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THE SUBJECT MATTER OF THE SALE

SECTION 1.

Conditions affecting the subject matter of the sate and description thereof.

Article 197. The thing sold must be in existence. Article 198. The thing sold must be capable of delivery. Article 199. The thing sold must be property of some specific value. Article 200. The thing sold must be known to the purchaser. Article 201. The fact that the thing sold is known is ascertained by referring to its state

and description which distinguish it from other things. Example:

A specific quantity of red corn, or a piece of land bounded by specific boundaries. If these are sold, the nature thereof is known and the sale is valid. Article 202. If the thing sold is present at the meeting place of the parties to the sale, it is

sufficient if such thing is pointed out by signs.

Example:- The vendor states that he has sold a particular animal.  The purchaser sees that animal and accepts it. The sale is valid.

Article 203. Since it is enough for the nature of the thing sold to be known to the purchaser, there is no need for any other sort of description or particularization.

Article 204. The thing sold must be the particular thing with reference to which the contract is concluded.

Example: A vendor, pointing to a particular watch, states that he has sold it. Upon the purchaser accepting, the vendor is bound to deliver that identical watch. He cannot put that particular watch on one side and deliver another of the same sort.

SECTION II. Things which may and may not be sold.

Article 205. The sale of a thing not in existence is void.

Example:- The sale of the fruit of a tree which has not yet appeared is void.

Article 206. The sale of fruit which is completely visible while on a tree is valid, whether it is fit for consumption or not.

Article 207. The sale at one and the same time of dependent parts which are connected together is valid. For example, in the case of fruit, flowers, leaves and vegetables, which do not arrive at maturity simultaneously, a portion thereof only having come out, that portion which has not yet arrived at maturity may be sold together with the rest.

Article 208. If the species of the thing sold has been stated, and the thing sold turns out to be of another species, the sale is void.

Example:- The vendor sells a piece of glass stating that it is a diamond. The sale is void.

Article 209. The sale of a thing which is not capable of delivery is void.

Example:- The sale of a rowing-boat which has sunk in the sea and cannot be raised, or of a runaway animal which cannot be caught and delivered.

Article 210. The sale of a thing which is not generally recognized as property or the purchase of property therewith is void.

Example:- The sale of a corpse or of a free man or the purchase of property in exchange for them is void.

Article 211. The sale of things which do not possess any specific value is void.

Article 212. The purchase of property with property which does not possess any specific value is voidable.

Article 213. The sale of a thing the nature of which is not known is voidable.

Example:- A vendor tells a purchaser that he has sold him the whole of the property he owns for a certain sum of money, and the purchaser states that he has bought the same. The nature of the things bought by the purchaser, however, is unknown. The sale is voidable.

Article 214. The sale of an ascertained, jointly owned undivided share in a piece of real property owned in absolute ownership prior to division, such as a half, a third or a tenth is valid.

Article 215. A person may sell his undivided jointly owned share to some other person without obtaining the permission of his partner.

Article 216. The sale of a right of way and of a right of taking water and of a right of flow attached to land and of water attached to canals is valid.

SECTION III. Procedure at the sale.

Article 217. The sale of things estimated by measure of capacity, or by weight, or by enumeration, or by length, may be sold individually or en bloc.

Example:- A vendor sells a heap of corn, or a barn full of straw, or a load of bricks or a bale of merchandise en bloc. The sale is valid.

Article 218. If grain is sold in a specified vessel or measured in a measure, or by weighing it according to a fixed weight, the sale is valid, although the capacity of the vessel or measure, or the heaviness of the weight may not be known. ‘

Article 219. A thing which may be sold separately may validly be separated from the thing sold.

Example: – The vendor stipulates to retain a certain number of okes of the fruit of a tree that he has sold. The stipulation is valid.

Article 220. The sale en bloc of things estimated by quantity on the basis of the price of each thing or part thereof is valid.

Example: – The sale of a heap of corn, a ship-load of wood, a flock of sheep, and a roll of cloth, on the basis of the price of each kite, or measure, or oke, or herd of sheep, or yard, is valid.

Article 221. Real property may be sold by defining the boundaries thereof. In cases where the boundaries have already been defined, it may be sold by the yard or the donum.

Article 222. The contract of sale is only valid in respect to the amount stipulated in the contract.

