Explanation of Article 308
The first paragraph addresses the necessity for the buyer to be aware of the sold item at the time of the contract, which is an additional requirement to the condition of specifying the subject matter. If the sale occurs without specifying the sold item, neither by its identity nor by its type and quantity, the contract is void. If it is specified by identity, the buyer must be aware of it either by seeing it or by a description that eliminates ignorance, by stating its distinguishing features. Seeing is mentioned because it is the usual means of knowledge, but if other means of perception suffice, they are adequate for establishing knowledge; for example, the touch of a blind person, where touch provides knowledge, suffices instead of sight. If the item's smell or taste is intended, then smell or taste is also sufficient, and so on. Direct sight is not necessary; if the sold item can be seen through modern technology, knowledge is established.
The text states that knowledge is achieved through a description that eliminates ignorance without seeing the sold item, resolving a jurisprudential debate about the validity of selling a specifically identified item if the buyer has not seen it, and whether the buyer has the option of sight or not. The legislator has adopted the validity of the sale, and the buyer cannot request the annulment of the sale when the sold item is described in a manner that eliminates ignorance, even if they have not seen it.
The second paragraph clarifies that the buyer has no right to request the annulment of the sale due to lack of knowledge of the sold item once they have seen it or it has been described to them in a distinguishing manner. It suffices to state in the contract that they are aware of the sold item, and knowledge is considered established by their acknowledgment; they have no right to request annulment due to lack of knowledge unless they prove that the seller deceived them, such as if their acknowledgment of knowledge was based on the seller's description or pictures of the sold item without seeing it, and they prove that the seller misled them in the description or depiction.
It is inferred from the paragraph that if the sold item is specified by identity, the buyer cannot request the annulment of the sale on the grounds of lack of knowledge except in two cases:
The first case: If the sold item is not known to them, neither by sight nor by a description that eliminates ignorance, and it is not stated in the contract that they are aware of it; they can request annulment if the conditions for annulment due to a mistake in a fundamental description of the sold item, without which they would not have agreed to the sale, are met. The provisions established there apply, including what is stated in Article (5): (A contracting party's mistake is not considered unless the other contracting party has made the same mistake, was aware of it, or it was easy for them to recognize it).
The second case: If the buyer proves that the seller deceived them, they can request annulment even if they acknowledged knowledge of the sold item. The provisions for annulment due to deception in a fundamental description of the sold item, without which they would not have agreed to the sale, apply to this case.
Related To
Article 308
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The sold item must be known to the buyer whether by viewing the item or by being provided with a description of its identifying features.
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If the buyer’s knowledge of the sold item is indicated in the contract of sale, he shall not have the right to demand nullification of the contract due to lack of knowledge, unless he establishes that he was deceived by the seller.