South Africa's sales law is the area of ​​the country's legal system that explains the rules that apply to sales contracts (or, more specifically, purchases and sales, or emptio venditio ), generally depicted as a contract in which one person agrees to grant to another free possession of goods in return for a price in the form of money.
Video South African law of sale
Definitions and important things of the contract
Definition
The sales contract, as it is known in South Africa today, comes originally from the Roman consensus contract emptio venditio . In D 18.1 (titles devoted to emptio venditio contracts), there is no definition that covers all of the specific contracts, but certain critical features can be extracted from the initial fragment of the title:
Sale is a contract of state law, and concluded with a simple agreement. No sale without price. No sales without something to sell.
The Roman-Dutch lawyers followed these guidelines carefully in the definition of their sales contracts. For example, Voet says:
Purchases are defined - But in this title, which is distinguished from the lease, it is a bonae fidei contract, based on approval, by which it is stipulated that merchandise will be exchanged for a fixed price. There are three important requirements for it - approval, merchandise and price. If one of them wants, no purchase.
In South Africa's law today, the definition of a sales contract remains the same. In the General Treasurer v Lippert, the full board of the Judicial Committee of the Advisory Council was quoted as follows by De Villiers CJ:
A sale is a contract in which one person (seller or vendor) promises to give something to another (buyer or emptor), the latter agrees to pay a certain price.
Menurut Mackeurtan,
Purchases and sales ( emptio venditio ) are mutual contracts for the transfer of ownership of goods in exchange for prices. It has three important things: consent ( consensus ad idem ); goods sold ( merx ); and price ( pretium ).
Remember that the sales contract is a special contract form, so all laws discussed under the article on South African contract law are relevant in considering the sales contract.
Essential
In general, an important element of a sales contract is no different from the essential elements of another contract. There must be capacity and consensus of the contract, the agreement must be legal (not contrary to public policy), performance should be possible, and all formalities required by law must be met. The sales contract, however, has a number of additional substantive requirements (known as essentialia ), which are assimilated into the general contract structure. Of course, like any contract, consensus requirement, or agreement, is the most important common element.
Agreement
The parties must agree that the object of the contract is to buy and sell the respective i
The general principles relating to consensus on purchases and sales are the same as those relating to other multilateral consensus contracts. Relevant points can be summarized as follows:
- There must be an agreement from the minds of the parties, which are communicated to each other, usually by way of bidding and receiving.
- The parties shall act with a view to enter into a sales contract. there must be concursus animorum animo contrahendi .
- The agreement must be free from error or error, and should not be mistakenly induced by improper misstatement, pressure or influence.
- The agreement must be legal and meet public policy orders.
- The agreement must be rational. Therefore it can not exist in cases of extreme youth, irrational poisoning or insanity.
Particularly in sales, there must be consent to:
- the subject of sales and its essential characteristics;
- the price to be paid; and
- any other items raised in the negotiations and explicitly or implicitly deemed to be material.
Therefore, two essentials of the sales contract
- goods sold; and
- the price to pay.
It was sold
The parties who make the sale must reach agreement on the principal of the sale. The general requirement is that the subject of sale should be
- is defined and can be ascertained (although merx does not need to be fully specific); and
- exists at the time of contract, or has the possibility of existence.
It is best to deal with the intricacies of this particular section by first checking for things that can be sold, and second, things that can not be sold legally.
Things you can sell
In general, anything can be sold, whether it is corporeal or incorporeal. Physical existence is not required for it to be a valid sale. Anything that can be held, owned or sued can be a legitimate subject of sale. There are, however, more specialized issues that need to be addressed for the full picture that emerges. These items or articles are not only limited by general law, but are also prohibited by law, except where the court may override such provisions.
The question in relation to the sale of res sua is whether a person can enter into a valid sales contract, which involves purchasing something that (unknown to him) of his own already. The general rule is that the goods owned by the buyer can not be the subject of a legitimate sale. However, it is possible, for the buyer to buy rights on his own property that he does not yet have.
Unpredictable items can form the subject of a valid sales contract. Such sales may be called generic sales, or emptio generis . Future goods, or items that do not yet exist, may also be the subject of legitimate sales. Such sales can take one of two forms.
Sales can occur if it involves something that does not yet exist, as long as it may , in the usual event, appear. Pothier says the following:
Can not, in fact, be a sales contract without goods being sold, but it is enough that the goods being sold may exist, even if they do not have a present. So, it is usual before the harvest, to sell the wine we might make; and in such case, there is sufficient to establish the object of a legitimate contract, even if the goods sold do not yet exist, the contract depends on the conditions of its existence in the future; and if that has not happened yet, that is, if there is no wine to be made, no sales.
This kind of contract is known as emptio rei speratae . The classic example is when Boucher agrees to buy the next corn harvest at R40 per bag. Since the sale involves corn, it seems at first sight is general sales, but it can be differentiated for at least two reasons:
- The source of the grain is determined: This must be Smith's harvest.
