The provisions of this Book apply to contracts for the sale of goods between traders, natural persons or legal persons.
The provisions of this Book do not govern:
1) sales to consumers, that is to say to any person who acts for purposes that do not fall within the scope of his professional activity;
2) sales by seizure, by judicial authority, and at auctions;
3) the sale of transferable securities, commercial paper, currencies or currencies and the assignment of receivables.
The provisions of this Book do not apply to contracts in which the preponderant part of the obligation of the party supplying the goods consists in the supply of labor or other services.
In addition to the provisions of this Book, commercial sale is subject to the rules of common law.
In matters of commercial sale, the will and behavior of a party must be interpreted according to the intention of the latter, when the other party knew or could not ignore this intention.
The will and behavior of a party must be interpreted according to the meaning that a reasonable person, of the same quality as the other party, placed in the same situation, would have given them.
In order to determine the intention of a party, or that of a reasonable person, account must be taken of the factual circumstances, and in particular the negotiations which may have taken place between the parties, the practices which have been established between them, or even uses in force in the profession concerned.
The parties are bound by the uses to which they have consented and by the habits which have been established in their commercial relations.
Unless otherwise agreed by the parties, they are deemed to have tacitly referred in the commercial sales contract to professional uses of which they were aware, or should have been aware, and which, in trade, are widely known and regularly observed. by the parties to contracts of the same nature in the commercial branch in question.
The commercial sales contract can be written or verbal; it is not subject to any formal requirement.
In the absence of a written document, it can be proved by any means, including by witness.
For the purposes of this Book, the term “written” shall include any communication using a written medium, including telegram, telex or facsimile.
FORMATION OF THE CONTRACT
A proposal to conclude a contract addressed to one or more specific persons constitutes an offer if it is sufficiently precise and if it indicates the intention of its author to be bound in the event of acceptance.
A proposal is sufficiently precise when it designates the goods, and, expressly or implicitly, fixes the quantity and the price or gives the indications making it possible to determine them.
An offer takes effect when it reaches its addressee.
An offer may be revoked if the revocation reaches the addressee before the addressee has dispatched his acceptance.
However, an offer cannot be revoked if it specifies that it is irrevocable, or if it sets a specific deadline for its acceptance.
Even an irrevocable offer ends when its rejection reaches the author of the offer.
A statement or other behavior by the recipient indicating that he or she agrees to an offer constitutes acceptance.
Silence or inaction, by themselves, cannot be considered as acceptance.
Acceptance of an offer takes effect when the indication of acquiescence reaches the offeror.
Acceptance does not take effect if this indication does not reach the author of the offer within the period he has stipulated or, failing any stipulation, within a reasonable period taking into account the circumstances of the transaction and the means communication used by the author of the offer.
A verbal offer must be accepted immediately, unless the circumstances dictate otherwise.
A response which tends to be acceptance of an offer, but which contains additional or different elements that do not substantially alter the terms of the offer, constitutes acceptance.
A response which tends to be the acceptance of an offer, but which contains additions, limitations or other modifications should be regarded as a rejection of the offer, and constitutes a counter-offer.
The period of acceptance fixed by the author of the offer in a telegram or a letter begins to run from the day of issue of the offer, the postmark of the Postal Services being taken as proof.
The time limit for acceptance which the offeror sets by telephone, telex, facsimile or any other instantaneous means of communication begins to run when the offer reaches the addressee.
Acceptance may be withdrawn if the withdrawal reaches the offeror before the time when the acceptance would have taken effect.
The contract is concluded when the acceptance of an offer takes effect in accordance with the provisions of this Book.
The offer, a declaration of acceptance or any other expression of intention is considered to have reached its addressee when it has been made orally, or when it has been delivered by any other means to the addressee himself, at its main establishment, or at its postal address.
OBLIGATIONS OF THE PARTIES
OBLIGATIONS OF THE SELLER
The seller undertakes, under the conditions provided for in the contract and in this Book, to deliver the goods, and to hand over the related documents, if necessary, to ensure their conformity with the order and grant its guarantee.
