Bargain and Sale, in the law of England, is a mode of conveyance whereby property, real and personal, may be assigned or transferred for valuable consideration. In England the property of goods passes before delivery by such a sale, as opposed to the executory contract of sale where the passing of the property is postponed. The expression is chiefly important in connection with the conveyance of real estate. Such a bargain by the Statute of Frauds must be in writing.
No particular form of words is essential to the validity of a bargain and sale; 'bargain and sell' are the words of transfer ordinarily used. The pecuniary consideration is held to be a mere matter of form, and any trivial sum may be inserted in the conveyance. The effect of a bargain and sale not followed by a formal conveyance, was that the seller holds the legal estate for the benefit of the purchaser. The Statute of Uses transferred the legal estate to the purchaser in all such cases, and it thus became possible to convey the legal estate without making formal delivery of the land. To prevent secret conveyances in this form, the Statute of Enrolments enacted that a bargain and sale should not pass a freehold un'ess made by deed enrolled within six months after its date. Since the date of this statute, bargain and sale has not been used for conveying freeholds, but it is still a common form for conveying estates less than freehold, as a mortgage for a term of years, or the common lease and release. See LEASE AND RELEASE.
There is no such title to land or other real estate in the Scots law, but in that system there may be a contract as to land, the evidence of which must be in writing, as in holograph missives or tested minute of sale.
In the United States, bargain and sale is a contract to sell land for money or its equivalent, whereupon a use arises in favour of the bargainee to whom the seisin is transferred by force of the Statute of Uses; it is the most common form of conveyance of land in the United States. All things for the most part which may be transferred by deed, may be transferred by this mode of conveyance, and by it an estate in fee for life or for years may be created.