SELLERS OBLIGATIONS

I. General provisions According to article 1671 New Civil Code, questionable clauses in the sale-purchase contract should be interpreted in favor of the buyer, under the reserve of the rules applicable to contracts with consumers and contracts of adhesion. The main obligations of the seller are listed in article 1672 New Civil Code: to transfer the ownership of the good or, where appropriate, the ownership of the right sold; to hand over the good; to guarantee the buyer against defects of the good. II. The transfer of ownership or right sold According to article 1673 New Civil Code, the seller is obliged to transfer to the buyer the ownership of the good sold. The transfer of ownership implies that the buyer receives all the rights and accessory actions that belonged to the seller. If law does not provide otherwise, the provisions related to the transfer of ownership are also applicable when another right, other than the ownership right, is transferred through sale. Except the cases provided by law, or if the will of the parties does not indicate otherwise, the property is to be transferred to the buyer from the moment of conclusion of the contract, even if the good was not handed over or its price was not paid yet. In certain cases provided by law, the sale can be opposed to third parties only after certain publicity formalities. In terms of sale of immovable property, according cu article 1676 New Civil Code, the transfer of ownership from the seller to the buyer is subject to the Land Registry. According to article 1677 New Civil Code, the seller if obliged to erase from the Land Registry, at his own expense, the rights registered on the property sold, is these are canceled. When the sale has as object goods of certain type, including goods of a limited type, the ownership is transferred to the buyer on the date when they are individualized through delivery, counting, weighting, measuring or through any other way agreed or imposed by the nature of the good. If more goods are sold in bulk and for a unique and global price, the ownership is transferred to the buyer when the contract is closed, even if the goods have not been individualized, according to article 1679 New Civil Code. At the sale by sample or model, the ownership is transferred at the moment of handing over the good.
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The sale subject to testing is provided by article 1681 New Civil Code, which stipulates that sale is subject to testing when it is concluded under the condition that, after testing the good, the good corresponds to the criteria established at the conclusion of the contract or, failing that, to the destination of the good, according to its nature. If the testing period has not been agreed and from usages does not result otherwise, the condition is considered fulfilled if the buyer did not declare that the good is unsatisfactory within 30 days from the handing over of the good. In the case in which, through the sale-purchase contract, the parties have concluded that the sold good will be tested, it is presumed that they concluded a sale subject to testing. The sale subject to tasting is provided by article 1682 New Civil Code, which stipulates that the sale that corresponds to the buyers tastes is closed only if the buyer made the agreement known or in the term established or settled by usage. In the case in which such a term does not exist, the provisions of article 1681, paragraph 2 apply. If the good sold is at the buyer, and he does not act in the term provided above, the sale is considered completed at the expiry of the term. According to article 1683 New Civil Code, if, at the date of concluding the contract for a determined individual good, the good finds itself in the ownership of a third party, the contract is valuable, and the seller is obliged to ensure the transfer of the ownership right from the holder of the good to the buyer. The obligation of the seller is considered to be executed either through receiving the good or through ratification of the sale by the holder, or by any other mean, direct or indirect, that provided the buyer with the ownership on the good. If by law of by parties will does not result otherwise, the ownership right is moved from the holder to the buyer in the moment when the seller obtains the good or when the sale-purchase contract is ratified by the holder of the good. If the seller does not ensure the transfer of the property right to the buyer, the latter can ask for the annulment of the contract, the return of the price and, if the case, damages. When a co-owner sold the good which is common property and after that did not ensure the transfer of property of the entire good to the buyer, the latter can ask, in addition to damages, at its own choice, either the reduction of the price proportionally with the part of the good he did not obtain, or the annulment of the contract in the case in which he would not had bought if he knew that he would not obtain the ownership of the entire good. In the cases provided above, the damages are established accordingly, as provided by articles 1702 and 1703 New Civil Code. However, the buyer who, at the date of concluding the contract, knew that the good did not belong entirely to the seller cannot ask for the reimbursement of the autonomous or voluptuary acts. The stipulation, through which the seller holds the ownership of the right until the entire payment of the price, is valuable even if the good has been delivered. This stipulation can be opposed to third parties only after the publicity formalities imposed by law, according to the nature of the good.
