Section 366.- So long as the parties have not agreed upon all points of a contract upon which, according to the declaration of even one party, agreement is essential, the contract is, in case of doubt, not concluded. An understanding concerning particular points is not binding, even if they have been noted down.

If it is agreed that the contemplated contract shall be put into writing, in case of doubt, the contract is not concluded until it is put in writing.

 

Section 367.- If the parties to a contract, which they regarded as concluded, have in fact not agreed as to one point upon which an agreement was to be settled, those parts which were agreed upon are valid in so far as it may be inferred that the contract would have been concluded even without a settlement of this point.

 

Section 368.- Contracts shall be interpreted according to the requirements of good faith, ordinary usage being taken into consideration.

CHAPTER II

EFFECT OF CONTRACT

 

Section 369.- A party to reciprocal contract may refuse to perform his obligation until  the other party performs or tenders performance of his obligation. But this does not apply, if the other party’s obligation is not yet due.

 

Section 370.- If the object of a reciprocal contract is the creation or transfer of a real right in a specific thing, and such thing is lost or damaged by a cause which is not attributable to the debtor, the loss or damage falls upon the creditor.

To a non-specific thing the provisions of the foregoing paragraph are applied from the time when the thing has become specific in accordance with the provisions of Section 195 paragraph 2.

 

Section 371.- The provisions of the foregoing Section do not apply, if the thing which forms the subject of a reciprocal contract depending upon a condition precedent is lost or destroyed while the condition is bending.

If the thing is damaged by a cause not attributable to the creditor, the latter, when the condition is fulfilled, may at his option either demand performance with reduction of his counter-performance or rescind the contract, provided that in the case where the cause of the damage is attributable to the debtor, the creditor’s right to compensation is not affected thereby.

 

Section 372.- Except in the cases mentioned in the two foregoing Sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter-performance.

If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter-performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by different application of his faculties. The same rule applies if the performance due fromone party becomes impossible, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.