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Al-Majallah al-Ahkam al-‘Adaliyyah
Chapter 2: The Subject Matter of the Sale
Section 1: Conditions affecting the subject matter
of the sale and description.
197. The thing sold must be in existence.
198. The thing sold must be capable of delivery.
199. The thing sold must be property of some specific value.
200. The thing sold must be known to the purchaser.
201. The fact that the thing sold is known is ascertained by referring
to its state and description that distinguishes it from other things. Example:
A specific quantity of red corn, or a piece of land bounded by specific
boundaries. If these are sold, the nature thereof is known and the sale
is valid.
202. If the thing sold is present at the meeting place of the parties
to the sale, it is sufficient if such thing is pointed out by signs. Example:
The vendor states that he has sold a particular animal. The purchaser sees
that animal and accepts it. The sale is valid.
203. Since it is enough for the nature of the thing sold to be known
to the purchaser, there is no need for any other sort of description or
particularization.
204. The thing sold must be the particular thing with reference to which
the contract is concluded. Example: A vendor, pointing to a particular
watch, states that he has sold it. Upon the purchaser accepting, the vendor
is bound to deliver that identical watch. He cannot put that particular
watch on one side and deliver another of the same sort.
Section 2: Things that may and may not be sold.
205. The sale of a thing not in existence is void. Example: The sale of
the fruit of a tree which has not yet appeared is void.
206. The sale of fruit that is completely visible while on a tree is
valid, whether or not it is fit for consumption.
207. The sale at one and the same time of dependent part which are connected
together is valid. For example, in the case of fruit, flowers, leaves and
vegetables, which do not arrive at maturity simultaneously, a portion thereof
only having come out, that portion which has not yet arrived at maturity
may be sold together with the rest.
208. If the species of the thing sold has been stated, and the thing
sold turns out to be of another species, the sale is void. Example: The
vendor sells a piece of glass stating that it is a diamond. The sale is
void.
209. The sale of a thing that is incapable of delivery is void. Example:
The sale of a rowboat that has sunk in the sea and cannot be raised, or
of a runaway animal that cannot be caught and delivered.
210. The sale of a thing that is not generally recognized as property
or the purchase of property therewith is void. Example: The sale of a corpse
or of a free man, or the purchase of property in exchange for them is void.
211. The sale of things that do not possess any specific value is void.
212. The purchase of property with property that does not possess any
specific value is voidable.
213. The sale of a thing the nature of which is not known is voidable.
Example: A vendor tells a purchaser that he has sold him the whole of the
property he owns for a certain sum of money, and the purchaser states that
he has bought the same. The nature of the things bought by the purchaser,
however, is unknown; the sale is voidable.
214. The sale of an ascertained, jointly owned undivided share in a
piece of real property owned in absolute ownership prior to division, such
as a half, a third or a tenth, is valid.
215. A person may sell his undivided jointly owned share to some other
person without obtaining the permission of his partner.
216. The sale of a right of way, and of a right of taking water and
of a right of flow attached to land and of water attached to canals is
valid.
Section 3: Procedure at the Sale
217. The sale of things estimated by measure of capacity, or by weight,
or by enumeration, or by length, may be sold individuality or en bloc.
Example: A vendor sells a heap of corn, or a barn full of straw, or a load
of bricks, or a bale of merchandise en bloc. The sale is valid.
218. If grain is sold in a specified vessel or measured in a measure,
or by weighing it according to a fixed weight, the sale is valid, although
the capacity of the vessel or measure, or the heaviness of the weight may
not known.
219. A thing that may be sold separately may validly be separated from
the thing sold. Example: The vendor stipulates to retain a certain number
of okes of the fruit of a tree that he has sold. The stipulation is valid.
220. The sale en bloc of things estimated by quantity on the basis of
the price of each thing or part thereof is valid. Example: The sale
of a heap of corn, a shipload of wood, a flock of sheep, and a roll of
cloth, on the basis of the price of each kilo, or measure, or oke, or herd
of sheep, or yard, is valid.
221. Real property may be sold by defining the boundaries thereof. In
cases where the boundaries have already been defined, it may be sold by
the yard or the donum.
222. The contract of sale is only valid in respect to the amount stipulated
in the contract.
223. The sale of things estimated by measure of capacity, or by enumeration
and which closely resemble each other and things estimated by weight, and
which do not suffer damage by being separated from the whole, may be sold
en bloc if the amount thereof is made known, whether the price is named
in respect to the whole amount, or in respect to each individual unit.
