The Civil Sale Contract

8/3/2019 The Civil Sale Contract

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The notion of contract appears for the first time in the Romans Private Law. In

the Romans Law, the principal element was not the agreement between the two

parts of the contract, but the formal elements asked for closing the contract.

But as the production and the commercial trading are developing, the contractual

solemnities begin to constitute a brake on development of economic life.

The sale and purchase (emptio - venditio) is a consensual contract under which a

person- called the seller -is required to send to another - called the buyer- a

lasting and peaceful possession of something (MERX) in exchange for payment-

called price (pretium). ( Vladimir Hanga , Manual de drept privat roman, Editura

Cordial, Cluj-Napoca, 1994, p.273)

The contract in Rome, was at the beginning just a convention, but after the

emergence of consensual contracts, the notion of convention has becomesynonymous with that contract. The word "contractus" means to put together. In

old age being made by two separate acts, the sale and purchase was defined as

a union of buying-selling (contractus emptionis venditionisque). The word

"contractus" was then generalized.

Thus, the contract means the agreement of will between two or more persons toserve or close between them a juridical relation (art.942 civil code). [Art. 942 Codcivil ,Titlul III, Despre contracte sau convenii, capitolul I, Dispoziii preliminare,Codul Juristului, Editura Argessis, 1996, p.122.]

JURIDICAL CHARACTERS

The sale is a contract:

1) Consensual

Can be closed through the simple agreement of will, without performing

any formality and without handing the good sold and the price when

closing the contract

2) Bilateral

It gives rise to mutual obligations between contracting parties, the seller

having the obligation to give the good sold, and the buyer has the

obligation to pay the price. [Liviu Stanciulescu, Drept Civil.Partea speciala,

Contracte si succesiuni, editia 2, Editura All Beck, Bucuresti, 2004, p.11]

3) With Onerous Title

Both parties follow some patrimonial interests (seller is interested in

getting the price and the buyer is interested in getting the good bought)[Prof. Univ. dr. Francisc Deak, op. cit., p.10]


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4) Commutative

The existence and extent of mutual obligations are known by parts from

the time of closing the contract.

5) Translation of ownership since its end

Transferring the ownership of property from seller to buyer, and with this,

the transfer of the risks, because from the moment of acquiring the

ownership, the buyer supports also the risk of loosing the good. [ Mariana

Rudareanu, Obligatii. Contracte, Editura Fundatiei Romania de maine,

Bucuresti, 2006, p.89]

Conditions of validity

Like any other juridical act, the civil sale contract, to be valid closed, according to

art. 948-968 Civil Code must meet the following conditions [Coord. Ion Dogaru,

Drept Civil. Contractele speciale, Editura All Beck, Bucuresti, 2004, p.22]:

- Parties has to have the capacity to contract

- Valid consent of the parties that are obliged

- The object of the contract to be determined, lawful and possible

- The clause of the contract to be lawful and moral

Apart from these general conditions, the civil sale contract has to respect also

other conditions to be valid closed, such as:

- The authentic form in case the object of the contract is a ground

- Prior authorization of certain sales

The object of the contract

The civil sale contract gives rise to two mutual obligations: the obligation of the

seller has like object the good sold, and the obligation of the buyer has like object

the price. [ Mariana Rudareanu, Obligatii. Contracte, Editura Fundatiei Romania

de maine, Bucuresti, 2006, p.100]

The good sold:

The good sold has to accomplish the following conditions [Prof. univ. dr.Francisc Deak, editia a IV-a, op. cit., p.59]:


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- To be in commerce (in the civil circuit);

- To exist in the moment of closing the contract or the possibility to exist in

the future

- To be determined or determinable, lawful and possible

- To be the property of the seller

The price:

Price is subject to the benefit of the buyer and it corresponds to the value

of the good sold. It must meet the following conditions:

- To be determined in money

- To be determined or determinable

- To be frank and serious

But if these conditions are not met, the contract is absolutely null; at least

the sale because it lacks an essential element on which agreement must

be made of will (Article 1295 Civil Code). [Mariana Rudreanu, Obligaii.

Contracte, Editura Fundaiei Romnia de Mine, Bucureti, 2006, p. 107]

Effects of the Civil Sale Contract

The main legal effect of sale contract is to displace the ownership from the seller

to the buyer.

Obligations of the s eller:

The seller has two obligations:

- Handing the buyer the good sold (the main obligation of handing is

regulated by the art. 1314-1334 of the Civil Code and lies in providing the

good sold to the buyer [Mariana Rudreanu, Obligaii . Contracte, EdituraFundaiei Romnia de Mine, Bucureti, 2006, p. 108] )

- To ensure the buyer against eviction and against vices (According to

art. 1336 of the Civil Code, the seller needs to ensure the buyer of peaceful

use of the good meaning the guarantee against eviction and the useful

use of the good meaning the guarantee against defects. [Prof. Univ. Dr.

Francisc Deak, Tratat de drept civil. Contracte speciale, Editura Universul

Juridic, Bucureti, 2001,p. 73] )

Obligations of the buyer:

The buyer has two main obligations:


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- To pay the price (Unless otherwise provided in the contract, the buyer is

obliged to pay the price where and when the seller is handing him the

good sold)

- To receive the good sold (corresponding to the handing obligation of the

seller, the buyer is obliged to receive the good sold at the place and thedate by which the seller is obliged to surrender, sustaining also the costs

of getting the good from the place of selling. [Mariana Rudreanu,

Obligaii. Contracte, Editura Fundaiei Romnia de Mine, Bucureti, 2006,

p. 114] )

V arieties for sale

The Civil Code Regulates the following varieties for selling:

Lot Sale (vanzarea cu gramada) -According to art. 1299 of the Civil Code,

the lot sale is the sale which supply the kind of goods that is characterized

by a fixed mass block and the price is set globally and not on units of

measure. In principle, a lot sale when there is no need to weigh, to count

or to measure for determining the object sold or the sale price. [Mariana

Rudreanu, Obligaii . Contracte, Editura Fundaiei Romnia de Mine,

Bucureti, 2006, p.115]

The sale after weight, number and measure ( has like object goods

from a determined lot and for individualization of quantity or price

determination is required the weighing, measuring or counting operation)

The sale by tasting ( is a contract closed from the moment of realizing

the agreement of will, in which is stipulated the suspensive condition of

trying the good by the buyer)

The sale with repurchase pact ( is a contract through which the seller

reserves the right to resume the good sold, paying back to the buyer the

price and the costs of selling)

The sale of a heritage ( known also as the sale of inheritance rights,regulated by the art. 1399-1401 of the Civil Code, is a contract through

which the owner of a inheritance right, alienates with onerous title this

right to a person) [Mariana Rudreanu, Obligaii . Contracte, Editura

Fundaiei Romnia de Mine, Bucureti, 2006, p.117]

Sale of Litigation rights and the litigations Retractor (Theowner of

a litigation right has the possibility to sell the right submitted to judicial

appeal, whether if this is a real right or claim right, before the proceedings

solution.)

Documents

The Civil Sale Contract