Commercial Sales Contracts and Spanish Mercantile Law

Meaning and Characteristics of Commercial Sales

The purchase and sale contract has been one of the primary instruments of commercial activity and represents the core of the historical formation of Commercial Law. Today, it continues to be the foundation of commercial traffic.

General Aspects and Legal Framework

The Spanish Civil Code (CC) offers both the concept and the main aspects of the regulation of the Sales Contract because the Commercial Code (CCom) does not explicitly provide them (Art. 1445 CC).

Definition of the Commercial Sales Contract

Art. 325 CCom: According to the Spanish Commercial Code: “The purchase and sale of movable things to resell them, either in the same way in which they were purchased or in a different way, with the aim of profiting from the resale, will be commercial.”

Art. 326 CCom: “Purchases of goods intended for consumption by the buyer or of the persons on whose behalf they are acquired will not be considered commercial.”

Art. 2 CCom: “They are acts of commerce, … or other analogous nature.”

Modalities of Contract Formation

Common rules apply to the general theory of obligations and contracts; specifically, consent is required for the contract to be valid. There are two modalities that affect the celebration of the contract:

• a) Sales by agents: When the sale has been carried out by agents, it requires the acceptance of the owner of the business. This involves an optional suspensive condition (Clause: Subject to acceptance of the principal).
• b) "Unless sold" clause: In cases of distance sales, the contract may provide an “unless sold clause”; this applies when there is a sale of the same object to another buyer as long as no news has been obtained from the first.

Real Elements: Merchandise and Price

• Things: These refer to movable things (merchandise). The provisions of the CC establish that there must be movable things, whether tangible or not (such as money, precious metals, or industrial property goods).
• Price: The provisions of the CC establish that the price “must be true and expressed in money or a sign that represents it.”
• International Convention for the Sale of Goods (Art. 55 CISG/CV): The contract will be validly concluded even if the price has not been determined; in such cases, it will refer to the price generally charged at the time of the conclusion of the contract.