If on delivery the amount is found to be correct, the sale is irrevocable.
If it is found to be shot, however, the purchaser has the option of canceling
the sale, or of purchasing the amount actually delivered for the proportionate
part of the price. If more than the stipulated amount is delivered, the
excess belongs to the vendor.
Examples:
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A vendor sells a heap of corn said to be fifty kiles, at five hundred piastres,
or, on the basis of fifty kiles, at ten piastres a kiles. If the amount
delivered is correct, the sale is irrevocable. If forty-five kiles only
are delivered, the purchaser has an option of canceling the sale, or of
taking forty-five kiles for four hundred and fifty piastres. If fifty-five
kiles are delivered, the kiles in excess belong to the vendor.
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A basket of eggs said to contain one hundred is sold for fifty piastres,
or at twenty paras for each egg. if it turns out on delivery that there
are only ninety eggs, the purchaser has an option of cancelling the sale
or of taking the ninety eggs for forty-five piastres. If one hundred and
ten are delivered, the ten eggs remaining over belong to the vendor.
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A barrel of oil is sold as containing one hundred okes. The principle explained
above applies.
224. In the case of the sale of a whole amount of things estimated by weight
which suffer by being separated from the whole, the price of the whole
amount only being named, the purchaser has the option of canceling the
sale on delivery, if the amount proves to be short, or of taking the portion
delivered for the price fixed for the whole. If more than the amount is
delivered, it belongs to the purchaser and the vendor has no option in
the matter. Example: a diamond stated to be five carats is sold for twenty
thousands piastres. It turns out to be four and a half carat. The purchaser
has the option of rejecting the diamond, or of taking the stone for twenty
thousand piastres. If it turns out to be five and a half carat, the purchaser
can have it for twenty thousand piastres, the vendor having no option in
the matter.
225. In the case of the sale of a whole amount of things estimated by
weight which suffer damage by being separated from the whole, stating the
amount thereof and the price fixed for parts or portions thereof, the purchaser
has a option on delivery, if the amount delivered turns out to be less
or more, of canceling the sale, or of taking the amount delivered on the
basis of the price fixed for the parts and portions thereof. Example: A
copper brazier said to weigh five okes is sold at the rate of forty piastres
per oke. If it turns out to weigh either four and a half or five and a
half okes, the purchaser has two options. He can either decline to accept
the brazier, or, if it weighs four and a half okes he can purchase it for
one hundred and eighty piastres, and if it weighs five and a half okes,
he can purchase it for two hundred and twenty piastres.
226. In the case of the sale of a whole amount of things estimated by
measure of length, whether land, goods, or similar things on the basis
of the price for the whole amount, or of the price per yard, they are dealt
with in both cases as in the case of things estimated by weight which suffer
damage by being separated from the whole. Goods and articles such as linens
and woolens which do not suffer damage by being cut and separated, are
treated in the same manner as things estimated by measure of capacity.
Examples:
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A piece of land said to measure one hundred yards is sold for one thousand
piastres. It turns out to measure ninety-five yards only. The purchaser
has an option of leaving it or of buying it for one thousand piastres.
If it turns out to be larger, the purchaser can take the whole piece for
one thousand piastres.
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A piece of cloth said to measure eight yards is sold for four hundred piastres
with a view to being made up into a suit of clothes. It turns out to measure
seven yards only. The purchaser has an option of leaving it or buying it
for four hundred piastres. If it turns out to measure nine yards, the purchaser
can take the whole piece for four hundred piastres.
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A piece of land said to measure one hundred yards is sold at the rate of
ten piastres per yard. If it turns out to measure ninety-five or one hundred
and five yards, the purchaser has an option of leaving it, or, if it turns
out to be ninety-five yards, of buying it for nine hundred and fifty piastres,
or if it turns out to be one hundred and five yards, of buying it for one
thousand and fifty piastres.
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Some cloth said to measure eight yards is sold at the rate of fifty piastres
per yard with a view to being made up into suit of clothes. If it turns
out to measure seven or nine yards, the purchaser has an option of either
rejecting it or, if it turns out to be seven yards, of buying it for three
hundred and fifty piastres, and if it turns out to be nine yards of buying
it for four hundred and fifty piastres.
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If a whole piece of cloth, however, said to measure one hundred and fifty
yards is sold for seven thousand five hundred piastres, or at the rate
of fifty piastres per yard, the purchaser has the option of canceling the
sale or of taking the hundred and forty yards for seven thousand piastres.