Article 223. The sale of things estimated by measure of capacity, or by enumeration and which closely resemble each other and things estimated by weight, and which do not suffer damage by being separated from the whole, may be sold en bloc if the amount thereof is made known, whether the price is named in respect to the whole amount, or in respect to each individual unit. If on delivery the amount is found to be correct, the sale is irrevocable. If it is found to be short, however, the purchaser has the option of canceling the sale, or of purchasing the amount actually delivered for the proportionate part of the price. If more than the stipulated amount is delivered, the excess belongs to the vendor.

Examples: –

(I) a vendor sells a heap of corn said to be fifty kilés, at five hundred piastres, or, on the basis of fifty kilés, at ten piastres a kilé. If the amount delivered is correct, the sale is irrevocable. If forty-five kilés only are delivered, the purchaser has an option of canceling the sale, or of taking forty-five kilés for four hundred and fifty piastres. If fifty-five kilés are delivered, the five kites in excess belong to the vendor.

(2) A basket of eggs said to contain one hundred is sold for fifty piastres, or at twenty paras for each egg. If it turns out on delivery that there are only ninety eggs, the purchaser has an option of canceling the sale or of taking the ninety eggs for forty-five piastres. If one hundred and ten are delivered, the ten eggs remaining over belong to the vendor.

(3) A barrel of oil is sold as containing one hundred okes.  The principle explained above applies.

Article 224. In the case of the sale of a whole amount of things estimated by weight which suffer by being separated from the whole, the price of the whole amount only being named, the purchaser has the option of canceling the sale on delivery, if the amount proves to be short, or of taking the portion delivered for the price fixed for the whole. If more than the amount is delivered, it belongs to the purchaser and the vendor has no option in the matter.

Example: – A diamond stated to be five carat is sold for twenty thousand piastres. It turns out to be four and a half carat; the purchaser has the option of rejecting the diamond, or of taking the stone for twenty thousand piastres. If it turns out to be five and a half carat, the purchaser can have it for twenty thousand piastres, the vendor having no option in the matter.

Article 225. In the case of the sale of a whole amount of things estimated by weight which suffer damage by being separated from the whole, stating the amount thereof and the price fixed for parts or portions thereof, the purchaser has an option on delivery, if the amount delivered turns out to be less or more, of canceling the sale, or of taking the amount delivered on the basis of the price fixed for the parts and portions thereof.

Example:- A copper brazier said to weigh five okes is sold at the rate of forty piastres per oke. If it turns out to weigh either four and a half or five and a half okes, the purchaser has two options. He can either decline to accept the brazier, or, if it weighs four and a half okes he can purchase it for one hundred and eighty piastres, and if it weighs five and a half okes, he can purchase it for two hundred and twenty piastres.

Article 226. In the case of the sale of a whole amount of things estimated by measure of length, whether land, goods, or similar things on the basis of the price for the whole amount, or of the price per yard, they are dealt with in both cases as in the case of things estimated by weight which suffer damage by being separated from the whole. Goods and articles such as linens and woolens which do not suffer damage by being cut and separated are treated in the same manner as things estimated by measure of capacity.

Examples:-

(I) a piece of land said to measure one hundred yards is sold for one thousand piastres. It turns out to measure ninety-five yards only. The purchaser has an option of leaving it or of buying it for one thousand piastres. If it turns out to be larger, the purchaser can take the whole piece for one thousand piastres.

(2) A piece of cloth said to measure eight yards is sold for four hundred piastres with a view to being made up into a suit of clothes. It turns out to measure seven yards only. The purchaser has an option of leaving it or of buying it for four hundred piastres. If it turns out to measure nine yards, the purchaser can take the whole piece for four hundred piastres.

(3) A piece of land said to measure one hundred yards is sold at the rate of ten piastres per yard. If it turns out to measure ninety-five or one hundred  and five yards, the purchaser has an option of leaving it, or, if it turns out to be ninety-five yards, of buying it for nine hundred and fifty piastres, or, if it turns out to be one hundred and five yards, of buying it for one thousand and fifty piastres.

(4) Some cloth said to measure eight yards is sold at The rate of fifty piastres per yard with a view to being made up into a suit of clothes. If it turns out to measure seven or nine yards, the purchaser has an option of either rejecting it or, if it turns out to be seven yards, of buying it for three hundred and fifty piastres, and if it turns out to be nine yards of buying it for four hundred and fifty piastres.

(5) If a whole piece of cloth, however, said to measure one hundred and fifty yards is sold for seven thousand five hundred piastres, or at the rate of fifty piastres per yard, turns out to measure one hundred and forty yards, the purchaser has the option of canceling the sale or of taking the hundred and forty yards for seven thousand piastres. If it turns out to be more, the balance belongs to the vendor.

