Purchase and Sale Agreement: 5 tips to avoid problems

The purchase and sale contract is one of the most common forms of carrying out commercial transactions in Brazil and includes the transfer of ownership of movable and immovable property, provided that they are within legal commerce, that is, that they can be the subject of negotiation.

In the case of real estate, for example, the Brazilian Association of Real Estate Developers (Abrinc) highlighted that the sale of this property reached an increase of 11.9% in 2022 - the best performance since 2014.

Regarding movable property, in the specific case of motor vehicles, the result released by Fenabrave (association of dealerships) shows a decrease of 0.8% compared to 2021.

But, after all, what is a purchase and sale contract and what peculiarities does it carry in relation to the type of asset that is intended to be traded?

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What is a purchase and sale contract in Brazil?

In its essence, buying and selling is a matter regulated by the Brazilian Civil Code, in its articles 481 to 532, as well as, in some cases, by the Consumer Protection Code (Law No. 8,078/1990).

This is a type of contract that creates reciprocal obligations for the parties involved (buyer and seller) and is considered bilateral or synalagmatic.

That said, it is perfected with the agreement of will, regardless of the delivery of the thing, and is therefore a consensual contract.

It is an onerous contract, in which both parties obtain benefit and sacrifice, and generally the benefits are certain and equivalent, characterizing it as commutative.

As a rule, there are no specific formalities, but in the case of the sale of real estate, the written form (public deeds) is required. Its phases include:

In the first phase, the mandatory phase, the parties negotiate the conditions and terms of the purchase and sale. At this time, individuals establish the object of the transaction, the price, the payment terms, the form of delivery of the good, among other issues relevant to the transaction.

During this stage, it is important for the parties to be aware of legal formalities, such as the form of conclusion of the contract (which may be written or verbal, depending on the negotiated asset), the capacity of the parties, and the existence of any defects of consent or invalidity that may affect the validity of the contract.

After the conclusion of the contract, the enforcement phase begins, which is the stage in which the parties effectively comply with the obligations established in the contract. In this phase, the seller delivers the goods to the buyer, and the buyer pays the agreed price.

It should be noted that, during the enforcement phase, possible problems may also arise, such as a delay in the delivery of the good or quality problems, which can be resolved through negotiation between the parties or even through a judicial process, if there is no agreement.

5 essential tips to avoid problems with a purchase and sale agreement

Although it is a way of ensuring the security and validity of a deal, there may be problems in the execution and execution of the contract if certain precautions are not taken.

1) Make a detailed and clear contract (and understand its clauses before signing)

It is essential to carefully read all the clauses of the purchase and sale agreement before signing it, verifying the veracity of the information provided, such as the characteristics and condition of the product or service, price, delivery time, among others.

To this end, the contract must be drafted in simple and accessible language, to facilitate the understanding of the parties involved, avoiding ambiguities or omissions.

After all, once signed, the parties will use it for solutions before going to court. It is important to clarify doubts, inform about possible problems and seek friendly solutions in the event of an unforeseen event.

2) Check the seller's eligibility

Before closing a transaction like this, it is important to verify the seller's suitability, consulting references, researching their online reputation (if applicable) and verifying whether they are registered or authorized to sell the property.

In addition to these practices, other measures can be taken, such as verifying that they have a valid and active CNPJ or CPF, searching for information about your company, and asking about the experience of other people who have already shopped with them.

Believe me, this is a fundamental measure to ensure business security, prevent fraud and financial losses.

3) Know your rights and duties

When it comes to a purchase and sale agreement, it's essential that both the buyer and the seller know their rights and obligations. This helps to avoid conflicts and problems in the execution of the contract, in addition to ensuring that both parties are aware of the obligations they assumed when signing the document.

One of the buyer's main rights is the right to receive the good as agreed. That is, if it does not meet the expectations or the information provided by the seller, the buyer has the right to demand the correction of the problem. In addition, the seller has the obligation to provide clear and accurate information about the product or service, such as delivery time, warranty, payment method, and others.

As well as having rights, the purchaser also has duties to fulfill. One of the buyer's main duties (and seller's rights) is to pay the agreed price, as well as to comply with established obligations regarding the payment deadline and delivery method.

4) Negotiate fair conditions

One of the main strategies for reaching a win-win agreement is to negotiate fair conditions.

This is because, when it comes to a purchase and sale contract, it is common for one of the parties to feel at a disadvantage compared to the other, either due to differences in purchasing power or knowledge about the asset in question.

An interesting suggestion is to seek negotiation alternatives, such as the installment of the payment, the inclusion of additional guarantees and other clauses that may be advantageous for both parties and maintain the balance of the agreement.

5) Save all documents related to the contract

By keeping all the documents related to the contract, you will be ensuring that all these conditions are met and that any possible problem can be solved easily.

In the event of a legal dispute, for example, the documents stored will prove that the deal was carried out and what were the conditions agreed between the parties.

Is it possible to sign a purchase and sale agreement remotely?

With the crescent digitization of documents and the need for social distancing that arose as a result of the pandemic, many people wondered if it is possible to sign a purchase and sale contract remotely. The answer is yes, it is possible to sign a purchase and sale agreement without having to meet personally with the other party involved.

In general, unless there is a law determining the use of a specific type of electronic signature, every document can be signed with any of the existing forms: advanced, qualified, or simple. This is because the law favors the autonomy of the will of the parties and does not establish any hierarchy between the types of electronic signatures.

There are several electronic signature platforms available in the market that allow this option. Clicksign, for example, has numerous features to ensure legal validity and the authenticity of the signatures collected, such as the use of digital certificates And the record of facial biometry.

In addition, Clicksign has the highest standards of Information Security and it is the only 100% Brazilian company in the market with the certification ISO 27001.

If you want to know more about how Clicksign can assist you in this process and become the ideal solution to accelerate the growth of your business, through the secure digitization of records and electronic signatures, click here and take a free trial.