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Al-Majallah al-Ahkam al-‘Adaliyyah
Chapter 7: Various Categories of Things Sold and the Effect Thereof.
Section 1: Types of Sale
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It is a condition precedent to the conclusion of the sale that the parties
thereto should be sound be sound mind and perfect understanding and that
the sale should be made with reference to some thing which may properly
be subject of sale.
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A sale which is defective in any essential condition, such as sale by lunatic,
is void.
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In order that any object may properly be the subject of sale, such object
must be in existence, must be capable of delivery, and must be of some
specific value. Consequently, the sale of thing which is not in existence,
or is incapable of delivery, or is not of any specific value, is void.
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If a sale is concluded validly, but is not legal as regards certain subsidiary
matters, such as the thing sold being unknown, or defective as regards
the price, the sale is voidable.
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For a sale to be executory, the vendor must be the owner of the thing sold,
or the agent of the owner, or his tutor or guardian, and no other person
must be entitled thereto.
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Avoidable sale becomes executory on taking delivery. That is to say, the
purchaser may deal with the thing sold.
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If one of the options attaches to the sale, such sale is not irrevocable.
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A sale dependent upon the right of some third person may validly be concluded
if the permission of such person is obtained, as in the case of a sale
by an unauthorised person, to the sale of property given as a pledge.
Section 2: Effect of Various Kinds of Sale
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The effect of the conclusion of a sale is ownership, that is to say, the
purchaser becomes the owner of the thing sold and the vendor becomes the
owner of the price.
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A sale which is void is of no effect whatsoever. Consequently, if in the
case of a sale which is void, the purchaser has taken delivery of the thing
sold with the permission of the vendor, and such thing is destroyed without
the fault of the purchaser while in his possession, there is no necessity
for the purchaser to make good the loss, the thing sold being in the nature
of a thing deposited on trust.
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A voidable sale, on delivery, is effective, that is to say, if the purchaser
takes possession of the thing sold with the permission of the vendor, he
becomes the owner thereof. Consequently, if a thing bought as the result
of a voidable sale is destroyed while in the possession of the purchaser,
the purchaser must make good the loss. If the thing sold is one the like
of which can be found in the market, a like thing must be given by the
purchaser to the vendor, or if it is a thing the like of which cannot be
found in the market, the value thereof on the day of delivery must be paid.
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In the case of a voidable sale, each of the contracting parties has the
right of cancelling the sale. But if the thing sold is destroyed while
in the possession of the purchaser, or if the purchaser disposes of it
in any way, such as consuming it, or selling it validly to some other person,
or bestowing it upon upon someone by way of gift, or if the thing sold
being a house, the purchaser adds to it in any way, such as repairing it,
or, if it is a piece of land, planting trees on it, or, if it is corn,
changes it by grinding it into flour, so that its name is changed there
is no right of cancellation.
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In the case of cancellation of a voidable sale, if the price has been received,
the purchaser has the right of retaining the thing sold until the vendor
has returned the price.
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An executory sale becomes effective forthwith .
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An executory sale is irrevocable, and neither of the two parties to the
sale may go back thereon.
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In the case of a revocable sale, a person possessing an option can cancel
such sale.
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A conditional sale becomes effective when the necessary permission is given.
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In the event of a sale by an unauthorised person, such sale is executory
if the owner of the property, or his agent, or his tutor, or his guardian
give their permission. Otherwise it is of no effect. For the permission
to be effective, however, it is necessary for the vendor, the purchaser,
the person giving permission and the thing sold to be in existence. If
any of these is absent permission is invalid.
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In the case of sale by barter, the conditions applicable to a thing sold
also apply, since the value of the two things exchanged is considered to
constitute a thing sold. If a dispute arises as to delivery, however, the
two parties to the sale must respectively give and take delivery simultaneously.
Section 3: Sale by Immediate Payment Against Future
Delivery.
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A contract of sale by immediate payment against future delivery is concluded
by offer and acceptance, as in the case of sale.
Example: A purchaser tells a vendor that he has paid a thousand piastres
immediately against future delivery of one hundred kiles of c corn. The
vendor agrees. A contract of sale by immediate payment against future delivery
has been concluded.
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A sale by immediate payment against future delivery can only be concluded
validly with reference to things the quantity and quality of which can
be determined; for example, the highest and lowest.
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The amount of things estimated by measure of capacity or by weight or by
length is fixed by the kile, the weight, or the yard.
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The amount of things estimated by enumeration and which closely resemble
each other may be measured by counting, and also by the kile and by weight.
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In the case of things estimated by enumeration, such as burnt bricks and
sun-dried bricks, the mould thereof must be made known.
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The length, breadth and thickness of things measured by length, such as
linen and woollens, the material they are made from, and the place in which
they were made, must be stated.
