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law on sales > midterm enumeration > Flashcards

midterm enumeration Flashcards

1
Q

characteristics of contract of sale

A
  1. consensual - it is perfected by mere consent
  2. bilateral - both contracting parties are bound to fulfill obligations reciprocally towards each other
  3. onerous - the thing sold is conveyed in consideration of the price and vice versa
  4. commutative - the thing sold is considered the equivalent of the price paid and vice versa
  5. nominate - it is given a special name or designation in the civil code namely sale
  6. principal - it does not depend from its existence or validity upon another contract
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2
Q

elements/requisites of a contract of sale

A
  1. consent - on the part of the seller or vendor is to transfer ownership and delivery the good while on the buyer or vendee is to pay
  2. object - refers to the determinate thing or the object of the contract
  3. cause - refers to the amount paid certain in money or it’s equivalent
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3
Q

life stages of contract of sale

A
  1. negotiation - the period between the prospective contracting parties indicate interest in the contract to the time the contract is perfected
  2. perfection - takes place upon the concurrence of the essential elements of a contract which are consent object and cause
  3. consummation - when the parties perform their respective undertaking under the contract of sales, culmination in the extinguishment thereof
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4
Q

rules governing auction sales

A
  1. sales of separate lots by auction are separate sales
  2. sales are perfected by the fall of hammer
  3. rights of the seller to bid in the auction
    a. where no notice given of right to bid
    b. where notice given of right to bid
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5
Q

kinds of promise treated

A
  1. an accepted unilateral promise to sell in which the acceptor elects to buy
  2. an accepted unilateral promise to buy in which the acceptor elects to sell
  3. a bilateral promise to buy and sell reciprocally accepted in which either of the parties chooses to exact fulfillment
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6
Q

risk of lost or deterioration

A
  1. if the thing is lost before perfection
  2. if the thing is lost at the time of perfection
  3. if the thing is lost after perfection but before delivery
  4. if the thing is lost after delivery
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7
Q

remedies of vendor in installment sales of real property

A
  1. elect fulfillment upon the vendee’s failure to pay
  2. cancel the sale if the vendee shall have failed to pay two or more installments
  3. foreclose the chattel mortgage if one has been constituted if the vendee shall have failed to pay two or more installments
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8
Q

the following cannot acquire by purchase at public/judicial auction

A
  1. guardians
  2. agents
  3. executors and administrators
    4 public officers and employees
  4. judicial officers and employees and lawyers
  5. other especially disqualified by the law
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9
Q

principal obligations of a vendor/seller

A
  1. to transfer the ownership of the determinate thing sold
  2. to deliver the thing
  3. to warrant against eviction and hidden defects
  4. to take care of the thing, pending delivery with proper diligence
  5. to pay for the expenses for the execution and registration of the deed of sales unless there is a stipulation to the contrary
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10
Q

transfer of ownership effected by delivery

A
  1. ways of effecting delivery
    a. by actual or real delivery
    b. by constructive or legal delivery
    c. by delivery in any other manner signifying an agreement that the possession is transferred to the vendee
  2. intention to deliver essential
  3. delivery to proper person
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11
Q

ways of effecting constructive/legal delivery

A
  1. by execution of a public instrument
  2. by symbolical tradition
  3. by traditio longa manu
  4. by traditio brevi manu
  5. by traditio constitutum possessorium
  6. by quasi delivery or quasi traditio
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12
Q

requisites for acquiring good title by seller

A
  1. before the title of the seller has been voidable
  2. in good faith for value
  3. without notice of the seller’s defect of title
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13
Q

warranties on sale of documents

A
  1. that the document is genuine
  2. that he has a legal rights to negotiate or transfer it
  3. that he has knowledge of no fact which would impair the validity or worth of the document
  4. that he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose
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14
Q

requisites for the exercise of stoppage intransitu

A
  1. the seller must be unpaid
  2. the buyer must be insolvent
  3. the goods must be in transit
  4. the seller must either actually take possession of the goods sold or give notice of his claim to the carrier or other person in possession
  5. the seller must surrender the negotiable document of title if any issued by the carrier or bailee
  6. the seller must bear the expenses of delivery of the goods after the exercise of the rights
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15
Q

rules as to preference of ownership in case of double sale

A
  1. if the property sold is movable the ownership shall be acquired by the vendee who first takes possession in good faith
  2. if the property sold is immovable the ownership shall belong to
    a. the vendee who first registers the sale in good faith to the registry of property/deeds
    b. in the absence of registration the vendee who first takes possession in good faith
    c. in the absence of both registration and possession the vendee who presents the oldest title in good faith
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16
Q

rules in place of delivery of goods sold

A
  1. where there is an agreement express or implied the place of delivery is that agreed upon
  2. where there is no agreement the place of delivery is that determined by usage of trade
  3. where there is no agreement and there is also no prevalent usage the place of delivery is the seller’s place of business
  4. in any other case the place of delivery is the seller’s residence
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17
Q

