v. contract of sale 2 Flashcards
(21 cards)
incidental agreements
= ACCIDENTALIA NEGOTII,
not essential but possible contents of a contract. If they are in connection with the sale, then parties have to agree on all of these points for the contract to be created.
suspensive condition (condition precedent)
= contract only comes into existence once the condition is satisfied. Even if the goods have already been delivered, the CAUSA for the transfer of ownership is only valid when the condition is satisfied.
resolutive condition (condition subsequent)
= contract is valid from the moment the parties reach consensus but is dissolved once the condition is satisfied. The satisfaction of the condition may come into effect:
- EX TUNC: retroactively cancels sale, no CAUSE ever existed, seller reclaim goods by REI VINDICATIO
- EX NUNC: CAUSA for retention of goods ceases to exist, while transfer of ownership remains unaffected. Each party can reclaim restitution by CONDICTIO or another action under contract of sale.
PACTA ADIECTA
= auxiliary agreements added to contract of sale which are binding component of the contract and enforceable by means of actions under the contract of sale.
LEX COMMISSORIA
= contractual clause, according to which the contract is invalid if the buyer has not paid the purchase price in full by a certain amount of time.
- the contract does not dissolve IPSO IURE, it just gives the opportunity the option of withdrawing
- serves the same purpose as reservation of ownership in modern law (but in that case the seller retains the ownership until it is fully paid)
PACTUM DISCIPLINTIAE
= ‘sale on approval’, allows buyer to purchase on trial basis and if dissatisfied regard them as not bought.
- Roman jurists regard this as a resolutive condition: contract comes into existence, but buyer can withdraw.
- The satisfaction of condition depends on the will of one of the parties: potestative condition (CONDICTIO POTESTATIVA)
trial of goods without contract
In this case, there is no suspensive potestative condition, because the contract is only created once the buyer accepts the offer, which leads to the creation of an unconditional contract.
IN DIEM ADDICTIO
= seller can withdraw if he gets a better offer within a specified period of time.
- Depending on agreement, it may be subject to suspensive or resolutive condition.
PACTUM DE RETROEMENDO
= seller is granted right to buy back the goods for a specified prince fixed in advance. If he exercises this right, the contract of repurchase which have been fixed in advance comes into existence.
PACTUM DE PROTIMISEOS
= limits the ways in which the buyer may dispose of a purchased object in that he may sell it to no-one but the original seller.
expectation interest (expectation damages)
= interest one contracting party has in the proper performance of the contract by the other / loss that one contracting party incurs when other does not render proper performance.
difference in opinion about liability for CULPA for causing damage to goods already subject to a contract of sale
Labeo: DILIGENTIA QUAM SUIS REBUS: not liable if the master always used to order the slave to do this (would have given him the order even if he was not sold)
Paulus: objective standard of DILIGENS PATER FAMILIAS: focus on whether the act the slave is ordered to perform is dangerous or not (would a reasonable and careful master order this?) -
EMPTIO PERFECTA (perfected contract of sale)
= purchase price has been fixed, object has been individually specified (ascertainment of goods), legal effects are no longer subject to satisfaction of a suspensive condition. It does not require delivery of goods!
PERICULUM EST EMPTORIS
= from moment of perfection, the buyer bears the risk of loss, destruction or detonation by VIS MAIOR.
Two-fold risk:
- risk of non-performance: you receive no object and no damages or compensation
- payment risk: having to pay even though you receive nothing
It was not a mandatory law, could be replaced by other arrangement agreed upon by parties.
assumption of risk before perfection of sale
- seller must bear the disadvantage caused by VIS MAIOR between EMPTIO CONTRACTA and EMPTIO PERFECTA, which limits the stock from which the seller must make performance but does not make performance impossible (GENUS NON PERIT)
- if delivery becomes impossible because of VIS MAIOR, buyer receives no goods and no damages (=he bears non-performance risk), and seller does not receive the goods (=buyer does NOT bear payment risk)
perfection in case of OBLIGATIO ALTERNATIVA
= perfection only happens when ascertainment happened (in case of doubt, choice lies with seller) or when delivery of all items except one becomes impossible because of VIS MAIOR.
loss or destruction due to lesser accidents
- seller obliged to provide CUSTODIA, failure to exert utmost diligence (DILIGENTISSIMUS) constitutes a breach of contract and he is liable for expectation loss.
- seller is merely obliged to exert the car of a DILIGENS PATER FAMILIAS, and he is not liable for lesser accidents, and it frees the seller from obligation to provide and the buyer also does not bear the payment risk as by VIS MAIOR.
MORA DEBITORIS (debtor’s delay)
= debtor fails to offer the performance that is owing and possible on the due date in form agreed upon. Legal consequences only come into effect when it is debtor’s fault.
debtor’s delay on seller’s part
- seller liable for accidental loss or destruction
- compensation for the damage the buyer incurs because of the delay
- if it is a grave instance of defective performance, and creditor cannot be expected to continue the contractual relationship, BONA FIDES permits him to withdraw from contract.
debtor’s delay on buyer’s part
- owes seller interest for default, calculated according to customary interest rates given when borrowing money
- beyond that, seller cannot claim damages
MORA CREDITORIS (creditor’s delay, default of acceptance)
= creditors failure to accept the performance duly offered by the debtor
- if buyer is in default of acceptance, seller is only liable for DOLUS or CULPA LATA
- if seller incurs storage costs, he can demand compensation with ACTIO VENDITI
