107. A non-concluded sale is a :
(1) It is a thing the benefit of which is lawful to enjoy;
(2) The other is acquired property.
Example:- A fish while in the sea is
not of any specific value. When it is caught and taken, it becomes property of
some specific value.
108. A valid sale, or a sale which is permitted, is a sale which is lawful both in itself and as regards matters incidental thereto.
109. A voidable sale is a sale which, while valid in itself, is invalid as regards matters incidental thereto. That is to say, it is a concluded sale in itself, but is illegal as regards certain external particulars.( See chapter Vll.)
110. A void sale is a sale which is invalid in itself.
111. A conditional sale is a sale which is dependent upon the rights of some third party, such as a sale by an unauthorised person.
112. An unauthorised person is a person who, without any legal permission, deals with the property of some other person.
113. An executory sale is a sale not dependent upon the right of any third person. Such sales are divided into irrevocable and revocable sales.
114. An irrevocable sale is an executory sale to which no option is attached .
115. A revocable sale is an executory sale to which an option is attached.
116. An option means having the power to choose, as will be explained in the relevant chapter.
117. An absolute sale is a final sale.
118. A sale subject to a right of redemption is a sale in which one person sells property to another for a certain sum of money, subject to the right of redeeming such property, upon the price thereof being returned. Such a sale is considered to be permissible in view of the fact that the purchaser has a right to enjoyment of the property sold. It is also in the nature of a voidable sale inasmuch as the two parties have the right of cancelling the sale. Again, it is in the nature of pledge, in view of the fact that the purchaser cannot sell the property sold to any third party.
119. A sale with a right of usufruct is a sale subject to a right of redemption, the vendor having a right to take the property sold on hire.
120. Sales are also divided into four categories with reference to the thing sold:
1) Sale of property to another person for a price. This is the commonest category of sale and is consequently specifically called sale;
2)Sale by exchange of money for money;
3) Sale by barter; $ Sale by immediate payment against future delivery.
121. Exchange of money for money consists of selling cash for cash.
122. Sale by barter consists of exchanging one specific object for some other specific object, that is to say, of exchanging property for property other than money.
123. Sale by immediate payment against future delivery consists of paying in advance for something to be delivered later, that is to say, to purchase something with money paid in advance, thereby giving credit.
124. A contract for manufacture and sale consists of making a contract with any skilled person for the manufacture of any thing. The person making the article is called the manufacturer; the person causing the article to be made is called the contractor for manufacture, and the object made is called the manufactured article.
125. Property held in absolute ownership is anything owned absolutely be man and may consist either of some specific object or of an interest therein.
126. Property consists of something desired by human nature and which can be put aside against time of necessity. It comprises movable and immovable property.
127. Property of some specific value is spoken of in two senses.
(1) It is a thing the benefit of which is lawful to enjoy;
(2) The other is acquired property.
Example:- A fish while in the sea is not of any specific value. When it is caught and taken, it becomes property of some specific value.
128. Movable property consists of property which can be
transferred from one place to another. This includes cash, merchandise, animals,
things estimated by measure of capacity and things estimated by weight.
129. Immovable property consists of property such as houses and
land which are called real property and which cannot be transferred to another
place.
130. Cash consists of gold and silver coins.
131. Merchandise consists of things such as goods and piece-goods
other than cash, animals, things estimated by measure of capacity and things
estimated by weight.
132. Things estimated by quantity are those things the amount of
which is determined by any measure of capacity or of weight, or of number, or of
length.
133. These articles repeat the measures of capacity etc. given in
Articles 131 and 132 above.
134. These articles repeat the measures of capacity etc. given in
Articles 131 and 132 above.
135. These articles repeat the measures of capacity etc. given in
Articles 131 and 132 above.
136. These articles repeat the measures of capacity etc. given in
Articles 131 and 132 above.
137. The expression 'possessing defined boundaries' refer to real
property the boundaries and limits of which can be fixed.
138. undivided jointly owned property is property which contains
undivided jointly owned shares.
139. An undivided jointly owned share is a share which extends to
and includes every part of the jointly owned property.
