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Sunday, 2 November 2008

Al-Majallah al-Ahkam al-‘Adaliyyah #7 - Chapter 1: The Contract of Sale - Section 4: Sale Subject to a Condition

Section 4: Sale Subject to a Condition

186. If a contract of a sale is concluded with an essential condition attached, both sale and condition are valid. Example: A vendor sells subject to a right of retaining the thing sold until he has received payment of the price. This condition is no way prejudices the sale, but on the contrary is an essential condition of the contract.
187. In the case of a sale concluded subject to a condition of the object of which is to assure the due performance of the contract, both sale and condition are valid. Example: A certain thing is sold subject to the condition that some other thing shall be pledged or that a certain individual shall become a surety. Both sale and condition are valid. Moreover, should the purchaser fail to observe the condition, the vendor may cancel the sale. The reason for this is that these conditions assure the handing over of the price, which is an essential condition of the contract.
188. In the case of a sale concluded subject to a condition sanctioned by custom established and recognized is a particular locality; both sale and condition are valid. Example: The sale of a fur subject to a condition that it shall be nailed to its place; or of a suit of clothes subject to the condition that they shall be repaired. In these cases the condition must be observed in carrying out the sale.
189. In the case of sale subject to a condition that is not to the benefit of either party, the sale is valid, but the condition is voidable. Example: The sale of an animal subject to a condition that it shall not be sold to a third party, or that it shall be put out to graze. In such a case the sale is valid, but the condition is of no effect.

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