Al-Majallah al-Ahkam al-‘Adaliyyah


 

Chapter 5: Giving and Taking Delivery.

Section 1: Procedure on Giving and Taking Delivery.

  1. Taking delivery is not an essential condition of sale. After the conclusion of the contract, however, the purchaser must first deliver the price to the vendor, and the vendor is then bound to deliver the thing sold to the purchaser.
  2. The thing sold must be delivered in such a way that the purchaser may take delivery thereof without hindrance. The vendor must give permission for such delivery.
  3. As soon as the thing sold has been delivered, the purchaser is considered to have taken delivery thereof.
  4. The method of delivery differs, according to the nature of the thing sold.
  5. If the purchaser in on a piece of land, or in any field, or if the purchaser sees such land or fields from near by, any permission given by the vendor to take delivery thereof, is considered to be delivery.
  6. If land is sold upon which crops are growing, the vendor must clear the land of such crops by reaping them or by pasturing animals thereon.
  7. In the event of delivery of a tree bearing fruit, such fruit must first be gathered and the tree then handed over by the vendor.
  8. If fruit is sold while upon a tree, and the vendor gives permission to the purchaser to pick such fruit, delivery thereof has been effected.
  9. If the purchaser is within any real property, such as a house or an orchard, which can be closed by locking, and is informed by the vendor that the latter has delivered such real property to him, delivery thereof has been effected. If he is outside such property, and the purchaser is so near thereto that he could immediately lock the same, delivery thereof is effected by the vendor merely stating that he has made delivery. If he is not in such close proximity to such property, however, delivery is effected after the expiration of such time as is necessary for him to arrive and enter therein.
  10. Delivery of real property which can be locked is effected by handing over the key.
  11. Delivery of an animal is taken by seizing it by the head or by the ear or by the halter. Delivery of such animals may also be given by the vendor merely pointing to them and giving permission for them to be taken, if they are in such a place that the purchaser can take delivery thereof without inconvenience.
  12. Delivery of things estimated by measure of capacity, or by weight, may be given by placing them in a cover or receptacle prepared by order of the purchaser.
  13. Delivery of articles of merchandise is effected by placing them in the hands of the purchaser or by placing them beside him, or, if they are exposed to view, by pointing to them and giving him permission to take them.
  14. Delivery of things sold en bloc and kept in a locked place, such as a store or box, is effected by giving the key to the purchaser and giving him permission to take them.

    15. Example: A store full of corn or a box of books is sold en bloc. Delivery of things sold is effected by handing over the key.
     
  15. If the purchaser takes delivery of the things sold and the vendor, seeing this, makes no objection, permission to take delivery is given.
  16. If the purchaser takes delivery of the thing sold without paying the price and without the permission of the vendor, such taking delivery is invalid. But if the thing sold is taken by the purchaser without permission and is destroyed or damaged while in his possession, such taking delivery is invalid.

Section 2: Right of Retention Over the Item Sold.

  1. In the case of a sale for immediate payment, the vendor has a right of retaining the thing sold until the price is fully paid by the purchaser.
  2. If the vendor sells various articles en bloc, the whole of the things sold may be retained until the full price has been paid, even though a separate price has been stated for each article.
  3. The fact that a pledge or a guarantor has been furnished by the purchaser does not invalidate the vendor's right of retention.
  4. If the vendor gives delivery of the thing sold without receiving the price, he loses his right of retention. He cannot ask for the return of the thing sold in order to hold it until payment of the price is made.
  5. If the vendor transfers the right of receiving the price of the thing sold from the purchaser to some other person, he loses his right of retention. In this case, the thing sold must be delivered to the purchaser forthwith.
  6. In the case of a sale on credit, there is no right of retention on the part of the vendor. He must deliver the thing sold to the purchaser forthwith in order to receive payment on due date.
  7. Should the vendor postpone payment of the price after having sold for immediate payment, he loses his right of retention. He must hand the thing sold to the purchaser forthwith in order to receive payment on due date.

Section 3: The Place of Delivery.