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It is essential to the validity of a sale by immediate payment against
future delivery that the type of thing sold should be stated; for instance,
corn, rice or dates: and the particular variety; for example, whether produced
by rain or by irrigation: and the quality ; for example, the highest or
the lowest: the amount of the price of the thing sold, and the time and
place of delivery thereof must be stated.
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It is essential to the validity of the sale by immediate payment against
future delivery that the price should be paid at the meeting where the
contract is concluded. If the two contracting parties separate before the
price is handed over, the contract is cancelled.
Section 4: Contract of Manufacture and Sale
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If a person requests a
(1). A purchaser displays his foot to boot-maker and asks him to make
a pair of boots from such and such leather for so many piastres and the
latter agrees to so so; or a bargain is struck with a ship's carpenter
for the building of a rowing boat or ship, after describing the length
and breadth and essential qualities thereof. A contract for manufacture
and sale has been concluded.
(2). A bargain is concluded with a manufacturer for the production
of a certain number of needle guns at so much per gun, after describing
the length and the size thereof, and other requirements. A contract for
manufacture and sale has been concluded.
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A contract for manufacture and sale is generally valid if it is customer
to conclude such a contract. If a period is prescribed, however, in respect
to things to which no such custom applies, the conditions applicable in
the case of immediate payment against future delivery are in force. If
no period is prescribed, however, the contract is in the nature of a contract
for manufacture and sale.
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In the case of contract for manufacture and sale, an identification and
description of the article must be given as required.
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It is not essential to a contract for manufacture and sale, that the money
should be paid immediately.
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After the conclusion of a contract for manufacture and sale, neither party
can go back on the bargain they have struck. If, however, the object manufactured
is not in accordance with the specification, the person who has given the
order may exercise an option.
Section 5: Sale by a Person Suffering from a Mortal
Sickness.
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If a person suffering from a mortal sickness sells a thing to one of his
heirs, such sale is dependent upon the permission of the other heirs. If
such heirs give their permission after death of the person suffering from
the mortal sickness, such sale becomes executory. If they do not so give
their permission, it is not executory.
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If a person suffering from mortal sickness sells a things to a person who
is not one his heirs at the time of his death for a price equal to the
value of such thing, such sale is valid. If he gives favourable terms,
that is to say, such thing for less than its value and gives delivery thereof,
anyone third of his property allows thereof, and thereafter dies, the sale
is valid. If a third of his property is insufficient to allow of such favourable
terms, the purchaser must make good such deficiency. If he does not do
so, the heir can cancel the sale.
Examples: (1). A person suffering from a mortal sickness, and who owns
nothing but a house worth one thousand five hundred piastres, sell and
delivers such house to a person who is not one of his heirs for one thousand
piastres. Such sale is valid, since the five hundred piastres which he
has made a subject of his generosity do not exceed a third of his property,
and the heir cannot cancel the sale.
(2). If a person suffering from a mortal sickness sells a nd delivers
the house fro five hundred piastres, the purchaser is obliged to increase
the price to two thirds, upon being requested to do so by the heirs, since
the thousand piastres which he has made the subject of hiss generosity
is twice as much as one third of his property. If he does so, the heir
cannot cancel the sale. If he fails to do so, the heirs can cancel the
sale and demand the return of the house.
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If a person whose estate is overwhelmed by debts and who is suffering from
a mortal sickness sells his property for a price less than the true value
and then dies, the creditors can oblige the purchaser to make good the
balance of the price. If he does not do so, the creditors can cancel the
sale.
Section 6: Sale Subject to a Right of Redemption
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In sale subject to a right of redemption the vendor may return the price
and claim back the thing sold. The purchaser likewise can return the thing
sold and claim back the price.
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A thing sold subject to a right of redemption may not be sold to any other
person by either the vendor or the purchaser.
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A condition may validly be made that a portion of the profits of the thing
sold shall be for the purchaser.
Example: If it is mutually agreed to make a contract that the grapes
of a vineyard sold subject to a right of redemption shall be equally divided
between vendor and purchaser, the contract must be carried out.
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If property sold subject to a right of redemption is equal to the amount
of the debt and perishes while in the possession of the purchaser, the
debt which it secures is cancelled.
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If the value of the property sold subject to a right of redemption is less
than the debt and perishes while in the possession of the purchaser, a
sum equivalent to the amount of the debt is deducted, and the purchaser
can claim the return of the balance from the vendor.
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If the value of the property sold subject to a right of redemption is greater
than the amount of the debt and perishes while in the possession of the
purchaser, a sum equivalent to the amount of the debt is deducted. If the
purchaser has been guilty of some wrongful act, he must make good the balance.
If he has not been guilty of any wrongful act, and the property has been
destroyed, the purchaser is not obliged to make good the balance.
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If one of the two parties to a sale subject to a right of redemption dies,
the right of cancellation is transmitted to his heirs by way of inheritance.
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No other creditors of the vendor have the right of interfering with property
sold subject to a right of redemption, until the purchaser thereof has
recovered payment of what is due to him.
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