Purchase contract

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The purchase agreement ( English sale of goods , French contrat d'achat ) is in the law , a contract by which a buyer from a seller a thing or a right to acquire, for which the buyer as consideration a purchase price has to be paid.

General

The purchase contract is the most economically important type of contract in everyday life. It is aimed at the sale of an asset and is subject to contract law , which deals with the contractual parties (buyer, seller), the contractual object ( goods , services , rights ), the delivery and payment conditions and the warranty obligations in the event of material or legal defects .

A sales contract is basically free of form . It can be concluded in writing, orally or through implied action .

history

Until the introduction of money , there was only an exchange contract on the basis of barter , in which the contracting parties exchanged things with approximately the same exchange value .

In early Roman law , the exchange contract began to be replaced by the purchase contract ( Latin emptio venditio ; literally: "purchase / sale"). Even then, it was controversial whether the exchange contract ( Latin permutatio ) was merely a subset of the purchase contract. Representatives of the early classical school of law of the Sabinians affirmed this legal question , while their competitors from the Proculian school answered it in the negative. Traced back to Homer , the Sabinians assumed that the purchase contract was agreed through the exchange of things. The high-class lawyer of the 2nd century, Gaius , demanded in his institutions that the purchase price had to be “in sound money”. The previous exchange value was replaced by the objective monetary value . In the 3rd century under Iulius Paulus , the purchase contract was generally considered to be a non-formal (possibly written ) consensual contract , related to both movable property and land . Paul noted here that buying and selling had their origin in exchange, but because of a suitable exchange value, exchange led to the introduction of the exchange good money, based on Aristotle in his Nicomachean Ethics .

It follows that the contract of sale the seller was in Roman law as an agreement to the effect that ( Latin venditor the buyer () Latin emptor ) a commodity ( Latin merx against a particular monetary purchase price () Latin pretium certum promised to transfer) such that these should have and be able to keep it unchallenged ( Latin ut habere liceat ). The principle of “no sales contract without a purchase price” ( Latin nulla emptio sine pretio ) also applied. Therefore, a donation or a sham purchase was ineffective . The basic rule of the ancient Roman sales law is the assignment of the risk of the quality of the object of sale to the buyer ( Latin caveat emptor ; "the buyer must be careful"). The material reason for the “caveat emptor” principle is based on the assessment that the seller is not interested in the intended use that the buyer is pursuing with the purchased item. Rather, it is up to the buyer to examine the suitability of the purchased item for the intended use.

According to the German legal dictionary , the first evidence of the use of the German compound term “purchase contract” in the sense of a contract of obligations, in which goods are to be handed over for money, can be traced back to the year 1574. The Bohemian state order , dating from May 1627, defined as follows: "By purchase agreement and contract all lordship / property and other justice are left". The General Prussian Land Law (APL) of June 1794 decided in the provisions on "buying and selling transactions" (I 11, §§ 1 ff. APL) also for the designation purchase contract, such as in §§ 232, 249, 271 APL, but also contained the “purchase contract” in Section 219 APL. The provisions of the Baden Landrecht of January 1810 on things for sale (sentences 1598 ff.) Mentioned neither the sales contract nor the sales contract, but sentence 484 contained the expression sales contracts. A trade encyclopedia from 1857 clearly differentiated exchange and purchase: “A sales contract is the agreement between two persons or parties by which one (the seller) makes himself binding, the other (the buyer) something that she likes physically or be incorporeal, already existent or not, for the payment of a price fixed in money. The last point distinguishes the purchase from the exchange, in which the consideration also consists of one thing ”.

Germany

International regulations

In Austria , the legal definition of § 1053 ABGB of January 1812 follows the conception of the developed Roman law, according to which the purchase contract leaves something for a certain amount of money to another. The Swiss Code of Obligations (OR) of January 1883 usually obliges buyers and sellers to perform their services simultaneously - step by step ( Art. 184 OR). In the Netherlands there is no sales contract ( Dutch koopovereenkomst ) as long as the purchase price is not fixed (Art. 1494 NBW ). In France , property is acquired by the buyer when the parties have agreed on the object of purchase and the price ( French prix ) (Art. 1583 CC ). The sales price ( French prix de la vente ) must be set and determined by the parties (Art. 1591 CC). The Roman sales contract law can also be found again in Spain ( Spanish contrato de compraventa ; Art. 1445 Código Civil ) or Portugal ( Portuguese contrato de compra e venda ; Art. 1544 Código Civil ). The common law , according to the sales contract is up ( English contract of sale ) the seller as an essential legal obligation , the transfer of ownership of the sold object, for which he receives in return the purchase price from the buyer. The Sale of Goods Act (SGA) of 1979 speaks of the immediate transfer of ownership for a fee ( English sale of goods ; Sec. 2 (1), 2 (4) SGA); followed by the transfer of ownership later or is it due, one lies sale agreement ( English agreement to sell ) basis (Sec. 5 SGA). For international sales of goods, see UN sales law . International is the sales contract if the parties their branch ( english place of business ) in different States (1 1 Art. Para.'Ve CISG ).

literature

  • Peter Huber: Comparative Sales Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 937-968 .
  • Günter Hager : The risk of a purchase. A comparative law study . Metzner, Frankfurt am Main 1982, ISBN 3-7875-0194-0 .
  • Ernst Rabel : The right to buy goods. A comparative legal representation . de Gruyter, Berlin 1936.

Individual evidence

  1. ^ Gerti Donhauser, Contract Law / Law of Obligations / Property Law , 2004, p. 60
  2. ↑ Eva Jakab / Wolfgang Ernst (eds.), Buying according to Roman law , 2008, p. 52 ff.
  3. ^ Gaius, Institutions , 3, 141.
  4. ^ Iulius Paulus, Digest , 18, 1.
  5. ↑ Iulius Paulus, Digest , 18, 1, 1.
  6. ^ Aristotle, Ethica Nicomachea , V, 5
  7. ^ Carl Otto Müller: Textbook of Institutions , 1858, p. 347 .
  8. ↑ Iulius Paulus, Digesten , 18, 1, 2.
  9. ↑ Iulius Paulus, Digesten , 18, 1, 36.
  10. ^ Iulius Paulus, Digest , 18, 1, 55.
  11. ^ Arnold Vinnius, institutional commentary on law of obligations , 2005, p. 349 .
  12. ↑ Ulrich Korth, Reduction in Purchase , 2010, p. 22 .
  13. ↑ Royal Prussian Academy of Sciences (Ed.), German Legal Dictionary , Volume VII, 1974–1983, Col. 668 f.
  14. ↑ Bohemian Land Order, 1627, p. 294 f.
  15. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 226 f. .
  16. ^ Association of practical merchants (ed.), Newest Illustrated Trade and Wares Lexicon , Volume 1, 1857, p. 706.