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Normans Law of Purchase and Sale in South Africa

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ISBN/ISSN: 9780409007220
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Norman's Law of Purchase and Sale in South Africa captures the important judicial decisions and relevant statutes which impact on this critical area of law.

For almost 100 years Norman's Law of Purchase and Sale in South Africa has guided lawyers, students and businessmen through the intricacies of our law of sale. This is a book which has a loyal following.

This book has a unique orderly and practically convenient structure with extensive extracts from judgments, which has always meant that it has been of great assistance to practitioners, students and businessmen who do not have ready access to all the law reports. It has also been, for that very reason, a useful book for practitioners, particularly those appearing in court, who have it at hand so as to be able to readily cite authority.

The authors' approach is to not merely cite the cases but incorporate extensive extracts from the leading judgments in the text, in that way stating the law as far as possible in the words of the judges themselves. The Sixth Edition covers leading reported cases decided up to 31 December 2016. A new chapter has been added covering the Consumer Protection Act 68 of 2008. There is also a dedicated chapter on the formalities in respect of the Alienation of Land Act 68 of 1981. This book should be useful to busy practitioners who are in search of practical answers.

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Table of contents

CHAPTER_1 - The nature of the contract

1.1 - Definitions of sale

1.2 - Essentials of formation of contract of sale

1.3 - Obligations arising out of the agreement of sale

1.4 - When an agreement of sale becomes binding on the parties

1.5 - Agreement of sale not in itself a transfer of dominium (ownership)

1.6 - Presumption of intention to pass ownership

1.7 - Sale of the property of a third party

1.8 - Double sales

1.9 - Disguised transactions

1.10 - Sale or exchange

1.11 - Sale and donation

1.12 - Sale and locatio conductio

1.13 - Invitation to enter into a contract of sale

1.14 - Guarantee

1.15 - Sale or pledge

1.16 - Sale on approval or sale or return

1.17 - Sale and agency

1.18 - Sale and loan

CHAPTER_2 - The parties to the contract

2.1 - Introduction

2.2 - Insanity as affecting contractual capacity

2.3 - Intoxication as affecting contractual capacity

2.4 - Contracts of minors

2.5 - Contracts of married women

2.6 - Purchases by persons in a fiduciary capacity

2.7 - Contractual capacity of an insolvent

2.8 - Capacity of artificial persons

2.9 - Nomination of another purchaser

CHAPTER_3 - The subject matter of the contract

3.1 - Introduction

3.2 - The seashore

3.3 - Sale of specific and unascertained goods

3.4 - Sales of future goods

3.5 - Sale of incorporeal things

3.6 - Restrictions on the sale of certain goods

3.7 - Fiduciary property

3.8 - Sale of an article to be made or manufactured by the seller

3.9 - Purchase of one's own property

3.10 - Sale of things burdened with fideicommissa

3.11 - Sale of res litigiosa

3.12 - Sale of a res aliena

3.13 - Owner's right of vindication

3.14 - Sale of pledged property

3.15 - Sale by auctioneers

3.16 - Total destruction of the subject matter

3.17 - Partial destruction of the subject matter

3.18 - Sale of things regarded as a unit

3.19 - Typical commodities sale contract

3.20 - Sale of a res alienna

3.21 - Non-disclosure in relation to the sale of shares

3.22 - Fraudulent transfer of immovable property

CHAPTER_4 - The price

4.1 - Introduction

4.2 - The price must be in current money

4.3 - The price must be certain or ascertainable

4.4 - The price must be real, not nominal, and there must be an intention of exacting it

4.5 - Control of prices by legislation

4.6 - Agreements

4.7 - Pledge or mortgage

4.8 - In duplum rule

CHAPTER_5 - Mutual assent

5.1 - Introduction

5.2 - Mutual agreement inter se praesentes

5.3 - Contracts entered into through the post

5.4 - Contracts entered into by telegram

5.5 - Contracts made by telephone, telefacsimile, telex and e-mail

5.7 - Place where the contract is entered into

5.8 - Indication of a mode of acceptance

5.9 - Fraud and its effect on consent

5.10 - Innocent misrepresentation

5.11 - The effect of duress, force or fear (metus or dwang)

