Re sale back clause
RE-SALE BACK CLAUSE
The pact of re-sale back has its roots in Roman law, where the buyer was obligated to re-sell the seller. The seller reserves the right to recover the sold item, reimbursing the buyer the determined amount or the purchase price. Within a expiration period of 3 years to be counted from the date of the contract. Art 1754 of the Chilean Civil Code.
Venturini argues that the re-sale back clause does not conform to the purpose of the sales contract, which involves the transfer of permanent ownership, since there is no exchange function but a credit function. Gamarra considers this contract as a "hybrid" between a sales contract and a loan, incorporating a guarantee character. This latter characteristic added by Gamarra would violate provisions of the Uruguayan legal system. Venturini adds that this agreement may lead to the concealment of guarantees and favor usurious loans, which is why the lending houses are prohibited from entering into sales contracts with retrocession agreements. Art. 6 of Law 10.233.
RESOLUTORY CONDITION CLAUSE VS. TWO SALES
The article 1736 of the Uruguayan Civil Code states that the resolutory clause is an agreement between the parties in a purchase-sale contract. The seller can recover the property by exercising the right to redeem it and returning the price. There is not two sales, but only one. However, entities such as the DGI (Uruguayan Tax Authority) have expressed the opposite and have stated that there are two alienations or two sales. This position leads to the payment of taxes in both "purchase-sales."
MECHANISMS AND FORMS OF REDEMPTION.
EXPRESSION OF WILL. It can be performed by judicial notice, telegram endorsed and in the case of real estate, by a public notary.
PAYMENT OF THE SALE PRICE. This is the position taken by Gamarra and the majority who argue that the intention to exercise the pact must be accompanied by the payment of the agreed price or the price that has been agreed. Art 1748 CCU.
In case the buyer refuses to receive the agreed price, the institute of release of the debtor must be applied: oblation and consignment.
Oblation and consignment are legal terms that refer to a process for resolving disputes in a contract. Obligation refers to the act of committing oneself to fulfill a duty or obligation as stated in a contract. Consignment refers to the act of depositing a sum of money with a third party, usually a court, in order to secure payment in case of a dispute. These terms are often used in the context of resolving disputes over payment in a contract.
Effect During the Condition
The buyer acquires the property under a resolutory condition, as per provisions contained in articles 1430, 1752, 624, 2329, and 2347 of the Civil Code of Uruguay.
The seller is considered a provisional owner under the fiction of retroactivity, and holds a discretionary right. As such, they may hypothecate the property according to article 2329 of the Civil Code of Uruguay. If they sell, they sell an alien property, but if they exercise the right of rescission, they recover the property retroactively and become the owner from the time of the contract, not from the time of rescission.
Effect After Condition is Fulfilled
The buyer must return the property and indemnify for any damages caused by their act and fault; they must also pay for necessary expenses, but not onerous expenses without the express consent of the seller. The buyer is guaranteed the fruits, allowing them to harvest their crops even if the rescue has taken place. According to Art 1754 of the Civil Code of Uruguay.
ME Web Design
Electricista
Soy electricista especializada en PLC
Publicar un comentario