Colombian Commercial Code: Sale of Goods, Articles 911-919 | Althox

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The Colombian Commercial Code, specifically Decree 410 of 1971, stands as a foundational pillar of commercial law within the nation. This extensive legal framework governs a myriad of commercial activities, ensuring clarity, fairness, and enforceability in transactions. Book IV, dedicated to Contracts and Corporate Obligations, is particularly crucial, as it delineates the rights and duties of parties involved in commercial agreements.

Within this book, Part II focuses on Sale and Swap contracts, two of the most common and vital commercial operations. Chapter II, titled "The Thing Sold," delves into the specific characteristics, conditions, and legal implications pertaining to the object of a sales contract. Understanding these articles is paramount for any entity or individual engaging in commercial transactions in Colombia, as they define the very essence of what is being exchanged and under what terms.

Colombian Commercial Code: Sale of Goods, Articles 911-919

A stylized representation of the Colombian Commercial Code, highlighting the intricate connections within its legal articles.

This in-depth analysis will explore Articles 911 through 919 of the Colombian Commercial Code, providing a comprehensive understanding of the legal provisions governing the "thing sold." We will dissect each article, explaining its scope, practical applications, and the legal consequences for both buyers and sellers. This detailed examination is critical for legal professionals, business owners, and anyone seeking to navigate the complexities of commercial sales in Colombia effectively.

Table of Contents

Article 911: Sale on Approval vs. Sale with Sight

Article 911 addresses a critical distinction in commercial sales: whether the buyer has the right to approve or test the goods before the contract is finalized. This distinction is vital for managing expectations and liabilities in transactions.

Article 911 .- The purchase of a body or a certain genre that has "view" does not mean that Buyer reserves the right to like or try the thing, unless it is from those usually available in such a way, or that the buyer reserves those powers. In these cases the contract is concluded only when the buyer's consent, once tasted the thing or verified test.

This article establishes a general rule: if a specific item or a certain type of good is purchased "with sight" (meaning the buyer has seen it), there is no automatic right for the buyer to approve or test it. The act of seeing the item implies acceptance of its visible characteristics. However, the article provides two crucial exceptions to this rule.

  • Customary Practice: If the goods are typically sold with a right to test or approve, then this right is implicitly granted. This often applies to products where functionality, taste, or specific performance is paramount and cannot be assessed merely by visual inspection.

  • Express Reservation: The buyer can explicitly reserve the right to like or try the thing. This must be a clear agreement between the parties, typically stipulated in the contract itself.

In both exceptional cases, the contract is not perfected until the buyer provides explicit consent after tasting or testing the goods. This provision protects buyers in situations where the quality or suitability of the product can only be determined through practical evaluation, while also providing clarity on when a sale is considered final.

Article 912: Timeframes for Testing and Rejection

Building upon Article 911, Article 912 introduces specific timeframes for exercising the right to test or approve goods, ensuring that transactions do not remain in an indefinite state of uncertainty.

Article 912 .- If the parties do not set time to test or taste the thing, the buyer must do so within three days, counted from the moment you put it by the seller under contract thing, and if it does , the seller may dispose of it. But if the buyer gets the thing to try or taste, and within three days of its receipt is not given notice of its rejection of the vendor, it is understood that the contract is concluded. The seller must bring the matter to the purchaser within twenty-four hours after the convention, unless the parties' agreement, custom or nature of the thing is apparent another term.

This article sets default deadlines when the parties have not explicitly agreed on a timeframe for testing or approval. The buyer has three days to test or taste the item, starting from the moment the seller makes it available for testing. If the buyer fails to do so within this period, the seller is free to dispose of the item, implying the termination of the conditional sale.

Conversely, if the buyer receives the item for testing and does not notify the seller of its rejection within three days of receipt, the contract is considered concluded. This provision creates a legal presumption of acceptance if no timely rejection is communicated. Furthermore, the article imposes an obligation on the seller to deliver the item for testing within twenty-four hours of the agreement, unless custom, the nature of the item, or a specific agreement dictates otherwise. This ensures prompt action from both sides.

Article 913: Sale by Sample and Dispute Resolution

The sale by sample is a common commercial practice, especially for bulk goods or items where a full inspection is impractical. Article 913 outlines the conditions and dispute resolution mechanisms for such sales.

