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OPTIONS

SECTION I.

Contractual Options.

Article 300. The vendor, or the purchaser, or both, may insert a condition in the contract of sale giving them an option, within a fixed period, to cancel the sale or to ratify it by carrying out the terms thereof.

Article 301. The person in the enjoyment of an option conferred by the contract is empowered either to cancel or to ratify the contract within the period of the validity of the option.

Article 302. Both cancellation and ratification of the contract may be by word of mouth or by conduct.

Article 303. Words importing ratification are words implying satisfaction, such as, “I ratify”, or “I am pleased”. Words importing cancellation are words implying dissatisfaction, such as, “I have cancelled” or, “I have gone back”.

Article 304. Acts importing ratification are those acts implying satisfaction and acts importing cancellation are those acts implying dissatisfaction.

Example:- A purchaser having a right to an option performs some act within the period during which the option is valid, indicative of a right of ownership in such property, such as putting it up for sale, or pledging it, or letting it on hire. Such act is an act of ratification by conduct. If the vendor has an option and deals with the property in the same way, it is an act of cancellation by conduct,

Article 305. If the person possessing the option allows the period during which the option is valid to expire without either canceling the sale or ratifying it, the sale becomes irrevocable.

Article 306. An option conferred by contract is not transmissible by way of inheritance. Thus, if the person possessing the option is the vendor, the purchaser becomes the owner of the thing sold upon the death of the vendor, if the purchaser is the person having the option and dies; his heirs become owners of the thing sold without any option.

Article 307. If both vendor and purchaser have an option, the sale can be cancelled by whichever party so desires. If one party only ratifies, that party loses his option, the other retaining his.

Article 308. If the vendor alone has an option, he does not lose his title in the thing sold, which is still considered to be a part of his own property. If the thing sold is destroyed while in the possession of the purchaser after delivery thereof, the fixed price does not become due, but the purchaser must pay the value thereof on the day he took delivery.

Article 309. If the purchaser alone has an option he acquires a title in the thing sold, which is considered to be a part of his own property. If the thing sold is destroyed while in the possession of the purchaser after delivery thereof, the fixed price must be paid.

SECTION II.

Option for misdescription.

Article 310. If the vendor sells property as possessing a certain desirable quality and such property proves to be devoid of such quality, the purchaser has the option of either canceling the sale, or of accepting the thing sold for the whole of the fixed price. This is called option for misdescription.

Examples:-

(I) if a cow is sold described as giving milk and it proves that she has ceased to give milk, the purchaser acquires an option.

(2) If a stone sold at night-time as a red ruby proves to be a yellow ruby, the purchaser acquires an option, Article 311. The option for misdescription is transmissible by way of inheritance. That is to say, that if on the death of the purchaser who has an option for misdescription, it turns out that the thing sold does not conform to the description given; the heir also has the power of canceling the sale.

 

Article 312. If the purchaser having an option for misdescription deals with the thing sold in a manner indicative of a right of ownership over such thing, he loses his option thereby.

SECTION III.

Option as to payment.

Article 313. Vendor and purchaser may validly conclude a bargain whereby payment of the price is to be made by a certain time and in the event of payment not being made, the sale is not to take place. This option is called an option as to payment.

Article 314. If the purchaser does not pay the price within the stipulated period, a sale concluded subject to an option as to payment is voidable.

Article 315. If a purchaser having an option as to payment dies within the prescribed period, the sale is void

SECTION IV.

Option as to selection.

Article 316. A stipulation may validly be made in a sale whereby the purchaser may take whichever he likes of two or three things at different prices the like of which cannot be found in the market, or the vendor may give whichever one he pleases. This is called an option as to selection.

Article 317. A period must be fixed during which the option as to selection is valid.

Article 318. A person having an option as to selection is bound to choose the thing he has bought on the expiration of the prescribed period.

Article 319. An option as to selection is transmissible by way of inheritance.