Undue influence

CHAPTER_6 - Options and pre-emptions

6.1 - Introduction

6.2 - Requisites of a valid option

6.3 - Option: Right of pre-emption or first refusal

6.4 - Requisites of a valid right of pre-emption or of first refusal

6.5 - Sale to a third party by the grantor of an option or right of pre-emption

6.6 - Cession or sale of option

6.7 - Death of the grantor

CHAPTER_7 - Formalities of the contract (excluding sale of land)

7.1 - Introduction

7.2 - Sale or transfer of businesses

7.3 - Sale of motor vehicles

7.4 - Sales under the Second-Hand Goods Act 23 of 1955

7.5 - Sales under the National Credit Act 34 of 2005

7.6 - Sales of stock

7.7 - Sales of a petroleum fueling station

CHAPTER_8 - Formalities of the contract of sale of land or interest in land

8.1 - Sale of land or interest in land must be in writing

8.2 - Statutory regulation of the sale of land

8.3 - Deed of alienation

8.4 - When Alienation of Land Act 68 of 1981 not applicable?

8.5 - Time for performance

8.6 - Transfer by order of the court following a divorce or separation

8.7 - Requirements for sales of land and residential land

8.8 - Issues raised in case law

CHAPTER_9 - Terms and conditions in contracts of sale

9.1 - Conditions and terms contrasted

9.2 - Suspensive conditions

9.3 - Resolutive conditions

9.4 - The Corondimas principle

9.5 - Conditional sales

9.6 - The effects of sale under a suspensive condition

9.7 - Sales under a resolutive condition

9.8 - Effect of death of contracting parties on conditional sales

9.9 - When conditional sales are deemed absolute

9.10 - Pacta adiecta

9.11 - The addictio in diem

9.12 - The lex commissoria

9.13 - The effects of a lex commissoria

9.14 - The pactum displicentiae

9.15 - The pactum de retrovendendo

9.16 - The pactum de retro emendo

9.17 - Instalment sale agreements under the common law

9.18 - Restrictive conditions attached to a contract for the sale of stands or erven in a township or in a defined area

CHAPTER_10 - The Consumer Protection Act 68 of 2008

CHAPTER_11 - Credit legislation

11.1 - The Credit Agreements Act 75 of 1980

11.2 - The National Credit Act 34 of 2005

CHAPTER_12 - The incidence of the risk

12.1 - General

12.2 - The unilateral appropriation of goods to the contract

12.3 - Risk in goods sold subject to a test

12.4 - Risk in a sale of things sold subject to a resolutive condition

12.5 - Risk in regard to the sale of immovables

12.6 - Risk of things sold in the alternative

12.7 - Risk where the vendor sells the same article to two persons in succession and it is destroyed before delivery to either

12.8 - Damage to or destruction of one of several things forming a unity

12.9 - Risk between completion of contract and delivery

12.10 - The onus of proving loss by accident

12.11 - Effects of mora on risk

12.12 - Injury to the goods by an act of a third party while at the purchaser's risk

12.13 - Risk in sales where the vendor undertakes the duty of delivery at a place other than that of sale or manufacture

12.14 - The profit of the thing sold

CHAPTER_13 - The obligations or duties of the parties to the contract of sale

13.1 - Introduction

13.2 - Exeptio non adimpleti contractus

13.3 - Onus of proof

13.4 - Obligation of parties

13.5 - The seller's duty to deliver the res vendita

13.6 - Payment of the price

13.7 - The purchaser's duty to take delivery of the res vendita

13.8 - Delivery in instalments

13.9 - Acceptance or rejection of part of the res vendita

13.10 - Receipt and acceptance of the goods in excess of the quantity purchased

13.11 - Acceptance

13.12 - The purchaser's duty to pay necessary and useful expenses

13.13 - The parties' duty to carry out any other obligations under the contract

13.14 - No duty on the purchaser to return goods to the vendor after rejection

CHAPTER_14 - Delivery and its effects

14.1 - Introduction

14.2 - What is delivery?

