Explanation of Article 327
This article, along with Articles (32) and (324), addresses the effect of the destruction of the sold item in a contract of sale. If the destruction occurs after delivery, it has no effect because the risk of destruction transfers to the buyer upon delivery, and the buyer may seek recourse against the party responsible for the destruction according to the rules of tort.
If the destruction occurs before delivery, there are three possible scenarios outlined by the three articles, which are:
- The destruction is caused by the buyer.
- The destruction is caused by the seller or a third party.
- The destruction is due to force majeure.
This article explains the first scenario, where the sold item is destroyed before delivery due to the buyer's actions. It states that if the destruction is caused by the buyer, the buyer is considered to have constructively received the item, even if actual delivery has not occurred, because the effect of delivery is the transfer of the risk of destruction to the buyer, which has been achieved through the buyer's actions. This scenario is an application of constructive delivery as stipulated by paragraph (b) of Article (326).
Accordingly, the seller is deemed to have fulfilled their obligation of delivery if the sold item is destroyed by the buyer's actions before actual delivery. This destruction does not affect the dissolution of the sale due to impossibility of performance, and the buyer cannot request dissolution on the grounds of the seller's failure to deliver, as delivery is deemed to have occurred constructively.
The article also clarifies that the destruction caused by the buyer does not affect the seller's right to withdraw from the contract if they have the right to do so under the option condition outlined in Article (106). If the seller has the option condition and the item is destroyed by the buyer during the option period, the seller may choose to either uphold the contract or dissolve it. If the seller chooses to uphold the contract, they are entitled to the agreed price, and if they choose to dissolve it, the contract is nullified retroactively, and it is established that the item remains in their ownership, entitling them to compensation for the destruction according to compensation rules. Undoubtedly, the seller will choose the better option for them, whether it is claiming the price or compensation.
Related To
Article 327
A buyer shall be deemed to have taken delivery of a sold item and shall be bound to pay its price if the sold item is destroyed or damaged due to his own action prior to delivery. If the seller has the right to withdraw from the contract and decides to exercise such right, he may have recourse against the buyer for compensation.