SALES LAW
Sales law
| Definition of sale
Article 1582 of the Civil Code defines sale as an agreement by which one (the seller ) undertakes to deliver something, and the other (the buyer ) to pay for it. Form of sale It can be made by authentic deed or under private signature for movable objects, it must be made by authentic deed in the case of an immovable. Agreement to sell The sale can be preceded by a promise to sell
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THE SALE
The object of the sale contract is the transfer of ownership of a thing (immovable or movable) against the payment of a price (article 1582 C. Civ ) which may be in kind or in money.
| article 1582 of the Civil Code |
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The sale is an agreement by which one commits himself to deliver a thing, and the other to pay for it. It can be made by authentic deed or by private signature. |
The sale is governed by the provisions of articles 1582 to 1685 of the Civil Code and by common contract law.
| Conclusion of the sales contract | |
| The thing sold must be determined. The price must be determined or determinable
The seller has a duty to advise or inform the buyer. Failure to comply with this obligation is sanctioned by the award of damages or the termination of the sale. The parties must determine the place of delivery which they are free to choose. They are free to choose the date of transfer of properties and risks. In the absence of an express determination, this date is that of the day of the exchange of consents (art. 1583C. Civ.). The transfer of ownership may be delayed until payment of the price. This is the so-called “retention of title” clause. The parties must specify whether the price is payable in cash or in the future. The seller generally stipulates general conditions of sale .
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| Execution of the sales contract | |||
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The contract is executed by the delivery of the thing sold and its receipt, and the payment of the price The seller’s obligations Delivery of the thing sold The seller has an obligation to deliver . Deliverance is the transfer of the thing sold into the enjoyment and possession of the buyer (art 1604 C.Civ) The quantity is that fixed in the contract or by the order form. The seller must deliver the accessories of the thing sold (art.1615C. Civ.) When he is committed, the seller must maintain the thing sold. The goods must be handed over at the place indicated in the contract, or as the case may be by custom. In the absence of precision, this place is where the thing is located at the time of the conclusion of the contract (art. 1608 C. civ.) The seller must deliver within the period agreed by the parties to the contract (art. 1610 C. Civ.). If the deadline is stipulated as being mandatory, the sale can be canceled without formal notice as soon as the deadline has passed.
The parties may however derogate from this rule and dissociate the transfer of risks from the transfer of ownership. GUARANTEES LEGAL GUARANTEES Guarantee of hidden defects The seller owes the buyer a guarantee that the goods are free from any defects rendering them unfit for the use for which they are intended. The defect must be hidden and prior to the sale. He must render the thing unfit for the use for which the buyer intends it or reduce such use to such an extent that he would not have acquired it or would have given a lower price if he had known it (art. 1641 C. civ.). The hidden nature of the defect is assessed differently depending on whether it is a non-professional buyer or a professional buyer (ie of the same specialty). Eviction Guarantee The seller also owes the eviction guarantee (art. 1626.C.civ.). Warranty action The purchaser of the thing has the choice between two actions to invoke the guarantee (art. 1644 C.Civ.)
Unless expressly provided, appraisal or prohibitive actions must be exercised, on pain of forfeiture, within a short time depending on the nature of the defects and the uses of the place where the sale was made (art. 1648 Civil C.) The purchaser can request the guarantee of the hidden defect from his seller or act directly against the manufacturer. Repairs due by the seller The seller in good faith must reimburse the purchaser for the costs occasioned by the sale (art. 1646 Civil Code) but not for the damage caused by the item affected by the defect. The seller in bad faith is liable for all damages for the damage suffered by the buyer (art. 1645 C. civ.). The seller who was aware of the defects in the item or who could not ignore them, as well as the professional seller, who is considered not to be able to ignore the defects of which the item is affected or is required to know them, is deemed to be in bad faith. He cannot be exempted from the presumption of bad faith. CONVENTIONAL GUARANTEE Guarantee clauses The seller may contractually grant a guarantee greater than that provided for by law. The seller often seeks, through so-called guarantee clauses, in fact to make the buyer assume risks, or to provide for limitations in the time of the guarantee or the limitation of the elements of damage. The stipulation of clauses limiting or excluding liability is not valid for the professional seller or in the case of a professional sale. On the other hand, the clauses are opposable between professionals of the same specialty. BUYER’S OBLIGATIONS The essential obligation of the buyer is to pay the price. Seller’s right of retention The seller’s right of retention implies the possession of the item and the retention of administrative documents cannot be covered by this guarantee. Cass. Com July 11, 2000 Ridiculous price and nullity of the sale for low price the sale granted without a serious price is affected by a nullity which, being based on the absence of an essential element of this contract, is an absolute nullity subject to the thirty-year prescription of common law Cass. com. 23 October 2007 Case law: Vility of the price
Sale and ownership Article 1599 of the Civil Code provides ” The sale of the property of others is void … “. |