140. By a particular species of thing is meant a thing in respect to which there is
no disproportionate difference in so far as the component elements thereof are
concerned.
141. A wholesale contract is a contract for sale en bloc.
142. Right of way is the right of passing over real property held
in absolute ownership belonging to another.
143. The right of taking water is the right of taking a clearly
defined and ascertained share of water from a river.
144. The right of flow is the right of discharging water and of
letting water drip from a house to some place outside.
145. A common article is a thing the like of which can be found
in the market without any difference of price.
146. A rare article is an article the like of which cannot be
found in the market, or, if it can be found, is different in price.
147. Articles measured by enumeration and which closely resemble
each other are those things in respect to which there is no difference as
regards the price of each particular object. They are all in the nature of
common articles.
148. Articles measured by enumeration and which are dissimilar
from each other are those things is respect to which a difference in price
exists as regards each particular article. They are all regarded as rare
articles.
149. The fundamental basis or essence of sale consists of one
piece of property being exchanged for another. Offer and acceptance are also
referred to as the fundamental basis of sale, since they imply exchange.
150. The subject of sale is the thing sold.
151. The thing sold is the property disposed of, that is, the
specific object specified at the sale and which constitutes the original object
thereof, because enjoyment can only be had of specific objects, price being the
means of exchanging property.
152. The price is the amount to be paid for the article sold, and
entails liability to make payment.
153. The fixed price is a price mutually named and agreed upon by
the two contracting parties whether corresponding to the real value of whether
more or less.
154 . The value is the real price of an article.
155. A priced article is a thing which is sold for a price.
156. A postponement of payment consists of putting off a debt to
a definite date.
157. Payment by instalments consists of a postponement of payment
of a debt in order that it may be paid at deferent and definite periods.
158. A
debt is the thing which is proved to be owing.
Examples:-
(1). A certain sum of money lend to A and owed by him;
(2). A sum of money not immediately available;
159. A specific object is any which is definite and identified.
Examples:- A house; a horse; a chair; a heap of corn in existence; a sum of money. All these
are specific.
160. The vendor is a person who sells property.
161. The purchaser is a person who buys.
162.The two parties to the sales are the vendor and the
purchaser. They are also called the two contracting parties.
163. Rescission is setting aside and stopping a contract of
sale.
164. Deceit is cheating.
165. Flagrant misrepresentation is representation which is
practised with regard to no less than one twentieth in the case of merchandise;
one tenth in the case of animals; and one fifth in the case of real
property.
166. Time immemorial refers to that thing the origin of which is
unknown to any person.
CHAPTER I. THE CONTRACT OF SALE.
SECTION I. FUNDAMENTAL BASIS OF SALE.
167. Sale is concluded by offer and acceptance.
168. In sale, offer and acceptance is made by the use of words
commonly employed in the particular locality in making a contract of sale.(*) (
An explanation of a turkish word is not translated here as being of no
significance to the English reader.)
169. The past tense is usually employed in offer and
acceptance.
Example:-
(1). A vendor informs a purchaser that he has sold him a certain thing for one
hundred piastres and the purchaser states that he has purchased it; or the
purchaser states that he has bought a certain thing and the vendor afterwards
states that he has sold such thing. The sale is concluded. In the first case the
offer consists of the words "I have sold " and the acceptance of the words " I
have purchased". In the second case the words " i have purchased" constitute the
offer and the words "I have sold " the acceptance.
(2). The vendor, instead of stating that he has sold, states that he has given a
person something or has transferred the property in it to him, and the purchaser
instead of stating that he has purchased states that he has agreed thereto or
has accepted. A valid contract of sale is concluded.
170.
A contract of sale may be concluded by employing the futurist tense if it
imports the present: but if the future is meant, no sale is concluded.
171. If the future tense is used is the sense of a mere promise,
such as the statement " I will buy" or " I will sell" no sale is concluded.
172. No sale is concluded by the use of the imperative mood, such
as the expression"sell" or "Buy". But when the present tense is necessarily
meant a sale may also by concluded by the use of the imperative mood.