Obligation to deliver
If the seller is not bound to deliver the goods to a particular place, his delivery obligation consists of:
(a) where the contract of sale provides for the transport of the goods, to hand over these goods to a carrier for their delivery to the buyer;
- b) in all other cases, to make the goods available to the buyer at the place where they were manufactured, or where they are stored, or where the seller has his principal place of business.
If the seller is required to make arrangements for the transport of the goods, he must conclude the necessary contracts for this transport to be carried out to the place provided with the buyer, by the appropriate means of transport and according to the conditions. of use.
If the seller is not required to take out transport insurance himself, he must provide the buyer at the latter’s request with all the information at his disposal which is necessary for the conclusion of this insurance contract. .
The seller must deliver the goods:
- a) if a date is fixed by the contract or can be determined by reference to the contract, at that date;
- b) if a period of time is fixed by the contract, or is determinable by reference to the contract, at any time during that period;
- c) and in all other cases, within a reasonable time from the conclusion of the contract.
If the seller is required to hand over documents relating to the goods, he must fulfill this obligation at the time, place and in the form provided for in the contract.
The seller must deliver the goods in the quantity, quality, specification, conditioning and packaging corresponding to those provided for in the contract.
Unless the parties have agreed otherwise, the goods only conform to the contract if:
1) they are suitable for the uses for which goods of the same type are usually used;
2) they are suitable for any special use which was brought to the attention of the seller at the time of the conclusion of the contract;
3) they have the qualities of a commodity of which the seller has given the buyer the sample or model;
4) they are wrapped or packaged in the usual way for goods of the same type, or failing that in the usual way, in such a way as to conserve and protect them.
The seller is liable in accordance with the contract and these provisions for any lack of conformity which exists at the time of transfer of risk to the buyer, even if this defect does not appear until later.
In the event of early delivery, the seller has the right until the date scheduled for delivery, either to deliver a part or a missing quantity or new goods to replace goods not in conformity with the contract, or to repair any lack of conformity. of the goods, provided that the exercise of this right does not cause the buyer any damage or costs.
The purchaser must examine the goods or have them examined as quickly as possible in the circumstances.
If the contract involves the transport of goods, the examination may be deferred until their arrival at destination.
If the goods are diverted or redirected by the buyer without the latter having had a reasonable opportunity to examine them, and if at the time of the conclusion of the contract, the seller knew or should have known of the possibility of this diversion or this re-shipment, the examination may be deferred until the goods arrive at their new destination.
The buyer is forfeited the right to invoke a lack of conformity if he does not report it to the seller, specifying the nature of this defect, within a reasonable period of time from the moment he noticed it or would have must have seen it.
In all cases, the buyer is forfeited the right to invoke a lack of conformity, if he does not report it at the latest within a period of one year from the date on which the goods were sent to him. been delivered, unless this period is incompatible with the duration of a contractual guarantee.
The seller must deliver the goods free from any rights or claims of a third party, unless the buyer agrees to take the goods under these conditions.
The guarantee is due by the seller when the hidden defect of the item sold diminishes its use so much that the buyer would not have acquired it or would have given a lower price if he had known it.
This warranty benefits both the buyer against the seller, and the sub-buyer against the manufacturer or an intermediary seller, for the guarantee of the hidden defect affecting the item sold from its manufacture.
Any limiting guarantee clause must be interpreted restrictively.
The seller who invokes a limiting guarantee clause must provide proof that the purchaser knew and accepted the existence of this clause when the sale was concluded.
OBLIGATIONS OF THE PURCHASER
The buyer undertakes under the conditions provided for in the contract and in accordance with the provisions of this Title to pay the price and take delivery of the goods.
Payment of the price
The obligation to pay the price includes the obligation to take all measures and complete all formalities intended to allow payment of the price provided for by the contract or by laws and regulations.
The sale cannot be validly concluded without the price of the goods sold having been fixed in the sales contract, unless the parties have referred to the price usually practiced at the time of the conclusion of the contract in the commercial branch in question, for the same goods sold under comparable circumstances.
If the price is fixed according to the weight of the goods, it is the net weight which, in case of doubt, determines the price.
If the buyer is not required to pay the price at another particular place, he must pay the seller:
– when it is established, or
– if payment is to be made against delivery of the goods or delivery of documents, at the place provided for such delivery or delivery.