Example:- If the vendor sells three pieces of cloth all being of one type and consisting of superior, medium and inferior quality, the purchaser to take the piece he prefers within a period of three or four days, and such purchaser agrees thereto, a valid sale is concluded, and on the expiration of the stipulated period, the purchaser must choose one and pay the fixed price thereof. If he dies before exercising his option, his heir must choose one in the same manner.

SECTION V.

Option as to inspection.

Article 320. If a person buys a piece of property without seeing such property, he has an option upon inspection thereof of either canceling the sale or of ratifying it. This is called the option of inspection.

Article 321. The option of inspection is not transmissible by way of inheritance. Consequently, if the purchaser dies without having seen the property which he has bought, his heir becomes owner of the property without having any option in the matter.

Article 322. No option of inspection accrues to the vendor who sells property without seeing it.

Example:- A sells property which he has not seen and which has come to him by way of inheritance. The sale is concluded without any right of option.

Article 323. The object of the option of inspection is to ascertain the nature of the thing sold and the whereabouts thereof.

Example:- A person who examines the outside of a plain piece of cloth which is the same on both sides; or a piece of cloth marked with stripes or flowers; or the teat of a sheep bought for breeding; or the back of a sheep bought for killing; or who tries the taste of things for eating and drinking and who later makes a purchase, has no option of inspection.

Article 324. It is sufficient to see a sample produced of things sold by sample.

Article 325. If the thing sold proves to be inferior to the sample, the purchaser has an option of taking or rejecting it.

Example:- If such things as corn or oil, and linen or wool manufactured so as to conform to a set standard of excellence are bought after inspecting a sample thereof, and are later found not to come up to sample, the purchaser has an option.

Article 326. In the purchase of real property such as an inn or a house, every room must be inspected. If the rooms are all of one type, however, it is sufficient to inspect one of the rooms.

Article 327. When things which are dissimilar to each other are purchased en bloc, each one must be inspected separately.

Article 328. If the purchaser buys things which are dissimilar from each other en bloc and inspects some of them and fails to inspect the rest, and, upon inspection of the latter, is dissatisfied therewith, he has the option of accepting or rejecting the whole lot. He may not take those with which he is satisfied and reject the rest.

Article 329. A blind person may validly buy and sell, but if he buys property the description of which is unknown to him, he has an option.

Example:- If he buys a house the description of which is unknown to him, he has an option, upon learning the description thereof, of accepting or rejecting.

Article 330. A blind person has no option if he purchases a thing which has been described to him beforehand.

Article 331. If a blind person touches anything the nature of which can be ascertained by means of the sense of touch, and smells things the nature of which can be ascertained by means of the sense of smell, and tastes things the nature of which can be ascertained by means of the sense of taste, his right of option is destroyed. That is to say, if he touches or smells such things and afterwards purchases them, the sale is valid and irrevocable.

Article 332. If a person who has inspected a piece of property with a view to purchase later buys such property knowing it is the property in question, such person has no option of inspection. Should any change have been made in such property, however, such person has an option.

Article 333. Inspection by an agent authorized to buy or revive the thing sold, is equivalent to inspection by the principal.

Article 334. Inspection by a messenger, that is to say, a person sent, who merely has the power of collecting and dispatching the thing sold, does not destroy the purchaser’s option of inspection.

Article 335. If the purchaser deals with the thing sold in any way indicative of a right of ownership, his option of inspection is destroyed.

SECTION VI.

Option for defect.

Article 336. In an unconditional sale, the thing sold must be free from any defect. That is to say, although property is sold without stipulating that it shall be free from faults, and without stating whether it is sound, or bad, or defective, or free from fault, such property nevertheless must be sound and free from defect.

Article 337. If some defect of long standing is revealed upon the unconditional sale of any piece of property, the purchaser has the option of rejecting it or accepting it for the fixed price. He cannot keep the property and reduce the price on account of the defect. This is called option for defect.

