The Contract of Sale
Definition
• Contract in which one party (seller)
undertakes to deliver the merx to another
party (buyer), the purchaser in exchange of
this agrees to pay the seller a certain sum of
money.
Overview
• Contractual requirements must be met.
• Parties have to agree on two essential
characteristics:
1. The merx
2. The purchase price.
The Merx
• Definite & ascertainable eg portion 12 of the
farm.
• Movable or immovable, or even incorporeal
thing such as a claim, or servitude or patent
The Purchase Price
• It be agreed upon & definite or ascertainable
amount in money
The common rights of the Purchaser
• He is entitled to delivery of the merx.
The common rights of the Purchaser
• He is entitled to preservation of the merx
pending delivery
The common rights of the Purchaser
• He is entitled to be protected by the seller
against eviction
• Seller’s warranty against eviction.
The common rights of the Purchaser
• He is entitled to a merx free from latent
defect
• Implied warranty against latent defects
entitles purchaser to certain legal remedies:
Four elements to be proved by
purchaser
1. Material defect in the merx.
2. Defects was present when the contract was
concluded.
3. Defect was latent.
4. At time of conclusion of contract purchaser
was unaware of the defect.
Contractual warranty
• Seller may giver buyer contractual warranty
against latent defect. Where defects are
present, buyer may institute actio empti
Seller conceals latent defect
• Voetstoots clause willn’t protect seller against
liabilty where he knew of the defect
What may be claimed with actio empti?
a) Cancellation of the contract of sale where
defect is serious
b) damages
Aedilitian Actions
• Actio redhibitoria (to claim restitution) and
actio quanti minoris (to claim a reduction in
the purchase price)
When can aedilitian action can they
instituted?
• Thing sold has latent defect
• Seller was aware of a latent defect &
fraudulent concealed such fact
• He expressly/ tacitly guaranteed presence of
good characteristics
• He false dicta et promissum to the buyer.
Janse van Rensburg v Grieve Trust CC
2000 (1) SA 315 (C)
• Buyer made innocent misrep that trade-in
vehicle was 1993 model rather than 1989.
• Seller claimed reduction in the purchaser price
in terms of actio quanti minoris.
What may be claimed with actio
redhibitoria
• Pro rata reduction of the sale price
When aedilitian actions may not be
instituted
a)
b)
c)
d)
e)
f)
Defect arose after conclusion of contract
Defect not latent.
Voestoots sale
Latent defect repaired
Waiver
Prescription
Consumer Protection Act 68 of 2008
• S 55(2) provides that good must be:
a) Reasonably suitable for the purposes for
which they are generally intended.
Consumer Protection Act 68 of 2008
b) Of good quality, in good working order & free
of any defects.
c) Usable & durable for a reasonable period of
time.
d) Compliance with applicable standards
Product failure or defects in goods
• It is irrelevant whether a product failure or
defect was latent or patent or whether it
could have detected .
Available defence for product failure
or defect
• If consumer was informed of specific
condition & she expressly accepted the goods
on that basis.
Remedies
• She may return goods within six months after
delivery to the supplier.
Transfer of Ownership
• Regulated by the rules of the law of property
Four requirements
a)Transferor must deliver the thing to the
transferee. Immovable by way of registration
in a Deeds Office.
Four requirements
b) Both parties must have the intention that
ownership should pass from the transferor to
the transferee.
Four requirements
c) The transferor must be in position to transfer
ownership.
Four requirements
d) In the case of contracts of sale the purchase
price must be paid or security given for the
payment thereof.
Forms Delivery
(a) Actual Delivery –(de manu in manum)
Forms Delivery
(b) Delivery with short hand – traditio brevi
manu
Forms Delivery
(c) Delivery with the long hand – merx sold is
pointed by seller to the buyer with intention
that ownership should pass
Forms Delivery
(d) Symbolic delivery – placing the buyer in
possession of a symbol by means of which the
buyer can control eg car keys/
Forms Delivery
(e) Constitutum possessorium – seller retains
possession of the merx, but on behalf of the
buyer, he rents it.
Forms Delivery
(f) Attornment - merx is physically in the
possession of a third party & delivery takes
place through a change of intention of the
buyer & seller.
Forms Delivery
(g) Delivery through marking - eg where sheep
sold is marked.