How to distinguish between the civil and commercial nature of a sales contract and what does this distinction imply.

Although there is currently no single line of jurisprudence and doctrine, it is certain that, following the conditions of Article 325 of the Code of Commerce – which must be put in connection with Article 1. 445 of the Civil Code, which defines the contract of sale – the nature of the sale contract’s differentiation requires that the persons or entities involved are considered merchants and that a double subjective or intentional element is found in the buyer: in order to be considered commercial, the purchase of the product must be made for resale, with a profit motive (to obtain a benefit) for the subsequent resale.

Article 325, Commercial Code.

The purchase and sale of movable things in order to resell them, either in the same form in which they were purchased or in a different one, with the intention of making a profit on the resale, will be considered commercial.

This, it is important to bear in mind that, in sale contracts, it is not applied the general criteria that attributes the commercial nature to those contracts in which a businessman intervenes, but that the commercial sale will be reserved for traders who buy products in order to resell them.

Article 326 of the Commercial Code lists a series of exclusions, on the understanding that, in such cases, despite the double subjective requirement being fulfilled in the buyer, commerciality will not be assessed. These cases are as follows:

-Purchases of goods intended for consumption by the purchaser or the person on whose behalf they are acquired.

-Sales made by landowners and farmers or stockbreeders of the fruits or products of their crops or livestock, or of the species in which their rents are paid to them.

-Sales of objects constructed or manufactured by craftsmen in their workshops.

-The resale made by any non-merchant of the rest of the stockpiles he made for his own consumption.

With all of the above, we can observe that the differentiating element of the sales commercial from the civil one, supposes that the buyer’s objective is not the satisfaction of its own needs. It is the intention or will to obtain a later profit with his activity. In this case, the sale would be an intermediate business, in which the buyer subscribes to the business in order to carry out a subsequent one. To delimit the profit motive’s concept, we make our own the words of the Provincial Court of Castellón (Judgment of the 28th of April 2000, EDJ 70717):

The civil or commercial nature of a sale does not depend on the actual profit obtained by the reselling company, but on the purpose for which the first sale of the goods is carried out (the purpose of which is a hypothetical subsequent resale). It is the animus or cause of the first sale that will determine the character and legal regime of the sale, and not so much, as mentioned above, the real and effective profit obtained by the reseller, otherwise the determination of the legal nature of the sales would be subordinated to the realisation of the resale, which can sometimes be postponed in time (…) Thus, it is not the resale accompanied by a real profit that determines the commercial nature of certain types of sale, but the purpose for which the purchaser or buyer intervenes in the business. This purpose must be different from the personal, family or domestic use of the purchased thing “.

Based on the above, in order to decide whether the contract is governed by consumer or commercial law, it seems that what is relevant is the purpose of the transaction and not so much the subjective conditions of the contracting party.

It is important to distinguish both natures, particularly in two types of actions:

-The claiming price limitation period for of the sold good, in the case of a civil sale, it’ll be of three years (1.967.4 of the Civil Code), whereas, in the case of a commercial sale, the period will be of 5 years (art. 1.964 of the Civil Code, by reference to art. 943 of the Commercial Code).

-Regarding claims for the sold good’s hidden defects, in the case of commercial sales, the buyer will have thirty days from delivery to claim for internal defects of the sold good. Once this period has elapsed, the buyer loses all action and right of recourse for this reason against the seller (art. 342 of the Commercial Code).

María Roldán

Attorney at Law. Associate in the Legal Division at Devesa & Calvo Abogados.

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