- This agreement is subject to suspicious circumstances: If Smith's harvest does not materialize, there is no sale.
It is possible to buy hope or hope that something can happen, regardless of whether it happened or did not happen in the future. The Pomponius jurisprudent was quoted as saying:
Sometimes, indeed, some are held as sales, even without goods, because the place purchased is an opportunity. This is the case with the purchase of bird or fish catches. This contract is valid even if there is no result, because it is the purchase of a hope.
Such contracts are the emptio spei contracts. For example, Boucher agrees to purchase the next Smith fish catch for R200. What is sold in this case is the hope or hope of a catch, not the catch itself. The spec is on sale date. It is no different from the obligations of the parties whether Smith catches anything. Thus, Boucher assumes the risk of loss, in which case he has to pay even though nothing exists, but can benefit because he can receive a value greater than his capital expenditure.
Res aliena , things that do not belong to the seller, may also be the subject of legitimate sales. It is not important that the seller be the owner of the goods at the time of delivery. The sale is not canceled simply because the seller is not the owner of the res vendita and has sold it without the owner's authority. The important thing is that the seller provides the property to the buyer, and ensures that its ownership is not subsequently interrupted by anyone with a better title. The buyer under such circumstances is protected (at least) by the residual guarantee against the eviction.
Shipping res , in such circumstances, will result in the transfer from the seller to the buyer of any rights the seller owns. The buyer will acquire the civil ownership of res , the consequences will occur, inter alia ,
- the right to ownership upon completion of the recipe;
- the right to the fruits of the property; and
- the right to use proprietary solutions.
The subject matter of litigation in brake litigiosa may be the subject of a valid sales contract as well. Such a sale may occur where the property, which is the subject of pending court action, is temporarily sold. If the property is sold, the buyer is bound by a decision in action. The successful plaintiff is entitled to get it back from the buyer (new owner) with the execution, without further processing.
Where property is the subject of an action in brakes , it becomes res litigiosa in litis contestatio .
Things that can not be sold
Things can not be sold under South African law. extra commercium res is between them. Many general laws and laws prohibit the sale of certain goods, often on the basis of public policy. For example, the general law does not impose sanctions on the sale of a person (slavery), and laws prohibit the sale of human tissue, and many narcotics, chemicals and so on.
Also obviously it is impossible to buy something that never existed. The most extreme example is the alleged sale of a mythical or fictitious object. Justinian said:
Anything, whether mobile or immovable, acknowledging private ownership, may be the object of provision; but if a man sets out for the delivery of something that is not or does not exist, like [...] an impossible creature, like a hippocentaur, the contract is void.
Where the subject of the proposed sales contract is specific, and that, before the agreement, and without the parties' knowledge, no longer, the agreement is usually null. In Theron Ltd (in Liquidation) v Gross, Watermeyer J said,
Undoubtedly it is our legal principle that contracts for the sale of certain goods, made out of ignorance of the fact that the goods have been destroyed at the time of the contract, are not binding on the parties.
For good factual examples, see Scrutton and Scrutton v Erlich & amp; Co and More .
It is not possible for litigiosa resin to be sold to a lawyer or a seller's lawyer. This is known as champerty. Mackeurtan states,
There is no legitimate sale, at any stage of the trial, of the property subject to such an action, to the lawyer or solicitor of the seller. The agreement is known as pacta de quota litis and does not apply.
Sale by Wells to Samuels from the expected legacy of Hutton, while Hutton was alive, was stigmatized for lack of legal force, although it did not void ab initio. However, after Hutton died, inheritance could be sold.
Sales by description and example
Some sales happen either by description or by sample.
Price
Di Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd , Corbett JA mengatakan sebagai berikut:
It is our general rule of law that no valid sales contract unless the parties have agreed, expressly or implication, for the purchase price.
Mackeurtan identifies the following important matters relating to price. Certainly serious
- ;
- fixed or able to make certainty; and
- is heard in the current money.
Serious
Being serious in number means that any real price, no illusions, is enough. If the price is set to only a nominal amount, this may be a strong indication that the parties intend to donate, not the sale. The question can be solved only in the circumstances of each individual case. In other words, the price must be real and contain a kind of relationship with the value of the actual goods, and the seller must intend to really demand the price. Ulpian said,
If a person sells a small price that is meaningful to give a gift, the sale is valid, because only when the donation is the sole consideration of moving the sale we hold is absolutely void; but when something is sold at a cheaper price as a way of donation, there is no doubt that the sale is good.
The parties are not prevented by this requirement from driving a difficult bid and getting the goods at a very low price, or selling them for a very high price, given the intention to buy or sell for that price. Then then that the price should not be fair or equivalent to the value of the goods, but it must be the real price the seller should intend to reply and buyers intend to pay. Zulman and Kairinos said,
The legal policy is to allow everyone, without the absence of fraud, to make the best offer he can, and neither the vendor nor the buyer is entitled to superior shrewdness, to avoid each other as long as the avoidance is not the amount of fraud. "
Although this is a fact, a price is often not considered real or serious if it has absolutely nothing to do with the value of the merchandise sold. This is the situation, for example, where the price is really nominal or illusory - as in circumstances where the seller has no intention whatsoever to demand the so-called price. Some may also dress the contract as a "sale", when in fact it is designed to be a completely different form of contract.
