Explanation of Article 365
The article clarifies that the default is the application of the provisions of the contract of sale to the contract of barter, due to the agreement between the two contracts in that each is a contract of exchange that requires ownership. The difference between them lies in that both considerations in the contract of barter are like the sold item in the contract of sale, while one of the considerations in the contract of sale is a monetary price.
Accordingly, the provisions related to the sold item apply to both considerations in the barter; in terms of the provisions of knowledge of it and sale by sample, and the same effects related to the sold item arise; each of the parties to the barter is obligated in what they bartered with in the same way the seller is obligated in the sold item in the contract of sale, including the provisions of the transfer of ownership of what was bartered, its delivery, and the guarantee against disturbance, entitlement, and defects, similar to those the seller is obligated to in the contract of sale.
Each of the parties to the barter is obligated in what they bartered for in the same way the buyer is obligated in the contract of sale; except for what relates to their obligations regarding the price; the party to the barter is obligated to receive what they bartered for, transfer it, bear the costs of receiving it, and so on.
The provisions of barter apply to disputed rights, the barter of an agent, intermediary, or expert with themselves, the barter of property belonging to others, and the barter of a person suffering from a terminal illness, as outlined in the contract of sale and other provisions.
The end of the article indicates the necessity of considering the nature of the barter contract, which requires not applying some provisions of the contract of sale to it. As a general rule, it can be said: The provisions of the contract of sale related to the price or the buyer's obligations related to the price do not apply to the contract of barter; due to the conflict of these provisions with the nature of the barter contract. However, if there is a monetary adjustment with one of the considerations, the provisions of the price apply to that adjustment alone to the extent that does not conflict with the nature of the barter contract. Accordingly, the provisions of the contract of sale do not apply to the contract of barter concerning the provisions of the price and the buyer's obligation related to its performance, including bearing the costs of the contract; in the contract of sale, the costs of the contract are borne by the buyer because they bear the price; while in the contract of barter, the costs of the contract are shared equally between the parties to the barter due to the absence of a price. Also, preemption is established in the contract of sale but not in barter as outlined in Article (658) and similar provisions that the nature of the barter contract requires to be distinct from the contract of sale.
Related To
Article 365
A contract of exchange shall be subject to the provisions governing the contract of sale in a manner not inconsistent with the nature of the exchange contract.