Short answer. Yes. Article 1595 of the Civil Code expressly provides that it is a defense to a seller's price action that the seller, at any time before judgment, manifested an inability to perform the contract of sale or an intention not to perform it. The seller's own non-performance defeats the price claim.
What the law says
But it shall be a defense to such an action that the seller at any time before the judgment in such action has manifested an inability to perform the contract of sale on his part or an intention not to perform it.
Civil Code, Article 1595 — Seller's Action for the Price. Read the full provision →
The defense: seller's inability or unwillingness to perform
Article 1595 of the Civil Code gives sellers the right to sue for the price in certain circumstances. But the article immediately qualifies that right: But it shall be a defense to such an action that the seller at any time before the judgment in such action has manifested an inability to perform the contract of sale on his part or an intention not to perform it. If the seller demonstrates — at any point before the court renders judgment — that they cannot deliver or that they do not intend to deliver, that manifestation is a complete defense for the buyer. The seller cannot demand payment for performance they are not prepared to give.
When during the case the defense can be raised
The timing provision in Article 1595 is important: the defense applies when the seller manifested inability or unwillingness to perform at any time before the judgment. This means the defense is not limited to conduct that occurred before the lawsuit was filed. Even if the seller was capable and willing to deliver at the time the price action was filed, conduct during the litigation — before the final judgment — that shows inability or unwillingness can be raised as a defense. A seller who files for the price while simultaneously making clear they cannot actually complete the transaction faces this defense being invoked against them up until the moment of judgment.
What counts as manifesting inability or intention not to perform
The article requires that the seller manifested an inability to perform or an intention not to perform. A mere private inability that was never communicated would not qualify — there must be some external expression, act, or conduct that constitutes a manifestation. Examples of manifestation include: the seller selling the goods to a third party instead; the seller publicly announcing they cannot procure or produce the goods; the seller's insolvency such that they are clearly unable to fulfill; or explicit statements or conduct showing the seller has no intention of delivering. The manifestation can be through words or actions, as long as it is discernible and occurred before judgment.
Practical implications for buyers
If you are a buyer who has been sued for the price and you can show that the seller has manifested inability or unwillingness to perform, Article 1595 gives you a defense that goes to the foundation of the price action itself. The seller's right to sue for the price presupposes that the seller is ready and willing to deliver. A seller who cannot or will not deliver is not entitled to the price. You should gather and document whatever evidence demonstrates the seller's inability or stated intention not to perform — communications, the seller's failure to procure goods, transfer of the goods to others, or any other concrete indication — and raise this defense in the litigation before judgment is entered.