dissenting.
I dissent. The least that can be said of the contract subscribed by the parties is that it is ambiguous. It is true that in it, reference is made to “the contract of sale agreed to,” using such phrases as “agrees and binds itself to sell” (referring to the Sucesión) ; “agrees and binds himself to *630purchase” (referring to Kogan) and “the parties shall proceed to the execution of the deed of sale and to the performance of the respective obligations which both parties have assumed in this deed,” all of which in the opinion of the Court establishes that the contract of sale was perfected, and that its execution was delayed for the term of 90 days, according to the conditions of the contract. But it is also true that not only in its title, but also in the clauses in which the conditions of the contract are set forth, more than once, reference is made to “a contract of option of sale”; “the obligation of purchase contracted by him [Kogan] by means of the execution of this option”; “the properties involved in this option”; “The party of the second part [Kogan] hereby delivers to the party of the first part at the time of the execution of this document, as consideration for the option granted herein, the sum of one thousand dollars ($1,000)...” (Italics ours.)
In the fifth clause, where the foregoing is set forth, it is stated that “if the party of the second part fails to comply with the obligation contracted by him to purchase the farms for the price and other conditions stated herein, the said amount of one thousand dollars ($1,000) shall be retained by the Sucesión ... as indemnity for said nonperformance . . . ,” and the seventh clause contains that the obligation of Kogan “to restore possession of the aforesaid properties to the Sucesión ... if for any reason said party fails to comply with the obligation of purchase contracted by him by means of the execution of this option” (Italics ours.) In the clauses on appearance, the parties “state that they have agreed to the execution of a contract of option of sale of farms which they put into effect by this instrument” and further on they set forth that “the parties have decided to make at this time this contract of option of sale with the following clauses.” (Italics ours.)
*631I consider that the contract in question is one that grants Kogan an option for the sale of the property described therein, under the conditions stipulated in said contract — ■ one of which was that the Sucesión would retain the amount of $1,000 delivered by Kogan if he did not buy within the following 90 days — since all the conditions that flow from the aforesaid instrument and which the Court examined in its opinion to reach the conclusion that it is a perfected contract with a provision for delayed execution, are compatible with the theory of the option, while the clauses related to the option are not compatible with the theory of the perfected contract with a provision for delayed execution. This is clearly illustrated by the obligation imposed on Kogan of restoring possession of the property of the Sucesión “if for any reason said party fails to comply with the obligation of purchase contracted by him by means of the execution of this option.” It is inconceivable that if the intention of the parties was actually to perfect a contract with a provision for delayed execution, they would have to agree on the delivery of the possession by Kogan to the vendor if Kogan did not purchase.
The term “option of sale” used in the instrument herein has a definite juridical meaning and its repeated use in the contract can not be ignored in determining what was the intention of the parties as to the agreement, especially when it was drafted by persons conversant with law. One of the members of the Sucesión (and legal representative thereof) as well as one of the witnesses in said instrument are prominent members of the bar.
Although I agree with the observation of the Court that if the intention was to grant an option, the instrument should have been drafted in plainer terms, all the more reason to make the observation that if the intention of the parties was to perfect a contract with a provision for delayed execution, there was no need to refer constantly to the option and in-*632elude in said contract conditions which are incompatible with the theory of a contract of sale with a provision for delayed execution.
As I said at the beginning, the least that can be said of the contract herein is that it is ambiguous and under these circumstances I believe that the rule Ambiguum pactum contra venditorem interpretandum est is in point. I do not consider in point the case law cited in the opinion of the Court, simply because in my opinion it has no bearing on the text of the contract involved herein.
Consequently, I am of the opinion that the judgment appealed from should be reversed and the complaint dismissed.