Article 913 .- If the sale is made "on sample" a certain quality or commercially known or determined in the contract, subject to conditions precedent if the thing does not conform to the sample or quality. If the buyer refuses to receive it, claiming not conform to sample quality or determined, the dispute shall be submitted to the decision of experts who dictate whether or not the thing of receipt. If the experts dictate the affirmative, the buyer may not refuse a thing and, otherwise, the buyer is entitled to the return of what has already been paid compensation for damages *. * Modified. Code of Civil Procedure. Article 435. - Modified. Decree 2282 of 1989, Article 1. Number 239. Matters covered. Be processed in one instance by the procedure governing this chapter (verbal summary process), the following issues: ... Paragraph 1. In consideration of its nature: ... 8. The cases provided for in Articles 913, 914, 918, 931, 940, first paragraph, 1231, 1469 and 2026 to 2032 of the Commercial Code.

When a sale is made "on sample," the sample itself, a commercially known quality, or a quality explicitly defined in the contract, serves as a condition precedent. This means the contract is contingent upon the delivered goods conforming to that agreed-upon standard. If the goods do not match the sample or specified quality, the buyer has grounds to refuse them.

In the event of a dispute, where the buyer refuses the goods claiming non-conformity, Article 913 mandates that the matter be submitted to the decision of experts. These experts will determine whether the goods conform to the sample or quality. If the experts rule in favor of conformity, the buyer cannot refuse the goods. If they rule against conformity, the buyer is entitled to a refund of any payments made and compensation for damages incurred. This mechanism provides a structured and impartial way to resolve disagreements in sales by sample.

Colombian Commercial Code: Sale of Goods, Articles 911-919

A vintage scale symbolizing the delicate balance of rights and obligations between buyer and seller in commercial contracts.

The modification mentioned in the article refers to the Code of Civil Procedure, Article 435, which specifies that cases related to Articles 913, 914, and 918 (among others) of the Commercial Code are processed under a verbal summary process. This indicates a streamlined judicial procedure for resolving such commercial disputes, emphasizing efficiency in legal recourse for contractual disagreements.

Article 914: Goods Not in Sight or of Undetermined Quality

Article 914 extends the principles of quality and conformity to goods that are not physically present or whose quality is not precisely defined at the time of the contract.

Article 914 .- Procurement of genres that are not in sight or qualify for a specified quality known in the trade, or determined in the contract, simply give the seller the healthy medium quality, and if the buyer claims that are received, the controversy and its effects are subject to the rules established in the previous article *. * Modified. Code of Civil Procedure. Article 435. - Modified. Decree 2282 of 1989, Article 1. Number 239. Matters covered. Be processed in one instance by the procedure governing this chapter (verbal summary process), the following issues: ... Paragraph 1. In consideration of its nature: ... 8. The cases provided for in Articles 913, 914, 918, 931, 940, first paragraph, 1231, 1469 and 2026 to 2032 of the Commercial Code.

This article deals with sales where the goods are generic, not yet produced, or not specifically identified when the contract is formed. In such cases, if a specific quality is not agreed upon or commercially known, the seller is generally obligated to deliver goods of "healthy medium quality." This provides a default standard to prevent the delivery of inferior goods while not imposing an excessive burden on the seller to provide premium quality unless specified.

Should a dispute arise regarding the quality of these goods, the article explicitly states that the controversy and its effects are subject to the rules established in Article 913. This means that expert intervention will be sought to determine if the delivered goods meet the "healthy medium quality" standard or any other specified quality. The reference to Article 435 of the Code of Civil Procedure again highlights the expedited judicial process for these types of commercial disputes.

Article 915: Seller's Obligation at Delivery Location

Article 915 clarifies the seller's responsibility regarding the condition of the goods when delivery is stipulated at a particular location.

Article 915 .- In general, when the seller to deliver the thing compels the buyer in a particular place, the contract is subject to the condition that she be given full, safe and sound to the buyer.

This article establishes a fundamental condition for sales contracts where the seller undertakes to deliver the goods to the buyer at a specific location. The contract is implicitly subject to the condition that the goods must arrive "full, safe, and sound." This means the seller bears the risk of loss or damage until the goods are delivered in the agreed-upon condition at the designated place.

