Libro Quinto Título IV. De la compraventa

By the contract of sale the seller transfers ownership of a thing and undertakes to deliver it, and the buyer is obligated to pay the price in money.

The contract of purchase and sale is perfected between the parties from the moment they agree on the thing and the price, although neither the thing nor the price has been delivered. The repurchase pact is prohibited.

The husband may not purchase from his wife nor she from him, even if there is separation of property. Adjudications in payment between spouses by reason of liquidation of the conjugal partnership are not included in the prohibition.

They may not purchase for themselves or through an interposed person:

1°.Administrators of property, the property that they have under their administration or care;

2°.Judicial depositaries, administrators-in-charge, trustees and liquidators, the property of the deposit, intervention, bankruptcy or liquidation;

3°.Judges and other public officials or employees, lawyers, experts, procurators and agents under a mandate acting in judicial proceedings, the property that is the subject of the case files or proceedings in which they intervene;

4°.Sworn brokers and auctioneers, the property whose sale is made with their intervention; and notaries, the property whose auction records they authorize;

5°.The agent under a mandate, the property of the principal without the express consent of the latter; and

6°.The executor, the property of the estate while the accounts of their administration have not been approved.

No one may sell anything other than what is his own property. The sale of a thing belonging to another is void, and the seller must refund the price if he has received it and be liable for damage and losses if he has acted in bad faith.

Whoever purchases his own thing having believed it to be another's has the right to retain the thing and to have the price refunded to him.

The representatives of minors, incapacitated persons or absentees and the depositaries, administrators, administrators-in-charge or liquidators may not sell the property in their charge without previously fulfilling the formalities that the law indicates for each case.

There is no sale if the contracting parties do not agree on the price or on the manner of determining it; they may agree that a third party shall fix the price, and if the latter does not wish to or cannot do so, the contract shall be without effect; but if the thing has been delivered, it shall be presumed that the parties have accepted the current price it has on the day and at the place where the contract was entered into, or the average price in case of diversity of prices.

The price shall be considered fixed when the contracting parties accept that which the thing may have at a specified place and time.

If there are several prices, it shall be understood that they agreed on the average price.

The price is deemed fixed in the contract if the parties refer to that resulting from a full appraisal or with a certain agreed reduction, provided that they also submit to judicial decision in the event that either of them does not agree with the appraisal.

Things that are customarily bought to the buyer's taste, or that the parties agree to subject to trial before buying them, are not considered sold until the buyer is satisfied.

The time limit for the trial, unless otherwise stipulated, is three days, counted from the time the seller places them at the buyer's disposal; and if the latter does not accept within said time limit, he shall be deemed to have withdrawn from the contract.

Purchase on samples carries the implied condition of rescinding the contract if the things do not prove to be in conformity with the samples.

Where a thing is sold with its kind and quality stated, the buyer has the right to have the contract resolved if the thing does not prove to be of the kind and quality agreed.

Where the use to be given to the thing has been stated, the quality must correspond to that use.

In the sale of things that are in transit, the buyer may terminate the contract if they do not arrive in good condition and within the agreed time.

When it is stipulated that the thing must be delivered at a specified place, the purchase is deemed entered into under the condition that the thing arrives at its destination.

If at the time of entering into the contract the thing constituting the object thereof had been lost in its entirety, the agreement shall be without effect. If it had been lost only in part, the buyer may opt between withdrawing from the contract, or claiming the existing part, paying its price in proportion to the total agreed.

Future things may be sold before they exist in kind, and also an uncertain hope.

Likewise, litigious things or rights, or those with limitations, encumbrances or charges, may be sold, provided that the seller previously informs the buyer of such circumstances and it is so stated in the contract.

A hereditary right may be sold, without specifying the property of which it is composed; and in such case, the seller shall be liable only for his status as heir.

The seller shall pay to the buyer for the things of the inheritance of which he has availed himself; and in turn, the buyer shall satisfy to the seller the debts and charges that he has paid by reason of the inheritance.

If the same movable thing shall have been sold to different persons, the sale made to the one who in good faith is in possession of the thing shall prevail; and if none shall have possession, the sale first in date shall prevail.

If the thing sold is an immovable or a real right over immovables, the sale that was first registered in the Register shall prevail, and if none has been registered, the sale earlier in date shall be valid.

The seller is obligated to deliver the thing sold and to guarantee to the buyer the peaceful and useful possession thereof.

Delivery shall be made at the place indicated in the contract, and in the absence of agreement, at the place where the thing is located at the time of the sale.

Delivery of the thing sold may be real, symbolic or legal.

The first consists of the material delivery of the thing sold or of the title if it is a right.

Symbolic delivery is carried out by employing some form or figure by which the buyer deems himself to have received the thing sold.

Legal delivery takes place when the law considers the thing to have been received by the buyer even without having been materially delivered.

