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1.) It must be existing or have potential existence. It can also have potential
existence. It can even be a future thing (with exceptions, of course,) a contingent
one or even subject to a resolutory condition. In other words, it must be a "possible"
subject matter.
2.) It must be legal.
The goods of the sale can be either existing goods or future ones. Future goods
includes those that are manufactured or acquired by the seller after the contract is
perfected. A sale of future goods is perfected when the goods themselves are
acquired and delivered. Future inheritance, however, can't be sold; and future
property can't be donated.
If any of the requisites are lacking, the sale is non-existent (read: void.) Neither
party can ask for specific performance, nor hold the other liable for a breach of
contract. If, under Art. 1411 of the Civil Code, the contract is void because the
object is illegal and the act itself is a criminal offense, one of the following things
will happen: if both parties are in pari delicto (equally guilty,) neither party can have
a cause of action against the other; if only one party is guilty, the innocent party
can take back what he has given and won't be bound to comply with his promise.
If, however, under Art. 1412, where the act isn't a criminal offense, the following
rules will apply:
1.) If both parties are at fault, neither can recover from the other or demand
performance.
2.) If only one party is at fault, he can't recover what he has given and the innocent
party can take back what he gave and won't be bound by his promise.
Emptio rei speratae is a contract of sale of future things which must be determinate
or specific; it won't apply to things that are generic because generic things aren't
lost under legal fiction. Such a thing becomes enforceable when the thing in
question appears. If it doesn't appear, the contract either is extinguished when the
time limit expires or it becomes obvious the event won't happen. The uncertainty is
with regard to the quality and quantity of the thing.
Emptio spei, on the other hand, is the sale of a mere hope (like buying a lottery
ticket.) The sale is effective even if the thing doesn't appear unless it's a vain hope.
The object is a present thing which is the hope or expectancy and the uncertainty is
with regard to its existence.
The Civil Code recognizes the sale of things not actually owned by the seller in the
following instances: