Explanation of Article 363
The article clarifies that if the values of the two exchanged items in a barter differ and a sum of money is added to one of the items to compensate for the difference in value, the contract is considered a barter, not a sale, provided that the item to which the monetary amount is added is equal to or more valuable than the monetary amount added to it. If the value of the item is less than the value of the money, the contract becomes a sale because the consideration for the sold item predominantly consists of a cash price.
For example, if the contract involves exchanging a car worth one hundred thousand riyals for a car worth ninety thousand riyals along with a monetary amount of ten thousand riyals to compensate for the difference in value, this contract is considered a barter. Consequently, the contract expenses—if there is no agreement or custom—are shared equally between the contracting parties according to Article (364), and the provisions of barter apply to the contract.
However, if the contract involves exchanging a car worth one hundred thousand riyals for agricultural equipment worth forty thousand riyals along with a monetary amount of sixty thousand riyals, the contract is a sale, not a barter. Thus, the contract expenses—if there is no agreement or custom—are borne by the party who committed to the agricultural equipment and the monetary amount, and the provisions of sale apply to the contract, not barter.
Related To
Article 363
A contract shall remain a contract of exchange even if cash is paid to make up for the difference in the value of one of the transferred properties, unless the value of such property is less than the amount of cash paid; in such case; the contract of exchange shall be deemed a sale contract.