Certain, fixed or ready to be known
Typically, the price payable for merx must be corrected by the parties. This is not an absolute rule. The general principle is id certum est quod certum reddi potest : Which can be easily ascertained is sure. It is therefore not necessary that the actual price has been set to meet this requirement; it is sufficient if the parties have agreed on a method by which the price can be fixed. At Burroughs Machines Ltd v Chenille Corporation of SA (Pty) Ltd , Colman J said,
I think it is clear that there is no valid sales contract unless the parties have agreed, explicitly or implication, on the purchase price. They must either fix the price amount in their contracts or agree on some external standards with applications that allow to set prices without further reference to them. "
If the parties take the last route, what matters is that it should be possible to ensure the price by an agreed method. This can be done in several ways:
- The price will be considered easy to know if it can be fixed by referring to some independent circumstances.
- The price may be submitted to a third party named as agreed by the parties to the contract. If a third party can not set a price, or refuse to do so, there is no sale. If a third party can not be identified - for example, where the parties have not determined how to identify a third party, or have not renamed it - the contract does not appear; no sales. Similarly, if the agreement is one of the parties or the candidate set the price, there is no sale. The basic principle of this general sales law, however, has been questioned in the heavy oblivion of obiter in in the case of NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank; Friedman v Standard Bank .
- It is acceptable for the parties to expressly agree that the purchase price is "ordinary or current market price." This scenario does not present any difficulties. The "usual price" formula may also be implied in many sales where there is no clearly stated purchase price. The circumstances of pricing in such circumstances are as follows: There is an implied contract on the basis of the ordinary price at which the commodity is sold, or the current market price of a particular type of goods.
Currency
Price must be in a valid currency. It does not need to be expressed in South African currency; if not, however, then in some foreign currency conversion.
Where the fullest consideration in the goods, not in the form of money, the contract is one exchange, not a sale. If some consists of money and part in goods, the contract may be a sale or exchange, depending on the intentions of the parties. Generally, though, the contract is a sale.
This section considers the legal consequences of a sales contract, together with conditional sales, which alter the usual consequences. Certain relevant contract terms are also briefly discussed.
Maps South African law of sale
Legal effects of contract
Passing of ownership
This is not a legitimate contract terms of sale whose ownership must be forwarded from the seller to the buyer. Although the parties in the sale usually reflect on this happening, it is not an important feature of the sales contract, and (as we have seen) sales by non-owners are allowed. At common law, the transfer of real property rights (contract performance) is considered a separate legal transaction of the contract itself, which only creates a personal obligation.
Because ownership does not pass as a result of most sales contracts, however, ownership issues are an important incident of sales.
Normally, to transfer ownership in res , not only need to be physically conveyed by the owner; it is also necessary that the owner has the intention of transferring ownership rights to the buyer, and that the buyer has the intention to become the owner of the goods concerned.
As far as sales are concerned, there are certain additional improvements:
Property does not move
In the case of imovables, ownership is bypassed upon registration of transfers in the Deeds Registry. This position is governed by the Registries Act Deed. In other words, registration is a shipment in the case of non-moving, and ownership passes whether the price has been paid or not.
Incorporeals
Ownership in the incorporeal form is transferred by means of submission.
Moving property
Ownership in movable property is transferred
- when sending res; plus
- payment of the purchase price, the provision of security, or the granting of credit.
Shipping
Delivery usually occurs by traditio . Ownership is passed on traditio only if the following important things are present:
- It must be owned.
- The seller must have the legal capacity to sell.
- Traditio must be done by the seller (or its agent), because the owner of the goods can not be deprived of his ownership by someone else's misconduct, and no one can transfer any greater rights in the matter he owns. Nothing can make other people become the owner of something he does not have.
- The seller must intend to assign ownership to the buyer.
- Delivery must be made to the buyer (or his agent).
- The buyer must have the legal capacity to become the owner of the goods.
- The buyer must accept the shipment, which intends to gain ownership in that matter.
Delivery form
Delivery can occur in two ways.
Actual delivery
The actual delivery ( traditio vera ) occurs where res vendita is physically submitted by one person to another de manu in manum . Constructive delivery
Constructive delivery involves various methods of transferring ownership where there is no physical delivery of res vendita . There are five methods of constructive delivery:
Payments
Ownership passes delivery only if cash is paid, or if credit is allowed. In Laing v SA Milling Co. Ltd , Million JA says, "On sale of movable goods followed by delivery of property does not pass until the buyer has paid the money or secures the seller for the same, or unless the sale is in the form of credit. "
At this point, it is important to distinguish between how ownership passes cash and credit sales respectively. In cash sales, pass ownership after there (in addition to delivery) payment due to purchase price. In sales on credit, the fact that the credit has been granted is an indication that the ownership is only delivered at the time of delivery. In regular credit sales, the seller can not claim that he or she has no ownership interest until the full price has been paid. (This does not cover situations where sales are one subject to pactum reservati dominii ).
