Types of Sale.
Article 361. It is a condition precedent to the conclusion of the sale that the parties thereto should be of sound mind and perfect understanding and that the sale should be made with reference to some thing which may properly be the subject of sale.
Article 362. A sale which is defective in any essential condition, such as sale by a lunatic, is void.
Article 363. In order that any object may properly be the subject of sale, such object must be in existence, must be capable of delivery, and must be of some specific value. Consequently, the sale of a thing which is not in existence, or is incapable of delivery, or is not of any specific value, is void.
Article 364. If a sale is concluded validly, but is not legal as regards certain subsidiary matters, such as the thing sold being unknown, or defective as regards the price, the sale is voidable.
Article 365. For a sale to be executory, the vendor must be the owner of the thing sold, or the agent of the owner, or his tutor or guardian, and no other person must be entitled thereto.
Article 366. A voidable sale becomes executory on taking delivery. That is to say, the purchaser may deal with the thing sold.
Article 367. If one of the options attaches to the sale, such sale is not irrevocable.
Article 368. A sale dependent upon the right of some third person may validly be concluded if the permission of such person is obtained, as in the case of a sale by an unauthorized person, or the sale of property given as a pledge.
Effect of various kinds of sale.
Article 369. The effect of the conclusion of a sale is ownership, that is to say, the purchaser becomes the owner of the thing sold and the vendor becomes the owner of the price.
Article 370. A sale which is void is of no effect whatsoever. Consequently, if in the case of a sale which is void, the purchaser has taken delivery of the thing sold with the permission of the vendor, and such thing is destroyed without the fault of the purchaser while in his possession, there is no necessity for the purchaser to make good the loss, the thing sold being in the nature of a thing deposited on trust.
Article 371. A voidable sale, on delivery, is effective, that is to say, if the purchaser takes possession of the thing sold with the permission of the vendor, he becomes the owner thereof. Consequently, if a. thing bought as the result of a voidable sale is destroyed while in the possession of the purchaser, the purchaser must make good the loss. If the thing sold is one the like of which can be found in the market, a like thing must be given by the purchaser to the vendor, or if it is a thing the like of which cannot be found in the market, the value thereof on the day of delivery must be paid.
Article 372. In the case of a voidable sale, each of the contracting parties has the right of canceling the sale. But if the thing sold is destroyed while in the possession of the purchaser, or if the purchaser disposes of it in any way, such as consuming it, or selling it validly to some other person, or bestowing it upon someone by way of gift, or if the thing sold being a house, the purchaser adds to it in any way, such as repairing it, or, if it is a piece of land, planting trees on it, or, if it is corn, changes it by grinding it into flour, so that its name is changed, there is no right of cancellation.
Article 373. In the case of cancellation of a voidable sale, if the price has been received, the purchaser has the right of retaining the thing sold until the vendor has returned the price.
Article 374. An executory sale becomes effective forthwith.
Article 375. An executory sale is irrevocable, and neither of the two parties to the sale may go back thereon.
Article 376. In the case of a revocable sale, a person possessing an option can cancel such sale.
Article 377. A conditional sale becomes effective when the necessary permission is given.
Article 378. In the event of a sale by an unauthorized person, such sale is executory if the owner of the property, -or his agent, or his tutor, or his guardian give their permission. Otherwise it is of no effect. For the permission to be effective, however, it is necessary for the vendor, the purchaser, the person giving permission and the thing sold to be in existence. If any of these is absent, the permission is invalid.
Article 379. In the case of sale by barter, the conditions applicable to a thing sold also apply, since the value of the two things exchanged is considered to constitute a thing sold. If a dispute arises as to delivery, however, the two parties to the sale must respectively give and take delivery simultaneously.
Sale by immediate payment against future delivery.
Article 380. A contract of sale by immediate payment against future delivery is concluded by offer and acceptance, as in the case of sale.
Example :A purchaser tells a vendor that he has paid a thousand piastres immediately against future delivery of one hundred kilés of corn, The vendor agrees, A contract of sale by immediate payment against future delivery has- been concluded.
Article 381. A sale by immediate payment against future delivery can only be concluded validly with reference to things the quantity and quality of which can be determined; for example, the highest or lowest.
Article 382. The amount of things estimated by measure of capacity or by weight or by length is fixed by the kilt, the weight, or the yard.
Article 383. The amount of things estimated by enumeration and which closely resemble each other may be measured by counting, and also by the kilt and by weight.
Article 384. In the case of things estimated by enumeration, such as burnt bricks and sun dried bricks, the mould thereof must be made known.
Article 385. The length, breadth arid thickness of things measured by length, such as linen and woolens, the material they are made from, and the place in which they were made, must be stated.
Article 386. It is essential to the validity of a sale by immediate payment against future delivery that the type of thing sold should be stated; for instance, corn, rice or dates: and the particular variety; for example, whether produced by rain or by irrigation: and the quality; for example, the highest or the lowest: the amount of the price of the thing sold, and the time and place of delivery thereof must also be stated.
