Explanation of Article 311
The article clarifies the cases in which the buyer's right to rescind a sale under the condition of trial is forfeited and the effect of the forfeiture of the right to rescind. These cases are:
- If the buyer explicitly or implicitly waives their right to rescind. An example of implicitly waiving this right is if the buyer sells the item during the trial period; this action indicates acceptance of the item and waives the right to rescind.
- If the buyer exceeds the limits of trial use of the item, the system considers this as evidence of the buyer's acceptance of the item and forfeiture of the right to rescind. For instance, if using the car sold within the city is sufficient to achieve the purpose of the trial, but the buyer exceeds this by traveling with it outside the city.
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The destruction or damage of the item by the buyer, even if this occurs before delivery, because the buyer is considered to have taken possession of the item and bears the risk of its destruction if it occurs by their action, according to Article (327), and because the item during the trial period is owned by the buyer; the transfer of ownership does not depend on their acceptance of the item.
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The destruction or damage of the item after the buyer has taken possession of it, even if the destruction is not by their action, such as by force majeure, because the item is owned by the buyer and the risk of destruction transfers to them upon delivery.
e. The expiration of the agreed trial period without the buyer informing the seller of the rescission of the sale. If the period is not specified by agreement, then by the expiration of the customary trial period, unless the buyer's silence on rescission until the end of the period is due to their inability to trial the item; in this case, their right to rescind does not expire with the end of the period, but they retain a period in which they can trial the item equivalent to the agreed period.
Once the buyer's right to rescind is forfeited in any of the aforementioned cases, the sale becomes binding on them, meaning the contract becomes final and they cannot withdraw from it.
The phrase "based on the time of its conclusion" emphasizes the effectiveness of the sale from the time of its conclusion, and does not mean that the sale was not effective and then became effective retroactively with the forfeiture of the right to rescind; the effect of the forfeiture of the right to rescind is that the contract becomes final, not that its effectiveness begins with the forfeiture of rescission, because the original condition of the trial is a resolutory condition; the effectiveness of the sale does not depend on the fulfillment of the condition.
Related To
Article 311
If the buyer explicitly or implicitly relinquishes his right to terminate the sale, uses the sold item during the trial period beyond its normal uses, or fails to terminate the sale during the agreed-upon trial period, or if such item is destroyed or damaged by the buyer after taking delivery thereof, the sale shall be enforceable at the agreed-upon price at the time of its conclusion.