 

Article 227. In the event of the sale of things• estimated by enumeration and which are dissimilar from each other, the price of the whole amount only being named and the number of such things is found to be exact on delivery, the sale is valid and irrevocable. If the number is greater or smaller, however, the sale is voidable in both cases.

Example:- A flock of sheep said to contain fifty head of sheep is sold for two thousand five hundred piastres. If on delivery the flock is found to consist of forty-five or fifty-five sheep, the sale is voidable.

Article 228. In the event of the sale of a portion of a whole amount of things estimated by enumeration, and which are dissimilar from each other, stating the amount thereof, and at a price calculated at so much per piece or per unit, and on delivery the number is found to be exact, the sale is irrevocable. If the number is found to be smaller, the purchaser has the option of leaving the things or of taking them for the proportionate share of the fixed price. If more than the stated number are delivered, the sale is voidable.

Example:- A flock of sheep said to consist of fifty is sold at the rate of fifty piastres per head. If it turns out to consist of forty-five head of sheep, the purchaser has the option of leaving them or of buying the forty-five head of sheep for two thousand two hundred and fifty piastres. If it turns out to be fifty-five head of sheep, the sale is voidable.

Article 229. The purchaser, after having taken delivery of the thing sold, loses the option of canceling the sale conferred upon him by the preceding Articles, if he knew that less than the stipulated amount had in fact been delivered.

SECTION IV. Matters included but not explicitly mentioned in the sale.

Article 230. The sale includes everything which by local custom is included in the thing sold, even though not specifically mentioned.

Example:- In the case of the sale of a house, the kitchen and the cellar are included; and in the event of the sale of an olive grove, the olive trees are included, even though not specifically mentioned. The reason for this is that the kitchen and cellar are appurtenances of the house, and the olive grove is so called because it is a piece of land containing olive trees. A mere piece of land, on the other hand, is not called an olive grove.

Article 231. Things which are considered to be part of the thing sold, that is to say, things which cannot be separated from the thing sold, having regard to the object of the purchase, are included in the sale without being specifically mentioned.

Example:- In the case of the sale of a lock, the key is included; and in the case of the sale of a milk cow, the sucking calf of such cow is included in the sale without being specifically mentioned.

Article 232. Fixtures attached to the thing sold are included in the sale, even though not specifically mentioned.

Example:- In the event of the sale of a large country house, things which have been fixed or constructed permanently, such as locks which have been nailed, and fixed cupboards and divans, are included in the sale. Similarly, the garden included in the boundaries of the house, together with the paths leading to the public road or to a blind alley are included. Again, in the event of the sale of a garden and of a piece of land, trees planted as fixtures are included in the sale, even though this was not specifically stated at the time the bargain was concluded.

Article 233. Things which are neither appurtenances nor permanent fixtures attached to the thing sold, and things which are not considered to be part of the thing sold, or things which are not by reason of custom included in the thing sold, are not included in the sale unless they are specifically mentioned at the time the sale was concluded. But things which by reason of local custom go with the thing sold are included in the sale without being specifically mentioned.

Example:- In the case of the sale of a house, things which are not fixtures, but have been placed so that they may be removed, such as cupboards, sofas and chairs, are not included in the sale unless specifically mentioned. And in the event of the sale of an orchard or a garden, flower pots, and pots for lemons and young plants which have been planted with a view to their removal elsewhere, are not included in the sale, unless specifically mentioned. Similarly, when land is sold, the growing crops, and when trees are sold, the fruit thereof, are not included, in the sale, unless some special stipulation to that effect was made at the time the bargain was concluded. But the bridle of a riding horse and the halter of a draught horse are included in the sale although not specifically mentioned, in places where such is the custom.

Article 234. The thing included in the sale as being attached thereto is not a part of the price of such sale.

Example:- If the halters of draught horses are stolen before the delivery thereof, there is no necessity to deduct anything from the fixed price.

Article 235. Things comprised in any general expressions added at the time of the sale are included in the sale.

Example:- The vendor states that he has sold a particular house “with all rights”. Any right of way, or right of taking water, or right of flow attaching to the house are included in the sale.

Article 230. Any fruits or increase occurring after the conclusion of the contract and before delivery of the thing sold belong to the purchaser.

Examples:-

(I) In the case of the sale of a garden, any fruit or vegetables that are produced before delivery belong to the purchaser.

(2) Where a cow has been sold, a calf born before delivery of the cow becomes the property of the purchaser.