Article 387. It is essential to the validity of a sale by immediate payment against future delivery that the price should be paid at the meeting where the contract is concluded. If the two contracting parties separate before the price is handed over, the contract is cancelled.
Contract for manufacture and sale.
Article 388. If a person requests a skilled workman to make a certain thing for a certain sum of money and the latter undertakes to do so, a contract for manufacture and sale has been concluded.
(1) A purchaser displays his foot to a boot-maker and asks him to make a pair of boots from such and such leather for so many piastres and the latter agrees to do so; or a bargain is struck with a ship’s carpenter for the building of a rowing boat or ship, after describing the length, breadth and essential qualities thereof. A contract for manufacture and sale has been concluded.
(2) A bargain is concluded with a manufacturer for the production of a certain number of needle guns at so much per gun, after describing the length and size thereof, and other requirements. A contract for manufacture and sale has been concluded.
Article 389. A contract for manufacture and sale is generally valid if it is customary to conclude such a contract. If however, in respect to things to which no such custom applies, the conditions applicable in the case of immediate payment against future delivery are in force. If no period is prescribed, however, the contract is in the nature of a contract for manufacture and sale.
Article 390. In the case of contract for manufacture and sale, an identification and description of the article must be given as required.
Article 391. It is not essential to a contract for manufacture and sale, that the money should be paid immediately,
Article 392. After the conclusion of a contract for manufacture and sale, neither party can go back on the bargain they have struck. If, however, the object manufactured is not in accordance with the specification, the person who has given the order may exercise an option.
Sale by a person suffering from a mortal sickness.
Article 393. If a person suffering from a mortal sickness sells a thing to one of his heirs, such sale is dependent upon the permission of the other heirs. If such heirs give their permission after the death of the person suffering from the mortal sickness, such sale becomes executory. If they do not so give their permission, it is not executory.
Article 394. If a person suffering from a mortal sickness sells a thing to a person who is not one of his heirs at the time of his death for a price equal to the value of such thing, such sale is valid. If he gives favorable terms, that is to say, sells such thing for less than its value and gives delivery thereof, and one third of his property allows thereof, and thereafter dies, the sale is valid. If a third of his property is insufficient to allow of such favorable terms, the purchaser must make good such deficiency. If he does not do so, the heirs can cancel the sale.
(I) A person suffering from a mortal sickness, and who owns nothing but a house worth one thousand five hundred piastres, sells and delivers such house to a person who is not one of his heirs for one thousand piastres. Such sale is valid, since the five hundred piastres which he has made a subject of his generosity do not exceed a third of his property, and the heir cannot cancel the sale.
(2) If a person suffering from a mortal sickness sells and delivers the house for five hundred piastres, the purchaser is obliged to increase the price to two thirds, upon being requested to do so by the heirs, since the thousand piastres which he has made the subject of his generosity is twice as much as one third of his property. If he does so, the heir cannot cancel the sale. If he fails to do so, the heirs can cancel the sale and demand the return of the house.
Article 395. If a person whose estate is overwhelmed by ‘debts and who is suffering from a mortal sickness sells his property for a price less than the true value and then dies, the creditors can oblige the purchaser to make good the balance of the price. If he does not do so, the creditors can cancel the sale.
Sale subject to a right of redemption.
Article 396. In sale subject to a right of redemption the vendor may return the price and claim back the thing sold.- The purchaser likewise can return the thing sold and claim back the price,
Article 397. A thing sold subject to a right of redemption may not be sold to any other person by either the vendor or the purchaser.
Article 398. A condition may validly be made that a portion of the profits of the thing sold shall be for the purchaser.
Example:- If it is mutually agreed to make a contract that the grapes of a vineyard sold subject to a right of redemption shall be equally divided between vendor and purchaser, the contract must be carried out.
Article 399. If property sold subject to a right of redemption is equal to the amount of the debt and perishes while in the possession of the purchaser, the debt which it secures is cancelled.
Article 400. If the value of the property sold subject to a right of redemption is less than the debt and perishes while in the possession of the purchaser, a sum equivalent to the amount of the debt is deducted, and the purchaser can claim the return of the balance from the vendor.
Article 401. If the value of the property sold subject to a right of redemption is greater than the amount of the debt and perishes while in the possession of the purchaser, a sum equivalent’ to the amount of the debt is deducted. If the purchaser has been guilty of some wrongful act, he must make good the balance. If he has not been guilty of any wrongful act, and the property has been destroyed, the purchaser is not obliged to make good the balance.
Article 402. If one of the two parties to a sale subject to a right of redemption dies, the right of cancellation is transmitted to his heirs by way of inheritance.
Article 403. No other creditors of the vendor have the right of interfering with property sold subject to a right of redemption, until the purchaser thereof has recovered payment of what is due to him.
Promulgated by Royal Iradah, 8th. Muharram, 1286.