Sec 293

As will be hereafter more fully seen,5 when a contract is to be performed in successive instalments or deliveries, and when these instalments and deliveries are interdependent, so that failure in one makes succeeding instalments or deliveries comparatively valueless, then such failure by the promisor entitles the promisee to rescind. But the insolvency of a purchaser, on an executory contract, does not of itself imply an assent on his part to a rescission of the contract. Notwithstanding his insolvency, the purchaser may be able to pay for the thing purchased; and to assume that insolvency by itself implies permanent disability, would be to assign to it the incidents of civil death, and to invest it, therefore, with permanent disqualifications utterly inconsistent with a system which, as is the case in England and the United States, maintains the continued civil existence of the insolvent, and provides for his restoration to business activity. But an insolvent may by implication throw up a contract of purchase by which he is bound, and this implication is held to exist where the insolvent, in notifying the vendor of his insolvency, says nothing of his desire to hold on to his bargain.1

Rescission may be granted on failure in part performance.

1 Cunday v. Lindsay, ut supra; and see fully supra, sec 182, 211, 291; infra, sec 347, 352.

2 Sales, 3d Am. ed. sec 433.

3 Clough v. R. R., L. R. 7 Ex. 26. That bona fide receivers for value of articles lost or stolen receive no title, see Benj. on Sales, 3d Am. ed. sec 6.

4 Attenborough v. St. Katherine's Dock Co., L. R. 3 C. P. D. 450. See Babcock v. Lawson, L. R. 5 Q. B. D. 284; and cases cited supra, sec 182, 211, 291; infra, sec 347, 352. That there is no market overt in this country, see infra, sec 734.

5 Infra, sec 580, 601, 898, 919.

1 Morgan v. Bain, L. R. 10 C. P. 15;.

Chalmers ex parte, L. R. 8 Ch. 294; Tondeur ex parte, L. R. 5 Eq. 160. On the subject of rescission by rectification see infra, sec 661; by release, infra, sec

1031 et seq. That there may be rescission by lapse of time, see infra, sec 1042. As to rescission by novation, see sec 852 et seq.