Explanation of Article 328
The article clarifies the ruling on the second scenario of the destruction of the sold item before delivery, which is that the destruction is caused by the seller or by a third party other than the seller and the buyer. The situation is either that the sold item is indivisible or divisible, according to the following details: 1- If the sold item is indivisible, such as a specific car, the buyer, according to the general rules for the seller's breach of his obligation to deliver, has the option to either request the annulment of the sale or its execution. If the buyer chooses annulment, the sale contract is nullified retroactively, and he recovers what he paid of the price, and he is entitled to compensation for any damage he may have suffered due to the annulment. The annulment reveals that the sold item remains in the seller's ownership; thus, the seller has the right to claim compensation for the destruction of the sold item from the party responsible if it was not him. However, if the buyer chooses to execute the contract, the sold item at the time of destruction is considered in his ownership, and he is entitled to claim compensation from the party responsible for the damage, whether it is the seller or another party, according to the rules of compensation. If the seller is the one responsible and the buyer chooses to execute the contract, the seller is obliged to compensate for the destruction, and in return, the buyer must pay the agreed price under the contract.
- If the sold item is divisible, such as several specific cars, and the destruction occurs to all the sold items, the ruling does not differ from the previous paragraph. However, if the destruction occurs to one of the cars, the buyer, in addition to the previous two options in the previous paragraph, can choose to annul the contract for the car that was destroyed only, excluding the others, and claim compensation for the damage suffered due to that, and recover the price corresponding to that car. It is worth noting that if the buyer requests the court to annul the sale of all the divisible sold items due to the destruction of part of them, the court may reject the request if the part that was destroyed is of little importance compared to the total sold items, in application of the general rule in judicial annulment outlined in Article (107).
Related To
Article 328
If a sold item is destroyed wholly or partially prior to delivery due to an action by the seller or a third party, the buyer may request termination of the sale, conclude the sale and have the right of recourse for compensation against the person who caused the destruction, or request that only the sale of the destroyed part be terminated.