Example:- A purchaser says to a vendor: " Sell me this article for so much
money." No sale is concluded. But if the vendor says: "Take this article for so
much money" and the purchaser replies saying : "I have taken it"; or if the
purchaser says "I have taken it", and the vendor says, " take it" or " you may
enjoy the benefit of it," a valid sale is concluded, the expressions 2take" or"
enjoy the benefit of it" being equivalent to " I have sold" and " take it".
173. Offer and acceptance may be made by writing as well as by
word of mouth.
174. A dumb person may make a valid contract of sale by making
use of generally recognised signs.
175. The fundamental object of offer and acceptance being the
mutual agreement of the parties, a sale may also be concluded by any conduct of
the parties which is evidence of offer and acceptance. This is called sale by
conduct of the parties.
Examples:-
(1) A purchaser without bargaining and without making any statement gives money
to a baker and the baker delivers bread to the purchaser. A contract of sale is
concluded.
(2) A purchaser tenders money and takes a melon. The vendor remains silent. A
contract of sale is concluded.
(3) A purchaser wishes to buy corn. With this object in view he tenders five
pounds to a corn merchant asking the latter to tell him at what price he sells
corn. The corn merchant replies that he sells corn at one pound per kile. The
purchaser thereupon remains silent, and later asks for the corn and the corn
merchant states that on the following day he will deliver it to him. In this
case a contract of sale has been concluded, although there has been no offer and
acceptance by the parties. So much so that if on the following day corn has gone
up half a pound in price per kile, the vendor is bound to deliver at one pound.
If, on the other hand, the price of corn has gone down, the purchaser cannot
refuse for this reason to accept delivery at the original price.
(4). A purchaser asks a butcher to weigh him so much money's worth of meat from
such and such a part. The butcher cuts the meat up and weighs it. A contract of
sale has been concluded, and the purchaser cannot refuse to accept the meat.
176. If as a result of fresh bargaining after the conclusion of
the contract, the price is changed, increased or decreased, the second contract
is valid.
Example:- A contract is concluded for the purchase of an article
for one hundred piastres. Later on fresh bargaining takes place and as a result
the original hundred piastres is substituted for a gold piece of one hundred
piastres, of for one hundred and ten piastres, or for one hundred and ten
piastres or for ninety piastres. The second contract is valid.
SECTION II. AGREEMENT OF ACCEPTANCE WITH OFFER.
177. The
acceptance of one of the two contracting parties must agree exactly with the
offer of the other contracting party as regards the price or subject matter.
Such party has no power to separate or divide either the price or the subject
matter.
Example:-
(1) A vendor tells a purchaser that he has sold him certain cloth for one
hundred piastres and the purchaser agrees thereto. He is then obliged to take
the whole of such cloth for one hundred piastres. He cannot claim to take the
cloth or a half thereof for fifty piastres.
(2) A tells B that he has sold him two horses for three thousand piastres and B
accepts. B must take the two for three thousand piastres. He cannot take one of
them for one thousand five hundred piastres.
178. It is sufficient if the acceptance agrees with the offer by
implication.
Examples:-
(1). A vendor informs a purchaser that he has sold him certain property for a
thousand piastres. The purchaser tells the vendor that he accepts for one
thousand five hundred piastres. The contract of sale is for one thousand
piastres. If the vendor, however, agrees to the increase of price at the time it
is mentioned, the purchaser is bound to pay the additional five hundred
piastres.
(2) A purchaser states that he has bought certain property for one thousand
piastres. The vendor states that he has sold it for eight hundred piastres. A
contract of sale has been concluded, and the two hundred piastres must be
deducted.
179. If one of the two parties to a sale enumerates the prices of various articles,
and proposes the sale of such articles en bloc and the other party accepts such
offer, the latter may buy the whole lot for the whole price. If he does not do
so, he may not divide up the lot and agree to buy any article he wishes at the
fixed price.
Example:-
(1) A vendor states that he has sold two particular horses for three thousand
piastres. The first one for one thousand piastres and the second for two
thousand piastres; or each of them for one thousand five hundred piastres. The
purchaser can take the two for three thousands piastres. He cannot, however,
take the one he prefers of the two for the fixed price.