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III. The delivery of the good The delivery is made by putting the sold good at the disposition of the buyer, together with all that is necessary, according to circumstances, to freely and unrestricted exercise the possession. According to article 1686 New Civil Code, the obligation to hand over the good also applies to its accessories, and also to all that is designed for its use. The seller is also obliged to hand over the titles and the documents related to the ownership or use of the good. In case of goods of a certain type, the seller is not liberated from the obligation to deliver even if the batch of the certain goods has been totally destroyed, except when the lot was expressly provided in the convention. The handing over of the immovable good is made by putting the good at the buyers disposition, free of any goods belonging to the seller. The handing over of the movable good can be made either by mobile material delivery, or by submitting the representative title or some other document or thing that allows the buyer to get the good at any time. The handing over must be made at the place where the good finds itself at the moment of conclusion of the contract, if through the convention established by the parties or through usage, does not result otherwise. The good must be handed over in the state in which it finds itself at the moment of conclusion of the contract. The buyer has the obligation that immediately after receiving the good to verify its state according to usages. If after the verification certain apparent vices are found, the buyer must inform the seller about them without delay. If he does not inform the seller, it is considered that the seller executed its obligation. However, in case of hidden vices, the provisions of articles 1707 1714 from the New Civil Code remain applicable. Article 1691 New Civil Code refers to disagreements on quality. If the buyer disputes the quality of state of the good that the seller provided, the president of the courthouse from the place established for execution of the delivery obligation, at either partys request, will immediately name an expert in order to ascertain. The same decision can decide the good seizure or storage. If the storage of the good could bring big damages or could involve considerable spending, it will be decided even the sale on the owners expense, under the conditions established by the court. The decision to sell must be communicated before its execution to the other party or to its representative. Unless otherwise agreed, the fruits of the good sold are entitled to the buyer from the day of acquiring the property, according to article 1692 New Civil Code. In the absence of a term, the buyer can ask the delivery of the good as soon as the price is paid. If, as a result of certain circumstances known by the buyer at the sale moment, the delivery of the good can be made only after a certain term, the parties are considered to have agreed upon the delivery taking place at the expiry of the certain term.
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The refusal of delivery is provided by article 1694 New Civil Code. If the payment obligation is affected by a term, and after the sale, the buyer became insolvent or the guarantees given to the seller diminished, the seller can suspend the execution of the delivery obligation as long as the buyer does not give sufficient guarantees concerning the payment of the price at the agreed term. If at the date when the contract is concluded, the seller knew about the insolvency of the buyer, the latter keeps the term benefits, if the insolvency state did not dramatically worsen. IV. The guarantee against loosing the ownership Article 1695 New Civil Code stipulates that the seller is obliged to guarantee the buyer against loosing the ownership, which would not allow him, totally or partially, to posses the sold good unimpeded. The guarantee is due against the eviction which results from the claims of a third party only if these are based on a right created prior to the date of sale and which has not been brought to the buyers attention until that date. Also, the guarantee is due against the eviction that comes from sellers imputable acts, even if those arose after the sale. There is an exception, since according to article 1696 New Civil Code, the one that is obliged to guarantee against the eviction cannot make another person suffer from an eviction. Also, the obligation to guarantee against the eviction is indivisible between the debtors, according to article 1697 New Civil Code. The parties can agree to extend of restrict the obligation of guarantee. They can also agree to relieve the seller from any guarantee against eviction. The stipulation through which the obligation of guarantee of the seller is restricted or removed does not relive him from the obligation to refund the price, except the case in which the buyer assumed the risk of eviction. Even if it has been agreed that the seller will not owe any guarantee, he is still liable for the eviction caused after the sale through his own act, or for the one that comes from causes that have been hidden from the buyer. Any contrary stipulation is considered unwritten. The annulment of the contract is stipulated in article 1700 New Civil Code: the buyer can ask for the annulment of the sale if he has lost the ownership of the entire good or a part of the good, but significant enough, that if he had known the eviction, he would not have concluded the contract. With the annulment, the buyer can ask back for the price and the compensation for the damage. The seller is bound to give back the entire price if, at the date of eviction, the value of the good sold decreased or if the good suffered significant deteriorations, either due to buyers negligence, or by force majore. If the buyer obtained a benefit from the damage caused to the good, the seller has the right to subtract from the price an amount corresponding to this benefit. If the sold good has, at the date of eviction, a higher value, from any cause, the seller is liable to pay to the buyer the surplus value accumulated until the eviction.
