Soluciones domésticas para reducir la emisión de CO 2

1. Place, time, and manner of delivery Art. 1521. Whether it is for the buyer to take possession of the goods or of the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business if he has one, and if not his residence; but in case of a contract of sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery.

Where by a contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf.

Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.

What is a reasonable hour is a question of fact.

Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. (n)

Art. 1169. xxx In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins. (1100a)

Art. 1524. The vendor shall not be bound to deliver the thing sold, if the vendee has not paid him the price, or if no period for the payment has been fixed in the contract. (1466)

a) Generally, payment and delivery of the thing sold are concurrent acts, in consonance with the rule in reciprocal obligations. Agreement of the

parties determines whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer. Absent stipulation to the contrary, the ff. rules shall be observed:

1. the buyer should take delivery of the goods from the seller’s place of business if he has one, and if none, his residence.

2. In case of sale of specific goods which, at the time of the sale, are known to the parties to be in ANOTHER PLACE, the buyer should take delivery from such place.

3. DEMAND or TENDER of PAYMENT shall be made at a reasonable hour. Where by agreement, the seller is bound to send the goods to the buyer, he is bound to send them within the time agreed upon, or if no time was fixed, within a reasonable time. REASONABLE TIME for delivery is determined by the circumstances attending the particular transaction

4. Where the goods at the time of the sale are in the possession of a THIRD PERSON, there is NO delivery UNLESS and UNTIL such their person ACKNOWLEDGES to the buyer that the holds the goods on the latter’s behalf.

5. EXPENSES of placing the goods in a DELIVERABLE STATE shall be borne by the SELLER unless otherwise stipulated.

6. If the sale involves a specific thing, the vendor is bound to deliver the thing sold and its accessions and accessories in the condition in which they were upon the perfection of the contract.

7. All of the fruits of the thing shall pertain to the vendee from the time of the perfection of the contract but he does not acquire a real right over it until they are delivered to him.

8. The vendee has the obligation to pay the expenses incurred by the vendor in the production, gathering and preservation of the fruits.

When time is of essence⁴⁶

46 SMITH BELL v MATTI: In this case, the seller had done all that could be expected when he placed the machinery at the disposal of the buyer on Apr 1919. When the time of delivery is not fixed in the contract, time is not of the essence; delivery could hence be made within a reasonable time.

SOLER v CHELSEY: Defendant cannot be compelled to accept delivery as he gave his consent to the contract, on the assurance of the plaintiff that the goods were “on the way” when as a matter of fact, they were not yet shipped at the time. This assertion was an essential element of the contract.

Time is of the essence of the contract whenever the intention of the parties is clear that performance of its terms shall be accomplished exactly at the stipulated day or implied from the nature of the contract itself, the subject matter or the circumstances under which the contract is made

When not bound to deliver

Art. 1524. The vendor shall not be bound to deliver the thing sold, if the vendee has not paid him the price, or if no period for the payment has been fixed in the contract. (1466)

Art. 1536. The vendor is not bound to deliver the thing sold in case the vendee should lose the right to make use of the terms as provided in Article 1198. (1467a)

Art. 1198. The debtor shall lose every right to make use of the period:

(1) When after the obligation has been contracted, he becomes insolvent, unless he gives a guaranty or security for the debt;

(2) When he does not furnish to the creditor the guaranties or securities which he has promised;

(3) When by his own acts he has impaired said guaranties or securities after their establishment, and when through a fortuitous event they disappear, unless he immediately gives new ones equally satisfactory;

(4) When the debtor violates any undertaking, in consideration of which the creditor agreed to the period;

(5) When the debtor attempts to abscond.

(1129a)

The vendor is not bound to deliver the thing sold in case the vendee should lose the right to make use of the stipulated term in the following cases:

1. When the vendee becomes insolvent 2. When the vendee does not furnish the

guaranties or securities he has promised 3. When the guaranties or securities given

were impaired through the vendee’s acts or were lost or destroyed through a fortuitous event, unless he gives new equally satisfactory guaranties or securities

REPUBLIC V LITTON: Court ruled for plaintiff. It was shown that the goods were intended for election purposes, and the purchase order provided that the stipulated delivery period shall not be exceeded.

4. When the vendee violates any condition for which he was granted the term

5. When the vendee attempts to abscond

NOTE: Art. 1467 has been replaced by Art. 1198 which provides that the vendee shall lose the benefit of the term when, after the obligation has been contracted, he becomes insolvent, unless he gives a guaranty or security. “Insolvency” under this article cannot be understood in the sense of a judicially declared insolvency or suspension of payments, because the debtor cannot give a security or guaranty in such case. The doctrine therefore in Visayan Distributors v Flores interpreting insolvency in Art 1467 old CC as something which must be judicially declared or something which involves suspension of payments, no longer holds.

2. Sale of Goods

a. Delivery by installment

Art. 1583. Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments.

Where there is a contract of sale of goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more installments, or the buyer neglects or refuses without just cause to take delivery of or pay for one more installments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation but not to a right to treat the whole contract as broken. (n)

a) GENERAL RULE: the buyer is not bound to accept delivery of goods by installments. EXCEPTION: When otherwise stipulated

b) In case of a contract that calls for the delivery of the goods at stated intervals which are to be paid for separately, the terms of the contract and the circumstances surrounding the case would determine whether prompt payment or delivery is of the essence such that a delay or breach would entitle the aggrieved to treat the entire contract as broken OR to regard each breach as severable. SEVERABILITY depends on whether the breach is so material as to justify the aggrieved party in refusing to proceed further with the entire contract or so immaterial that the breach is severable, giving rise merely to a claim for damages

b. Delivery of wrong quantity

Art. 1522. Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received.

Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest.

In the preceding two paragraphs, if the subject matter is indivisible, the buyer may reject the whole of the goods.

The provisions of this article are subject to any usage of trade, special agreement, or course of dealing between the parties. (n)

a) GENERAL RULE: The buyer is not bound to accept delivery of a quantity of goods more or less than that agreed upon or to accept goods which are of a description different from that agreed upon. EXCEPTION: There is usage of trade, special stipulation or course of dealing to the contrary.

REMEDIES:

1. Where the seller delivers a quantity less than that agreed upon, the buyer may reject them. If the buyer accepts or retains that goods delivered, knowing the inability of the seller to deliver the rest, the buyer is bound to pay for them at the contract rate. If the buyer has used or disposed of the goods before knowing the inability of the seller to deliver the rest, the buyer shall pay not more than the fair value of the goods.

(NOTE: “fair value” means the price of the goods in the open market.)

2. If the quantity delivered is more than that agreed upon, the buyer may reject the excess, unless the subject matter is indivisible, in which case, the buyer may reject the whole.

3. Where the seller delivers the goods mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract, and reject the rest, unless the subject matter is indivisible, in which case, the buyer may reject the whole.

b) Delivery by the seller of only a part of an entire contract would itself be an indication that he might not intend to fully perform. PRESUMPTION: Buyer knows that the seller might intend to not fully perform, if said purchaser accepts a partial delivery on an entire contract, absent any statement to the contrary. (The law applies peculiarly to installment and divisible contracts.)

3. Sale of Immovables

Art. 1539. The obligation to deliver the thing sold includes that of placing in the control of the vendee all that is mentioned in the contract, in conformity with the following rules:

If the sale of real estate should be made with a statement of its area, at the rate of a certain price for a unit of measure or number, the vendor shall be obliged to deliver to the vendee, if the latter should demand it, all that may have been stated in the contract; but, should this be not possible, the vendee may choose between a proportional reduction of the price and the rescission of the contract, provided that, in the latter case, the lack in the area be not less than one-tenth of that stated.

The same shall be done, even when the area is the same, if any part of the immovable is not of the quality specified in the contract.

The rescission, in this case, shall only take place at the will of the vendee, when the inferior value of the thing sold exceeds one-tenth of the price agreed upon.

Nevertheless, if the vendee would not have bought the immovable had he known of its smaller area of inferior quality, he may rescind the sale. (1469a)

Art. 1540. If, in the case of the preceding article, there is a greater area or number in the immovable than that stated in the contract, the vendee may accept the area included in the contract and reject the rest. If he accepts the whole area, he must pay for the same at the contract rate. (1470a)

Art. 1541. The provisions of the two preceding articles shall apply to judicial sales. (n)

Art. 1542. In the sale of real estate, made for a lump sum and not at the rate of a certain sum for a unit of measure or number, there shall be no increase

or decrease of the price, although there be a greater or less area or number than that stated in the contract.

The same rule shall be applied when two or more immovables as sold for a single price; but if, besides mentioning the boundaries, which is indispensable in every conveyance of real estate, its area or number should be designated in the contract, the vendor shall be bound to deliver all that is included within said boundaries, even when it exceeds the area or number specified in the contract; and, should he not be able to do so, he shall suffer a reduction in the price, in proportion to what is lacking in the area or number, unless the contract is rescinded because the vendee does not accede to the failure to deliver what has been stipulated. (1471)

Art. 1543. The actions arising from Articles 1539 and 1542 shall prescribe in six months, counted from the day of delivery. (1472a)

a. Where price is at certain rate per unit of measure

The seller is bound to deliver the entire land sold in accordance with the terms of the contract.

GENERAL RULE: The vendee has to option to demand a proportionate reduction of the price or rescission of the contract: if price is fixed at a certain rate per unit of measure and the area is delivered is less than that stated in the contract, or even if the area is correct but part of the land is not of the quality stated in the contract

EXCEPTION: Where the entire land is not of the quality stated in the contract, as in such a case, the consent must have been obtained by mistake or fraud (contract may then be voidable.)

Art. 1539. see above.

b. Sale for a lump sum ⁴⁷ Art. 1542. see above.

47 AZARRAGA v GAY: Where the price was for a lump sum and the area which was stated in the contract to be 98 hectares, turned out to be only 60 hectares, but the purchaser had previously investigated and inspected the condition of the land, and had ample opportunity to do so, the purchaser cannot later on allege that the vendor made false representation.

ASIAIN v JALANDONI: There was mutual mistake which was so material as would go into the essence of the contract. Rescission is proper. The buyer would have not have bought the land had he known of the smaller area or inferior quantity.

a) If the sale of real property is for a lump sum, there shall be no increase or decrease in the price, whether the actual area delivered turned out to be greater or less than that stated in the contract.

b) If besides mentioning the boundaries, the area should also be stated in the contract, the vendor shall be bound to deliver all that is included within said boundaries and there shall be no increase or decrease in the price whether the area so delivered be greater or less than that stated in the contract.⁴⁸

c) If the vendor fails to deliver all the land included within said boundaries, as where part of the land belongs to a third person, the vendee shall have the option to demand a reduction in the price in proportion to the deficiency in the area stated in the contract or a rescission of the contract (Actions prescribe in six months from date of delivery.)

4. Inspections and Acceptance a. Right of inspection

Art. 1584. Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract if there is no stipulation to the contrary.

Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery," or otherwise, the buyer is not entitled to examine the goods before the payment of the price, in the absence of agreement or usage of trade

Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery," or otherwise, the buyer is not entitled to examine the goods before the payment of the price, in the absence of agreement or usage of trade