(2) A vendor states that he has sold three pieces of cloth for one hundred
piastres. The purchaser states that he has bought one piece for one hundred
piastres, or two pieces for two hundred piastres. No sale is concluded.
180. If one of the two parties to a sale enumerates the price of
the various articles, and offers them for sale separately and the other party
accepts the article he desires, at the fixed price, a contract of sale is
concluded.
Example:- A vendor enumerates the prices of various articles for sale and
repeats that he has sold them, this one for a thousand piastres and that one for
two thousand piastres. In that case, the purchaser may accept one of the two for
the fixed price and buy the same.
SECTION III. THE PLACE WHERE THE SALE IS CONCLUDED.
181. The place where the sale is concluded is the place where the parties meet together
with a view to the conclusion of the sale.
182. Both parties posses an option during the meeting at the
place of sale, after the offer has been made, up to the termination of the
meeting.
Example:- One of the two parties to the sale makes an offer at the
meeting place of the parties to the sale by stating that he has sold such and
such property for a certain sum of money, or that he has bought such property,
and the other party fails to state immediately afterwards that he has bought or
has sold and some time later accepts at the same meeting. The sale is concluded,
no matter how long the meeting may have lasted or how long the period between
offer and acceptance may have been.
183. If one of the parties gives any indication of dissent after
the offer and prior to acceptance, either by word or by deed, the offer becomes
void and there is no longer any reason for acceptance.
Example:- one of the
two parties to the sale, after stating that he has bought or that he has sold,
occupies himself with some other matter, or discusses some other question. The
offer becomes void, and thereafter the sale cannot be concluded by
acceptance.
184. If one of the two parties to the sale makes an offer, but revokes such offer
before the other party has accepted, the offer becomes void, and thereafter the
sale cannot be concluded by acceptance.
Example:- A vendor states that he
has sold such and such goods for so much money, but revokes such offer before
the purchaser has accepted, and the purchaser later states that he has accepted
such offer. No sale is concluded.
185. A renewal of the offer before acceptance cancels the first offer and its place
is taken by the second offer.
Example:- The vendor states that he has sold
such and such property for one hundred piastres, but before the purchaser has
accepted, revokes the offer, and states that he has sold for one hundred and
twenty piastres, and the purchaser accepts such offer. The first offer is of no
effect, and the sale is concluded on the basis of one hundred and twenty
piastres.
SECTION IV. SALE SUBJECT TO A CONDITION.
186. If a contract of a sale is concluded with an essential condition attached, both sale and
condition are valid.
EXAMPLE:- A vendor sells subject to a right of
retaining the thing sold until he has received payment of the price. This
condition is no way prejudices the sale, but on the contrary is an essential
condition of the contract.
187. In the case of a sale concluded subject to a condition of
the object of which is to assure the due performance of the contract, both sale
and condition are valid.
Example:- A certain thing is sold subject to the
condition that some other thing shall be pledged or that a certain individual
shall become a surety. Both sale and condition are valid. Moreover, should the
purchaser fail to observe the condition, the vendor may cancel the sale. The
reason for this is that these conditions assure the handing over of the price,
which is an essential condition of the contract.
188. In the case of a sale concluded subject to a condition
sanctioned by custom established and recognised is a particular locality, both
sale and condition are valid.
Example :- The sale of a fur subject to a
condition that it shall be nailed to its place; or of a suit of clothes subject
to the condition that they shall be repaired. In these cases the condition must
be observed in carrying out the sale.
189. In the case of sale subject to a condition which is not to
the benefit of either party, the sale is valid, but the condition is
voidable.
Example:- The sale of an animal subject to a condition that it
shall not be sold to a third party, or that it shall be put out to graze. In
such a case the sale is valid, but the condition is of no effect.
SECTION V RESCISSION OF THE SALE.
190. The two contracting parties may, by mutual agreement, rescind the sale after the conclusion of the
contract.