This provision is crucial for defining the point at which risk transfers from seller to buyer. It ensures that the buyer receives the goods in the expected state, placing the burden on the seller to ensure proper packaging, transportation, and handling until the point of delivery. Any damage or deficiency upon arrival at the specified location would constitute a breach of this condition, potentially allowing the buyer to refuse the goods or seek remedies.

Article 916: Dispute over Type or Quality Upon Receipt

Article 916 provides a mechanism for resolving immediate disputes that arise when the buyer receives the goods and questions their type or quality.

Article 916 .- When the buyer, upon receipt of the thing, unless it alleges the type or quality agreed upon, or may not be received, the difference be subjected to the verbal intervention of experts.

This article outlines the procedure for resolving discrepancies concerning the type or quality of goods at the moment of their receipt. If the buyer alleges that the goods do not conform to the agreed type or quality, or that they are simply unacceptable, the dispute is to be submitted to the "verbal intervention of experts."

The term "verbal intervention" suggests a more immediate and perhaps less formal expert assessment compared to a full judicial process. The goal is to quickly ascertain the facts regarding the goods' conformity. This mechanism aims to provide a swift resolution to disputes that can arise at the critical juncture of delivery, preventing prolonged disagreements and potential commercial disruptions. The experts' findings would then guide the subsequent actions of the parties, whether it be acceptance, rejection, or negotiation for adjustment.

Article 917: Sale of Future Things

The sale of future things, such as crops yet to be harvested or products yet to be manufactured, presents unique challenges. Article 917 addresses when such contracts become perfected and the implications of partial existence.

Article 917 .- The sale of future thing will be perfect only when it exists, unless otherwise stated or the nature of the contract appears to be random purchases. If things get to have only partial existence the purchaser may cancel the contract or to persevere in it fair pricing.

This article establishes that a contract for the sale of a future thing becomes "perfect" (legally binding and enforceable) only when the thing actually comes into existence. This is a crucial point, as it determines when the rights and obligations fully materialize. However, there are exceptions:

  • Express Agreement: The parties can explicitly agree otherwise, perhaps making the contract binding even before the thing exists, though this would typically involve specific clauses regarding risk.

  • Random Purchases (Emptio Spei): If the nature of the contract is a "random purchase" (emptio spei), where the buyer assumes the risk of the thing not coming into existence at all (e.g., buying a future harvest, regardless of its yield), the contract is perfected from the outset.

A significant provision in this article addresses situations where the future thing comes into only partial existence. In such cases, the buyer is granted two options: they can either cancel the entire contract or choose to proceed with the purchase of the existing portion at a "fair pricing." This flexibility protects the buyer from being bound to an incomplete or diminished product, while also allowing for adaptation if partial fulfillment is acceptable.

Colombian Commercial Code: Sale of Goods, Articles 911-919

Interlocking gears in an abstract representation, symbolizing the intricate process of resolving commercial disputes.

Article 918: Sale of a Specific Body and Partial Loss

Article 918 deals with the sale of a "body true" (a specific, identified item) and the consequences if that item partially or wholly ceases to exist at the time the contract is perfected.

Article 918 .- The purchase of a "body true" that the time to perfect the existing contract and there is no effect whatsoever, unless the parties take as a random object of the contract of its existence and the seller ignore your loss. If you miss a considerable part of the perfect thing at the time of the contract, the purchaser may withdraw from it or take it for subsisting paying the price appraised by experts or experts *. Whoever knowingly sell it in whole or in part does not exist, the buyer will compensate the damages in good faith. * Modified. Code of Civil Procedure. Article 435. - Modified. Decree 2282 of 1989, Article 1. Number 239. Matters covered. Be processed in one instance by the procedure governing this chapter (verbal summary process), the following issues: ... Paragraph 1. In consideration of its nature: ... 8. The cases provided for in Articles 913, 914, 918, 931, 940, first paragraph, 1231, 1469 and 2026 to 2032 of the Commercial Code.

If a specific item ("body true") that was supposed to be the subject of a contract does not exist at the time the contract is perfected, the contract has no effect. This is a fundamental principle: there can be no sale without an object. However, an exception exists if the parties treat the existence of the item as a "random object" of the contract, and the seller was unaware of its loss. This implies a speculative element where the buyer assumes the risk of non-existence.