  1. In an unconditional contract the thing sold must be delivered at the place where it was when the sale was concluded.

    2. Example: A sells wheat at Tekfur Dagh to B in Istambul. A delivers the wheat in Tekfur Dagh. He cannot be forced to deliver the wheat in Istambul.
  2. If at the time of the sale the purchaser did not know where the thing sold was, but received information thereof after the conclusion of the contract, he has an option. He may either cancel the sale, or take delivery of the thing sold at the place where it was at the time the sale was concluded.
  3. Property sold with a condition for delivery at a given place must be delivered at that place.

Section 4: Expenses Connection with Delivery.

  1. Expenses connected with the price fall upon the purchaser.

    2. Example: Fees in connection with money-changing, such as counting and weighing the money, fall upon the purchaser.
     
  2. Expenses connected with the delivery of the thing sold fall upon the vendor.

    3. Example: Fees of measurers and weighers must be borne by the vendor.
     
  3. Any charges connected with things sold en bloc must be borne by the purchaser.

    4. Examples: (1). If grapes in an orchard are sold en bloc, the purchaser must gather them.
    (2). If a store full of corn is sold en bloc, the purchaser must take such corn away from the store.
     
  4. In the case of things sold which are loaded upon animals, such as wood and charcoal, the question of transport to the house of the purchaser is decided in accordance with local custom.
  5. The cost of drawing up contracts and written instruments falls upon the purchaser. The vendor, however, must declare the sale and attest the same in Court.

Section 5: Destruction of the Thing Sold.

  1. If the thing sold is destroyed while in the possession of the vendor prior to delivery, no liability attaches to the purchaser, and the loss must be borne by the vendor.
  2. If the thing sold is destroyed after having taken delivery, no liability attaches to the vendor, and the loss must be borne by the purchaser.
  3. If the purchaser dies bankrupt after having taken delivery of the thing sold, but without having paid the price, the vendor cannot demand the return of the thing sold, but becomes one of the creditors.
  4. If the purchaser dies bankrupt before the delivery of the thing sold and payment of the price, the vendor has a right of retaining the thing sold until payment has been made from the estate of the purchaser. Thus, the thing sold is disposed of by the Court and if the sum realised is sufficient, the amount due to the vendor is paid in full, any surplus being paid to the other creditors. If less that the sum due to the vendor is realised, the full amount thereof is paid to the vendor, and the balance still remaining due is deducted from the estate of the purchaser.
  5. If the vendor dies bankrupt after having received the price, but without having delivered the thing sold to the purchaser, such thing remains in the possession of the vendor on trust. Thus, the purchaser takes the thing sold, and the other creditors cannot intervene.

Section 6: Sale on Approval and Subject to Inspection.

  1. If property bought on approval as to price, that is to say, property the price of which has been fixed, is delivered to the purchaser and while in his possession is destroyed or lost, the price thereof must be paid to the vendor, if it is in the nature of a thing the like of which cannot be found in the market. If it is a thing the like of which can be found in the market, a similar article must be given to the vendor. If the price has not been fixed, however, it is considered to be in the possession of the purchaser on trust, and if it is destroyed or lost without any fault of the purchaser, there is no need to make good the loss.
    Example: A vendor offers an animal for one thousand piastres, asking the purchaser to buy it if he is pleased with it. If the purchaser takes it with a view to buying it and the animal is destroyed while in his possession, the purchaser must pay the price to the vendor. But if the price is not stated and the vendor asks the purchaser to buy the animal if he is pleased with it, and the purchaser, being satisfied with it, later to enter into negotiations with a view to purchase, and the animal is destroyed without any fault of the purchaser, while in the latter's possession, the purchaser is not obliged to make good the loss. 

  2. If delivery is taken of the property on approval subject to inspection, that is today, to be examined or shown, and such property is destroyed or lost while in the possession of the prospective purchaser without any fault on his part, such purchaser is considered to have held the property on trust and there is no need to make good the loss, whether the price has been stated or not.


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Last modified: 08/29/06