Explanation of Article 323
The article clarifies the ruling in the event that a sale is made on a specific item and its quantity is mentioned in the contract; if a deficiency or excess is discovered, the matter may imply that the intention of the contracting parties was directed towards the item in its current state and that mentioning the quantity was an unintended description, since the sale was made on a specific item by itself, not by its type and quantity. It may also imply that mentioning the quantity in the contract is evidence that it was intended by both parties; therefore, the article decided that in such cases, it is necessary to refer to the agreement of the contracting parties if there is an agreement on how to address this, whether the agreement is explicit or implicit. An implicit agreement includes the existence of a custom or prevailing practice between the contracting parties.
If there is no explicit or implicit agreement, paragraph (a) of the article clarifies that if an excess or deficiency in the sold item appears compared to what is mentioned in the contract and the buyer does not have the right to request annulment according to what will be stated in paragraph (b), or if he has the right to request annulment but chooses to execute the contract, the situation does not escape three cases:
The first case: If the sold item is such that division harms it and the price is for the entire item, not by the unit of measurement. The paragraph begins with this case and makes it the default because it is the most common; in this case, the seller cannot demand an increase in the price if an excess in the sold item is discovered, and the buyer cannot demand a reduction in the price if a deficiency in the sold item is discovered. The units of measurement refer to units of length, volume, weight, and the like used in measuring things, such as meters, liters, kilograms, etc. For example, if a ring is sold for a thousand riyals and the contract states that its weight is ten grams, but it turns out to weigh eleven grams, the excess belongs to the buyer, who is not required to pay an additional price for it. If it turns out to weigh nine grams, the deficiency is on him, and he cannot demand a reduction in the price. The reason for this is that the intention of the contracting parties in this case is directed towards the item as a whole, not its quantity, as evidenced by the fact that they set the price for the entire item, not per unit, and it does not accept division.
The second case: If the sold item is not harmed by division, in this case, the seller has the right to reclaim the excess in kind without compensation, while the deficiency is at his expense; because when the sold item is divisible, the contract can be executed according to the quantity mentioned without harm, whether the price is for the entire item or by the unit of measurement. An example of a sold item not harmed by division with the price for the entire item: selling a honey container with a weight of ten kilograms for a thousand riyals for the entire container. An example of a sold item not harmed by division with the price by the unit of measurement: selling a honey container with a weight of ten kilograms at a price of one hundred riyals per kilogram. In both scenarios, if the container's weight turns out to be eleven kilograms, the seller can reclaim the excess weight without compensation, and if the container's weight turns out to be nine kilograms, the buyer can demand a reduction of one hundred riyals from the price in both scenarios.
The third case: If the sold item is harmed by division and the price is by the unit of measurement, the ruling for this case is like the second case in that the excess belongs to the seller and the deficiency is on him; because setting the price by the unit indicates that the quantity of the sold item is intended by both parties. However, in this case, the seller does not reclaim the excess in kind due to the resulting harm; instead, he is entitled to the equivalent amount in price. For example, if he sells a sheep carcass with a weight of twenty kilograms at a price of one hundred riyals per kilogram, and the buyer pays two thousand riyals for it, then it turns out to weigh twenty-one kilograms, the seller can demand the buyer pay an additional one hundred riyals. If it turns out to weigh nineteen kilograms, the buyer can reclaim one hundred riyals from what he paid.
It becomes clear from the above that whenever the sold item is divisible or the price is by the unit of measurement, the actual quantity of the sold item is what matters, not what is mentioned in the contract. However, if the sold item is indivisible and the price is for the whole, the actual quantity's difference from what is mentioned in the contract has no effect when executing the contract.
Paragraph (b) clarifies that the buyer has the right to request annulment if an excess or deficiency in the sold item is discovered compared to what is mentioned in the contract in two cases:
The first case: If the excess in the sold item compared to what is estimated in the contract results in the buyer being obligated to pay a significant increase in the price compared to what is agreed upon in the contract, which is the scenario of excess in the third case mentioned above; in this case, he has the right to refuse to pay the increase and request annulment of the contract.
The second case: If the deficiency in the sold item disrupts the buyer's purpose, and the criterion is that if the buyer had known about the deficiency, he would not have completed the contract.
The system grants the right of annulment to the buyer, not the seller, because the seller is obligated by the sales contract to deliver the sold item as mentioned in the contract without excess or deficiency.
Paragraph (c) clarifies that the buyer's right to request annulment of the sale or request a reduction in the price, and the seller's right to request the completion of the price, is forfeited by prescription if one year passes from the time of delivery of the sold item, not from the time of contracting, because the deficiency and excess in the sold item cannot be known except upon delivery. The general rules of prescription that prevent hearing the lawsuit outlined in the first section apply here. As for the seller's right to reclaim the excess in kind, which is the scenario of excess in the second case, the rules of prescription for undue payment apply, because the buyer received what is not rightfully his as fulfillment.
Related To
Article 323
- If the amount of a sold item is specified at the time of conclusion of the contract and it appears that such amount has a shortfall or surplus with no agreement on how to address such shortfall or surplus, the following shall apply:
a) If the sold item is an item that is adversely affected by division and the named price is determined on a lump sum basis rather than by unit price, the surplus shall belong to the buyer and the shortfall shall not entail a reduction in the price. In other cases, the shortfall shall be borne by the seller, and he may recover the surplus in-kind if the sold item is not adversely affected by division, or he may recover the amount paid if the sold item is adversely affected by division.
b) If the buyer’s purchase entails a surplus that grossly exceeds his needs, or if the shortfall negates the purpose of his purchase that had he been aware thereof he would not have concluded the contract, he may demand termination of the sale.
- A claim for terminating the contract or for reducing the price or completing the payment shall not be heard upon the lapse of one year from the date of delivery of the sold item.