In international sales, it is necessary to determine at what point the contract is concluded and, therefore, the transfer of ownership of the goods that are the object of the transaction, within the framework of the regulations that govern the international sale of goods. That is, from what point onwards the transfer of ownership of the goods occurs.
We are aware that In every purchase and sale transaction there are two important momentsThe first is the one that is linked to the title of ownership when both parties assume the obligation, one to deliver the object and the other to pay the price. The other moment is the delivery itself, which we call the tradition or factual transmission of the merchandise. In the case of international sales, the contract is the title and the provision of the merchandise would be the transfer of ownership.
When considering the property, we immediately focus on the faculty of exercising the right over something, erga omnes. And in relation to the property rights arising from a saleThere are two theories. The first is called the Single Cause Theory and the second is the Double Cause Theory. In the first case, a binding effect is taken into account from the convention of the legal act itself; while in the second case, the transfer of the object is taken into account as a consecutive act of the first.
Beyond each theory, we can determine that both the title and the mode They are two acts that have their own particularities, but which will ultimately depend on the validity and effectiveness of the first act of obligation., so that the following and consequent act of disposal is taken as fully valid and produces its effects. This is so based on what is inferred from each particular contract and the uses and customs, attentive to good faith in contracts, the autonomy of the will and unforeseen circumstances. Therefore, the will of the parties will determine whether the mere delivery carries out possession or a complete transfer of ownership, even more so if the buyer's total or partial obligation to pay remains pending. If the seller places the merchandise at the buyer's disposal, he has been released from his main obligation. It is then sufficient to determine what happens when the buyer has not completed the obligation to pay for it.
Both contracting parties have the right to restitution in the event of non-compliance by the other party, and such restitution may involve the merchandise itself or its value. What happens if the buyer (importer) illegally brings the goods in his possession into the customs territory, without having completed payment for the transaction? In this case, the importer would be attempting to obtain a double advantage, firstly due to the illegal manner in which the entry of the merchandise was declared and secondly against the seller (exporter), since with the latter the importer did not comply with the payment of the sale, this representing his main obligation towards the seller, so that it cannot be considered that he was able to obtain ownership of the merchandise in question, having to return it to its owner, who in good faith made it available to the importer, but never received payment of the price from him.
Consequently, the right of the buyer (importer) could hardly be confirmed when he has not fulfilled his main obligation, since this would result in unjust enrichment. Therefore, Non-compliance by the buyer renders the contract invalid retroactively, and the seller is entitled to claim restitution of the merchandise.; which, even if it had been the object of criminal action by the buyer, could have done so based on having possession of it but not full ownership, abusing a property right that had not yet been perfected.
It fits in the same restrictive way Consider the right of retention of the merchandise in violation by the State, because then it would become another cause of the damage caused to the seller (exporter), who was unable to collect payment for the sale transaction and is also prevented from exercising the right to restitution of the same, having also been completely unaware of the criminal conduct carried out by the importer at the time of the entry of said merchandise into the customs territory.
It should be considered that it is sufficient to take samples of the goods that are the object of the illicit act for the purposes of the respective process, granting the fair and legitimate right of restitution to the exporter, who is doubly harmed by the non-fulfillment of the contract and by the impossibility of making the intended restitution effective, also affecting the right of property enshrined in the National Constitution, since the opposite results in consecrating the extinction of the domain in the head of someone unrelated to the illicit act and with full right of restitution of what was delivered without the main obligation of payment of the price having been fulfilled towards him.
By: Dr. Guillermo J. Salary
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