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The damages payable to the seller include: the value of the fruits that the buyer was obliged to return to the one that made him suffer an eviction, the costs incurred by the buyer in court, the costs related to the closing and execution of the contract by the buyer, the losses suffered and the unrealized gains by the buyer because of the eviction. Also, the seller is liable to reimburse the buyer or to provide reimbursement all the costs for the work performed in relation to the good sold, no matter if the work is autonomous or added, but in this latter case, only if they are necessary and useful. If the seller knew the cause of eviction at the date of concluding the contract, he is bound to reimburse the buyer and the costs made for the voluptuary works. If the partial eviction does not attract the annulment of the contract, the seller must reimburse the buyer with a part of the price proportional with the value of the part that he has been evicted and, if the case, to pay damages. For establishing the damages, the provisions of article 1702 New Civil Code apply. When the buyer kept the bought good paying to the third party evictioned a sum of money or giving him another good, the seller is liberated from the guarantee, in the first case through the reimbursement of the sum paid with the interest computed from the date of payment, and in the second case by paying the value of the good give and, as in both cases, all the costs involved. The buyer is sued by a third party that pretends to have rights on a sold good must call the seller. In case he did not do this, he loses the guarantee right if the seller proves that there was enough evidence to reject the claim. The buyer who without having a court decision, admits the right to a third party, looses the guaranty right, except the case in which he proves that there was not enough evidence to prevent the eviction. V. The guarantee against the sold good According to article 1707 New Civil Code, the seller guarantees the buyer against any hidden vices that make the good inappropriate for usage or that diminish its usage or value that, if known, the buyer would not have bought the good or would have given a lower price. A hidden vice is a vice that, at the delivery date, cannot be discovered without a specialist by a prudent and attentive buyer. The guarantee is due if the vice or its cause existed at the moment of delivering the good. The seller is not liable for any guarantee against the vices that the buyer know at the conclusion of the contract. In case of forced sales, there is no guarantee against hidden vices. If parties did not agree otherwise, the seller is obliged to guarantee against hidden vices, even when he did not know about them, according to article 1708 New Civil Code. The clause that removes or limits the liability for vices is null when it comes to vices that the seller knew or should have known at the date of concluding the contract.

The buyer that discovered the hidden vices is obliged to tell the seller in a reasonable term, according to circumstances, under the sanction of forfeiture of right as provided by article 1710 New Civil Code. In case the buyer is a professional, and the good sold is mobile, the term provided by the law is of two working days. When the vice appears gradually, the term provided by law start from the day when the buyer realizes the gravity of the vice. The seller who has concealed the vice cannot invoke the provisions of article 1709 New Civil Code. According to article 1710 New Civil Code, the buyer can obtain, for the obligation of guarantee against vices of the buyer: the removal of vices by the seller or at his expense, the replacement of the good sold with a similar good but without vices, the reduction of the price, the annulment of the sale. If the seller asks, the court, taking into account the gravity of the vices and the purpose for which the contract has been concluded, and also other circumstances, can order another measure, other than the one asked by the buyer. If only some of the goods have vices and these can be separated by the others without any damage for the buyer, and the court decides the annulment under the provisions of article 1710 New Civil Code, the contract is cancelled only in part. The annulment of the contract, as far as the principal good is concerned, attracts its annulment also for the accessory good. If at the date of concluding the contract the seller knew about the vices of the good sold, together with the provisions of article 1710 New Civil Code, the seller is also obliged to pay damages. If the seller did not know the vices of the good sold, he is obliged to give back to the buyer only the price and the costs incurred with the sale, in total or in part, according to the case. The loss or the damage of the good, even by force majore, does not prevent the buyer from obtaining the application of the measures provided by article 1710 New Civil Code. The provisions concerning the guarantee against hidden vices is also applicable when the sold good does not correspond to the qualities agreed by the parties, according to article 1715 New Civil Code. Also, if it is about the sale of a sample or model, the seller guarantees that the good has the qualities of the sample or model. VI. The guarantee for proper functioning According to article 1716 New Civil Code, in addition to the guarantee against hidden vices, the seller who guaranteed for a determined period of time, the proper functioning of the good sold, is obliged, in case of any damage arising inside the warranty period, to repair the good on his expense. If the repair is impossible or if its duration exceeds the time limit provided by the contract or special law, the seller is obliged to replace the sold good. In the absence of a period specified in the contract or special law, the maximum duration of repair is of 15 days from the date when the buyer has requested a repair. If the seller does not replace the good within a
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reasonable time, according to circumstances, he is obliged at the request of the buyer to refund the price received them in exchange for return of good. The guarantee will not be due if the seller proves that the fault occurred because of the improper way in which the buyer used or kept the good. The behavior of the buyer is evaluated taking into account the written instructions that have been communicated to him by the seller. According to article 1718 New Civil Code, under the sanction of forfeiture of the guarantee right, the buyer must communicate the defect before the expiration of the warranty. If this communication could not be made within the warranty term, for objective reasons, the buyer is obliged to communicate the fault within a reasonable time after the expiry of the warranty. These provisions shall also apply accordingly if the seller guaranteed that the sold good will keep, for a determined period of time, certain qualities.