In the absence of agreement (express or implied) that the credit has been granted, it is assumed that each sale is a cash sale. The point is well illustrated in Daniels v Cooper.
The cash sale assumption can therefore be refuted by adding proof of agreement to grant credit. If the rebuttal succeeds, the ownership is passed on delivery. If the credit has not been granted, the ownership will not be valid until the price is paid - even though the delivery has, in the meantime, occurred. Agreement to give credit must be clear and specific.
That being said, it is now much more difficult to show an agreement on credit than under general law. It's because of the law. If a sale occurs on credit, the requirements of the National Credit Act apply to it.
Where the sale is for cash, and the seller receives a check for payment of the cash price, the ownership does not pass (regardless of the resignation of the salesperson) unless the check is met when presented for payment.
Risks and benefits
General law
In most commercial day-to-day transactions, the conclusions of the contract of sale and endorsement of ownership by sending res happen instantly. However, in some types of sales, there is a delay between the time of entry into the sales contract and the transfer time of ownership and ownership. The questions to be answered under these circumstances are: Who benefits from any benefits earned to res , and who pays the risk of damage to it, during this window period?
Risk
Mackeurtan defines the risk as follows:
Risk means loss resulting from damage, or destruction, goods sold, or other damages arising, or affecting, arising through any agency other than a breach of contract or the seller's wrongdoing or negligence.
Losses included in the rules include those due to vise maior , casus fortuitus , general deterioration over time and even theft. Voet says:
Under the name of risk there is every loss that occurs in a place, such as death; escape and hurt in the case of [...] an animal being sold; land clearing in case of field [...]; fires and collapses in the case of houses; shipwreck in ship case; mustiness, souring or leakage in the case of wine; and ultimately spoil, be bad, perish or rage in everything.
For modern examples, see Van der Merwe v Viljoen .
Not falling into the rules is a loss caused by seller failure to observe the appropriate standard of care.
Where the risk lies
South Africa follows the rule of Roman law with respect to risk. In the absence of negligence on the part of the seller, the general rule is that the risk will be passed on to the buyer when the sale is
The natural consequence of this rule is that full price must be paid by the buyer, even if the goods sold are damaged or destroyed before being delivered.
However, this general rule applies, where:
- The parties have agreed otherwise
- Certain items should still be weighed, measured, or computed
- Unknown items
- There are conflicting law requirements
- There is a default by one party
The parties may change the normal rules of risk with a clear agreement in their contract. The court is reluctant to accept that such agreements for any kind are implied from the negotiations of the parties, even if they are possible. One prominent question here is whether or not an attempt by the seller to deliver the goods in the prescribed destination of course means approval to vary the risk event. The answer does not seem. Why approving solely to convey from afar implies a term that risk is fixed with the seller until delivery? The situation will be very different where the seller undertakes to give it "safe" to an agreed destination.
General rules also apply where certain items must be weighed, measured, or calculated. In this case, the difference should be drawn between the sales of advertising quantitatem and sales per aversionem . Where sales are quantitatem ads , there are sales of certain items, but the price depends on the calculation, weighing or measuring: for example, R300 per sheep, for the flock. Risk does not qualify in this case until the price has been confirmed by counting the flock.
Pothier explains the situation in the following way:
If sales are things consisting of in quantities , and are sold by weight, number or size, it's as if someone sold ten corn casks [...] ten thousand pounds of sugar, or one hundred carp , sales are not perfect until corn is measured, sugar is weighed, or carp is calculated [....] For this reason, until the thing is measured, weighed or counted, it does not become a buyer's risk; because the risk can not fall on something uncertain.
Where sales are per aversionem , it is, as it were, in gross . The price is a lump sum for a certain item, even if res vendita is the type usually weighed, measured, or calculated: for example, a flock of sheep at R10,000 for parking. Pothier says:
But if the goods are not sold by weight or size, but per aversionem , that is, in large quantities, and for the sole and sole price; in such cases, the sale is perfect from instant contract, and since then these items are at buyer's risk.
While the situation considered in terms of unpredictable goods is analogous to the foregoing, the price is usually ascertained, but the res vendita res vendita does not pass until the item that replied to the description in the contract has been adjusted to the contract. In order for appropriation to occur, there must be concrete action by the seller, such as setting aside or marking the relevant item.
The general rule also applies, obviously, where there are conflicting legal provisions.
Ordinary risk rules are changed where a party fails to fulfill its obligations under a contract. Rules vary by
- Fraud of one party
- The seller's failure to comply with the required maintenance standards
- One party default in performance
- Do anything by one of the parties that prevents others in their appearance
The rule here is that the presence of any of these factors reduces the adverse party from risk, saving as far as any damage may be due to its own fault or negligence.
