EARNEST

The payment of a part of the price of goods sold, or the delivery of part of such goods, for the purpose of binding the contract. 108 Mass. 54. A token or pledge passing between the par- ties, by way of evidence, or ratification of the sale. 2 Kent, Comm. 495, note.

The payment of a sum of money or delivery of a thing or token, upon the making of a contract for the sale of goods, to bind the bargain, the delivery and acceptance of which marks the final and conclusive assent of both parties to the contract. It has been defined to be the payment of a part of the price of goods sold, or the delivery of part of such goods, for the purpose of binding the contract. 108 Mass. 54. It has been stated in a general way that the effect of earnest is to bind the goods sold; and, upon their being paid for without default, the buyer is entitled to them; but, notwithstanding the earnest, the money must be paid upon taking away the goods, because no other time for payment is appointed; earnest only binds the bargain, and gives the buyer a right to demand, but a demand without payment of the money is void; after earnest given, the ven- dor cannot sell the goods to another without a de- fault in the vendee, and therefore if the latter does not come and pay, and take the goods, the vendor ought to go and request him, and then, if he does not come, pay for the goods, and take them away in convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person; 2 Bla. Com. 447; 2 Kent, Com. 495; 2 H. Bla. 816; Ayl. Pan. 450; 8 Campb. 426; 1 Bailey 537. There is great difference of opinion as to the exact definition of this word. It had a signification at common law sufficiently well understood to warrant its use in the statute of frauds of 29 Car. II. § xvii. which makes parol sales of goods, etc., void unless there is a delivery, or the buyer "give some- thing in earnest to bind the bargain, or in part payment." The Roman law included two kinds of earnest, one being a contract prior to that of sale and independent of it, which was practically the payment of a sum of money for what we should now call an option to purchase, to be forfeited by the purchaser if he did not buy, while, if the other party was unwilling to sell, he must return the earnest and pay an equal amount as a for- feit. The other kind of earnest was that afterwards found in the common law and might be a thing, usually a ring, which either party, generally the buyer, gave to the other as a token. It is important in reading the civil law on this topic to bear in mind these two classes. Benj. Sales § 195. Justinian changed the law on this subject by providing that either party imight rescind the sale by forfeiting the amount of the earnest money; Inst. 1. 8. 23. 1. At least the text appears to be sus- ceptible of no other meaning, but Pothier maintains that, after earnest, neither party could avoid the obligation; in this he is not followed by the later civilians. The same controversy has arisen upon a similar pro- vision of the French code. The conclusion above stated is that of Benjamin, who cites the authorities; Sales § 198-200. In Scotland the word arles is used for earnest, and is usually applied to a small sum given to a servant on hiring, as earnest that the wage will be paid. The word earnest "has been supposed to flow from a Phoenician source, through the ἀῤῥαβὼν of the Greeks, the arra or arrha of the Latin, and the arrhes of the French. The general rule appears to have been that expressed in the Institutes III. 23: Is qui recusat adimplere contractum, sequidem est emptor, perdit quod dedit: si vero venditor, duplum restituere compel- litur, licet super arris nihil expressum est.' Furthermore, the earnest did not lose that character, because the same thing might also avail as part payment: 'Datur autem arrha vel simpliciter (says Vinnius, on Inst.

