Commercial Sales Contracts: Legal Regulation and Obligations
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1. Laws Affecting Commercial Sales Contracts
Hire purchase of furniture ActConsumer Credit Act 1995Defense Act of 1984 (users and consumers)Regulation of the general conditions of recruitment, 1998Law 23/2003 (Guarantees in the Sale of Consumer Goods)Law of the Retail Trade (LOCMOS)Law 3/2004 (Measures to combat late payment in commercial transactions)
2. Qualification of the Contract
Commercial Nature (Arts. 325 and 326 C. of c.)
The elements that comprise the legal definition are buying things for resale, aiming for profit on resale. A commercial sale contract is one where the buyer intends to resell for profit, regardless of being a merchant. It excludes buying for own consumption. The buyer's intention to resell is key, especially if they are a merchant purchasing goods related to their trade. This intention is presumed when a merchant makes purchases within their business scope, but not for personal use or when a non-merchant buys to resell.
Cases Without Commercial Character
Purchases for the buyer's consumption.Sales of agricultural products or livestock directly from the source.Sales of artisan-made objects in their own workshops.Resale of remaining stock to non-merchants.
However, the exclusion of agricultural or artisan sales may lack foundation today. A flexible interpretation is needed, considering the purpose of the transaction in conjunction with Article 325.
3. Contract Perfection and LOCMOS Limitations
When contract perfection and delivery are not concurrent, or if the merchant can rescind, an invoice or similar document must be issued, stating buyer rights, guarantees, and price paid. The buyer can always request a document with object, price, and contract date.
4. Real Estate as a Commercial Contract Object
Real estate is generally excluded from commercial sales in the current code. However, courts may apply analogy to consider some real estate transactions as commercial.
5. Risk in Sales Contracts (Arts. 331, 333 C. of c.)
According to Art. 331, loss or damage before delivery due to unforeseen events or without seller fault allows the buyer to rescind and get a refund. Art. 333 states that damage after contract perfection and when the seller makes the goods available at the agreed time and place is the buyer's responsibility, except for seller misconduct or negligence.
Art. 332 allows the seller to enforce the contract if the buyer refuses receipt or delays care, demanding payment and making a judicial deposit of the goods. In generic sales, the doctrine of risk exposure may apply after specification.
Making available means the seller has provided the goods to the buyer.
6. Seller's Obligations
Ensure delivery at the specified place and time, documenting it.Deliver the item in the agreed quantity and quality.Bear the costs of preparing the goods (weighing, measuring) unless otherwise agreed.Be liable for eviction and sanitation (quality) unless otherwise agreed.
7. Sale by Sample vs. Sale on Trial (Arts. 327, 328)
In a sale by sample, the buyer cannot refuse goods that match the sample or agreed quality. In a sale on trial, the buyer can examine and terminate if the goods don't meet their approval.
8. Eviction and Sanitation
Eviction (Art. 1475 CC) occurs when the buyer is deprived of the purchased item due to a prior right, even if not stated in the contract. Parties can modify this obligation. In commercial traffic, eviction has little consequence, especially in commercial establishments (Art. 85 C of c), where prescription applies.
Sanitation means the seller is liable for the quality of goods sold, unless otherwise agreed.
9. Buyer's Obligations
The buyer must pay the price and receive the goods when offered by the seller. Unless agreed otherwise, payment is due when the seller provides the goods or makes a judicial deposit if the buyer refuses or delays receipt.