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Tuesday, 21 October 2008

Al-Majallah al-Ahkam al-‘Adaliyyah #4 - Chapter 1: The Contract of Sale - Section1: Fundamental Basis of Sale

Chapter 1: The Contract of Sale

Section 1: Fundamental Basis of Sale



167. Sale is concluded by offer and acceptance.
168. In sale, offer and acceptance is made by the use of words commonly employed in the particular locality in making a contract of sale (An explanation of a Turkish word is not translated here as being of no significance to the English reader.).
169. The past tense is usually employed in offer and acceptance. Examples include:
  1. A vendor informs a purchaser that he has sold him a certain thing for one hundred piastres and the purchaser states that he has purchased it; or the purchaser states that he has bought a certain thing and the vendor afterwards states that he has sold such thing. The sale is concluded. In the first case the offer consists of the words “I have sold,” and the acceptance of the words “ I have purchased.” In the second case the words “I have purchased” constitute the offer and the words “I have sold” the acceptance.
  2. The vendor, instead of stating that he has sold, states that he has given a person something or has transferred the property in it to him, and the purchaser instead of stating that he has purchased states that he has agreed thereto or has accepted. A valid contract of sale is concluded.
170. A contract of sale may be concluded by employing the futurist tense if it imports the present; but if the future is meant, no sale is concluded.
171. If the future tense is used is the sense of a mere promise, such as the statement “ I will buy” or “ I will sell” no sale is concluded.
172. No sale is concluded by the use of the imperative mode, such as the expression “sell” or “buy.” But when the present tense is necessarily meant a sale may also by concluded by the use of the imperative mode. Example: A purchaser says to a vendor: “Sell me this article for so much money.” No sale is concluded. But if the vendor says: “Take this article for so much money” and the purchaser replies saying: “I have taken it”; or if the purchaser says “I have taken it,” and the vendor says “take it,” or “you may enjoy the benefit of it,” a valid sale is concluded, the expressions “take” or “enjoy the benefit of it,” being equivalent to “I have sold” and “take it.”
173. Offer and acceptance may be made by writing as well as by word of mouth.
174. A dumb person may make a valid contract of sale by making use of generally recognized signs.
175. The fundamental object of offer and acceptance being the mutual agreement of the parties, a sale may also be concluded by any conduct of the parties which is evidence of offer and acceptance. This is called sale by conduct of the parties. Examples:
  1. A purchaser without bargaining and without making any statement gives money to a baker and the baker delivers bread to the purchaser. A contract of sale is concluded.
  2. A purchaser tenders money and takes a melon. The vendor remains silent. A contract of sale is concluded.
  3. A purchaser wishes to buy corn. With this object in view he tenders five pounds to a corn merchant asking the latter to tell him at what price he sells corn. The corn merchant replies that he sells corn at one pound per kilo. The purchaser thereupon remains silent, and later asks for the corn and the corn merchant states that on the following day he will deliver it to him. In this case a contract of sale has been concluded, although there has been no offer and acceptance by the parties. So much so that if on the following day corn has gone up half a pound in price per kilo, the vendor is bound to deliver at one pound. If, on the other hand, the price of corn has gone down, the purchaser cannot refuse for this reason to accept delivery at the original price.
  4. A purchaser asks a butcher to weigh him so much money’s worth of meat from such and such a part. The butcher cuts the meat up and weighs it. A contract of sale has been concluded, and the purchaser cannot refuse to accept the meat.
176. If as a result of fresh bargaining after the conclusion of the contract, the price is changed, increased or decreased, the second contract is valid. Example: A contract is concluded for the purchase of an article for one hundred piastres. Later on fresh bargaining takes place and as a result the original hundred piastres is substituted for a gold piece of one hundred piastres, of for one hundred and ten piastres, or for one hundred and ten piastres or for ninety piastres. The second contract is valid.
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