Benefits
Kerr defines benefits as "natural fruit or civil fruit and other similar advantages, profits or profits." The general rule is that the benefits in res vendita follow the risks. Any benefit given to buyer after sale is perfecta Consumer Protection Act
This legal area faces significant changes under the Consumer Protection Act.
Conditional sales
As indicated, the usual rules of common law regarding ownership waiver and risks or benefits may be modified if the parties agree to certain conditions.
Terms
"Contracting Parties," Mackeurtan writes, "may include in their agreement any terms they wish, subject to the subsequent limitations This may suspend operations, or cause the dissolution of contracts, until or after the occurrence of an uncertain future event [....] The first class is suspensive, and the second is definite. "
Whether a condition is suspensive or resolutive is a construction problem. The court sees outside the ipse dixit of the parties and interprets the words as they stand. The following prerequisites must exist for a condition to be operative:
- The enactment or dissolution of the contract must be made to rely on the occurrence or absence of an uncertain future event.
- It should not be impossible, illegal or immoral.
- It should not be subversive of the essence of the contract.
Terms
As mentioned above, the exact conditions affect the operation, or carry the dissolution, of the contract. On the other hand, the term only modifies the usual effects of the contract. For example, the parties may agree on a term that ordinary risk rules vary.
Suspected condition
The legal effect of the conditions suspected in the law of sale is a matter of some controversy, but effectively its position is this: Unlike other contracts, a contract subject to a condition that is suspected to be only a sales contract once the conditions are met. Because this is contrary to the common-law position (and, indeed, for logic), the type of contract that is significant to the character of the sale, and subject to the conditions suspected, has been covered by legislative amendments, so the anomaly does not apply. Most of its significant effect in practice has been fixed by law.
Resolutive Condition
A valid resolutive condition has the following effects:
- The contract has a full legal effect from then perfecta waiting for the fulfillment of the conditions.
- An affirmative resolutive condition is fulfilled by the occurrence of events; a negative resolutive condition is met when it is certain that the event will not occur.
- If his condition is satisfied, his contract is dissolved retrospectively, and should therefore be considered never existent.
Example
Here is a typical conditional sales example.
Approval of financial stability or loan availability
Suspicious conditions are sometimes found in commercial transactions for the effect that the transaction depends on the seller's agreement on the buyer's financial stability. There is no sales contract until the seller gives his consent. He must exercise his wisdom naturally and in good faith.
A similar clause is found in the sales deed, where the sale of the land is subject to the stipulation that the buyer may:
- Sell the previous house (if relevant)
- Obtain approval for a loan secured by a mortgage bond from a recognized financial service provider within a certain timeframe
If it becomes clear, conditions can not be met, the contract fails.
For Sale or Back
Sales or payments ( pactum displicentiae ) are the types of conditional sales that are often encountered in practice. This involves buyers who receive goods from sellers with the option to become owners. He can use his choice in several ways:
- by purchasing goods at a named price;
- by selling goods to other goods; or
- by saving it for so long that it makes no sense to return it.
This type of contract can be considered a subject for conditions that delay sales until the buyer has done one of the things mentioned above to indicate his intention to become a buyer. Mackeurtan, however, feels that the contract of sale or return is an example of a contract subject to clear conditions.
Sales with approval
There are several disagreements about the sale of approval. Some argue that this is a sale that is subject to suspicious circumstances: Because sales are subject to inspection and buyer approval, sales operations are suspended until buyer approval has been declared.
There is another view: that this is a sale that is subject to clear conditions. In this view, the sales transaction is done completely, and the client is charged. However, if the client feels that the goods are not good, he is entitled to return the goods to the seller, and the transaction is reversed. In modern consumer contracts, this seems to be a better view.
Buyer's remaining and buyer reprieve
Seller is required to take care of res vendita to merx available
Discussion of the above risk indicates that the risk of accidental loss is usually passed on to the buyer immediately after the sales contract is perfecta . However, this does not relieve the seller of all liability for goods sold while the goods remain in his hands. The general rule is that the seller is obliged to take care of the goods until it is time for performance, and that he is responsible for any damage caused by his fraud or negligence. In Frumer v Maitland, Schreiner JA says,
It would be easier to first consider the obligations of vendors who have not yet sent the sold property. It is his duty to guard it like a paterfamilias bonus and if he fails in that duty, the buyer will be entitled to claim compensation, or, if, but only if, the result of vendor negligence is that the goods sold differ materially from being tendered, to refuse contract and refuse to take delivery. "
Where the seller is at mora , the seller becomes responsible for all losses, no matter how it happens. Only if it can be shown that the damage will still occur, even if the goods have been shipped, will lose it as a buyer.
The level of obligation to take care of delayed shipment changes if the buyer is in mora in taking delivery. If the buyer fails to take delivery, the seller is only responsible for the consequences of its negligence ( culpa lata ) or fraud ( dolus ). He is not responsible for ordinary omissions.