part or portion of goods delivered into the possession of the buyer at the time of the sale as a pledge or security for the complete fulfilment of the contract; a handsel." Encyc. Dict. And the latter authority illustrates the function of earnest as evi- dence of the conclusion of the contract by the Scotch law which holds a party who resiles, to fulfil the contract as well as to forfeit the earnest paid. It is sometimes said that the question whether the earnest shall count as part of the price or wage depends on the intention of the parties, which, in the absence of direct evidence, will be inferred from the proportion which it bears to the whole sum. Int. Cyc. "If a shilling be given in the purchase of a ship or of a box of diamonds, it is presumed to be given merely in evi- dence of the bargain, or, in the common way of speaking, is dead earnest; but if the sum be more considerable it is reckoned up in the price." Ersk. Inst. b. iii. tit. iii. § 5. Another writer considers "that the origi- nal view of earnest in England was, that it was a payment of a small portion of the price or wage, in token of the conclusion of the contract; and as this view seems to have been adhered to, the sum, however small, would probably then be counted as a part payment." Sto. Sales 216. It has been a mooted question whether at common law either earnest or delivery was necessary to perfect a sale of chattels; ina case where it was objected that because there was neither, there could not be a re- covery for the breach of a parol contract of sale, it was said: Earnest paid is not neces- sary to complete a parol contract of sale; when made, it only prevents the vendor, under any circumstances, from rescinding the contract without the assent of the ven- dee; and this by common law, and not by any statute; 3 İred. 286. It has been much discussed whether the giving of earnest has any effect to pass the title to the property sold; and in earlier cases of the sale of specific chattels it was so held; Shep. Touchst. 224; Buller, J., in 5 Term 409; 7 East 558; Noy, Max. 87-9; 2 Bla. Com. 447-9; but see the analysis of these authorities; Benj. Sales §§ 355-6. It is said by this learned writer on the subject, that there is no case in which this has been held when a completed bargain, if in writ- ing, would not have altered the property; id. § 357; and it is concluded that the true legal effect of earnest is simply to afford conclusive evidence of a bargain actually completed with the mutual intention that it should be binding on both; and whether the property has passed in such cases is to be tested, not by the fact that earnest was given, but by the true nature of the con- tract concluded by the giving of earnest; id. Hence with respect to the remedy of the seller, if the buyer refuse to take the property sold, the law of earnest, properly, speaking, is not concerned; but it is to be treated as in the case of contracts otherwise legally evidenced. See 2 Kent, Com. Lacey's ed. 496, note 51; SALES. 118. So an authoritative writer on the statute of frauds uses the terms, earnest and part payment, as interchangeable, and discusses the question of when earnest must be paid mainly upon New York cases, although in that state the exception is con- fined to part payment, the "giving some- thing in earnest" being omitted; Reed, Stat. Fr. § 226. While, therefore, the clear and philosophical definitions of the nature and effect of earnest cited from Benjamin on Sales unquestionably commend them- selves as better satisfying the apparent pur- pose of the statute to designate two distinct acts, it must be admitted that they are con- stantly referred to by American courts and writers as alternative expressions of the same thing. Consequently the cases cited in text-books as laying down rules as to earnest are usually found, on examination, to be in fact cases of part payment, and they must be so read. This use of the words, interchangeably, makes unavoidable a ref- erence to the cases just referred to, espe- cially since the word earnest, in addition to what has been indicated as its real signifi- cation, has, in this country, certainly, an acquired meaning too general to be disre- garded. In part payment something having value must pass from the buyer to the seller; 16 M. & W. 802; 12 Barb. 570; 30 id. 265; 49 id. 848; an unaccepted tender to the vendor on a call for part payment by him will not suttice to bind him, as when a remittance by mail of a check was returned to the sender; 41 Vt. 676; nor the promissory note of the buyer; 10 Barb. 578; 26 Wis. 511; 68 Ind. 278; even if there were an express agreement that the note should be received as part payment, which in this instance there was not; id.; in this case it was held that the note was not only ineffectual as part payment, but that it could not be re- garded as earnest, sufficient to bind the bargain. After referring to the Massachu- setts decision, supra, that, as used in the statute of frau

Seriousness; reality; fixed determination; eagerness; intentness. Take heed that this jest do not one day turn to earnest. Sir P. Sidney. And given in earnest what I begged in jest. Shak. In earnest, serious; seriously; not in jest; earnestly.

Ardent in the pursuit of an object; eager to obtain or do; zealous with sincerity; with hearty endeavor; heartfelt; fervent; hearty; -- used in a good sense; as, earnest prayers. An earnest advocate to plead for him. Shak. Intent; fixed closely; as, earnest attention. Serious; important. [Obs.] They whom earnest lets do often hinder. Hooker.

To use in earnest. [R.] To earnest them [our arms] with men. Pastor Fido (1602).

Serious, sincere, ingenuous. | Focused in the pursuit of an objective; honestly eager to obtain or do. | Intent; focused; showing a lot of concentration. | Possessing or characterised by seriousness. | Strenuous; diligent. | Serious; weighty; of a serious, weighty, or important nature; important.

A sum of money paid in advance as a deposit; hence, a pledge, a guarantee, an indication of something to come.

A male given name from the Germanic languages, of occasional usage, variant of Ernest.