Explanation of Article 329
The article clarified the ruling on the third assumption of the destruction of the sold item before delivery, which is that the destruction is due to a force majeure, meaning it is not caused by the buyer, the seller, or a third party. The first paragraph clarified that in this case, the destruction is the responsibility of the seller, not the buyer, even though the buyer is the owner of the sold item. This is because ownership does not truly pass to the buyer until delivery; the seller's obligation to deliver completes his obligation to transfer ownership. If the sold item is not delivered, the purpose of transferring ownership is not achieved. Since the seller is obligated to deliver, if the sold item is destroyed before delivery, execution becomes impossible. When execution becomes impossible due to a reason beyond the control of the contracting parties, the contract is automatically dissolved, and the corresponding obligation is terminated.
What is included in the paragraph is an application of the general rule stated in paragraph (1) of Article (110) regarding the total impossibility of executing a bilateral contract due to a reason beyond the control of the contracting parties, resulting in the termination of the obligation and the corresponding obligation, and the contract is automatically dissolved. Therefore, the buyer is entitled to recover the price if it has been paid, but cannot claim compensation because the destruction is due to a reason beyond the seller's control. If the obligation and the corresponding obligation are terminated and the buyer is entitled to recover what he has paid, this implies that the seller bears the risk of destruction.
The second paragraph explained the case of partial destruction, which occurs if the sold item is divisible, such as specific cars, and one of them is destroyed before delivery due to a force majeure. The contract is automatically dissolved for that specific car only, and the seller's obligation to deliver it is terminated due to the impossibility of execution. Consequently, the buyer's obligation corresponding to that car's price is terminated, and he can recover it if it has been paid. The buyer may request the dissolution of the sale for the remaining sold items, i.e., all the cars, and recover the full price.
What is included in the paragraph is also an application of the general rule stated in paragraph (2) of Article (107) regarding the partial impossibility of executing the obligation. Based on what that rule stipulates, if part of the sold item is destroyed and the buyer requests the dissolution of the contract for the remaining sold items, the court may reject the request if the destroyed part is of little significance compared to the total sold items.
From the previous articles and the general rules regarding the seller's obligation to deliver the sold item, we can conclude the following results: 1- The seller's obligation to deliver is an obligation to achieve a result. If this becomes impossible due to a reason beyond his control, the contract is dissolved in whole or in part according to the circumstances without compensation. If it is due to his fault, the buyer may request dissolution or execution with the right to claim compensation for damages, as well as if the seller delays delivery and the sold item is destroyed due to a force majeure before delivery. 2- The risk of destruction of the sold item transfers from the seller to the buyer upon delivery, not upon the transfer of ownership, whether the sold item is specifically identified, like real estate, or identified by type and segregated, like new devices. Segregation alone without delivery indicates the transfer of ownership without the transfer of the risk of destruction. 3- If delivery is made actually or constructively, even by abandonment with notification as stated in Article (324), the risk of destruction transfers without the need for a warning. If the seller is unable to deliver due to the buyer's refusal to perform actions necessary for delivery, the seller can transfer the risk of destruction or damage by warning the buyer to take delivery as stipulated in Article (267) on refusal of performance. 4- The seller's breach of his obligation to deliver according to the provisions outlined in the previous articles, whether by refusal, delay, delivering the sold item in a condition different from that at the time of the contract, delivering it in a different place, or violating any delivery provisions, results in what the general rules on breach of obligation stipulate. The buyer may request the execution of the contract or its dissolution, and compensation in both cases for any damage suffered. The court may reject the request for dissolution if the breach is of little significance compared to the total obligation, and it may grant the seller an extension in exceptional cases to fulfill his obligation as stipulated in Article (275).
Related To
Article 329
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If a sold item is destroyed prior to delivery due to a cause not attributable to the parties of the sale or to a third party, the sale shall be terminated and the buyer shall be reimbursed.
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If destruction is limited to part of the sold item, the sale of only the destroyed part shall be terminated and the buyer shall be reimbursed for such part. The buyer may request termination of the sale for the remainder of the sold item and recover the price in full.