Flashcards in Sales Deck (22):
What is the warranty against redhibition?
Seller warrants the buyer against redhibitory defects or vices in the thing sold.
When is a defect redhibitory?
1) when it renders the thing USELESS or so INCONVENIENT that it must be presumed that a buyer wouldn't have bought the thing had he known of the defect; or
2) does not render the thing totally useless, but it DIMINISHES ITS USEFULLNESS OR ITS VALUE so that it must be presumed that a buyer still would have bought it but for a lesser price.
What is a good faith seller in terms of a redhibitory defects?
Didn't know the thing he sold had a defect.
What is a bad faith seller in terms of a redhibitory defect?
Knows the thing he sells has a defect, but omits to declare it or declares that the thing has a quality that he knows it didn't have. Manufacturers, and distributors holding themselves out as manufacturers are always bad faith sellers.
When does a claim for redhibitory defects prescribe?
Good faith seller (generally): earlier of 4 years after the date of delivery or one year buyer's discovery of the defect. If RESIDENTIAL OR COMMERCIAL IMMOVABLE property, one year from the date the thing was delivered.
Bad faith seller: One year from buyer's discovery of the defect.
Prescription interrupted when seller accepts the thing for repair and commences anew when the thing is tendered back to the buyer.
What is the seller's liability for a redhibitory defect when the thing is so useless or inconvenient that it must be presumed that the buyer wouldn't have bought the thing?
Good faith seller: purchase price and buyer's reasonable expenses.
Bad faith seller: purchase price, buyer's expenses, damages, and attorney's fees.
What is the seller's liability for lesser redhibitory defects?
Good faith and bad faith: reduction of the purchase price.
Does the seller have an opportunity to repair a redhibitory defect?
Good faith: yes
Bad faith: no
What are the essential elements of a redhibitory defect?
1) not apparent; i.e., defect not discoverable by "a reasonably prudent buyer of such things."
2) defect not known to the buyer at the time of the sale
3) Defect existed at the time of delivery. If defect appears within 3 days of the sale, it's presumed that the defect at the time of delivery.
4) presence of a redhibitory defect: i) renders the thing either absolutely useless, or its use so inconvenient that the buyer would probably not have purchased the thing if she knew of the vice; or ii) diminishes the usefulness or value of the thing such that it must be presumed that a buyer still would have bought it but for a lesser price..
Who is the burden of proof on to prove that a redhibitory defect existed at the time of the sale?
The buyer. If it appears within 3 days of delivery, it's presumed that the defect existed at the time of delivery. The buyer doesn't have to prove the exact cause of the malfunction.
What is a sale?
A sale is a contract where a person transfers ownership of a thing to another for a price in money.
What are the requirements for the perfection of a sale?
(3) Consent of the parties
Is the risk of loss on the buyer or the seller for a redhibitory defect?
A buyer can seek rescission even after the thing has been destroyed, so long as its destruction is due to its redhibitory defect.
If thing is destroyed by a fortuitous event before buyer has given seller notice of the defect, the buyer must sustain the loss.
ROL shifted to seller once buyer gives seller notice of the defect.
What are the requirements for a waiver of the warranty against redhibitory defects?
1) Clear and unambiguous; and
2) Brought to the buyers attention.
Waiver ineffective when seller declared the thing has a quality that he knew it didn't have.
What is the difference between a sale of a future thing and a hope.
Sale of a future thing: thing not yet in existence
Sale of a hope: hope that thing may materialize. E.g., A fisherman may sell a haul of his net before he throws it.
Look for intent: "may/will produce."
Who assumes the ROL for a sale of a future thing in the event it doesn't materialize?
Who assumes the ROL for the sale of a hope in the event it doesn't materialize?
Buyer. A fisherman may sell a haul of his net before he throws it. Buyer is entitled to whatever is caught in the net, and even if nothing is caught the sale is valid.
What are the requirements for a price?
a) The price must be:
i) in money
ii) certain or determinable
iii) seriousness of price (in proportion to the value of the thing sold; a sale, not a donation)
iv) just (cannot be lesionary)
What are the formal requirements for a sale of immovables?
In writing and recorded to affect third persons.
What are the formal requirements for a sale of movables?
Oral and delivery required to affect third persons.
When does ownership transfer from seller to buyer in a sale?
Upon perfection; i.e., agreement on thing and price. Neither payment of the price nor delivery is essential to perfect a sale.