9. Contracts in Particular I

Question 1

What is a contract of sale?

Answer 1

Consists in the exchange of a certain thing for a certain price.

Question 2

Characteristics of contracts of sale:

Answer 2

1. Consensual.
2. Pure obligatory nature: there is no immediate exchange of ownership of the thing sold – for the transfer to exist, delivery has to take place.
3. Aimed at transferring ownership: works as the title to transfer.
4. Bilateral: interdependence between the obligations.
5. Onerous.
6. Commutative: mutual benefits considered by parties to be equivalent.

Question 3

Personal elements of contracts of sale:

Answer 3

Seller/vendor and Buyer/purchaser.

Question 4

Who has legal capacity to bind themselves into contracts of sale?

Answer 4

Everyone.
Minors can in cases of little economic weight and if they are normal of their age and in accordance with social uses.
Emancipated minors cannot sell immovable properties, commercial and industrial establishments or goods of extraordinary value.

Question 5

Requirements of the thing sold (the real element):

Answer 5

1. Existence or possible existence in the future of the thing.
2. Lawfulness: has to be subject to be transferred and in commercio.
3. Determined or subject to be determined.

Question 6

What happens if things in extra commercio are sold?

Answer 6

They cannot be sold.
If they are, the sale is null and void.

Question 7

Requirements of the price of the thing sold in contracts of sale:

Answer 7

1. Real.
2. Has to be money or something representing money.
3. Certain: has to be fixed or subject to determination without the need of the parties celebrating another contract for it.

Question 8

What are the formal elements of contracts of sale?

Answer 8

There is freedom of form.
Special form is necessary is cases of objects like immovable goods.

Question 9

Obligations of the seller in contracts of sale:

Answer 9

1. Delivery of the thing.
2. The warranty in case of eviction and in case of hidden vices.

Question 10

In which two cases can delivery be suspended in the case of contracts of sale?

Answer 10

1. When the buyer has not paid the price or a term for payment has not been fixed (if payment and delivery have to be simultaneous and payment has not been made, or the payment has not been postponed by the agreement).
2. When the payment has been postponed and the vendor discovers that the buyer is insolvent, because he is in risk of losing the price, unless the buyer guarantees the payment of the price within the term agreed by the parties.

Question 11

Delivery can take place in different forms; what are they?

Answer 11

1. Traditio: actual material delivery.
2. Traditio ficta: delivery takes once by means of a fiction delivery (e.g. the execution of the public deed of sale shall be equivalent to the delivery).
3. Symbolic traditio: An instrument that represents the thing sold is delivered as proof of delivery thereof (e.g. keys of a house).

(special case for delivery of rights).

Question 12

How can rights be delivered?

Answer 12

1. Traditio:
   a) execution of the Public Deed of sale.
   b) w/out it: when the titles of ownership are handed over to the buyer or when the buyer makes use of the right with the vendor’s consent.

a) Brevi manu: when the buyer already had the thing in his possession (e.g. levee of a house that he is now buying).
b) Constitutum posesorio: the vendor keeps the possession of the thing sold for different purposes (e.g. the vendor sells the house but stays on it as a lessee).

Question 13

Explain warranty in case of eviction:

Answer 13

A third party with better right than the buyer claims the thing sold.
The seller shall respond to the buyer.

Question 14

Explain warranty for hidden vices or defects:

Answer 14

The thing cannot be used as intended due to internal defects not shown at the time of the sale.

Question 15

If the buyer is deprived of the thing because the seller was not the owner, but it belongs to a third party who is claiming title thereof and who gets a court decision in his favour, does eviction take place? Who is liable?

Answer 15

Yes, it takes place.
The selles is liable.
The buyer does not have an action against the seller for not being the owner of the thing sold to him, but he does have the action for eviction if he is deprived of the legal and pacific possession of the thing by a court decision.

Question 16

What are the requirements for the warranty in case of eviction to play?

Answer 16

1. Loss of the thing sold because court declares so in a final decision.
2. The right of the third party who obtains the thing is prior to the sale.
3. Notification to the seller if the action for eviction ∫tarted by the third party.

Question 17

Effects of the warranty in case of total eviction:

Answer 17

1. Refund the price.
2. Payment of the fruits.
3. Payment of the costs of the lawsuit against the third party for eviction, and if any, payment of the costs of the suit against the seller asking him to fulfil the warranty.
4. Payment of the expenses of the contract if it was the buyer who paid them.
5. If the sale was made in bad faith, the seller shall also pay for the damages, interests and voluntary expenses incurred by the buyer.

Question 18

What can the buyer ask for in the case of partial eviction?

Answer 18

a) For the rescission (termination of non-performance) of the contract of sale, but with the obligation to return the thing.

Question 19

Requirements for the warranty for hidden vices or defects:

Answer 19

1. Vice: defect that makes it improper for its use or the absence of a relevant quality.
2. Hidden, cannot show up at the time of sale.
3. Grace: Of such importance that the buyer would have not bought the thing if fe knew of the vice.
4. Prior to the contract of sale.

Question 20

Is the seller liable even if he did not know of the defects at the time of sale?

Answer 20

Yes.

Question 21

What are the effects of the warranty for hidden defects (what can the buyer opt for)?

Answer 21

a) Termination of the contract of sale.
b) Proportional reduction in the price.

Question 22

In the case of warranty for hidden defects, if the buyer opts for the termination of the contract of sale, what happens?

Answer 22

The parties shall have to give back the thing and the price paid for it, and there shall be compensation if the seller acted in bad faith.

Question 23

What are the obligations of the buyer?