If the contracting parties do not set a time limit, delivery of the thing sold shall be made immediately, unless it involves things whose delivery must be prepared, in which case the seller must hold them at the buyer's disposal within the twenty-four hours following the conclusion of the contract.

If the seller does not deliver the thing, the buyer may request to be placed in possession of it, or the termination of the contract.

Delivery of the thing sold is deemed effected:

1°.By the transfer of the bill of lading, certificate of deposit or waybill;

2°.By the buyer affixing his mark, with the seller's consent, on the things purchased; and

3°.By any other means authorized by usage.

The risk of the thing falls upon the contracting party having material possession and use thereof, save agreement to the contrary.

In case of termination of the contract for failure to deliver the thing, the seller shall return the price paid and the interest accrued until repayment, plus damages and losses; but he shall return only the price if the buyer, at the time of entering into the contract, had known of the obstacle from which the failure to deliver the thing resulted.

The thing sold must be delivered in the condition in which it was at the time of the contract; and from that day the fruits belong to the buyer, unless otherwise stipulated by the parties.

If after the sale has been perfected, the seller consumes, alters or alienates and delivers to another the things sold, the buyer may demand other equivalent things in kind, quality and quantity or, failing that, their value as assessed by experts, with compensation for damage and losses in both cases.

A buyer who contracts as a whole for a determined quantity of things or effects is not obligated to receive a part under promise that the remainder will subsequently be delivered to him.

But if the buyer accepts partial deliveries, the sale shall be deemed consummated as to the portions received, even if the seller does not deliver the remaining ones to him. In this case the buyer may compel the seller to fully perform the contract or to indemnify the damage or losses caused to him by imperfect performance.

The things sold having been delivered, the buyer shall not be heard regarding defect of quality or lack of quantity, provided that at the time of delivery the buyer had examined and received them without prior protest.

When the things are delivered in bales or under cover that prevents their inspection and the buyer makes a formal and express reservation of the right to examine them, he may claim within the three days immediately following delivery, upon proving shortages in quantity or defects in quality.

If the sale is of immovable property and has been made fixing its area, or at a rate of a price per unit of measure, the buyer is obligated to pay for any excess that is found and the seller to return the price corresponding to any deficiency that is found, provided that the excess or deficiency does not exceed one-tenth of the whole sold.

The action to exercise this right prescribes in one year counted from the date of the contract or from the day fixed by the parties to verify the measurement.

When the buyer cannot immediately pay the difference in the price that results as chargeable to him, the seller shall be obligated to grant him a term for payment. If he denies it, the judge, in accordance with the circumstances of the case, shall set a term not exceeding three months counted from the approval of the measure.

If the excess or deficiency in the extent of the thing sold is greater than one-tenth, it shall remain at the buyer's option either to pay for any excess and to collect, as applicable, for any deficiency, or to rescind the contract.

If an immovable property has been sold with its boundaries expressly determined, the seller shall be obligated to deliver everything comprised within said boundaries, even if there is excess or deficiency in the measurements stated in the contract.

Unless usage or agreement to the contrary, the seller must pay the expenses of delivery of the thing sold; and the buyer those of the deed.

The principal obligation of the buyer is to pay the price on the day, at the place and in the manner stipulated in the contract.

In the absence of agreement, the price must be paid at the place and time at which delivery of the thing is made.

The buyer who has not paid the price and has received the thing is obligated to pay interest in the following cases:

1°.If so stipulated in the contract;

2°.If the thing produces fruits or rents; and

3°.If the buyer is judicially or notarially required for payment.

When part of the price has been paid, and no time limit was stipulated in the contract for payment of the other part, if the buyer does not pay the remainder within the time limit prudentially set by the judge, or does not provide the agreed guarantee, the seller may request rescission, returning the part of the price paid, less the taxes and contract expenses that have actually been paid.

If the buyer is disturbed in possession or there is justified reason to fear that he will be, the judge may authorize him to withhold the part of the price sufficient to cover the seller's liability, unless the latter causes the disturbance to cease or guarantees the warranty.

In installment sales, the retention referred to in the preceding article shall begin with the last maturity stipulated in the contract and those preceding it, until completing the amount whose retention has been judicially authorized.

The buyer is obligated to receive the thing at the place and time agreed upon, or in default thereof, at those established by law, and if he refuses without just cause to receive it or if through his fault delivery is delayed, the risks of the thing and the expenses of its preservation shall be borne by him and the seller shall also have the right to charge him for the damage and losses he may cause him. If the thing is movable, the seller may request its deposit at the buyer's expense.

The buyer is liable for the decrease in the price and the costs, in the rescission of the sale for failure to pay the price.

The buyer has the right to retain the price while delivery of the thing is delayed to him.

