Obecné úvahy o kupní smlouvě a obchodní kupní smlouvě

The topic of this article is a general and comparative search into the European regulations of the contract of sale and the commercial contract of sale (also referred to as “sale of goods”) with special attention to the Czech legal regulation and its development. Following a brief introduction (in its first part), the contract of sale is examined from the Roman law point of view in the second part of the article. In Roman law, the object of purchase could have been corporeal and noncorporeal things. The subject matter of the contract did not have to exist at the time of the purchase. If it was not certain that the subject matter would come into existence, the aleator contract could have been concluded. As to the price, it was sufficient to negotiate the method of its determination. As early as in the Justinian legislation, a fair price was required in the sale contract and a reduction of price to less than one half of the original price was known. This could make a demand for waiving the obligation justifiable. If a sales contract was to conceal another contract, there was no purchase. A sales contract did not have to entail a transfer of ownership. The mere handing over the thing and arranging for its peaceful possession was sufficient. The seller was, however, liable for the eviction of the thing. The Roman Law provisions are compared to the current Czech regulations in the Civil and Commercial Codes. None of these stipulate a condition for the seller to be the owner at the same time. Nevertheless if the ownership right has not been assigned, there is a legal fault. This corresponds to the provisions concerning the acquisitive prescriptions (s. 134 of the Civil Code) and provisions relating to the ownership title acquired by the buyer even if the seller was not the owner of the sold goods (s. 446 of the Commercial Code). A valid sale contract made by a person who is not the owner of the sold goods must, in certain cases, be admissible. This is enhanced by the consensual nature of the contract in our legal system. The transfer of ownership is a performance of an obligation previously established. If the thing is sold by someone who is not its owner, we cannot apply s. 39 of the Civil Code on invalidity of acts in law. Instead, provisions on legal faults in performance are to be applied. In the following part of the article a contract with the specified subject matter is examined. It is necessary for the subject matter to be individualized. In some theories individualization is a part of the contract-making process; in this article it is considered as part of consideration. The third part looks at the distinction between the so-called schuld and haftung. The debt itself was not accompanied by any sanction. The law of guarantee had to provide this sanction. A person, assets and a thing could all be guarantees. Unlike Roman law, medieval law took the sale contract for a real contract. The subject matter was very widely defined. On the basis of a reception of Roman law the debt merged with the guarantee, the sale contract became a consensual contract. The fourth part of the article focuses on the subject matter of the purchase. Its wide conception has been preserved by European codes of law with the exception of the German Civil Code (BGB) which declared tangible things only to be the things in the legal sense of the word. Yet it defined the sale contract as one enabling the sale of both things and rights. After 1950, the definition of things has been narrowed down in our legal regulation while the subject matter of the purchase has not been extended. The fifth part of the text is primarily concerned with the French conception of the sale contract as a contract with the “translation” effect. According to Code Civil the ownership is transferred onto the acquirer at the moment of concluding the contract. In our legal system the transfer of ownership occurs only when the obligation is performed in the time agreed by the contract which had previously been concluded. The contract only has obligatory effect in our country. In this context, the issues of the so called title and modus adquirendi are examined. There is a close corelation between this aspect of forming a contract and the Czech conception of an agreement on a future contract (pactum de contrahendo) unknown in French law. Here pactum de contrahendo is substituted by an agreement on the option. Variants of agreements are examined in detail. Options entered our legal system – as a quite new phenomenon – first of all through the Securities Act and also e.g. through the lease contract modified by the Czech Commercial Code. In the comparative observations English and Italian systems of law are considered, among other, by the article. In its sixth part, the text deals with the commercial contract of sale (also referred to as “sale of goods”) which is observed from the comparative point of view. First of all the definition of the commercial purchase is examined. The specificity of our law is that it generally limits this type of contract to agreements made by the two parties each of them being entrepreneurs. Classic commercial codes recognize unilateral business transactions. A commercial contract of sale may therefore be concluded by the parties only one of which is an entrepreneur and yet the contract does not lose its commercial character. In the following part of the article the differences in the modes of commercial and other than commercial contracts of sale are examined. In French law this was connected especially with the question of evidence of the contract concluded. The Austrian Commercial Code set down the notification duty concerning the defaults of the object of performance as a significant distinguishing feature of the commercial contract of sale. The German Commercial Code makes difference between the unilateral and bilateral commercial contracts of sale. Bilateral commercial contracts include for example the obligation to inspect the goods, the assumption of the goods acceptance in case of failure to notify the defects, the obligation to store and exercise due care of the defective goods. France arrived at a similar distinction through decodification – by means of regulation by special acts. This article also looks at very diversified Swiss commercial regulations included in the “obligation” code. Further the article examines the development of the legal regulation of the commercial purchase on the Czech territory. The socialist era codifications are included, too. The outline is concluded with the current Commercial Code which has been influenced primarily by the Viennese convention on contracts of international purchase of goods of 1980 and the Code of International Trade of 1963. The impact of the Viennese convention is not considered by the author as solely positive. This type of documents involve numerous compromises which can hardly be taken for an ideal solution to the domestic legal regulation. The commercial contract of sale is diversified, too. Special regulations of the sale of an enterprise, securities sale, a lease – all these are diversifications within the commercial purchase.