where whole of the price has not been paid

A
  1. tender of payment of buyer
  2. payment of part of price
  3. payment by negotiable instrument
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18
Q

when unpaid seller possessory lien may be exercise

A
  1. sales without stipulation as to credit
  2. expiration of term of credit
  3. insolvency of the buyer
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19
Q

when unpaid seller losses possessory lien

A
  1. when he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the ownership in the goods or rights to the possession thereof
  2. when the buyer or his agent lawfully obtains the possession of goods
  3. by waiver of lien
20
Q

when goods in transit

A
  1. after delivery to a carrier or other bailee and before the buyer or his agent takes delivery of them
  2. if the goods are rejected by the buyer the carrier or other bailee continues in possession of them
21
Q

when resell is allowable

A
  1. where the goods are perishable in nature
  2. where the rights to resell is expressly reserved in case the buyer should make a default
  3. where the buyer delays in the payment of the price for an unreasonable time
22
Q

rules in case of lost, deterioration, or improvement before the delivery of the thing

A
  1. if the thing is lost without the fault of the debtor the obligation shall be extinguished
  2. if the thing is lost through the fault of the debtor he shall be obliged to pay for damages
  3. if the thing deteriorates without the fault of the debtors the impairment shall be borne by the creditor
  4. if the thing deteriorates through the fault of the debtor the creditor may choose between the rescission of the obligation and it’s fulfillment with indemnity for damages in either case
  5. if the thing improved by its nature or by time the improvement shall inure to the benefit of the creditor
  6. if the thing improved in the expense of the debtor he shall have no other rights than that granted to the usufructuary
23
Q

cases when price considered certain

A
  1. the parties have fixed or agreed upon a definite amount
  2. it be certain with reference to another thing certain
  3. the determination of the price is left to the judgment of a specified person or persons
24
Q

in a contract of sale, unless a contrary intention appears

A
  1. an implied warranty on the part of the seller that he has the right to sell the thing at the time when the ownership is to pass, and that the buyer shall from that time have and enjoy a legal and peaceful possession of the thing
  2. an implied warranty that the goods shall be free from any hidden faults or defects or any charge or encumbrance that declared or known to the buyer
25
Q

essential elements of eviction/warranty against eviction

A
  1. the vendee is deprived of the whole or a part of the thing purchased
  2. he is deprived by virtue of a final judgment
  3. the final judgment is based on a right prior to the sale or an act imputable to the vendor
  4. the vendor was summoned in the suit for eviction at the instance of the vendee
  5. there is no waiver on the part of the vendee
26
Q

types of eviction

A
  1. eviction is total when the vendee is deprived of the whole of the thing purchased
  2. eviction is partial in the following cases:
    a. the vendee is deprived of part of the thing purchased
    b. the vendee is deprived of some items that were jointly sold with other items
    c. if the immovable sold should be encumbered with any non apparent burden or servitude not mentioned in the agreement of such nature that it must be presumed that the vendee would not have acquired it had he been aware thereof
27
Q

kinds of waiver of eviction

A
  1. consciente - the waiver is voluntary made by the vendee without knowledge and assumption of the risk of eviction
  2. intencionada - the waiver is made by the vendee with knowledge of the risk of eviction and assumption of it’s consequences
28
Q

in case eviction occurs, the vendee shall have the right to demand of the vendor

A
  1. the return of the value which the thing sold had at the time of eviction be it greater or less than the price of the sale
  2. the income or fruits if he has been ordered to deliver them to the party who won the suit against him
  3. the cost of the suit which caused the eviction and in proper case those of the suit brought against the vendor for the warranty
  4. the expenses of the contract if the vendee has paid them
  5. the damages interest and ornamental expenses if the sale was made in bad faith
29
Q

essential elements for the enforcement of warranty in case of eviction

A
  1. deprivation in whole or in part of the thing sold
  2. existence of a final judgment
30
Q

requisites for warranty against hidden defects

A
  1. the defect must be important or serious
  2. it must be hidden
  3. it must exist at the time of the sale
  4. the vendee must give notice of the defect to the vendor within a reasonable time
  5. the action for rescission or reduction of the price must be bought within the proper period - 6 months from the delivery of the thing sold or within 40 days from the date of the delivery in case of animals
  6. there is no waiver of warranty on the part of the vendee
31
Q

there is an implied warranty or conditions as to the quality or fitness of the goods

