Burning Down Libraries – INDECOPI and Sales “Ad Corpus”


In ancient history, one of the most tragic events was the destruction of the Library of Alexandria. This grand library, built in the 3rd century BC, potentially vanished during Julius Caesar’s pursuit of Pompey 48 years BC. However, valuable scientific sources can also be compromised by decisions aimed at undermining reputable institutions, even with support from influential experts. Let’s explore a similar situation involving Resolution N° 900-2014/SPC-INDECOPI, issued by INDECOPI’s Consumer Protection Courtroom on March 19, 2014, regarding a sale described as “ad corpus.”

The Case

In this case, a real estate company advertised a 64.40 m² apartment to a buyer. Regrettably, the apartment delivered was only 61.9 m², which equated to a 3.881% reduction in size. Surprisingly, INDECOPI’s Consumer Protection Courtroom disregarded the sale’s “ad corpus” nature, as outlined in Article 1577 of the Civil Code. Furthermore, the court neglected to acknowledge the historical origins of this legal principle, even though it dates back to Roman Law. Instead, the courtroom argued that the principle was outdated, referring to a time when goods such as farms and ranches were typically sold, possibly alluding to 1984 B.C.

Insufficient Arguments

The courtroom’s arguments lacked merit. The concept of a “sale ad corpus” is well-established in the current legal system and often utilized in construction projects. Discrepancies between projected and finished work can arise, even with the best techniques and technologies. Additionally, calculation methods can vary.

In apartment sale agreements, specific areas are typically offered. However, the agreement usually includes the provision that the sale is made “ad corpus.” The essence of such sales lies in the fact that the payment is calculated as a whole, regardless of minor size discrepancies. However, if the discrepancy exceeds ten percent, the price may be adjusted accordingly.

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Unfortunately, the courtroom did not clarify whether a tolerance for discrepancies had been agreed upon, as is commonplace in such agreements. Disregarding any agreed-upon tolerance would undermine two fundamental agreements: the type of sale and the accepted margin of error.

By invoking a “duty of suitability,” the courtroom refused to enforce compliance with both an explicit legal rule and an agreement made by the parties involved. This decision effectively rejected the notion that anything not explicitly stated should be excluded.

The Impact

This situation brings to mind the words of Julius Hermann von Kirchmann, a German philosopher, jurist, and politician born in 1802. In his conference titled “Court Resolutions Are Not Science,” Kirchmann, influenced by the predictability of natural sciences, questioned the scientific nature of Law. One of his most memorable statements claimed that “three rectifying words from the legislators and whole libraries become waste paper.”

Similarly, the analyzed resolution had a profound impact. A single decision was all it took to render countless monographs and treaties on “sales ad corpus” meaningless. It was a figurative fire that, astonishingly, consumed entire libraries.

In the end, the courtroom ordered an adjustment to the price since the sale had, in fact, been made “by measure” (ad mesuram). Strangely, the courtroom utilized a concept that they considered obsolete, which coincidentally originated during the same period as the sales mechanism. Although not explicitly stated, the seller was directed to make a proportional refund based on the actual delivered area as a corrective measure.

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