What is a purchase and sale agreement?
A purchase and sale agreement is, according to Art. 1445 of the Civil Code, a bilateral and consensual agreement through which the seller is obliged to deliver a specific thing, in this case a dwelling, and the buyer is obliged to pay an agreed price for it, either in money or a sign representing it.
When is a purchase and sale agreement made?
The purchase and sale agreement is perfected by consent and does not require the delivery of the dwelling as a structural element, generating only the obligation to deliver it, as established in article 1461 of the Civil Code: "The seller is obliged to the delivery and warranty of the thing that is the object of the sale."
Characteristics of a purchase and sale agreement
The purchase and sale agreement must respond to the following characteristics:
- Bilateral: it is a bilateral contract because it engenders rights and obligations for both parties: the seller and the buyer.
- Onerous: because it confers benefits and burdens that are also reciprocal.
- Commutative: generally, the purchase and sale agreement is commutative, insofar as the benefits are certain and determined when making the contract.
- Consensual: the purchase and sale is a consensual contract for movable property and formal for immovable property. In the case of movable property, no formality is required for the validity of the act, that is, different forms of manifestation of will within tacit and express consent are accepted. And regarding immovable property, the contract must always be in writing, but the document can be either public or private, depending on the amount.
- Principal: the purchase and sale agreement exists by itself, as it does not depend on another contract.
What type of obligations are there in a purchase and sale agreement?
According to Article 1500 of the Civil Code, the buyer is obliged to pay the price of the sold dwelling at the time and place fixed by the contract. If they have not been fixed, the payment must be made at the time and place in which the delivery of the sold thing is made.
What is needed to formalize a purchase and sale agreement?
To formalize the purchase and sale agreement of a dwelling, it is necessary to present it in writing before the parties and ensure that it contains, among other data, the following:
- The place and date of the contract.
- The data identifying the parties.
- A description of the object being sold.
- The total price and how the payment is going to be made.
- If it exists, the amount of the initial down payment. In this case, successive terms will also be indicated until completing the payment of the asset for sale.
- The interest that will be required in case of default.
- If agreed between the parties, a retention of title clause will also be included.
Aspects to take into account for drafting the purchase and sale agreement
- Consent of the parties: the purchase and sale agreement is perfected and is binding from the moment both parties (seller and buyer) consent to the price and object of the contract, regardless of whether the dwelling has not yet been delivered.
- Object: the dwelling that is going to be bought.
- Price: refers to the money. Although the price may consist partly in money and partly in something else. If express intention is not stated, it shall be considered an exchange if the value of the thing given as part of the price exceeds that of the money or its equivalent; and a sale in the opposite case.