EL INCUMPLIMIENTO DE LA OBLIGACIÓN DE REEMBOLSO POR PARTE DEL VENDEDOR HACE DECAER SU DERECHO DE RETRACTO Y CONSOLIDA DE MANERA DEFINITIVA EL DOMINIO DE LA COSA VENDIDA.

Abstract

A contractual repurchase takes place when, in a sale, the seller reserves the right to recover the sold item and undertakes, in that event, to reimburse the buyer for the selling price and other expenses. Contractual repurchase is regulated in our Civil Code as one of the causes of cancellation of sale. It is a contractual cancellation, because it is the parties' wish, stated in their contract. Contractual repurchase is not a usual part of a contract. Rather, it is a voluntary element that must be purposefully included by the parties in order to be legally valid. When a contractual repurchase is established, the law sets certain obligations, which are regulated in article 1518 and are mandatory for the parties. Dominant doctrine and case law regard contractual repurchase as an express defeasance, because it is born of the contract, and as an optional condition, because it depends on the wishes of the seller, whom it benefits. A right of first refusal for a third party or reservation by the seller of the power ultimately to name the owner are not considered contractual repurchase agreements. In addition, in a contractual repurchase, the right can be exercised during the entire term of the contract or the legal term established merely by the repurchaser's wish.