sales <3 (excluding seller and buyer obligations) Flashcards
basics
what’s the definition of a sale
bilateral contract whereby a person transfers ownership of a thing to another for a price in money (thus, basic requirements are thing, price, consent)
validity of a sale
when does ownership transfer generally
upon agreement as to thing and price (consent element of valid sale)
validity of a sale
what general obligations concept applies to an acceptance not in accordance with the offer
an acceptance not in accordance with the terms of the offer is deemed a counteroffer
validity of a sale
what general obligations concept applies to the thing requirement
object must be (1) lawful; (2) possible; and (3) determined or determinable (object must be determined at least to its kind –quantity may be undetermined, provided it is determinable)
validity of a sale
what can be the thing (object) of a sale
all things, incorporeal or corporeal, that are susceptible of ownership may be the object of a sale unless prohibited by law
validity of a sale
what is a sale of a hope
it is an aleatory contract; the buyer assumes the risk that the thing will not materialize
validity of a sale
what is the sale of a future thing
a sale subject to a suspensive condition – the buyer does not assume the risk
* a suspensive condition is one that suspends the effects of a contract –ownership and ROL transfer to the buyer retroactive to the date of a contract if the event happens; if not, remains with the buyer
validity of a sale
what is the general requirement for price
must be a sum certain or determinable through a method agreed upon by the parties
validity of a sale
when can the court fix the price of a sale
once the parties have agreed to have the price fixed by a third party –if they fail to name a person or if their agreed-upon person does not fix the price
validity of a sale
what are the requirements for lesion beyond moiety
- sale of a corporeal immovable
- price is less than 1/2 the FMV at the time of sale
- either return the thing or pay the supplement price
validity of a sale
what are the limitations of lesion beyond moiety
not waivable in advance and is subject to a peremptive period of 1 year from the date of sale
validity of a sale
what are the available remedies for lesion beyond moiety
- buyer still in possession: return the immovable to the seller or pay the supplement and keep the immovable
- buyer no longer in possession: seller cannot get the thing back, but can get profit realized by his buyer who resold (recovery capped at supplement price)
validity of a sale
if a sale is preceded by an option contract and the seller seeks to bring a lesion beyond moiety claim, how is the determination made as to whether price was lesionary
made by evaluating the property value at the time the option contract was made
form requirements
what is the general rule for offer and acceptance
offer and acceptance can be made orally, in writing, or by action/inaction that under the circumstances are clearly indicative of consent, unless otherwise required by law
form requirements
what is required for the sale of an immovable
need a writing for transfer or sale (AA or AUPS)
exception: transfer can be made orally if (1) property has been actually delivered and (2) the transferor (seller) recognizes the transfer when interrogated under oath
form requirements
what is required in the parties’ agreement if a writing is required
- consent of the parties
- property description –reference to an official governmental survey, by metes and bounds, by reference to the map or play of a subdivision
ownership & ROL
generally, when does ownership pass to buyer
upon perfection of a sale (consent as to thing and price, thing, price)
ownership & ROL
when does ROL transfer to buyer
upon delivery (generally)
ownership & ROL
when does ownership and risk of loss transfer for sales by weight, tale, or measure
ownership passes upon weighing, counting, and measuring (only have full price once measured); ROL transfers upon weighing, counting, and measuring + delivery
ownership & ROL
when does ownership and risk of loss transfer for a lump sale for a lump price
ownership is transferred upon consent (GR), even though things haven’t been measured yet; ROL transfers upon delivery
prepatory contracts
what is the definition of an option contract
a unilateral contract to sell or buy whereby the grantor is bound if the grantee accepts within the time stipulated
prepatory contracts
what are the requirements for an option contract
- CCCO
- thing
- price
- term (specified or piggybacked off K)
- writing for immovables
prepatory contracts
what are the time limits for an option contract
- if immovable: 10 year max time (reduced if longer)
- if option is part of another contrat, option’s term is coextensive
- if other contract has an indefinite duration, option K is invalid for lack of a definite term
prepatory contracts
what’s the definition of a right of first refusal
unilateral contract where one party agrees that she won’t sell a certain thing without first offering it to a certain person. the grantor may not sell to a third party without first offering to sell to holder of right
prepatory contracts
what are the requirements for a ROFR
- CCCO
- thing
- writing for immovables
prepatory contracts
what are the time limits for a ROFR
- if immovable: 10 year max (reduced if longer)
- exception: can be longer if granted in connection with contract for continuous or periodic performance
prepatory contracts
what is the definition of a contract to sell
bilateral contract where parties promise to enter into a contract at a later date
prepatory contracts
what’s required for a contract to sell
- CCCO
- thing
- price
- writing for immovables
prepatory contracts
what are the time limits for a contract to sell
NO MAX TIME. REASONABLE TIME.
prepatory contracts
how is a ROFR enforced
specific performance
prepatory contracts
how is a ROFR accepted or rejected
10 days to exercise right if the thing is movable and 30 if immovable
failure to timely accept terminates right
prepatory contracts
what happens to ROFR if the holder doesn’t decide to buy the thing
the right remains in the holder unless the grantor concludes a final sale, or a K to sell, with a third party within 6 months
prepatory contracts
how is a contract to sell enforced
specific performance
prepatory contracts
what is earnest money
an amount given to the seller by buyer to secure parties’ interests in the case of breach; parties must expressly stipulate that the sum is earnest money
prepatory contracts
what is the effect of earnest money
negates the ability to demand specific performance and recovery of actual damages
prepatory contracts
if parties recede from a contract to sell in which earnest money has been provided, what are the results
- buyer recedes –forfeits money given to seller
- seller recedes –must return double the amount of earnest money
- party’s failure to perform is excused –earnest money is not owed
prepatory contracts
where must a contract to sell be filed to be effective as to third parties
conveyance records
prepatory contracts
where must an option to buy an immovable be recorded to be effective against third parties
conveyance records in the parish where the immovable property is located
prepatory contracts
when are prepatory contracts regarding movables binding on third parties
third party acquires conflicting rights with actual knowledge
prepatory contracts
what is the doctrine of implied warranty of merchantability
protects a buyer from being compelled to accept a flawed title; the buyer may refuse to enter into the sale if the title is suggestive of serious litigation