If the buyer is not bound to pay the price at another time determined by the contract, he must pay it when the seller makes available to him either the goods or the documents representing the goods.
The seller may make payment a condition of handing over the goods or documents.
If the contract involves the transport of the goods, the seller may send them on condition that the goods or the representative document are only given to the buyer against payment of the price.
However, the parties may expressly provide in the contract that the buyer will only be required to pay the price after he has had the opportunity to examine the goods.
The buyer must pay the price on the date fixed in the contract or resulting from the contract, without the need for any request or other formality on the part of the seller.
The obligation to take delivery consists for the buyer:
– to perform any act that can reasonably be expected of him to enable the seller to make the delivery, and
– to collect the goods.
When the buyer is late in taking delivery of the goods or does not pay the price for them, while payment of the price and delivery must be made simultaneously, the seller, if he has the goods in his possession or under his control, must take reasonable steps, having regard to the circumstances, to ensure its preservation.
He is entitled to withhold them until he has obtained from the buyer payment of the agreed price and reimbursement of his conservation expenses.
If the buyer has received the goods and intends to refuse them, he must take reasonable steps, having regard to the circumstances, to ensure their preservation.
He is entitled to withhold them until he has obtained reimbursement from the seller for his conservation expenses.
The party which is obliged to take measures to ensure the preservation of the goods may deposit them in the stores of a third party at the expense of the other party, provided that the resulting expense is not unreasonable.
The party who must ensure the conservation of the goods may sell them by any appropriate means if the other party has made a delay in repossessing them, paying the price, or paying the costs of their conservation, subject to notifying this other party intends to sell them.
The party selling the goods is entitled to withhold from the proceeds of the sale an amount equal to its conservation costs.
It owes the surplus to the other party.
SANCTIONS FOR BREACH OF THE OBLIGATIONS OF THE PARTIES
A party may ask the competent court for authorization to defer the performance of its obligations when it appears, after the conclusion of the contract, that the other party will not perform an essential part of its obligations due to:
1) a serious insufficiency in its execution capacity, or
2) of its insolvency, or
3) of the way in which it is preparing to perform or perform the contract.
If, before the date of performance of the contract, it is clear that a party will commit an essential breach of its obligations, the other party may request the competent court to terminate this contract.
In successive delivery contracts, if the non-performance by one of the parties of an obligation relating to a delivery constitutes an essential breach of the contract, the other party may request the termination of this contract at the competent court.
It may, at the same time, request it for deliveries already received, or for future deliveries if, because of their connection, these deliveries cannot be used for the purposes envisaged by the parties at the time of the conclusion of the contract.
A breach of the sales contract committed by one of the parties is considered essential when it causes the other party such prejudice that it substantially deprives it of what it was entitled to expect from the contract, unless this failure was caused by the act of a third party or the occurrence of an event of force majeure.
Sanctions for non-performance of the seller’s obligations
If the seller has not performed any of the obligations resulting for him from the sales contract, the buyer is entitled to:
– exercise the rights provided for in this Section,
– claim damages.
The buyer may require the seller to perform all of his obligations.
If the goods do not conform to the contract, the buyer may require the seller to deliver replacement goods if the lack of conformity constitutes an essential breach of the contract and if this delivery is requested at the time of the denunciation of the lack of conformity, or within a reasonable time from such denunciation.
If the goods do not conform to the contract, the buyer may require the seller to repair the lack of conformity. Reparation must be requested at the time of the denunciation of the lack of conformity, or within a reasonable period of time after such denunciation.
The buyer may grant the seller an additional period of reasonable duration for the performance of his obligations.
Unless he has received from the seller a notification informing him that the latter will not perform his obligations within the period thus set, the buyer may not, before the expiry of this period, avail himself of none of the means at his disposal in the event of breach of contract.
However, the buyer does not thereby lose the right to claim damages for delay in performance.
The seller may, even after the date of delivery, repair at his expense any breach of his obligations.
However, the buyer retains the right to claim damages.
If the seller asks the buyer to let him know whether he accepts performance, and if the buyer does not respond to him within a reasonable time, the seller may perform his obligations within the time he has indicated in his request.