If a time limit has been fixed for payment of the price and the seller delays delivery of the thing, the time limit shall be counted from the date of delivery and not from the date stipulated in the contract.

Sale under a reservation-of-ownership agreement is valid, while the buyer has not paid the price in full or the condition to which the parties subject the consummation of the contract has not occurred.

By this form of sale the buyer obtains possession and use of the thing, except agreement to the contrary; but while he has not acquired full ownership, any alienation or encumbrance of his right without the seller's prior written authorization is prohibited to him.

When the price is paid in full or the condition is fulfilled, full ownership is transferred to the buyer without need of further declaration. In this case, the seller shall give written notice to the Registry of Property, within eight days after the price has been fully paid, so that the respective annotation may be made. Failure to comply with this provision shall be sanctioned by the judge with a fine of ten quetzales.

The sale with payment of the price in installments, with or without reservation of ownership of immovable property, or of movable property susceptible of being identified in an indubitable manner, must be recorded in the Property Register; its rescission or resolution shall produce effects against a third party who may have acquired the property in question.

If the contract refers to movable property that cannot be identified and for that same reason its sale cannot be recorded, third-party acquirers in good faith shall not be prejudiced.

The installment sale contract with or without reservation of title may be terminated for failure to pay four or more consecutive monthly installments if the contract is for immovable property.

In this case, the seller shall return to the buyer the price received, deducting equitable compensation for the use of the thing, which the judge shall fix after hearing the opinion of experts, if the parties do not reach agreement.

If the sale is of movable property, the seller has the right, in the event of termination of the contract, to retain the installments paid, as compensation for the use and depreciation of the thing. However, the seller is obligated to reimburse to the buyer any surplus obtained in the resale, after paying himself the balance of the price that gave rise to the termination of the contract plus the expenses incurred and proven to effect the resale.

If the resale price is paid in cash, payment shall be made immediately to the creditor, and if installment payments are agreed, payment shall be made in the same manner.

All expenses of use, conservation and repairs of the movable thing as well as the payment of taxes and licenses shall be borne by the buyer.

In the case of immovable property, improvements shall be governed, in case of rescission, by the provisions of Chapter IV, Title VII of the 2nd part of Book 5th insofar as they are applicable.

The thing shall be recovered by the seller upon paying the value of the improvements that are not separable, but he shall have the right to be indemnified for the damage that the buyer may have caused to the property.

If the thing produced fruits or rents, the buyer shall return them to the seller; but if interest had been included in the payments, compensation shall be made between the former and the latter, only the difference, if any, being returned.

The seller may reserve physical delivery of the thing until the price has been fully paid, or until a specified number of installment payments have been made.

In these cases, if the contract is terminated, the seller shall return the sums received and legal interest if no interest was stipulated.

A buyer who has paid one-half of the price or more may demand that the seller guarantee delivery of the thing or return of the installment payments if the seller refuses.

The stipulation that the buyer shall forfeit to the seller the payments he has made, even as a penalty or as compensation for the use of the thing, is void, except as provided in Article 1837.

The characterization as lease, deposit or any other denomination given to the sale shall have no effects other than those expressed in this Chapter.

The conditions imposed by lot-subdividing or construction companies or enterprises shall be approved by the governmental authority for their validity to be recognized.

The parties may stipulate in the contract that the sale shall be rescinded if the price is not paid on a certain specified day. However, the buyer of immovable property may pay the price after the appointed day as long as the buyer has not incurred default by virtue of demand.

The sale of things other than immovables shall be deemed rescinded without need for a demand, if upon expiration of the agreed term the buyer failed to appear to pay the price.

If, the pact of rescission having been stipulated, the buyer pays more than half of the total price, rescission shall not proceed and the seller shall only have the right to demand payment of the remainder, costs and losses.

It may also be stipulated in the contract that the sale shall be rescinded at the request of the seller if within a fixed term there is someone who offers more for the thing.

This term may not in any case exceed six months if it concerns immovables or three if it concerns other property, and it shall be counted from the date of the execution of the contract.

Once the agreement referred to in the preceding article has been stipulated, the buyer enjoys preference to keep the thing by paying the difference in price. For the exercise of this right, the offer of the higher price must be notified to the buyer.

Once the difference has been paid by the buyer, the agreement shall be deemed concluded even if the term for which it was stipulated has not expired.

Rescission does not proceed if collusion between the seller and the party offering the higher price is proved.

It shall be understood that collusion occurred if the buyer demands that the higher price be deposited in cash and it is not deposited within the three days following the demand.

The improvements that the buyer may have made to the thing and the increase in value that it may have through the passage of time must be paid to the buyer if the sale is rescinded by reason of the offer of a higher price.

The voluntary rescission of the sale without prior special agreement may only be made within one year from the execution of the contract if it involves immovable property or real rights therein and within six months, if it involves other property.