Sales contract

The purchase and sale (in Latin emptio venditio) is a consensual, bilateral, onerous and typical contract by which a subject (seller) agrees to transfer the property on a good in favor of another subject (buyer) in exchange for the latter paying a price in money. That is, it is a contract whose cause is the transfer of property rights.

Features

The sales contract is characterized by being:

• Bilateralengenders rights and obligations for both parties;

• One.because it confers profits and levies, also reciprocal;

• Switch, since generally the benefits are certain and determined when performing the contract;

• Consensual, since the will of the parties must be expressed (for the purchase of furniture) and also formal (for properties). In terms of furniture, no formality is required for the validity of the act; that is, the different forms of manifestation of the will are accepted within the tacit and express consent. In the tacit, it is admitted that by undubitable facts the sale of movable goods is formed and constituted, generally in those cases where the thing is taken and the price is deposited: an indisputable fact of the manifestation of the will to celebrate the contract. In terms of express consent, it is accepted that verbally, the sale may be held by signs, or in writing if it is preferred, without the need for this formality for the movable property. As for the properties, the contract should always be recorded in writing, but the document may be public or private, depending on the amount.

• Principalbecause it exists on its own and does not depend on another contract.

History

In Roman law it is the agreement to exchange a thing (that will be delivered to the buyer) for an amount of money (pretium) that will be paid to the seller (venditor). In fact, the most primitive form of sale consisted of bartering things and prices. A paradigmatic 'give and take' type of business. This was done with the simple manual exchange for the purchase of res nec manicipi and took the solemn form of manicipatio for the purchase of res manicipi.<, J.A. Roman Private Law. 14 Ed. Editions University of Navarra. Pamplona, Spain. In Greek law it required for the perfection of the sale, the payment of the price or the written form; in the purchase of future goods, the advance payment was a loan of money. This had repercussions in Roman jurisprudence, which came to admit the perfection of the contract by simple consent, presenting the obligations to deliver and pay as simultaneous.
Gayo, in his work Institutas, defines the sales contract - emtio venditio - as a consensual contract by which a person called the seller (venditor), undertakes to transfer the free and peaceful possession and the useful enjoyment (habere licere) that he has over a thing (merx), to another person called a buyer (emptor), in exchange for a certain amount of money (pretium).

Economic function

Buying and selling turns out to be the most effective and practical means by which wealth is exchanged. The appearance of the currency brought as a consequence the birth of the purchase-sale contract, specifying with greater realism the economic value of the considerations, since the primitive conception of the values to the cattle or the pecuniary, gave the contracting parties an approximation in the considerations, but not with the same precision of the currency thanks to the fractional values.

Species

Civil sale

Defined as the seller's obligation to deliver a certain thing and the buyer's obligation to pay a certain price, in money or sign that represents it.

Commercial sale

Defined as the purchase and sale of goods or furniture to resell them, either in the same way they were bought or in a different way, with the aim of profiting from the resale. And make the sale successful and not find deception in what is shown

Sale with reservation of title

It is that contract in which the parties, through an express agreement, modify the transfer effect of ownership, making it depend on the fulfillment of an obligation by the buyer.

Sales in installments

It is that contract in which, through an express agreement, the parties agree that the buyer will fully or partially cover the price of the item at a certain time through partial deliveries at a certain time.
If it were agreed that the entire price be paid at a certain time in a single exhibition, it would not be a sale in installments, but a sale contract with deferred payment of the price, so the condition for said contract to exist is that there are payments in partialities

Sale with preference agreement

Contract in which the parties agree that the buyer agrees not to sell the property acquired as a result of the sale, without first giving preference to the seller to reacquire it under equal conditions in which a third party could acquire it.

Sale with agreement not to sell to a specific person

It is that contract in which the parties agree that the buyer cannot sell to a certain person the good that he has acquired and is the object of the contract. It should not be confused with the fact of agreeing not to sell to any person, since the contract would be null and void.

Buying and selling hope

It is that contract in which the parties agree to the delivery of future things in exchange for a certain price and in money, so the buyer runs the risk that those things never come to exist and even so, he must cover the cost. price.

Purchase and sale of an expected thing

Contract in which the parties agree to the delivery of future things and the payment of the price, subjecting them to the suspensive condition that the thing comes to exist or not.