Answer 23

1. Pay the price.
2. In case the buyer receives the thing before having paid the price because payment has been deferred, he shall also have the obligation to pay interests in three cases:
   a) if the parties so agreed.
   b) if the thing sold produces fruits or income.
   c) if the buyer is in state of delinquency.
3. Receive the thing.
4. Unless otherwise agreed, the buyer shall pay for the expenses incurre in after the sale, such as the first copy if Public Deeds, transport, taxes for the registration of the sale in public registries, etc.

Question 24

What is the explicit termination clause?

Answer 24

According to this clause, the lack of payment on time shall automatically terminate the contract. A notice before the termination is given in cases of immovable things.

Question 25

What is the agreement for the retention of title clause?

Answer 25

The seller shall keep the legal ownership of the thing sold until the buyer pays the totality of the price. The buyer possesses the thing and can use it and enjoy it, but does not acquire title over it until the price is totally paid.

Question 26

What is a donation?

Answer 26

Contract by which the owner of one or several things, the donor, transfers the titles and possessions thereof to another person, the donee, without receiving anything in exchange.

Question 27

Characteristics of donation:

Answer 27

1. Unilateral.
2. Perfection: when the donor has knowledge of the acceptance by the donee.
3. Ownership: the donation itself transfers the ownership of the thing.

Question 28

Can emancipated minors donate?

Answer 28

Yes, only movable things.

Question 29

Everyone can be a donee.

Answer 29

All those who are not especially incapacitated by law to receive donations can be a donee.

Persons without capacity to contract may not accept conditional or onerous/modalist donations without the intervention of their representatives.

Question 30

Prohibitions of the thing given in donations:

Answer 30

1. The donor has to keep sufficient assets after the donation.
2. A gift may not compromise of further things.
3. Nobody can donate more than what they can give through testament in order to protect the legitimate heirs of the donor: a gift that exceeds these limits: “inofficious donation”.

Question 31

Formal elements of donations:

Answer 31

a) Movable goods: when verbal, donation requires simultaneous delivery; when writing, donation shall only be effective if the acceptance is also made in writing.
b) Immovable goods: Public Deed.
c) Acceptance is necessary (also in the public deed).

Question 32

When does donation exist if people are in different places?

Answer 32

When the donor becomes aware of the donee’s acceptance.

Question 33

When does donation exist if people are in the same place?

Answer 33

When acceptance takes place.

Question 34

Is the donor liable in case of eviction?

Answer 34

No, unless there is deceit in his part.

Question 35

Types of donations:

Answer 35

a) Pure or Simple: without receiving anything in exchange.
b) Remuneratory: given in gratitude to a person for his merits or for the services rendered to the donor.
c) Onerous/Modalis: those that impose a burden to the donee, which value has to be lower than the thing given.

Question 36

What is a double sale?

Answer 36

When a vendor sells the same thing to two different persons.

Question 37

Solution for who keeps the thing in double sales if its a movable thing:

Answer 37

Property to the first person who takes possession of the thing in good faith (if he does not know that the thing has been also sold to someone else).

Question 38

Solution for who keeps the thing in double sales if its a immovable thing:

Answer 38

1. To the person that first register it in the Property Registry.
2. If not, to the first person who took possession of it in good faith.
3. If not, to the person who holds the oldest title.

Question 39

What is a lease?

Answer 39

A contract through which a party is obliged to give to the other the temporary use and enjoyment of a thing in exchange fo a price.

The lessor transfers the use and enjoyment of the thing, but retains ownership.

Question 40

Everything can be leased.

Answer 40

No, fungible things can’t, as they are consumed by their use and could not be returned at the end of the lease.

Question 41

Obligations of the lessor:

Answer 41

1. Deliver the thing.
2. Keep the thing in a state necessary for its use. He shall make the necessary repairs in the thing leased to keep the thin in proper condition.
3. Maintain the lessee in the lawful and peaceful possession of the thing: warranty for eviction and hidden vices and prevent any trouble in the possession of the lessee. He is NOT liable for any factual disturbance caused by a third party in the use of the leased property.

Question 42

Obligations of the lessee:

Answer 42

1. Pay the rent.
2. Use the thing as agreed or, lacking agreement, in a manner in accordance with the nature of the thing, and cannot change the form thereof. However, the lessee can make useful and voluntary agreements.
3. Communicate to the lessor any trespass or injurious alteration of the thing, and the necessity to make repairs to preserve the thing in proper condition. He shall be liable for damages to the lessor if he does not do so.
4. The lessee is liable for the deterioration of the thing during the lease, unless proven not his fault.
5. Return the thing at the end of the lease in the same condition.

Question 43

What is the minimum duration of a lease? From when does the term start counting?

Answer 43

3 years. From the moment of the contract OR from the moment the dwelling is at the disposal of the tenant in the case that this moment is posterior.

Question 44

If the contract has less duration than the minimum, when the expiry date arrives (lease contract)…

Answer 44

…the contract shall be compulsory extended annually, up to the minus duration of three years (unless, up to 30 days earlier, the tenant expresses the intention not to extend it).

Question 45

Can the landlord communicate to the tenant the he shall need the dwelling for himself or for relatives?

Answer 45

Yes.
The compulsory extension up to three years shall not take place if, after the first year of contract, the landlord communicates this.

Question 46

If after three months form the termination of the contract the landlord has not occupied the dwelling, the former tenant can choose between:

Answer 46

a) Going back to the dwelling for a NEW period of three years and be compensated for the damages of the move.
b) Compensation consisting of an amount equivalent to a monthly payment per year that was still to lapse up to three years.

Question 47

If upon the term of three years none of the parties has given notice (30 days in advance) as their intention not to extend the contract…

Answer 47

The agreement shall be compulsory extended for one more year.

Question 48

When can the tenant withdraw from the contract and abandon the dwelling?

Answer 48

After 6 months, and giving 30 days prior notice.