Explanation of Article 326
The article clarified the second type of constructive delivery of the sold item, in which delivery is made by agreement or by the text of the system, not merely by the sale as in the first type of constructive delivery explained in Article (320), and without the elements of actual delivery explained in Article (324) being present.
The article mentioned three cases for this type:
The first case: The two parties to the sale agree that the buyer is considered to have received the sold item in a certain situation, even if the elements of actual delivery are not present, and the sold item was not in the buyer's possession before the sale. This indicates that what constitutes delivery is not a matter of public order, so the parties to the sale may ease or tighten it.
The second case: The buyer is considered to have received the sold item by virtue of a statutory provision, even if the sold item is not in his possession, the elements of actual delivery are not present, and there is no agreement between the seller and the buyer to consider this situation as delivery. Applications of this case will be mentioned in Article (327).
The third case: The seller retains possession of the sold item after the sale with the buyer's consent under a new contract; thus, the seller's possession of the sold item is not as an owner, since the sold item has left his ownership by the sale, but rather as a buyer, a donee, a lessee, a borrower, a pledgee, a depositary, or the like. Instead of the seller delivering the sold item to the buyer and then receiving it back from him, the sold item remains in the seller's possession by agreement of the parties, considering this as delivery from the seller to the buyer and delivery from the buyer to the seller under the new contract.
Related To
Article 326
The following cases shall be deemed delivery of a sold item:
a) If the parties to the sale agree to the case in which the buyer is deemed to have taken delivery of the sold item.
b) If a legal provision provides for the case in which the buyer is deemed to have taken delivery of the sold item.
c) If the seller retains, with the buyer’s consent, the sold item in his possession after the sale for a reason other than ownership.