Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
22 Cards in this Set
- Front
- Back
|
Sales - Elements
1 |
Agreement, Object, and Price
|
|
|
Sales - Form Requirements
2 |
→ sales of IMM must be in writing & recorded to affect 3dP
➢ Rx→ an action for breach of sale/exchange/transfer of an IMM prescribes in 5 yrs |
|
|
Sales- The Object (the actual thing sold)
3 |
→ all things susceptible of o’ship may be sold unless prohibited by law
• Sale of a thing of another is relatively null. • Litigious Redemption→ when a litigious right has been sold, the party a/g whom the right has been transferred may get himself released by paying to the transferee the price the transferee has paid • “Litigious Right”→ a lawsuit has been filed at the time of the transfer • Sale of a Future Thing→ coming into existence of thing acts as suspensive condition, so buyer doesn’t assume risk b/c the sale is not perfected until the thing comes into existence • Sale of a Hope→ buyer assumes risk (“A sale of oranges that trees may produce” as opposed to “will”) |
|
|
Sales - The Price
4 |
→ must be paid in $. Amount must be either certain/determinable through method agreed upon
|
|
|
Sales - Ownership (general rule)
5 |
→ transfers upon perfection of the sale (agreement of thing & price)
• neither payment or delivery is important |
|
|
Sales - Risk of Loss
6 |
→ for fortuitous events is transferred to the buyer when the thing is delivered
• Exceptions: - Sale Perfected or Ownership passes at different times • Weight, Count, Measure -(Individualization) vs. Goods Sold by Lump Sale – Normal Perfection • Things in Transit: • Ownership – determined by bill of lading • Risk of Loss – transferred to buyer when delivered to carrier or tendered at place of destination • Sale on Suspensive Condition – condition is fulfilled • Sale of View or Trial – when goods are checked • Sale of a Future Thing – thing comes into being • Promise or K to Sell – can agree on a later date for title to pass |
|
|
Sales - Options
7 |
→ unilateral K to sell/buy whereby grantor of option is bound to buy/sell if the grantee of the option accepts w/in the time stipulated. Reqs→ specify thing, price, term, & be in writing for IMMs
• Term Requirement→ must have a term. If doesn’t have term, but is part of another K, option’s term is coextensive w/term of other K. BUT, if other K doesn’t have term, option is invalid (often tested w/lease) • Term cannot be longer than 10 yrs on IMM. (if greater, reduce to 10 yrs) • Exception→ if granted in connection w/K giving rise to obls of continuous/periodic performance, the duration of the option may be a period of time required for those obls (LEASE) • Must be recorded to affect 3dP, BUT even if not recorded, it’s still effective b/w the parties • Right is indivisible, so all must exercise if belongs 2 multiple people • When seller asserts lesion in connection w/option, prop’s FMV is determined at time option was granted |
|
|
Sales - Right of First Refusal
8 |
→ unilateral K in which 1 party agrees not to sell a thing w/o first offering it to another
• Doesn’t need a term, but may have one. For IMMs, term can’t be longer than 10yrs. • Exception→ if granted in connection w/K giving rise to obls of continuous/periodic performance, the duration of the option may be a period of time required for those obls (LEASE) • May be enforced by specific performance, but must be recorded to affect 3dPs • 10 days to exercise right if Movable - 30 days if IMM – right remains unless sale or K to sell w/in 6 months |
|
|
Sales - Contract to Sell
9 |
→ bilateral agreement whereby parties promise to enter into a sale at a later date
• Must satisfy all requirements of a valid sale. Must be recorded to affect 3d parties • Earnest $→ amount given to seller by buyer that acts as stipulated damages upon breach. It negates the availability of specific performance. If earnest $ is given, both parties may recede from K: (1) if buyer recedes, he forfeits earnest $ & (2) if seller recedes, he must return double earnest $ to buyer • A deposit by the buyer is not earnest $. The parties must expressly stipulate that it’s earnest $ • If contract is to sell IMM an action for breach or failure to perform - Rx 5 yrs |