Judicial purchase and sale

It is equated by law to a forced alienation. Technically it is not a contract because there is no agreement of wills between the owner of the property and the debtor of the credit that gives rise to the judicial proceeding, much less the highest bidder. As a general rule, within the judicial procedure, the owner does not attend this hearing, and even if he did and expressed his disagreement with the procedure, his consent is irrelevant to the alienation of the property.

On the other hand, it is not a sale either, since none of the parties, nor the judge of knowledge, set the price at which the thing is auctioned, nor the experts who will value it, since they will indicate an estimated value and price that will serve as the basis for their estimation and the legality of their positions. In any case, the highest bidder will be the one who sets the price by offering an amount in exchange for the thing, which must be at least the same, which is considered a legal position. In short, if there is no agreement of wills between the owner and the purchaser, neither with respect to the transfer of the property, nor with respect to the price, there can be no talk of a sales contract.

Elements

Personal Items

The personal elements of this contract are made up of two parties: the buyer and the seller.

1. Seller: that physical or moral person who is obliged to transfer the dominion of one thing or one right to another.
2. Buyer: that physical or moral person who is obliged to the seller to pay a certain price and money in exchange for something that will happen to his property.

Real Elements

There are two real elements: price and thing.

Price

As part of the service that the buyer must give, the price must have the following characteristics:

• Right., that is to say, that it must be determined and determinable, it must be fixed when concluding the contract accurately, mathematically and accurately.
• In money, that is, it must be in national currency that has full course and liberatory power according to monetary law. It can be agreed within the contract that a part is paid in money and another part of the price is paid in kind as long as the amount in money is equal to or greater than the value of that thing.
• True: it should not be fictitious, for if it would not be in the presence of a fictitious or donation contract.
• Justice, it is not a requirement of validity of the price your justice.

Thing

All things and rights that meet the following requirements may be the object of the sale contract:

• Must have. exist in nature. Future things or purchases of hope may also be subject to the contract.
• Must be. determined, that is, individualized puncturing certain regarding the thing.
• Must be determinable in kind, that is, gender data, quality, quantity, weight or measure.
• Must have. being in trade. Things may be out of trade by their nature, that is, cannot be possessed by any individual, and when the law so declares.

Formal elements

Sales contracts have two aspects:

1. Contracts for the sale of movable goods. The law does not require a special way to outlaw consent; therefore, the form is free. Therefore, this contract may be held in public writing, in a private document, with or without witnesses, verbally or by acts or circumstances that necessarily imply such consent.
2. Contracts for the sale of real estate. This contract is formal in that the law requires a determined and enforceable formality for its validity to be recorded in public writing, since, if the value of the valuation does not exceed the equivalent of three hundred and sixty-five times the minimum wage, it may be made in private contract, with the form of the contractors, before two witnesses, ratified before notary, before competent judge and registered in the Public Registry of Property and Commerce.

Effects of the sales contract

Obligations of the seller

• Keep the good object of the sale until delivery.
• Deliver the good to the buyer at the agreed place and time.
• Guarantee the buyer a useful possession.
• Guarantee the buyer a peaceful possession.
• Respond to eviction.
• Receive the payment of the price.

Obligations of the buyer

• Pay the price.
• Pay interest in case of delay or sale with deferred price.
• Receive the purchased good.
• Get it in good shape.

Special modalities of the sale

• Purchase with domain booking: is the one in which the transfer of the domain is subject to a suspensive condition that may consist of the payment of the price or any other lawful. It is not recognized by all legal systems.

• Purchase on time (in bonds): is the one where the seller, on the one hand, makes the transfer of the property, and on the other the buyer, is obliged to make the payment fractionated in a certain number of periodic contributions.

• Purchase ad gustum (to taste): it is the one that is subject to the future and uncertain condition of overcoming a test or tasting that allows to find out whether the thing has the express quality or tacitly agreed.

• Purchasing with preferential pact: is the one in which it is established, for the buyer, the obligation to allow, in case of future sale, that a certain person acquires the thing, with priority over the other eventual buyers. The buyer shall also be obliged to inform the beneficiary of the preferential agreement on the sale of the good.

• Purchasing with retrovent pact: is the one in which the seller is attributed a subjective right, by which he can recover the sold object. It should be added that the economic purpose of this figure revolves around the possibility that the seller acquires sufficient liquidity, with the future hope of recovering the thing. Hence there are great facilities to simulate a sale with a retro-sales pact, actually dealing with a guaranteed loan.