Treatment sizes can also vary by agreement.
Where res vendita has been damaged or lost when the seller has prior to shipment, and the responsibility is not the seller, he must submit to the buyer any right of action which he may have in connection with the damage, buyer may use this right to cover its own loss. If, for example, the goods were stolen and found to have a third party (not a thief), the seller must surrender his rights of justification to the buyer. Buyer's solution
If the seller is not careful, the available solution depends on whether the item is specific or unknown.
Specific items
In the case of certain goods, in which material damage, the buyer has the right to refuse to accept the delivery of the goods and to refuse the contract, claim the compensation, and refund the price if paid. In other words, he has the right to treat the situation because he will not deliver it. Where the damage is not material, the buyer must accept the delivery of the goods, and then claim the damage.
Unpredicted stuff
If the sale is an uncertain item, the buyer can refuse the goods and once again treat the seller as if there was no delivery at all (whether the violation is great or not), provided the damage is not trivial. However, where, the buyer receives the res vendita, but claims the damage, the damage is estimated based on the difference between the value of the sound good and the value of the damaged goods being shipped. Buyers can also claim expenses that need to be discarded. Seller's job to provide items for sale
This obligation is similar to the task of "sending a resita," as often described, including in the new Consumer Protection Act Some prefer Kerr's description People should understand the terms "making goods available" and "shipping" as synonyms.
Mackeurtan discusses this issue in great detail, citing six elements of this task (with semantic variations) as follows:
- to make the goods available at the agreed time and place;
- to make the goods available under conditions at the time of sale;
- to make the goods available in accordance with the specifications regarding the size, quantity, quality or other aspects agreed upon in the sales contract;
- to make goods available with all accessories, tools and fruits;
- to place the buyer in a position where he obtains vacua possio (uninterrupted ownership); and
- to do, at the seller's own expense, whatever it takes to make the merchandise available to the buyer.
Agree time and place
The seller must make the goods available at the time and place specified in the contract.
Time
If no time is set, res vendita should be available soon (if performance is possible at the time of sale), or within a reasonable time (if the process takes time). The circumstances of each contract determine a reasonable time. A seller who fails to make the item available is available at the right time is at mora .
The seller is not entitled to remit in installments if the contract has no effect. Where the period is declared for delivery by installment, though, the seller is bound to give an agreed upon.
Places
The seller must make the available merchandise available at the place agreed upon in the contract. If no place is agreed upon, he should make it available in the place where the article, if specific. If res is unknown, the seller must make it available in his/her place of business; if he has no place of business, then at his residence. If the item is ordered for production, it must be provided at the premises, in the absence of a conflicting agreement.
The same conditions as the sales time
In Frumer v Maitland , Schreiner JA notes that, "The applicant is entitled to home delivery within a country that is not materially different from those on the contract date."
Subject to specifications
The rule about this element is protean. The following discussion takes into account only two aspects.
First, it should be pointed out that, where sales are summarized by the sample, such contracts contain explicit warranties that most items are in accordance with the sample. If the final shipment fails, warranties are breached, and the buyer owns actio empti , and various contract settlements, including (if applicable) a claim for damages.
Second, as Volpe said, "Sellers should not provide more or less than the amount stated in the contract, or contract goods mixed with others with different descriptions."
Di Cedarmount Store v Webster & amp; Co , Wessels JP diadakan,
According to our law [...] the contract to provide at one and the same time a certain number of quality articles is prima facie of the entire contract, and the seller has no right to change the nature of the contract. ASi in emptive mode dictus est et non-pre-esteem ex emptio actus est . It is based on the principle that the lender can not be forced to accept part or partial payment of contract performance. Although the contract issue is physically able to divide, but from a legal point of view the obligation is the payment of the entire amount due or the number to be delivered [....] No obligation is given to the buyer to separate the bad part of the consignment from the good. Once he satisfies himself that out of a large number of bags there is an unfounded number of defects, he, prima facie , has the right to reject the lot. "
There is some dispute about the power of a buyer in connection with breach of these terms.
With all the accessories, tools and fruits
Mackeurtan defines these words as follows:
- Accessories "are those that, while capable of abstracting separate conceptions, are in fact an integral part of the main thing, and the loss of their individual existence." He gives examples of the following accessories: anything that arises organically from an object (tree, etc.), and whatever attaches to the main object in a permanent way (building on land, arm on statue, etc.). Accessories can be identified by the nature of the object, the way they attach to the main object, and the intent of the person attaching it.
- Authority "is a helper, who is not really identified with him, but shares his destiny, legal and relationship conditions." They are naturally adapted to serve and add permanently to the usefulness of the essentials. An example is a key to a crate, a sword sheath or a bottle of liquor.
- The seller must also make the available goods available with whatever fruit he or she obtains because the sale is perfecta . An important date is when the benefits are passed. Natural fruits include all natural products of the thing, including whatever is taken from them (crops from sold land, for example), whereas civic fruits refer to any financial gain that arises for the goods (eg, interest and rent ).