|
|
Sales - Seller has 3 obls
10 |
→ (1) delivery & (2) warranty a/g eviction & redhibitory defects, & (3) fit for its ordinary use
|
|
|
Sales - Seller has 3 obls - Extent of Delivery of IMMs
11 |
• Extent of Delivery of IMMs→ must deliver full extent. Rx- 1yr If fails to do so, following rules apply:
• Sale Per Aversionem→ land is described as a certain & limited body & sold for a lump price • In such a case, no increase/decrease in price if quantity delivered is different • Sale per measure→ if price is fixed at a rate of so much per measure, price is adjusted accordingly • IF deliver more than 5%, buyer can recede or pay higher price |
|
|
Sales - Seller has 3 obls - Extent of Delivery of Movables
12 |
• Extent of Delivery of Movables→ must deliver conforming goods (agreed kind, quality, quantity)
• Buyer has right to inspect to see if conform, & may reject nonconforming goods in a reasonable time • Special Rules of Offer & Acceptance 4 Sales of Movables→ Acceptance forms a K of sale of a movable if there’s an agreement on the thing & price, even if acceptance contains terms different from those contained in the offer. If 1 party is a non-merchant, the different terms are considered mere proposals for modification, & the K still comes into being. If the sale is b/w merchants, the different terms become part of the K UNLESS (1) they mat’ally alter the offer (2) offer expressly limits acceptance to the terms of the offer, or (3) offeror objects w/in a reasonable time. |
|
|
Warranty a/g Eviction
13 |
→ buyer’s loss of, or danger of losing, the whole/part of thing b/c of 3dP’s right that existed at time of sale
• Scope→ complete/partial/fear of loss. • Warranty extends to undeclared, nonapparent, conventional servitudes (not Natural/Legal) • Warranty exists even if parties say nothing about it. However, it can be modified/excluded • BUT, seller is always liable 4 what results from her personal act (public policy) regardless of whether her act was b/4 or a/f sale |
|
|
Seller’s Liability 4 breach of warranty against eviction:
14 |
• Warranty not modified/excluded→ (1) restitution of price & fruits & revenues if buyer’s bound to return to 3dP evicting him (2) costs of litigation & (3) damages if didn’t know a/b dan of eviction
• Sale w/o warranty→ only gets restitution of the price if buyer didn’t know of dan of eviction • Sale at Buyer’s Peril and Risk→ buyer gets nothing if (1) he knew of the danger of eviction at time of sale (2) regardless of knowledge, buyer declared he was buying at his peril & risk or (3) seller’s obl of returning the price has been expressly excluded • Quitclaim Deed→ If transferee is evicted, transferor owes nothing b/c a quitclaim deed is probably not a sale. Rather, it’s an assignment of a right. Transferor conveys whatever interest (if any) he may have w/o warranting the existence of any rights • Note that if eviction is only partial, the buyer only gets a proportionate price reduction. • However, if buyer’s principal cause was to get part on which eviction occurred, he may rescind sale |
|
|
Warranty a/g Eviction - Buyer’s Rights and Duties
15 |
→ Must timely notify seller of threat of eviction, o/w he losses right to extent seller could’ve successfully defended the action
• Even if warranty is excluded, buyer is subrogated to seller’s actions a/g others (seller’s seller, etc.) • Buyer is compelled to accept after-acquired title→ A sells property to B, then A later learns that C was the real owner. A then buys property from C. Title is automatically vested in B • Title vests in buyer regardless of seller’s intentions and even against his will |
|
|
Warranty a/g Redhibition
16 |
(after discussing redhibition, also discuss fraud & error)