If it turns out to be more, the balance belongs to the vendor.
227. In the event of the sale of things estimated by enumeration and which
are dissimilar from each other, the price of the whole amount only named
and the number of such things is found to be exact on delivery, the sale
is valid and irrevocable. If the number is greater or smaller, however,
the sale is voidable in both cases. Example: A flock of sheep said to contain
fifty head of sheep is sold for two thousand five hundred piastres. If
on delivery the flock is found to consist of forty-five or fifty-five sheep,
the sale is voidable.
228. In the event of the sale of a portion of a whole amount of things
estimated by enumeration, and which are dissimilar from each other, stating
the amount thereof, and a price calculated at so much per piece or per
unit, and on delivery the number is found to be exact, the sale is irrevocable.
If the number is found to be smaller, the purchaser has the option of leaving
the things or of taking them for the proportionate share of the fixed price.
If more than the stated number is delivered, the sale is voidable. Example:
A flock of sheep said to consist of fifty is sold at the rate of fifty
piastres per head. If it turns out to consist of forty-five head of sheep,
the purchaser has the option of leaving them or of buying the forty-five
head of sheep for two thousand two hundred and fifty piastres. If it turns
out to be fifty-five head of sheep, the sale is voidable.
229.The purchaser, after having taken delivery of the thing sold, loses
the option of canceling the sale conferred upon him by the preceding Articles,
if he knew that less than the stipulated amount had in fact been delivered.
Section 4: Matters Included but not Explicitly
Mentioned in the Sale
230. The sale includes everything that by local custom is included in the
thing sold, even though not specifically mentioned. Example: In the case
of the sale of a house, the kitchen and the cellar are included; and in
the event of the sale of an olive grove, the olive trees are included,
even though not specifically mentioned. The reason for this is that the
kitchen and cellar are appurtenances of the house, and the olive grove
is so called because it is a piece of land containing olive trees. A mere
piece of land, on the other hand, is not called an olive grove.
231. Things that are considered to be part of the thing sold, that is
to say, things that cannot be separated from the thing sold, having regard
to the object of the purchase, are included in the sale without being specifically
mentioned. Example: In the case of the sale of a lock, the key is included;
and in the case of the sale of a milch cow, the sucking calf of such cow
is included in the sale without being specifically mentioned.
232. Fixtures attached to the thing sold are included in the sale, even
though not specifically mentioned. Example: In the event of a sale of a
large country house, things that have been fixed or constructed permanently,
such as locks that have been nailed, and fixed cupboards and divans, are
included in the sale. Similarly, the garden included in the boundaries
of the house, together with the paths leading to the public road or to
a blind alley are included in the sale, even though this was not specifically
stated at the time the bargain was concluded.
233. Things which are neither appurtenances or permanent fixtures attached
to the thing sold, and things which are not considered to be part of the
thing sold, or things which are not by reason of custom included in the
thing sold, are not included in the sale unless they are specifically mentioned
at the time the sale was concluded. But things that by reason of local
custom go with the thing sold are included in the sale without being specifically
mentioned. Example: In the case of the sale of a house, things that are
not fixtures, but have been placed so that they may be removed, such as
cupboards, sofas and chairs, are not included in the sale unless specifically
mentioned. And in the event of the sale of an orchard or a garden, flower
pots, and pots for lemons and young plants which have been planted with
a view to their removal elsewhere, are not included in the sale, unless
specifically mentioned. Similarly when land is sold, the growing crops,
and when trees are sold, the fruit thereof, are not included in the sale,
unless some special stipulation to that effect was made at the time the
bargain was concluded. But the bridle of the riding horse and the halter
of
a draught horse are included in the sale although not specifically mentioned,
in places where such is the custom.
234. The thing included in the sale as being attached thereto is not
a part of the price of such sale. Example: If the halters of draught horses
are stolen before the delivery thereof, there is no necessity to deduct
anything from the fixed price.
235. Things comprised in any general expressions added at the time of
the sale are included in the sale. Example: The vendor states that he has
sold a particular house “with all rights.” Any right of way, or right of
taking water, or right of flow attaching to the house are included in the
sale.
236. Any fruit or increase occurring after the conclusion of the contract
and before the delivery of the thing sold belong to the purchaser. Example:
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In the case of the sale of a garden, any fruit or vegetables that are produced
before delivery belong to the purchaser.
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Where a cow has been sold, a calf born before delivery of the cow becomes
the property of the purchaser.
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