Vacua possio
This obligation means, firstly, that the seller must make the goods available in such a way that no one accuses any direct ownership of res . In other words, when the goods are available, the buyer must obtain free and undisturbed ownership.
Secondly, this means that the seller must provide the goods sold in such a way that no future person can assign a superior legal right to it to the buyer. The special part of this seller's liability involves a guarantee against eviction.
Whatever it takes to make a sold item available
This obligation can be divided into several tasks.
Where the seller consists of unconfirmed goods, the seller must give them to the contract and ensure that the quantity and description and quality of the goods accordingly are in accordance with the terms of the contract.
If anything is to be done on resellita to put it into a shipping status, the seller is responsible for doing so at his own expense.
The seller must, if the buyer requires this, provide the last reasonable opportunity to check it before it is received.
Seller must notify the buyer of the fact that the goods are available, if the buyer can not be expected to match the goods without notice.
Recovery of buyers
Mackeurtan menulis,
The seller of goods may be in a default state in respect of its obligation to transmit either by not delivering at all, or by delivering goods other than, or more or less than, purchased, or because he has submitted the item at an inappropriate time or place. He may have rejected his obligations. He may have violated his guarantees of expulsion, or his duty to take care of the goods until delivery [...] This clearly violates the contract in which the buyer's drug is contractual. "
The medicinal properties for these residual duty violations are very detailed and complex. A brief summary is given here, based on the discussion of Kerr.
Specific performance
The buyer has the right to claim the goods sold to him (of course, subject to the court's discretion to reject it). This drug is available to buyers who decline tender of goods as inappropriate. As we have seen, a buyer, who receives less than what he contracts to receive, may prefer to accept what is tendered, but demands a balance to be generated.
Cancellation
Failure to make goods available in sales contracts is a major offense. This gives the buyer the right to cancel the contract. In Landau v City Auction Mart, Watermeyer JA says,
I can not find anything in Roman-Dutch law that stands in the way of orders made for the buyer to cancel the contract of sale and repayment of the price by reason of refusal by the defendant to provide the property for sale.
Damage
If the seller fails to make the goods available, damage may be provided (with or without cancellation, depending on circumstances and types of violations), in accordance with the general principles of the contract.
Seller's assignment to transfer ownership
Seller has an obligation to transfer ownership if he/she owns it, or can obtain it, if it fails, its duty is to guarantee the buyer against the expulsion.
Transfer ownership
The seller, as noted earlier, does not need to be the owner of the goods it sells. In most circumstances, he is, though, and therefore obliged to transfer ownership. This obligation, although it seems reasonable, has been a source of contention in South African law. In particular, the uncertainty has been caused by statements made by Wessels JA in the case of the Kleynhans Brothers v Wessels Trustee . This debate is considered in due course.
If the seller mala fide fails to transfer ownership, the buyer has an ex empto action for ownership transfer, as soon as he/she finds the actual position.
Warranty against evictions
Again, the seller is usually the property owner. He is expected to transfer this ownership as part of the sale. What happens, however, in a situation where someone bona fide believes he/she is the owner of the item he is selling, but is not? Such sales are, of course, legitimate, but since Roman days the law has said that a person who buys and takes possession of a property from such a seller has no action except and until he is threatened with eviction by someone with a better legal title for the property (usually the actual owner). The act appears in such circumstances from what is known as a guarantee against eviction. The warranty requires the seller that he or she is doing anything legally possible to protect the buyer he owns from res vendita . Inability to do so makes him responsible under this warranty. This warranty is indirectly re-articulated in the Consumer Protection Act.
Three basic requirements must be met before the seller becomes responsible for the expulsion of the buyer:
- Eviction
- Notifications
- Defined defaults
Expulsion
Voet states, "Eviction is a recovery by our property court process, which has been obtained by opponents by iustus titulus." It should be noted that in the present it has a much broader connotation than the one given in the Voet definition. This means any legal interference with vacua possio , by the seller or a third party. In Norman Purchases and Sales , it is said that evictions
thereby including a request from a third party to deliver the property sold to him if the buyer can not refuse such a claim; the denial of the person owning the property to deliver it to the buyer; request payment of a sum of money by the buyer to retain all or part of the res vendita ; and it is conceivable that there is a hidden servitude of property that disrupts the use and ownership of the property. In short, anything that undermines the buyer's right to the whole or part of the goods sold, or that pose a threat to his/her right to have free and undisturbed ownership.
Seller is not responsible for any unlawful interference with buyer ownership. Obligations only appear if interruptions are the result of defects in the seller's title. Weakness must be present at the time of sale or, if it appears later for the sale, is due to the seller's own actions. Evictions, therefore, do not include situations where the sale is set aside by the court, or if the property is attached by the seller's creditors before the ownership is passed.
The warranty starts operating immediately after the buyer vacua possio is threatened.
