Explanation of Article 347
The subject of the article is the ruling on the buyer taking possession of the sold item before paying the price. The first paragraph clarifies that the buyer's taking possession of the sold item before paying the price is valid under two conditions:
The first condition: The seller must be aware that the buyer has not paid the price and that he has taken possession of the sold item despite not having paid the price. The burden of proving the seller's knowledge of both matters falls on the buyer when the seller demands the return of the sold item due to non-payment, as the default is that the buyer is obligated to pay the price before taking possession of the sold item.
The second condition: The seller must not have prevented the buyer from taking possession of the sold item before paying the price.
If both conditions are met, this is considered an implicit permission from the seller for the buyer to take possession of the sold item, and the buyer's taking possession of the sold item before paying the price is valid and effective, and the seller cannot reclaim it.
The second paragraph clarifies that the seller has the right to reclaim the sold item if the buyer takes possession of it before paying the price without explicit or implicit permission from the seller, whether the buyer took it secretly without the seller's knowledge, forcibly despite his opposition, or if the buyer deceived the seller into believing he had paid the price to take possession of the sold item. This deception taints the seller's consent and makes the possession occur without his permission. If the buyer takes possession of the sold item without the seller's permission, he bears the risk of its destruction or damage, even if it is due to a cause beyond his control. There is no contradiction between the seller's right to reclaim and the buyer bearing the risk of destruction or damage, as the buyer is considered to have wrongfully taken possession. If the sold item is destroyed or damaged in his hands, he is deemed to have taken possession of it by judgment. In this case, the seller has two options:
The first option: To leave it in the buyer's hands, consider him as having taken possession of the sold item, and demand payment of the price regardless of any destruction or damage that may have occurred to the sold item.
The second option: To reclaim it from the buyer in its current state. This scenario only applies in cases of partial destruction or damage. In the case of total destruction, reclamation is not possible due to the impossibility of the subject matter. In the case of reclamation, the seller is entitled to compensation for the damage caused by the buyer's taking possession of the sold item without permission, including any expenses incurred by the seller for reclamation. This compensation does not include the destruction or damage to the sold item, as the item is owned by the buyer, who bears the risk of its destruction or damage and remains obligated to pay its full price unless the seller's reclamation of the sold item is for the purpose of rescinding the sale, and the rescission is completed under its conditions. In such a case, the seller can demand compensation from the buyer for the destruction or damage to the sold item, even if it is due to a cause beyond the buyer's control, as the buyer is deemed to have taken possession of the sold item by judgment, and the risk of destruction or damage falls on him.
Related To
Article 347
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If the buyer takes delivery of the sold item prior to paying its due price and the seller is aware of such delivery and does not attempt to prevent it, this shall be deemed a consent of such delivery.
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If the buyer takes delivery of the sold item prior to paying its due price without the seller’s consent, the seller may redeem such item. If the item is destroyed or damaged while in the possession of the buyer, the buyer shall be deemed to have taken delivery thereof and the seller may, if he decides to exercise his right of redemption, demand compensation from the buyer.