The buyer may not before the expiration of this period invoke a means incompatible with the performance by the seller of his obligations.
The buyer may request the termination of the contract from the competent court:
– if the non-performance by the seller of any of the obligations or these provisions constitutes an essential breach of the contract, or
– in the event of non-delivery, if the seller does not deliver the goods within the additional deadlines which may have been granted to him.
However, when the seller has delivered the goods, the buyer forfeits the right to consider the contract terminated, if he has not done so within a reasonable time:
– in the event of late delivery, from the moment he learned that the delivery had been made;
– in the event of a breach other than late delivery.
If the seller delivers only part of the goods, or if only part of the delivered goods conforms to the contract, the provisions of Articles 251 to 254 apply with regard to the missing or non-conforming part.
The contract can only be terminated in its entirety if the partial non-performance or lack of conformity constitutes an essential breach of the contract.
Sanctions for non-performance of the buyer’s obligations
If the buyer has not performed any of the obligations resulting from the sales contract, the seller is entitled to:
– exercise the rights provided for in this Section;
– claim damages.
The seller may grant the buyer an additional period of reasonable duration for the performance of his obligations.
Unless he has received from the buyer a notification informing him that the latter will not perform his obligations within the time limit thus set, the seller may not before the expiry of this period, take advantage of ” none of the means at its disposal in the event of breach of contract.
However, the seller does not thereby lose the right to claim damages for delay in performance.
The buyer may, even after the delivery date, repair at his own expense any breach of his obligations, provided that this does not cause an unreasonable delay, and does not cause the seller either unreasonable inconvenience or uncertainty as to the payment of the price. .
However, the seller retains the right to claim damages for his loss.
If the buyer asks the seller to let him know if he accepts the performance, and if the seller does not respond to him within a reasonable time, the buyer can perform his obligations within the time that he indicated in his request. .
The seller may not before the expiration of this period, avail himself of a means incompatible with the performance by the buyer of his obligations.
The seller may request the termination of the contract from the competent court:
1) if the non-performance by the buyer of any of the obligations resulting for him from the contract, or from these provisions, constitutes an essential breach of the contract, or
2) in the event of failure to take delivery, if the buyer does not take delivery of the goods within the additional period proposed by the seller.
In the event of non-conformity of the goods with the contract, whether or not the price has already been paid, the buyer may reduce the price in proportion to the difference between the value that the goods actually delivered had at the time of delivery, and the value that conforming goods would have had at that time.
If the seller delivers only part of the goods or if only part of the delivered goods conforms to the contract, Articles 258 to 260 above apply with regard to the missing or non-conforming part.
The buyer can only declare the contract terminated in its entirety if the partial non-performance or the lack of conformity constitutes an essential breach of the contract.
If the seller delivers the goods before the fixed date, the buyer has the option of taking delivery or refusing to take delivery.
If the seller delivers a quantity greater than that provided for in the contract, the buyer may accept or refuse to take delivery of the excess quantity.
If the buyer agrees to take delivery in whole or in part, he must pay for it at the contract price.
Interest and damages
If one party does not pay the price or any other sum due, the other party is entitled to interest on this sum, calculated at the legal interest rate applicable in commercial matters, without prejudice to the damages that may be incurred. ‘it may be justified in claiming compensation for its damage.
Interest runs from the sending of the formal notice sent to the other party by registered letter with acknowledgment of receipt, or by any other written means.
The damages for a breach of contract committed by one party are equal to the loss suffered or the gain missed by the other party.
When the contract is terminated, and the buyer has made a replacement purchase or the seller has made a resale, the party claiming damages can get the difference between the contract price and the price of the purchase. replacement or resale, as well as any other damages that may be due.
The party who invokes an essential breach of the contract must take all measures reasonable in the circumstances, to limit his loss, including the lost profit resulting from this breach.
If it fails to do so, the defaulting party may claim a reduction in damages equal to the amount of the loss that could have been avoided.
A party is not responsible for the non-performance of any of its obligations if it proves that this non-performance is due to an impediment beyond its control, such as in particular the act of a third party or a case of force majeure. .
When non-performance by one of the parties results from the act of a third party charged by it to perform all or part of the contract, it is not exonerated from its liability.
