THE CONTRACT OF SALE INTRODUCTION Most common contr. Special contr – certain additional requirements must b met - certain naturalia flow from contr (assumptions) Def – contract in which one party (seller) undertakes to deliver the merx to another party (buyer) and purchaser agrees to pay seller money Seller and buyer must agree on merx and price (essentialia of contract of sale) THE MERX Has to be agreement regarding merx Has to be definite or ascertainable Is definite if – mentioned by the name in the agreement - parties were in agreement of thing being sold If generic sale (quantity of stuff), then merx not definite but ascertainable ex. 10k stock bricks If can b owned by someone, then it can b sold THE PURCHASE PRICE Price for merx must b agreed upon Must b definite/ascertainable Price – amount of money, otherwise it’s a contract of exchange RIGHTS AND DUTIES OF PURCHASER & SELLER Classification as contract of sale has legal consequences – certain legal consequences cant b excluded ie. Delivery of merx & price, it also determines the legal position of the parties i.r.o. certain matters that were not arranged by them. COMMON LAW RIGHTS OF PURCHASER 1. P is entitled to deliver of the merx. Doesn’t mean have to b delivered to doorstop, but merx has to b made available to p and p entitled to its free and undisturbed possession 2. P entitled to preservation of merx pending delivery. S is to preserve merx until delivered to p If p fail to take delivery, s only liable for gross negligence/intent If merx damaged while s in mora, then s bears risk, except for misfortunes 3. P entitled to b protected by s against eviction P will not to b disturbed in his enjoyment and possession of merx by another person with better title to merx than that of p If someone else claiming legal title to merx, s must assist p If 3 rd party succeeds in claim, s in breach of warranty against eviction (but p must put competent defense, 1
otherwise p looses recourse against s) 4. P entitled to a merx free from latent defects. S liable for latent defects even if s wasn’t aware of defect and didn’t act in bad faith P must prove that – is/was material defect in merx, defect was present when contr of sale concluded, defect was latent(p couldn’t notice during reasonable inspection), p unaware of defect at time of conclusion of contr Actio Redhibitoria If defect so material that p would not have purchased it if known about it or if defect makes it useless, p may claim the following: - Return of purchase price, interest, repayment of expenses incurred during receipt and preservation of merx, reimbursement for improvements effected by p to the merx P must return merx and improvements, unless defect caused merx’s destruction due to no fault of p Actio Quanti Minoris If defect not so material that p would refuse to buy it or if merx not useless, p has to be satisfied with keeping merx and claiming reduction of purchase price.
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- Spring '16
- Contract Law, merx