Essentialiaof the Contract of Sale8.068.068.068.06 – 8.118.118.118.111178.06The mere conclusion of a contract of sale does not result in the transfer of ownership. Thebuyer obtains only a personal right against the seller. Other requirements exist for the transfer ofownership (for example, delivery of the thing sold and/or payment of the price) as discussedbelow.Essentialiaof the Contract of SaleNature of theNature of theNature of theNature of the contractcontractcontractcontract8.07The seller and the buyer must reach consensus regarding theessentialia(the nature of thecontract, the thing sold and the purchase price) before a contract of sale can exist. They mustreveal their intention to buy and sell. If the parties create a pretence of sale only but in realityconclude another type of contract (for example, a donation), the courts will not give effect to thepretence but rather to the true intention of the parties. The parties must indeed have thisintention, and cannot be under the impression that this intention might be present.8.08The intention of the parties to a contract of sale is to deliver the rights of undisturbed use,enjoyment and disposal of the thing to the buyer; in other words, to enable the buyer to obtainownership of the thing sold. Consequently, there can be no question of a contract of sale if thereis a stipulation in the contract that ownership will not pass to the buyer. Where both the buyerand the seller know that the object sold does not belong to the seller and that the seller is notentitled to sell the object, such as a stolen thing, the deed of sale is null and void as a result ofjuridical impossibility of performance (illegality).The thing soldThe thing soldThe thing soldThe thing soldGeneralGeneralGeneralGeneral8.09For a valid contract of sale, the seller and the buyer must reach consensus on the thing sold.The thing must be determined or determinable at the time of conclusion of the contract. Thissatisfies the requirement that the execution of a contract must be physically possible. If thedescription of the thing is too vague to determine exactly what is sold, the contract will be null andvoid.8.10The thing sold can be movable (for example, a car) or immovable (for example, a farm),material (for example, a dress) or immaterial (for example, book debts). It must also bemerchantable, in other words, it must be the property of a person and be able to be soldcommercially. Sometimes the thing sold appears to be merchantable, but the alienation thereof isprohibited by law: for example no portion of agricultural land shall be sold or advertised for saleunless the Minister of Agriculture has consented in writing to such subdivision, and no land in atownship may be sold until the township is declared an approved township.