191. As in the case of sale, rescission is carried out by means
of offer and acceptance.
Example:- One of the two contracting parties
states that he has rescinded or cancelled a sale and the other states that he
has agreed thereto; or one of the parties tells the other to rescind the sale
and the latter states that he has done so. The rescission is valid and the sale
cancelled.
192. A valid rescission may also be effected by conduct which
takes the place of offer and acceptance.
193. As in the case of sale, a meeting of the parties must take
place in the case of rescission. That is to say, acceptance must be made known
at the place where the offer is made. If this is done, and one of the
contracting parties states that he has rescinded the sale, and the other party
leaves without expressing his concurrence, or if one of the parties does
anything which indicates dissent, the subsequent acceptance by the other is of
no effect.
194. It is an essential condition that the thing sold should be
in the possession of the purchaser at the time of the rescission. Consequently,
if the thing sold is destroyed, the rescission is invalid.
195. If a portion of the thing sold is destroyed, rescission is
valid as regards the remainder.
Example:- A vendor sells land he owns in absolute ownership, together with
growing crops. After the crops have been reaped by the purchasers, the parties
rescind the contract. The rescission is valid in so far as that part of the
price concerning the land is concerned.
196. The loss of the price does not affect the validity of the
rescission.
CHAPTER II. THE SUBJECT MATTER OF THE SALE.
SECTION I. Conditions affecting the subject matter of the sale and description.
197. The thing sold must be in existence.
198. The thing sold must be capable of delivery.
199. The thing sold must be property of some specific value.
200. The thing sold must be known to the purchaser.
201. The fact that the thing sold is known is ascertained by
referring to its state and description which distinguish it from other
things.
Example:- A specific quantity of red corn, or a piece of land
bounded by specific boundaries. If these are sold, the nature thereof is known
and the sale is valid.
202. If the thing sold is present at the meeting place of the
parties to the sale, it is sufficient if such thing is pointed out by signs.
Example:- The vendor states that he has sold a particular animal. The
purchaser sees that animal and accepts it. The sale is valid.
203. Since it is enough for the nature of the thing sold to be
known to the purchaser, there is no need for any other sort of description or
particularisation.
204. The thing sold must be the particular thing with reference
to which the contract is concluded.
Example:- A vendor, pointing to a
particular watch, states that he has sold it. Upon the purchaser accepting, the
vendor is bound to deliver that identical watch. He cannot put that particular
watch on one side and deliver another of the same sort.
SECTION II. Things which may and may not be sold.
205. The sale of a thing not in existence is void. Example:- The sale of the fruit
of a tree which has not yet appeared is void.
206. The sale of fruit which is completely visible while on a
tree is valid, whether it is fit for consumption or not.
207. The sale at one and the same time of dependent part which
are connected together is valid. For example, in the case of fruit, flowers,
leaves and vegetables, which do not arrive at maturity simultaneously, a portion
thereof only having come out, that portion which has not yet arrived at maturity
may be sold together with the rest.
208. If the species of the thing sold has been stated, and the
thing sold turns out to be of another species, the sale is void. Example:-
The vendor sells a piece of glass stating that it is a diamond. The sale is
void.
209. The sale of a thing which is not capable of delivery is
void. Example:- The sale of a rowing-boat which has sunk in the sea and
cannot be raised, or of a runaway animal which cannot be caught and
delivered.
210. The sale of a thing which is not not generally recognised as
property or the purchase of property therewith is void. Example:- The sale
of a corpse or of a free man, or the purchase of property in exchange for them
is void.
211. The sale of things which do not possess any specific value
is void.
212. The purchase of property with property which does not
possess any specific value is voidable.
213. The sale of a thing the nature of which is not known is
voidable.
Example :- A vendor tells a purchaser that he has sold him the whole of the
property he owns for a certain sum of money, and the purchaser states that he
has bought the same. The nature of the things bought by the purchaser, however,
is unknown. the sale is voidable.
214. The sale of an ascertained, jointly owned undivided share in
a piece of real property owned in absolute ownership prior to division, such as
a half, a third or a tenth, is valid.