Article 338. A defect consists of any faults which, in the opinion of persons competent to judge, cause depreciation in the price of the property.

Article 339. A defect of long standing is a fault which existed while the thing sold was in the possession of the vendor.

Article 340. Any defect which occurs in the thing sold after sale and before delivery, while in the possession of the vendor, is considered a defect of long standing and justifies rejection.

Article 341. If the vendor declares at the time of the sale that there is a defect in the thing sold, and the purchaser accepts the thing sold with the defect, he has no option on account of such defect.

Article 342. If the vendor sells property subject to the condition that he shall be free from any claim on account of any defect, the purchaser has no option on account of defect found therein.

Article 343. If a purchaser buys property, including all defects, he cannot make any claim on account of any defect found therein.

Example:- If a purchaser buys an animal with all faults of any description whatsoever whether blind, lame, or worthless, he cannot return such animal asserting that it had a defect of long standing.

Article 344. If the purchaser after becoming aware of a defect in the thing sold performs any act indicative of the exercise of a right of ownership, he loses his option for defect.

Example:- The purchaser, after becoming aware of the existence of a defect of long standing in the thing sold, offers such thing for sale. He is taken to have acquiesced therein and cannot reject the thing sold.

Article 345. If a defect appears in the thing sold while in the possession of the purchaser, and it proves to be a defect of long standing, the purchaser has no right to return the thing sold to the vendor, but has a right to claim a reduction in the price.

Example:- If the purchaser discovers a defect of long standing in the thing he has purchased, such as a piece of cloth which after being cut up and measured is found to be rotten and frayed, he cannot return the same, because by cutting it he caused a fresh defect. He can, however, claim a reduction in the price on account of the defect

Article 346. The amount of the reduction in the price is ascertained by a report drawn up by impartial experts. With this object in view, the value of the thing sold when sound and also when defective is ascertained, and a reduction is made from the fixed price on the basis of the difference between the two prices.

Example:- A purchaser after buying a roll of cloth for sixty piastres and cutting it up and measuring it becomes aware of a defect of long standing. Experts estimate the value of such property at sixty piastres when sound and with the defect of long standing at forty-five piastres. The reduction to be made in the price is fifteen piastres, and the purchaser has a right to make a claim for that amount. If the experts report that the value of such property when sound was eighty piastres and with the defect sixty piastres, the difference of’ twenty piastres between the two prices, that is to say a fourth of eighty piastres or a quarter of the fixed price may be claimed by the purchaser. If the value of the cloth when sound is reported to be fifty piastres and with the defect forty piastres, the difference of ten piastres between the two, that is to say, one fifth of the fixed price, is considered to be the amount to be deducted from the price.

Article 347. If a defect of recent origin disappears, a defect of long standing still justifies rejection.

Example:-  A horse is purchased and falls sick while in the possession of the purchaser. Thereupon a defect of long standing is revealed. The purchaser is unable to return the horse, but can obtain a reduction in the price. If the animal recovers from the illness, the purchaser can return the horse to the vendor on account of the defect of long standing.

Article 348. If the vendor agrees to take back the thing sold after the occurrence of a defect while in the possession of the purchaser which reveals a defect of long standing, and should there be nothing to prevent its return, the purchaser cannot claim a reduction in price, but must either return the thing sold or keep it and pay the full price. Should the purchaser sell the property to some third person after becoming aware of the existence of the defect of long standing, he is in no way entitled to claim a reduction of price.

Example:- A purchaser buys a roll of linen and cuts it up to make shirts. He then finds it to be defective and sells it. He cannot claim any reduction of the price from the vendor. The reason for this is that while the vendor may state that he would take back the stuff with the defect of recent origin, that is to say, cut up, the sale thereof by the purchaser is tantamount to an adoption of the defect.

Article 349. Any increase, that is to say, any addition of property belonging to the purchaser to the thing sold makes any return thereof impossible.