A
  1. where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are acquired and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be reasonably fit for such purpose
  2. where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality
32
Q

alternative remedies of the buyer to enforce warranty

A
  1. to withdraw form the contract or accion redhibitoria
  2. to demand a proportionate reduction of the price with rights to damages in either case or accion quanti minoris
33
Q

effect of loss of thing on account of hidden defects

A
  1. vendor was aware of the hidden defects - if the vendor was aware of the hidden defects in consequence of which the thing sold was lost he shall bear the loss because he acted in bad faith and in such case the vendee has the right to recover
    a. the price paid
    b. the expenses of the contract
    c. damages
  2. vendor was not aware of the hidden defects - if the vendor was not aware of them he shall be obliged only to return
    a. the price
    b. the interest thereon
    c. the expenses of the contract if paid by the vendee he is not made liable for damages because he is not guilty in bad faith
34
Q

principal obligations of a vendee

A
  1. to accept the delivery
  2. to pay the price of the thing sold
  3. to bear the expenses for the execution and registration of the sale and putting the goods in deliverable state if such is the stipulation
35
Q

pertinent rules

A
  1. in a contract of sale the vendor is not required to deliver the thing sold until the price is paid nor the vendee to pay for the price before the thing is delivered in the absence of an agreement to the contrary
  2. if stipulated the vendee is bound to accept the delivery and pay the price at the time and place designated
  3. if there is no stipulation as to the time and place of delivery and payment the vendee is bound to pay at the time and place of delivery
  4. in the absence also of stipulation as to the place of delivery it shall be made whenever the thing might be at the moment the contract was perfected
  5. if only the time of delivery of the thing sold has been fixed in the contract the vendee is required to pay even before the thing is delivered to him
36
Q

rules governing delivery in installment

A
  1. general - in an ordinary contract for the sale of goods the buyer is not bound to received delivery of goods in installment
  2. where separate price has been fixed for each installment
    a. breach affect whole contract
    b. breach divisible
  3. where separate price was not fixed for each installment
37
Q

what constitutes acceptance

A
  1. express acceptance - takes place when the buyer after delivery of the goods intimates to the seller verbally or in writing that he has accepted them
  2. implied acceptance takes place
    a. when the buyer after delivery of the goods does any act inconsistent with the seller’s ownership as when he sells or attempt to sell the goods or when he uses or make alterations in them in a manner proper only for an owner
    b. when the buyer after the lapse of reasonable period of time retains the goods without intimating his rejection
38
Q

liability of vendee for interest where payment made after delivery

A
  1. interest is expressly stipulated
  2. fruits or income received by vendee from thing sold
  3. vendee guilty of default
39
Q

when vendee can suspend payment of price

A
  1. if he is disturbed in the possession or ownership of the thing bought
  2. if he has a well grounded fear that his possession or ownership would be disturbed by a vindicatory action or foreclosure of mortgage
40
Q

when vendee cannot suspend payment of price

A
  1. if the vendor gives security for the return of the price in a proper case
  2. if it has been stipulated that notwithstanding any such contigency the vendee must make payment
  3. if the vendor has caused disturbance or danger to cease
  4. if the disturbance is a mere act of trespass
  5. if the vendee has fully paid the price
41
Q

actions available for breach of the contract of sale of goods

A
  1. action by seller for payment of the price
  2. action by seller for damages for non acceptance of the goods
  3. action by seller for rescission of the contract
  4. action by buyer for specific performance
  5. action by buyer for rescission or damages for breach of warranty
42
Q

seller’s right of action for the price

A
  1. when the ownership of the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the price
  2. when the price is payable on a certain day and the buyer wrongfully neglects or refuses to pay such price irrespectively of delivery or of transfer of title
  3. when the goods cannot readily be resold for a reasonable price and the buyer wrongfully refuses to accept them even before the ownership in the good has passed
43
Q

seller’s right of action of damages

A
  1. if the buyer without lawful cause neglects or refuses to accept and pay for the goods he agreed to buy the seller may maintain an action against him for damages for non acceptance
  2. in a executory contract when ownership in the goods has not passed and the seller cannot maintain an action to the price the seller’s remedy will also be an action for damages
  3. if the goods are not yet identified at the time of the contract or subsequently the seller’s right is necessarily confined to an action for damages
44
Q

seller’s right of rescission before delivery

A
  1. when the buyer repudiated the contract of sale
  2. when the buyer has manifested his inability to perform his obligation thereunder
45
Q

remedy of buyer for breach of warranty by seller

A
  1. accept the goods and set up the seller’s breach to reduce or extinguish the price
  2. accept the goods and maintain an action for damages for the breach of warranty
  3. refuse to accept the goods and maintain an action for damages for the breach of warranty
  4. rescind the contract of sale by returning or offering the return of the goods and recover the price
46
Q

when rescission by buyer not allowed

A
  1. if the buyer accepted the goods knowing of the breach of warranty without protest
  2. if he fails to notify the seller within a reasonable time of his election to rescind
  3. if he fails to return or offer to return the goods in substantially as good condition as they were in at the time of the transfer of ownership to him
47
Q

rights and obligations of buyer in case of rescission

A
  1. in case of rescission the buyer shall cease to be liable for the price his only obligation being to return the goods
  2. if he has paid the price or any part thereof he may recover it from the seller
  3. he has also the right to hold the goods as bailee for the seller should the latter refuse the return of the goods
  4. he has a right to have a lien on the goods for any portion of the price already paid which the lien he may enforcement as if he were an unpaid seller

law on sales (2 decks)

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