"The idea of ​​eviction," writes Volpe, "has also been extended to serve consecutive sales: the repayment of the purchase price to buyers who have been evicted equalized in the situation by self-eviction by the seller and applies as such when the seller is seen next to the one he bought himself. "
So Kerr writes, "The facts of Olivier v Van der Bergh [...] and Louis Botha Motors vs. James Slabbert Motors [...] show that it does not it is common for A to sell to B and B to C (ownership is transferred in both cases) before the owner actually makes his claim.This decision indicates that once a claim has been filed against C and he has delivered the goods sold, whether after the appraisal or as he can show that the plaintiff has an unshakable right, he can claim compensation from B and B can claim from A. C shall not, in the absence of a session, claim directly from A. "
In cases where there is a series of consecutive sales, however, intermediaries who have bought and then sold the goods to another party do have a locus standi to bring the process to determine whether the person claiming the right to the property has the right legitimate to do so.
The warranty action also appears where the res vendita or the part of it belongs to a third party, and the buyer can not get it. Notifications
As soon as the evictions are threatened, the buyer must notify the seller of a third party's claim to own the goods. The seller must be given adequate notice to fulfill its obligations to protect the property of the buyer. The salesperson's job is somewhat unclear, but it seems he is expected to intervene in the action, and take defense against another party who claims the title. It is the seller's duty under warranties to waive the buyer from the risks and costs of the court action. If the buyer fails to provide the required notice, he has no recourse against the seller unless he can prove that third party rights are undeniable, or that it is the seller's fault that the notice did not arrive to him on time.
Buyer is exempt from this task when:
- A third-party title that claims the item can not legally be attacked;
- The parties have agreed that no notification is required
- Notifications were not given due to seller mistakes themselves
- The seller has sold the property mala fide , in which case the seller is responsible for fraud in the case of actio ex empto
Defined defaults
The buyer, faced with expulsion, is required in many situations to establish his or her virilis defense unless he can prove that the rights of the plaintiff are legally irrevocable. This must be done when the seller fails to help the buyer, either because he or she can not be found, or because he refuses to help.
Buyer's solution
Kerr states that a buyer claiming under a warranty is entitled to a repayment of the purchase price (or any portion already paid) and, if the loss exceeds and above that amount may be shown, compensation for such loss. The action is a contract, which is sued by actio empti .
Being the owner of bona fide , buyers can also claim fixes made to the property, this is from the actual owner.
If the expulsion is only partial, and not sufficient to grant the buyer the right to claim the cancellation, he is entitled to claim the difference between the value of the property at the time of expulsion and the value of what is left for him.
It is important to remember that the warranty is residual. Someone can sign him, if this is possible.
Duty to create res vendita available for free from disabled
Sellers are required to make goods sold available without defects or disease.
Where sellers make res available with defects, a number of considerations determine the nature and extent of the drugs available to buyers. In any case of disability, one needs to consider two important things:
- defect properties (whether patent or latent flaws); and
- the nature of the medicine.
Under certain circumstances, the buyer's drug is clearly contractual (applies in the case of actio empti ). In other circumstances, the treatment is not contractual; they found their roots in the aedilitian action of Roman law. Available levels of available relief differ depending on which drug is applicable. Historically, contractual actions provide buyers with consequential damages, whereas aedilitian solutions do not. While some decisions do not specify which drug to refer, the different properties of the drug remain important.
Patent disabled
Patent defects are a clear defect in the naked eye: easy to find by the buyer when the goods are received. An example is a scab on sheep. If certain items are identified, or unconfirmed goods will be tailored by the seller by contract, and the goods suffer from a patent defect, the seller may be sued for breach of contract by a defective performance. Therefore, the settlement is contractual; consequential damages can be claimed.
Where the buyer has checked the sales resident at (or before) the sale time, and the inspection should have revealed a defect, and the buyer accepts the item without objection, the irresponsible seller does not guarantee ( expressly or implicitly) the absence of defects, or by fraudulently concealing them. The reason behind this rule is that the buyer has freed his medicine by his behavior. He was thought to have bought the defective items, which he should have found.
Weaknesses latent
In Holmdene Brickworks (Pty) Ltd v Roberts Construction Co. Ltd Corbett JA defines the latent defect as follows:
Broadly speaking in this context latent defects can be described as qualities or abnormal attributes that destroy or substantially undermine the utility or effectiveness of res vendita for the purpose of being sold or commonly used....] Such defects are latent when it is one that is not visible or found on res reset examination. "
In other words, a latent flaw will not be seen by an ordinary person, even if an expert may have found it. Where the seller makes the merchandise is sold, and found that the item has a latent flaw, the seller is responsible to the buyer in four circumstances. It is important to note that the first three categories allow the aggrieved party to make a contractual effort: that is, actio empti , which includes a consequential loss claim or id quod interesse . The fourth category provides emergency assistance.
The four categories are:
- where sellers act cheats, or m
Source of the article : Wikipedia
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