• Applies to every sale, not just IMMs. Four Reqs to Recover: • (1) Defect must not be apparent (discoverable by a reasonably prudent buyer of such things) • (2) Buyer must not know of defect at time of sale (even if knowledge gained 5 min b/4 sale) • (3) Defect must exist at time of delivery (presumed if appears w/in 3 days of delivery) • There’s an inference that defect existed at time of sale if it appears soon after thing is used • Buyer is not required to prove exact cause of malfunction • (4) Defect must render thing either (1) absolutely useless or so inconvenient that he prob wouldn’t have bought it if knew of defect OR (2) diminish its usefulness/value such that it must be presumed that he still would’ve bought it but for a lesser price • Buyer’s rights are governed under rules of Ks if (1) thing isn’t defective, but lacks qualities innocently represented by the seller OR (2) if the thing is not of the kind specified in the K • A redhibitory defect is not a part that is worn out by ordinary use • BUT, if seller I’ally misrepresents thing to have qualities he knows it doesn’t possess, buyer’s rights are governed by redhibition • Ex→ a burnt carpet stain may not rise to the level of a redhibitory defect, but seller’s misrepresentation of quality of carpet can rise to a redhibitory defect. • Buyer may go a/f seller under redhibition & he is also subrogated to seller’s rights a/g others |
|
|
Seller’s Liability Under Redhibition
17 |
→ seller’s liability depends on GF/BF
• GF Seller (didn’t know a/b defect)→ Buyer gets: ➢ If thing’s totally useless or so inconvenient→ purchase price and reasonable expenses ➢ If thing has diminished usefulness/value→ reduction of price • Also GF seller entitled to opportunity to repair/remedy/correct defect b/4 buyer can dissolve sale • Rx→ shorter of (1) 1 yr from discovery or (2) 4 yrs from date thing was delivered ➢ However, if thing sold if a residential/commercial IMM prop→ 1 yr from delivery ➢ Rx’s interrupted when seller accepts thing for repair & commences anew when thing is tendered back to buyer • BF Seller (knew of defect)→ same as above except: ➢ totally useless/so inconvenient→ purchase price, reasonable expenses, damages, & atty fees ➢ diminished usefulness/value→ reduction of price • No opportunity to repair • Rx→ 1 yr from discovery (no 4yr cap) • Both BF and GF seller are entitled to a deduction for the value of the use of thing derived by buyer • Manufacturer is always considered in BF (includes those holding themselves out to be manufacturers) • Buyer must give seller timely notice of the defect • If doesn’t, suffers diminution of warranty to extent it made repair impossible or more burdensome • Nonetheless, notice is not necessary when seller has actual notice of the defect • Even if buyer is entitled to rescission, he may still seek only reduction of the price. • After seeking reduction, he is precluded from then seeking rescission • Buyer is subrogated to seller’s rights against others • Warranty may be waived but only by clear and unambiguous terms & brought to attention of buyer • BUT, waiver is ineffective if seller declares that thing has quality that he knew it didn’t have |
|
|
Warranty of Fitness for Ordinary Use
18 |
→ to recover, buyer must prove prop can’t be used for its intended purpose. Governed by general law of K. A servitude that creates a mere annoyance isn’t enough. Warranty may be waived. Usually limited to ordinary uses unless (1) buyer has particular use in mind, (2) seller knows/should know of buyer’s purpose, and (3) and seller knows/should buyer is relying on seller’s skill
|
|
|
Sales - Buyers Obligations
19 |
➢ Buyer is obligated to→ (1) pay price and (2) take delivery
• If fail to pay price → buyer can (1) dissolve or (2) seek enforcement |
|
|
Sales - Lesion Beyond Moiety
20 |
➢ Requirements 4 Lesion Beyond Moiety→ (1) K must be a sale of corporeal IMM (2)Only seller can bring action & (3) price must be less than ½ FMV (value determined as of time of sale)
• IF lesion – buyer can (1) return thing or (2) keep and supplement diff between payment price and FMV • If sold to 3dP – can get profit from original buyer • Rxs 1 yr from date of sale |
|
|
Sale with Right of Redemption
21 |
→ right to take the thing back from the buyer
• Cant be more than 10 yrs – IMM 5 yrs - Mov |
|
|
Giving in Payment (Dation en Paiemen
22 |
t→ debtor gives C a thing as payment of a debt
• Different from sale b/c perfected by delivery. Otherwise subject to rules of sales • This is a type of K, so may be subject to a suspensive condition |