Effects of termination
The termination of the contract releases both parties from their obligations, subject to any damages that may be due. It has no effect on the provisions of the contract relating to the settlement of disputes or to the rights and obligations of the parties in the event of resolution.
The party who has performed the contract in whole or in part can claim restitution from the other party of what it has provided or paid for in performance of the contract.
The buyer cannot obtain the termination of the contract or demand the delivery of replacement goods if it is impossible for him to return the goods in the condition in which he received them.
This provision does not apply if the inability to return the goods or to return them in a condition substantially identical to that in which the buyer received them is not due to an act or omission on his part.
The buyer who has lost the right to declare the contract terminated or to demand from the seller the delivery of replacement goods by virtue of the preceding article, retains the right to avail himself of all the other means which he derives from the contract. .
If the seller is required to return the price, he must also pay interest on the amount of this price from the day of payment.
Where the buyer has to return the goods in whole or in part, he also owes the seller the equivalent of any profit he has made from the goods or part of them.
The limitation period for commercial sales is two years.
This period starts from the date on which the action can be exercised.
An action resulting from a breach of the contract can be brought from the date on which this breach occurs.
An action based on a lack of conformity of the thing sold can be brought from the date on which the defect was discovered, or should reasonably have been discovered by the buyer, or the offer of delivery of the thing refused by this one.
An action based on fraud committed before the conclusion of the sales contract or at the time of this conclusion, or resulting from subsequent fraudulent acts, can be brought from the date on which the fact was or should reasonably have been discovered.
If the seller has given a contractual guarantee, the limitation period for the actions referred to in article 275 above begins to run from the expiration date of the contractual guarantee.
The limitation period ceases to run when the obligee of the obligation performs any act which, according to the law of the court seised, is considered to interrupt the limitation period.
When the parties have agreed to submit their dispute to arbitration, the limitation period ceases to run from the date on which one of the parties initiates the arbitration procedure.
With regard to prescription, a counterclaim is considered to have been lodged on the same date as the act relating to the right to which it is opposed, provided that both the main claim and the counterclaim derive from the same contract.
Proceedings brought against a debtor cause the limitation period to cease with regard to a joint and several debtor, if the obligee informs the latter in writing of the initiation of the proceedings before the expiry of the limitation period.
When a procedure is brought by a sub-purchaser against the buyer, the limitation period ceases to run as regards the buyer’s recourse against the seller, if the buyer has informed the seller in writing before the expiration of the said period. , of the initiation of the procedure.
Any agreement contrary to the provisions of Articles 275 to 280 above is deemed unwritten.
The expiration of the limitation period is only taken into account in any procedure if it is invoked by the interested party.
EFFECTS OF THE CONTRACT
TRANSFER OF OWNERSHIP
Unless otherwise agreed between the parties, the transfer of ownership takes place as soon as the buyer takes delivery of the goods sold.
The parties may freely agree to postpone this transfer of ownership until the day of full payment of the price.
The retention of title clause will have effect between the parties only if the buyer has been made aware of it by mentioning it in the sales contract, the order form, the delivery note, and at the latest on the day of this one.
The retention of title clause will only be enforceable against third parties, subject to its validity, if it has been duly published in the Trade and Personal Property Credit Register, in accordance with the provisions of Book II of this Uniform Act.
TRANSFER OF RISKS
The transfer of ownership entails the transfer of risk.
However, the loss or deterioration of the goods occurring after the transfer of risk to the buyer does not release the latter from his obligation to pay the price, unless these events are due to an act of the seller.
When the contract of sale involves transport of the goods, the risks are transferred to the buyer from the handover of the goods to the first carrier.
The fact that the seller is authorized to keep the documents representing the goods does not affect the transfer of risk.
With regard to goods sold during transport, the risks are transferred to the buyer from the moment the contract is concluded.
Nevertheless, if at the time of the conclusion of the contract of sale, the seller knew or should have known that the goods had perished or had been damaged and that he had not informed the buyer, the loss or the deterioration is the responsibility of the seller.
If the sale relates to goods not yet individualized, the goods are only deemed to have been made available to the purchaser when they have been clearly identified for the purposes of the contract.
The transfer of risks takes place only after this identification.