Crucially, if a "considerable part" of the item is missing at the time of the contract's perfection, the buyer again has options: withdraw from the contract entirely or accept the remaining portion at a price determined by experts. This provision protects the buyer from being forced to accept a significantly diminished item. The article further imposes a penalty on sellers who knowingly sell an item that does not exist, in whole or in part, obliging them to compensate the buyer for damages, especially if the buyer acted in good faith.

As with previous articles, the reference to Article 435 of the Code of Civil Procedure confirms that disputes arising from these situations are handled through an expedited verbal summary process, underscoring the legal system's intent to provide efficient resolution for commercial matters.

Article 919: Ownership of Fruits and Yields

Article 919 addresses the ownership of "fruits" (natural and civil) produced by the thing sold, a common issue in sales involving productive assets.

Article 919 .- The natural fruit hanging at the time of delivery, and all the fruits, both natural and civilians after the thing produced, belong to the purchaser in good faith free of guilt....

This article clarifies that the buyer, acting in good faith and without fault, acquires ownership of the "natural fruits" that are still attached to the item at the time of delivery. Furthermore, all fruits, both natural (e.g., crops, offspring of animals) and civil (e.g., rents, interest) produced by the item *after* its delivery, also belong to the buyer.

This provision is particularly relevant for sales of productive assets like agricultural land, livestock, or income-generating properties. It establishes a clear rule for the allocation of benefits derived from the sold item, linking ownership of these benefits directly to the point of delivery. The "good faith" clause is important, implying that the buyer must not have engaged in any deceptive or fraudulent conduct to claim these fruits. This article ensures that the buyer fully benefits from the productive capacity of the acquired asset from the moment of its legal transfer.

The articles discussed (911-919) form a cohesive set of regulations that govern the critical aspects of the "thing sold" in commercial transactions under Colombian law. Their implications extend beyond mere definitions, influencing contract drafting, risk management, and dispute resolution strategies for businesses operating in Colombia.

  • Contractual Clarity: These articles emphasize the importance of clear contractual terms, especially regarding the right to inspect, test, or approve goods, and the quality standards expected. Ambiguity can lead to disputes and reliance on default legal provisions.

  • Risk Allocation: The provisions on future things, specific bodies, and delivery conditions clearly delineate when the risk of loss or damage transfers from seller to buyer. This is crucial for insurance purposes and for determining liability.

  • Dispute Resolution: The repeated mention of expert intervention and the verbal summary process (Article 435 of the Code of Civil Procedure) highlights a legal preference for efficient, specialized resolution of commercial disagreements. This encourages parties to seek expert opinions rather than immediately resorting to lengthy litigation.

  • Good Faith Principle: The concept of "good faith" is subtly woven into these articles, particularly in Article 919 regarding the ownership of fruits and Article 918 regarding compensation for damages. This ethical underpinning guides commercial conduct and legal interpretation.

  • Protection for Buyers and Sellers: While providing mechanisms for buyers to reject non-conforming goods and seek compensation, the code also protects sellers by setting clear timeframes for acceptance and by allowing them to dispose of goods if conditions are not met. This balance promotes fair commercial practices.

For businesses involved in international trade with Colombia, understanding these domestic legal provisions is essential. They may differ from common law or other civil law jurisdictions, necessitating careful review and adaptation of standard international sales contracts. Legal counsel specializing in Colombian commercial law is often advisable to ensure full compliance and protection of interests.

Conclusion: Navigating the "Thing Sold"

Articles 911 to 919 of the Colombian Commercial Code provide a detailed and nuanced framework for understanding the legal aspects of the "thing sold" in commercial contracts. From the initial right to approve or test, through the intricacies of sales by sample or of future goods, to the allocation of fruits and the resolution of disputes, these provisions are designed to foster clarity and fairness in commercial exchanges.

The emphasis on expert intervention and expedited legal processes reflects a pragmatic approach to commercial disputes, aiming for efficient resolution. By meticulously defining the conditions under which a contract is perfected and the rights and obligations of each party, the Colombian Commercial Code ensures a robust legal foundation for commercial activities. Adherence to these articles is not just a matter of compliance but a strategic imperative for successful and secure commercial operations within Colombia.

Fuente: Contenido híbrido asistido por IAs y supervisión editorial humana.

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