Earnest

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. 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.

Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306.

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 vendor cannot sell the goods to another without a default 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. 316; 3 Campb. 426; Neil v. Cheves, 1 Bailey (S. C.) 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. § 17, which makes parol sales of goods, etc., void unless there is a delivery, or the buyer "give something in earnest to bind the bargain, or in part payment." The Roman law included two kinds of earnest, that of sale and inoption 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 forfeit. 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 § 105.

Justinian changed the law on this subject by providing that either party might rescind the sale by forfeiting the amount of the earnest money; Inst. 1.

3. 23. 1.

At least the text appears to be susceptible 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 provision 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 arrabon of the Greeks, the arra or arrha of the Latin, and the arrhes of the French.