Example:- A purchaser adds certain sewing or dyeing with his own thread or color to a piece of cloth; or the purchaser of a piece of land plants trees therein. Such acts prevent the return of the thing sold.

Article 350. If there is anything to prevent the return of the thing sold, the vendor cannot receive back the defective thing sold, even though he is willing to do so, but must make a reduction in price. If the purchaser becomes aware of the existence of a defect of long standing in the property in question and sells the same, he can demand a reduction in price from the vendor.

Example:- A purchaser buys a roll of linen to make into shirts, After measuring them and sewing them, he finds that the linen is defective, He cannot ask for the linen to be taken back, even though the vendor is prepared to do so, The vendor is obliged to make a reduction in the price. If the purchaser sells the shirts, he can recover the reduction in the price from the vendor. The reason for this is that the thread belonging to the purchaser has been added to the thing sold and prevents its return. The vendor cannot say that he will take the thing back after it has been cut up and sewn, and the purchaser is not considered to have kept back the thing sold from the vendor.

Article 351. Before taking delivery, the purchaser may reject the whole of a number of things bought en bloc, if some of them prove to be defective, or he may elect to take them for the fixed price. He cannot reject the things which are defective and keep the rest. If the defect becomes apparent after delivery, and no loss is incurred by separation, he can return that portion in which the defect has appeared, against a proportionate share of the fixed price when sound. He cannot return the whole unless the vendor agrees thereto. If any loss is caused by the separation, however, he may return or keep the whole amount at the fixed price.

Example:- If one of two fezzes bought for forty piastres proves to be defective before delivery, both can be rejected together. If one of them proves to be defective after delivery, he can return that fez, deducting the value of such fez when sound from the forty piastres. If he has bought a pair of shoes, however, and after delivery, one of them turns out to be defective, he can return them both and can demand the return of the whole of his money.

Article 352. If a person who has bought and taken delivery of a definite number of things estimated by measure of capacity or weight and which are of one type finds a portion thereof to be defective, he has the option of accepting or rejecting the whole number.

Article 353. If cereals such as wheat prove to be earthy, though to an extent considered by custom to be negligible, the sale is valid and irrevocable. If, however, such cereals are considered by local opinion to be positively defective, the purchaser has an option.

Article 354. If such things as eggs and nuts prove to be bad and defective but not to a greater extent than that sanctioned by custom, such as three percent, the: sale is valid. If the defect is considerable, however, such as ten per cent, the sale is invalid and the purchaser can return the whole amount to the vendor and recover the entire price.

Article 355. If the thing sold appears to be in such a state that no benefit can ever be derived there from, the sale is void and the purchaser can recover the whole of the price.

Example:- If eggs which have been bought prove to be so bad that they are useless, the purchaser can recover the whole of his money.

SECTION VII.

Misrepresentation and Deceit.

Article 356. The existence of flagrant misrepresentation in a sale, but without actual deceit, does not enable the person who has been the victim of such misrepresentation to cancel the sale. But if the sale of the property of orphans is tainted by flagrant misrepresentation, although there is no actual deceit, such sale is invalid. Property belonging to a pious foundation and to the Treasury is treated on the same basis as the property of orphans.

Article 357. If one of the two parties to the sale deceives the other, and flagrant misrepresentation is also proved to be present in the sale, the person so deceived can cancel the sale.

Article 358. If the person who is the victim of flagrant misrepresentation dies, no right to an action for deceit is transmitted to his heirs.

Article 359. If the purchaser who is the victim of deceit becomes aware that the sale is tainted by flagrant misrepresentation and deals with the thing sold in any manner indicative of a right of ownership, he has no right whatsoever to cancel such sale,

Article 360. If a thing sold which has been bought as a result of deceit or flagrant misrepresentation is destroyed, or perishes, or becomes defective, or if something new is added, such as a building to a piece of land, the victim of such misrepresentation has no right to cancel the sale,