The Sale Contract in Morocco: What the DOC Says
If you buy a car, an apartment, or a stock of goods, you are entering into a sale contract. It is probably the most common contract of your life, and also one of the most regulated. The Code of Obligations and Contracts (DOC) has set its rules since 1913, and most of them apply even if you have written nothing down.
The essentials in brief
The sale transfers ownership of a thing against a price [1]. It is perfect as soon as there is agreement on the thing, the price, and the other clauses: no further formality is required [2]. The seller then owes two things, to deliver and to warrant [4]; the buyer owes two as well, to pay the price and to take delivery [11]. The warranty covers eviction and hidden defects, and it is owed as of right [8]. As long as the thing has not been received, it travels at the seller's risk [14].
Three elements, and the contract exists
The DOC is direct. The sale is "a contract by which one of the parties transmits the ownership of a thing or of a right to the other contracting party against a price that the latter undertakes to pay them" [1]. Remember the three words: ownership, thing, price. If one of them is missing, you do not have a sale.
And the contract is formed quickly. It is perfect "as soon as there is consent of the contracting parties, one to sell, the other to buy, and they are in agreement on the thing, on the price, and on the other clauses of the contract" [2]. In other words, the meeting of wills is enough. No notarial deed is needed, no immediate handover of the thing nor immediate payment is needed for you to be bound.
This has a consequence many buyers ignore: a word given on the thing and the price already binds you. Before saying yes, be sure of your price.
When do you become the owner?
Ownership does not depend on the moment you pay, nor on the moment the thing is handed over to you. It follows the contract itself. The DOC shows this through a concrete effect: "as soon as the contract is perfect, the buyer may dispose of the thing sold, even before delivery; the seller may assign their right to the price, even before payment" [3].
Let us translate. You may resell what you have just bought even before having it in your hands. The seller, for their part, may assign to a third party the claim for the price before being paid. Each disposes of their right from the formation of the contract, unless you have agreed otherwise together [3].
But ownership and risk do not always move in step, and this is where many disputes arise.
Who bears the risk during transport
Imagine goods shipped from one city to another, damaged on the way. Who pays? The DOC decides in favour of the buyer: "the thing sold travels at the seller's risk until its receipt by the buyer" [14].
As long as you have not received the thing, it is therefore not your financial problem if it is lost or deteriorates on the way. The seller keeps the risk until receipt. For distance purchases, then, check the exact moment of receipt: it is what shifts the burden of risk onto your shoulders.
The seller's obligations
The seller has "two main obligations: to deliver the thing sold; and to warrant it" [4]. Everything else flows from these two words.
Delivery first. It takes place "when the seller or their representative relinquishes the thing sold and puts the purchaser in a position to take possession of it without hindrance" [5]. It is not necessarily a hand-to-hand handover: it is enough that the seller relinquishes it and lets you take possession freely.
Where? In principle "at the place where the thing sold was located at the time of the contract," unless agreed differently [6]. When? "Immediately after the conclusion of the contract," subject to the periods imposed by the nature of the thing or by custom [7]. And mind a point of balance: if no term has been granted for payment, the seller is not bound to deliver as long as you do not offer to pay the price against handover of the thing [7]. This is the give-and-take of the DOC.
The warranty next. It "has two objects: the enjoyment and peaceful possession of the thing sold (warranty for eviction); the defects of that thing (warranty for redhibitory defects)" [8]. A crucial detail for the buyer: this warranty "is owed as of right, even if it had not been stipulated," and the seller's good faith does not exonerate them from it [8]. You therefore benefit from it even if the contract says not a word about it.
The warranty for defects has, however, a logical time limit. The seller "only warrants the defects that existed at the time of the sale" where it is a determined item, or "at the time of delivery" for a fungible thing sold by weight, by measure, or on description [9]. A defect that appears well afterwards, through your own use, does not fall within the warranty.
What to do if the defect is established? You may "pursue the rescission of the sale and the restitution of the price"; if you prefer to keep the thing, you obtain no reduction of the price [10]. You are also entitled to damages in several cases, notably where the seller knew of the defects, knowledge "always presumed where the seller is a merchant or a craftsman who sells the products of the trade they exercise" [10]. Against a professional, your position is therefore markedly stronger.
The useful reflex: report any defect early and in writing, and keep proof of the condition of the thing at receipt.
The buyer's obligations
Symmetry obliges; the buyer also has "two main obligations: to pay the price; and to take delivery of the thing" [11].
Payment. It is made "on the date and in the manner established in the contract"; failing agreement, "the sale is deemed made for cash," and you must pay "at the very moment of delivery" [12]. The costs of payment are at your charge [12]. So, without a credit clause, do not count on a deadline: the default rule is cash, against the thing.
Taking delivery. You must collect the thing "at the place and on the date fixed by the contract"; without agreement or custom, "immediately," save the time morally necessary to carry out the collection [13]. And if you do not show up, or you show up without offering payment when the sale is for cash, "the general principles relating to putting the creditor in default" are applied to you [13]. Not coming to collect the thing is not neutral: it may be held against you.
In short: pay according to the agreed terms, and come to collect what you have bought, within the time limits.
References
[1] Article 478 — Code of Obligations and Contracts (DOC) [2] Article 488 — Code of Obligations and Contracts (DOC) [3] Article 492 — Code of Obligations and Contracts (DOC) [4] Article 498 — Code of Obligations and Contracts (DOC) [5] Article 499 — Code of Obligations and Contracts (DOC) [6] Article 502 — Code of Obligations and Contracts (DOC) [7] Article 504 — Code of Obligations and Contracts (DOC) [8] Article 532 — Code of Obligations and Contracts (DOC) [9] Article 552 — Code of Obligations and Contracts (DOC) [10] Article 556 — Code of Obligations and Contracts (DOC) [11] Article 576 — Code of Obligations and Contracts (DOC) [12] Article 577 — Code of Obligations and Contracts (DOC) [13] Article 580 — Code of Obligations and Contracts (DOC) [14] Article 496 — Code of Obligations and Contracts (DOC)
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