Burning libraries down - indecopi and sales “ad corpus”

One of the most regrettable incidents of ancient history undoubtedly was the burning of the Library of Alexandria, the largest in the ancient world, which was built in the 3rd century BC and may have disappeared as a result of the war that made Julius Caesar pursue Pompey 48 years BC.

Bibliographic material is not only destroyed by fires. Sources of scientific value can also be destroyed by decisions intended to diminish the value of consolidated institutions, even supported by a large sector of the doctrine.

Let us see if something like this has occurred with Resolution N° 900-2014/SPC-INDECOPI, dated March 19, 2014, issued by INDECOPI’s Consumer Protection Courtroom in relation to a sale “ad corpus”, which INDECOPI did not believe was applicable to the case under analysis.

The story is as follows: a real estate company offered a 64.40 m2 apartment but, in the end, the apartment it delivered to the buyer was only 61.9 m2, that is, it was 3.881% smaller. INDECOPI’s Consumer Protection Courtroom disregarded the fact that the sale had been made “ad corpus”, an option contemplated in Article 1577 of the Civil Code. On the contrary, besides stating that the legal rule (sic) dates back to 1984 (it forgot about Roman Law), it argued that it addressed a reality other than the one contemplated in the Consumption Code (which one?) and was (¡!) consistent with goods sold at that time (farms, ranches, etc.). The Courtroom apparently was making reference to the year 1984 B.C.

The court’s arguments were insufficient. The concept of sale “ad corpus” is contemplated in the existing legal system and is widely used precisely because in construction projects there could be a discrepancy between projected and finished work, even using the best techniques and technologies available. Besides, calculation methods vary.

In agreements signed for the sale of apartments, a specific area is usually offered, but the agreement usually states, on a supplementary basis, that the sale is made “ad corpus”. The essence of sales “ad corpus” lies in the fact that, in spite of the fact that the specific area is specified, the payment is calculated as a whole. It is true that if there is a discrepancy of more than ten percent, then the price will be adjusted accordingly, either upwards or downwards.

In the case under analysis, the Courtroom does not mention whether or not a tolerance has been agreed for discrepancies, as usually done in this type of agreements, which would be quite delicate because disregarding said tolerance would be like disregarding two agreements reached by the parties: the type of sale and the tolerance margin.

In order not to enforce compliance with an express legal rule and with an agreement signed by the parties, the Courtroom invoked a “duty of suitability” to have all things included so that anything which cannot get in is out.

I believe that very few people remember Julius Hermann von Kirchmann, a German philosopher, jurist and politician born in 1802. In 1847, seduced by the predictability of the laws of natural sciences, denied the scientific nature of Law in his conference entitled “Court resolutions are not science”. One of the most striking statements of said conference was: “Three rectifying words from the legislators and whole libraries become waste paper”.

The Resolution under analysis had a similar result: a single decision was enough to turn all monographs and treaties on sales “ad corpus” into waste paper. A fire which, curiously enough, burns down all libraries.

In the end, the Courtroom ordered that the price be adjusted because the sale had been made “by measure” (ad mesuram), curiously using a concept devised at the same time as the sales mechanism that the Courtroom considered obsolete. Although it did not expressly say it, as a corrective measure it ordered the seller to make a proportional refund bearing in mind the area actually delivered.