• Sale with a commissory pact.

• Purchasing with caps.

• Purchasing with Mortgage Guarantee is the one that takes place when the buyer acquires a furniture or property and in the same act is acquiring and mortgaged. It is made before the faith of a public notary and so that the sale can be made in this modality the good should not have any tax, this must be demonstrated with a certificate expiating the Public Registry of the Property and Commerce of the State where the contract is being carried out.

Regulation by country

Columbia

The Colombian Civil and Commercial Code deals with it in its articles:

Article 1849 C.C. Concept of sale: The sale is a contract in which one of the parties agrees to give something and the other to pay for it in money. That one is said to sell and this one to buy. The money that the buyer gives for the thing sold is called the price.

Article 905 C.Com. Definition of sale The sale is a contract in which one of the parties agrees to transfer ownership of a thing and the other to pay for it in money. The money that the buyer gives for the thing sold is called the price.

• Part XXIII: Of Sales
• Chapter I. Of the Capacity for the Sales Contract
• Chapter II. Form and Requirements of the Sales Contract
• Chapter III.Del Price
• Chapter IV. Of the Harvest
• Chapter V. Of the Immediate Effects of the Sales Contract
• Chapter VI. Of the Obligations of the Vendor and Firstly of the Obligation to Deliver
• Chapter VII of the Sanitation Obligation and First of the Eviction Sanitation
• Chapter VIII of the Sanitation of Vicios Redhibitory
• Chapter IX of the Obligations of the Buyer
• Chapter X of the Commissory Covenant
• Chapter XI.
• Chapter XII.Other Covenants Sales Contract Accessories
• Chapter XIII. From the Termination of the Enormous Leassion Sales

Argentina

The Argentine Civil and Commercial Code deals with it in Book III about "Personal Rights", in Title IV about "Particular Contracts", it dedicates the first chapter of the aforementioned title to the sales contract, this in turn is divided into 8 sections:

• Section 1.a "General Provisions" (arts. 1123 - 1128)
• Section 2.a "Cosa "vendida" (arts. 1129 - 1132)
• Section 3.a "Price" (arts. 1133 - 1136)
• Section 4.a "Vendor duties" (arts. 1137 - 1140)
• Section 5.a "Computer duties" (art. 1141)
• Section 6.a "Buy of movable things" (arts. 1142 - 1162)
• Section 7.a "Some clauses that may be added to the sales contract" (arts. 1163 - 1169)
• Section 8.a "Boleto de compraventa" (arts. 1170 - 1171)

Spain

In Spanish Law, the Sale with reservation of title, the transfer of possession is carried out at the time of the perfection of the contract, leaving the transfer of the property subject to the fulfillment of a certain condition.

The purchase and sale in installments involves the transfer of possession and ownership of a movable, tangible, identifiable and non-consumable asset, giving rise, on the acquirer's side, to the obligation to make the payment in installments a certain number of periodic installments. This modality, due to its importance in the contemporary economy, has been specifically regulated by Law 28/1998.

The purchase with repurchase agreement (conventional retraction), in the case of real estate, as long as the repurchase agreement has not been registered in the Property Registry, it does not bind the third party that acquires the property from the buyer.

The purchase and sale ad gustum in accordance with article 1115 of the Civil Code, cannot be a purely optional condition, prohibited by said article. Finally, once the test has been positive, the buyer loses the right to withdraw from the sale.

Mexico

Articles 2248 to 2322 of the Federal Civil Code regulate the sale contract.

In Mexican Law, the sale is perfect and obligatory for the parties, as a general rule, when the thing and its price have been agreed, even if the thing has not been delivered nor the price paid.

The repurchase agreement is expressly prohibited, as well as the promise to sell real estate that has been the subject of a sale between the same contracting parties.

Chile

Articles 1793 to 1896 of the Chilean Civil Code regulate the purchase-sale contract.

El Salvador

Articles 1597 to 1686 of the Civil Code regulate civil sales, and articles 964 to 994 of the Commercial Code regulate commercial sales.

Guatemala

The sale is regulated by articles 170 to 1879 of the Civil Code (Decree 107). It is understood that by the contract of sale the seller transfers ownership of a thing and agrees to deliver it, and the buyer agrees to pay the price in money.