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How to make a sale and purchase?

Civil Law
How to make a sale and purchase?

A sale and purchase is an agreement between a seller and a buyer, whereby the seller undertakes to deliver an object to the buyer in exchange for a certain amount, in such a way that both parties gain. This activity can be carried out between individuals, between companies or between individuals and companies. It should also be noted that the amount can be paid in a single payment or in several instalments, depending on the agreement reached.

In a sales contract, both the buyer and the seller have to participate, both parties have economic benefits and have to agree on the conditions of the contract.

The elements that a contract of sale must have are:

● The object that is given to the buyer.

The price for which this object is sold.

● The conditions under which this object is provided: price, form of payment (one-off or in instalments), date on which the exchange is to be made, etc.

● Securing elements of validity of the object. For example, if a house is provided, the title deed should be given.

Types of sales contract.

- Deposit contract.

This establishes in writing the guarantee of the purchase and sale, as well as the consequences in the event of non-compliance. There are three types:

● Penitential earnest money. The contract contains the price of the object, the amount to be paid in advance, the amount to be deferred and the way in which the amount is to be paid. The parties can decide not to enter into the transaction before signing the agreement, but there are disadvantages: if the buyer decides to back out, he will lose the amount paid in the first instance, while if the seller backs out, he will have to pay the buyer double the amount received.

● Confirmatory pledges. If one party breaches the contract, the other party can force the other party to fulfil the contract.

● Penalty clauses. The buyer undertakes with the seller to purchase a specific good and the seller reserves the good for the duration of the contract. If either party breaches the agreement reached, it must pay the agreed amount to the aggrieved party, in addition to being able to force the aggrieved party to comply with the agreement reached.

- Private contract of sale.

In this contract, the purchase and sale of the property is agreed, obliging the seller to grant the property to the buyer and the buyer to deliver the agreed amount. The parties are obliged to fulfil the conditions of the contract, even if it has not been formalised. It must include the following data:

● Identification of each of the parties.

Identification of the good exchanged.

Economic obligations of the good.

● Price of the sale.

Who pays.

● Delivery of elements necessary for the enjoyment of the property and time limit for the deed.

Date and signature of the parties before a notary.

- Promise of sale.

The contract secures the future contract of sale of a specific property. It gives the parties the right to demand its fulfilment.

- Option to buy.

This type of contract makes it possible to acquire a specific asset on a specific date and at a specific price, in the event that the asset cannot be acquired at the present time.

- Acquisition a non domino.

This is an acquisition made from a person who is not the owner of a specific asset. In this type of acquisition there are three actors: the person who owns the property but does not have the status of owner; the transferor, who has no right over the property provided, but is considered a non-owner possessor; and a third person who wants to acquire the property.

Both movable and immovable property can be acquired through non-domino acquisitions. In both cases, good faith and onerous title on the part of the acquirer are required, in addition to the fact that the persons who provide the property must be registered in a Register in order to be able to transfer it. Movable goods are those that can be moved from one place to another, such as a car, and immovable goods are those that cannot be moved from one place to another, such as a house, a swimming pool, a yard, etc.

Is it necessary to hire a lawyer for the sale and purchase?

It is not necessary to hire a lawyer to buy or sell a property, but it is advisable. This is because the sale and purchase involves several legal and financial aspects that can confuse the person who wants to get involved in it, which a lawyer can take care of in case the interested person does not have experience in the sector.

The lawyer can perform the following functions in the buying and selling process:

● Contract review. The lawyer can review in detail the intended purchase contract in order to ensure that the interested party has fair terms that are in his or her best interests.

● Background research. The lawyer can carry out a search on the history of the property to be purchased, so that possible fraud can be avoided.

● Dispute resolution. The lawyer can act on behalf of the interested person in case of problems with the seller, in order to protect the interests of the interested person and his or her rights. Similarly, he or she can ensure beneficial dispute resolution for the person concerned.

● Legal formalities. The lawyer can carry out the necessary legal formalities for the acquisition of the property.

Detecting fraud or deception. The lawyer is a professional qualified to detect situations of fraud or deception, so that, if detected, he or she can act as a representative of the interested party in the judicial process and thus claim the nullity of the purchase-sale.

The sale and purchase is a rather complex process, in which if it is carried out without hiring a lawyer, many things can happen that are not at all beneficial for the interested party. Thus, the lawyer, in the process, will avoid:

● That there are unclear clauses or parts in the contract.

● The person concerned signing a contract that is not beneficial to him or her.

The person concerned avoids certain payments due to the other party's breach of the contract.

The person concerned is left with doubts about some element of the procedure, so that the lawyer will be able to resolve any doubts he or she has about the process and the contract of sale.

● That the property is not free of encumbrances and, therefore, no modifications can be made in this respect and he/she has to pay more than foreseen in the contract.

● That the sale is not finalised, as the lawyer will highlight the consequences of non-performance of the contract.

Any disputes may arise during the process.

The interests of the person interested in the sale are not protected.

Some examples where a person can be affected by a purchase contract, without the help of a lawyer, are the following:

- A dwelling affected by an extraordinary payment due to paving and pavement works and the installation of lighting, approved prior to the signing of the contract of sale.

- Water leaks in a property, causing dampness in the property, due to the fact that the pipes were not visible to the interested party and could only be detected after taking possession of the property.

- A second-hand car that had a serious breakdown, which caused damage to the car, but the buyer thought it was in a better condition and could only detect it after the purchase of the property.

- A house in which the beams had been built with aluminous cement.

- An illegal plot of land of which the person concerned is unaware of the illegality.

- A dwelling in a situation of judicial seizure, the situation of which is unknown to the person concerned until its acquisition.

- A property with a debt, which is unknown to the person concerned until it is purchased.

If you have a purchase and sale and you do not want to lose your peace of mind during the whole process, contact us.

Civil Law

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