Term
| What is the definition of a sale and the elements? |
|
Definition
A K whereby a person transfers ownership of a thing to another for a price IN MONEY
1. Agreement
2. On the object
3. the PRICE |
|
|
Term
| What is the difference between the formal requirements for movables and immovables? |
|
Definition
Immovables - writing requirement and recordation to affect TPs
Movables - can be sold orally/no writing req. Delivery is required to affect TPs |
|
|
Term
| Can succession rights be sold? |
|
Definition
|
|
Term
| What is a right of litigious redemption and why is it special? |
|
Definition
Basically selling your right to sue someone via an assignment of the right.
The debtor can get himself released from the debt by paying the amount the transferee paid
ex. I owe 10K to the mortgage company, the company assigns the debt to a collection agency for 8K. I only have to pay the collection agency 8K and not the full 10K, in order to be released.
Note: These rights cannot be bought by court officials in the jurisdiction where they work. |
|
|
Term
| What is the difference between a future thing and a hope? |
|
Definition
Sale of a hope - aleatory (one side's performance is uncertain). The buyer assumes the risk that the thing will not materialize.
Future Thing - The coming into existence of a thing acts as a suspensive condition and the buyer does NOT assume the risk. |
|
|
Term
| What the requirements of the price for a sale? |
|
Definition
1. Money - if no money, then its an exchange
2. Certainty - Price must be certain or dertermiable |
|
|
Term
| What happens if the parties fail to name a TP to determine the price? |
|
Definition
| The judge can fix the price |
|
|
Term
| What constitutes a reasonable price? |
|
Definition
1. The thing is a movable of the kind the seller habitually sells.
2. The parties fail to agree on a price after either: They initially said nothing about the price, or they initially left the price to be agreed to later |
|
|
Term
| What constitutes a "serious" price? |
|
Definition
The price must not be out of all portion to the value of the thing, and the parties must intend that a price be paid.
If they do not intend that price be paid, the contract is a simulation |
|
|
Term
| When is the K of sale perfected? |
|
Definition
when object, price and agreement are satisfied
*payment of the price nor delivery is essential. |
|
|
Term
| When does ownership pass? |
|
Definition
| on perfection, meaning you have object, price agreement) |
|
|
Term
| When does "Risk of Loss due to a fortuitous event" transfer? |
|
Definition
| Transferred to the buyer when the thing is delivered? |
|
|
Term
|
Definition
| an event that at the time of the K was made, could not have been reasonably foreseen. |
|
|
Term
| What are the exceptions to perfection? |
|
Definition
1. When goods are sold by weigh, count or measure, the sale is perfected when the measuring is complete. Does NOT apply to lump sales*
2. Individualization - Sale is perfected when the seller sets aside the goods, and it would take time, money, and energy to undo the individualization
3. Things in transit - see other cards |
|
|
Term
| When does ownership transfer for things in transit? |
|
Definition
- the buyer owns things in transit that ate delieverable to the buyer, even if sell has retained the BOL
- The seller own thing that are in transit that are deliverable to the seller or his agent. |
|
|
Term
| When does ownership transfer for things in transit? |
|
Definition
1. Shipment K - Transferred to the buyer upon delivery to the carrier if the contract does not require the seller to deliver the thing to any particular destination.
2. Destination K - ROL is transferred to the buyer when thing are tendered to the buyer at the place of destination when the K requires the seller to deliver the thing to a particular destination. |
|
|
Term
| What are the 4 types of agreements that do NOT lead to a perfected sale |
|
Definition
1. Sale on Suspensive condition - condition must be fulfilled.
2. Sale on view or trial - sale not perfected until goods are check,
*Do not confuse with the buyer's right to check that the goods are conforming
3. Sale of a future thing - need existanence
4. Promise of K to sell - parties can agree the title does not transfer until a later date. |
|
|
Term
| What are the types of agreements that contemplate the possibility of a sale? |
|
Definition
1. Option
2. Right of Refusal
3. Contract to sell |
|
|
Term
|
Definition
| Unilateral K to sell or buy whereby the grantor of the option is bound to buy of sell if the grantee of the option accepts within the time stipulated. |
|
|
Term
| What are the reqs for an option? |
|
Definition
1. Specify the thing
2. the price
3. have a term
- For Immovables there is a writing requirement. |
|
|
Term
| What happens if the option does NOT have a term? |
|
Definition
If part of another K, the option's term is coextensive with the term of that other K.
If the K that the option is piggy backing on does not have term, then the K could be valid, but the option will not be.
e.g. lease |
|
|
Term
| What is the right of first refusal? |
|
Definition
unilateral K in which one party agrees that he will not sell a certain thing without first offering it to a certain person.
The grantor may of the right may not sell to a TP without offering the thing to the holder of the right. |
|
|
Term
| How can a right of first refusal be enforced? |
|
Definition
|
|
Term
| What is a contract to sell? |
|
Definition
| A bilateral agreement wherby the parties promise to enter into a sale at a later date. |
|
|
Term
| What is earnest money and how does it affect the remedies of a contract to sell? |
|
Definition
| Earnest money is an mont given to the seller by the buyer that negates the avialiabity of specific performance and precludes actual damages |
|
|
Term
| If the buyer recedes from the contract and earnest money was given... |
|
Definition
| he forfeits the EM to the seller |
|
|
Term
| If the seller recedes from the contract and earnest money was received... |
|
Definition
| he must return double EM to the buyer. (what was already given + another share for backing out) |
|
|
Term
| Is a deposit also earnest money? |
|
Definition
| No, if its EM, it must expressly stipulate so |
|
|
Term
| If a party's failure to perfrom a K to sell where EM was given, does he still owe the money? |
|
Definition
| Depends, if failure to perform is excuesed, EM is not owed. |
|
|
Term
| How long is prescription on a K to sell an immovable? |
|
Definition
|
|
Term
| Ho long does the holder of an ROFR have to exercise the right? |
|
Definition
10 days for movable
30 days for immvoable |
|
|
Term
| If the holder does not exercise the ROFR, how long does grantor have to make a sale? |
|
Definition
| 6 months to conclude a final sale |
|
|
Term
| If a contact is ambiguous, the ambiguity is construed against... |
|
Definition
|
|
Term
| What are the obligations of the seller? |
|
Definition
Delivering the thing
Warranting the thing
Assuring its reasonably fit for its ordinary use |
|
|
Term
| When is a simulation presumed? |
|
Definition
| If the seller remains in posssession |
|
|
Term
| If the seller does not deliver the thing at the agreed upon time, what are the buyer's remedies? |
|
Definition
1. Dissolution of sale
2. Specific performance
For either buyer can get Damages |
|
|
