN AND SALEmain

Bouvier's Law Dictionary • 1928

A contract or bargain by the owner of land, in con- sideration of money or its equivalent paid, to sell land to another person, called the bargainee, whereupon a use arises in favor of the latter, to whom the seisin is trans- ferred by force of the statute of uses. 2 Washb. R. P. 128; Bisp. Eq. 419. Upon principles of equity any agreement, supported by a valuable consideration, to the effect that an estate or interest in land should be conveyed, as it might be specially enforced in the court of chancery, was held to entitle the purchaser to the use or beneficial ownership according to the terms and intent of the agreement, without any legal conveyance; and accordingly the vendor was held to be or stand seised to the use of the purchaser. Such transaction, as creating a use executed by the statute, became technically known as a bargain and sale. As a bargain and sale thus would have been effectual to convey a legal estate under the statute by mere force of the agreement without any writing or formality, it was thought expedient to add some formal conditions to the operation of the statute upon it; and it was enacted by a statute of the same session of parliament, 27 Hen. VIII. c. 16, to the effect that no es- tate of freehold shall pass by reason only of a bargain and sale, unless made by writ- ing indented, sealed, and enrolled in manner and place therein provided. This statute applied only to estates of freehold, and a use for a term of years might still be created within the statute of uses by mere bargain and sale without deed or enrolment. Leake, Land Laws 108. This is a very common form of conveyance in the United States. In consequence of the consideration paid, and the bargain made by the vendor, of which the conveyance was evidence, a use was raised at once in the bargainee. To this use the statute of uses transferred and annexed the seisin, whereby a complete estate became vested in the bargainee; 2 Washb. R. P. 128 et seq. All things, for the most part, that may be granted by any deed may be granted by bargain and sale, and an estate may be created in fee, for life, or for years; 2 Coke 54; Dy. 309. There must have been a valuable consid- eration; 5 Ired. 30; 7 Vt. 522; 13 В. Monr. 30; 9 Ala. 410; 1 Harr. & J. 527; 1 W. & S. 395; 16 Johns. 515; Cro. Car. 529; 1 Cruise, Dig. 107; Tiedem. R. P. § 776; but its adequacy is immaterial; thus a rent of one peppercorn was held suffi- cient; 2 Mod. 249. See Leake, Land Laws 109; the consideration need not be ex- pressed: 10 Johns. 639. See Washb. R. P.; 1 Sandf. Ch. 259; 19 Wend. 339; 7 Vt. 523; 68 Pa. 460; 102 Mass. 533; 1 Mo. 553; 2 Over. 261. The proper and technical words to denote a bargain and sale are bargain and sell; Mitch. R. P. 425; but any other words that are sufficient to raise a use upon a valuable consideration are sufficient; 2 Wood, Conv. 15; as, for example, make over and grant; 3 Johns. 484; release and assign, 8 Barb. 463. See 2 Washb. R. P 620; Shepp. Touchst. 222. An estate in futuro may be conveyed by deed of bargain and sale; 9 Wend. 611; 4 H. & Ν. 277; 52 Me. 141; 34 Ν. Η. 460; 102 Mass. 533; 10 Pa. 348; 20 Johns. 87; 28 S. C. 125; 83 Ga. 587; contra, 27 Pick. 376; 18 id. 397; 32 Me. 329; 2 Washb. R. P. *417; but not at common law; note to Doe v. Tranmar, 2 Sm. Lead. Cas. 473, where the cases are discussed. Consult Gilbert on Uses, Sugden's edi- tion; Washb. R. P.; Greenl, Cruise, Dig.; Tiedem. R. P.

bargain and salenoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

A form of conveyance by which the bargainor contracts to convey the lands to the bargainee and becomes by such contract a trustee for and seized to the use of the bargainee. The statute then completes the purchase, i.e. the bargain vests the use, and the statute vests the possession.

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