14.3 - Conditions of delivery

14.4 - Nature of delivery

14.5 - Deliver of an immovable

14.6 - Delivery of an incorporeal

14.7 - Delivery of movables

14.8 - Sale without delivery: Rights of purchaser

14.9 - Sales for cash

14.10 - Sales on credit

14.11 - Sale of land for cash against transfer

14.12 - Stipulations for payment or performance at a future date

14.13 - Provisions of the Insolvency Act 24 of 1936 with regard to the sale of land

14.14 - Provisions of the Insolvency Act 24 of 1936 with regard to the sale of movable property

14.15 - Delivery to a carrier

CHAPTER_15 - The obligations of the vendor arising from particular terms in the contract

15.1 - Particular terms

15.2 - Delivery free on board

15.3 - Delivery free on rail

15.4 - Sale of goods cost, insurance, freight

15.5 - Vis major or force majeur or casus fortuitus

15.6 - Effect of contracting to deliver by instalments

15.7 - Delivery during a period “at seller's option�

15.8 - Delivery of goods “to be railed to buyer's instructions�

15.9 - Sales ad corpus or ad quantitatem

15.10 - Delivery of lesser or more than the quantity contracted for

15.11 - The effect of the qualifying words “about� or “more or less�

15.12 - Tender to deliver mixed goods

15.13 - Special terms in the contract in regard to quality

CHAPTER_16 - Duty to guarantee the purchaser against eviction

16.1 - Undisturbed possession

16.2 - The nature of the eviction

16.3 - Who can sue on account of eviction?

16.4 - Guaranteeing the purchaser against eviction when the action on the guarantee arises

16.5 - Cases in which the vendor incurs no liability on account of eviction

16.6 - Duties of the purchaser

16.7 - Measure of damages for breach of warranty against eviction

16.8 - Measure of damages for partial eviction

CHAPTER_17 - Duty to deliver the res vendita free from burdens not specifically mentioned at the time of the sale

17.1 - Introduction

17.2 - Knowledge by purchaser of a servitude over land sold

17.3 - Registered servitudes

17.4 - Sale of leased property

17.5 - Sale of mortgaged property

17.6 - Sale of pledged property

17.7 - Purchaser's remedies on discovering servitudes not disclosed

CHAPTER_18 - The implied warranty against latent defects

18.1 - Introduction

18.2 - The vendor's guarantee against secret or concealed defects

18.3 - Definition of redhibitory defect

18.4 - The action for redhibition (actio redhibitoria)

18.5 - Redhibition (rescission) where several things are sold together

18.6 - The actio quanti minoris

18.7 - Alternative claims

18.8 - Where the redhibitory action is not available to the purchaser

18.9 - Other circumstances where rescission is not available

18.10 - Redhibitory action as a defence

18.11 - Redhibitory actions can only be brought against the seller

CHAPTER_19 - The actio ex empto in relation to the redhibitory actions

19.1 - Introduction

19.2 - Remedies for fraud or breach of express warranty on the part of the seller

19.3 - Period of prescription when rescission and damages claimed against the seller with implied knowledge

19.4 - Actio ex empto for breach of express warranty

19.5 - Redhibitory action and the actio exempto after delivery of the res vendita

19.6 - Meaning of fraud in relation to the actio ex empto

19.7 - Innocent misrepresentation

19.8 - Implied knowledge of latent defects in the res vendita imputed to artificer or merchant seller

19.9 - The manufacturer's warranty

19.10 - Measure of damages by actio ex empto for fraud or implied fraud

19.11 - Measure of damages for breach of express warranty

19.12 - Actio ex empto for fraud or innocent misrepresentation can be brought against a cessionary

19.13 - Actio ex empto as a defence

CHAPTER_20 - The purchaser's remedies under the redhibitory action

20.1 - Introduction

20.2 - The rescission of the sale

20.3 - The restoration of the purchase price

20.4 - The return of expenses

20.5 - No consequential damages claimable in the redhibitory action

20.6 - The difference between the position of the buyer and seller with regard to the redhibitory action where there are joint purchasers or vendors

20.7 - What must the purchaser restore to the vendor in the redhibitory action?

20.8 - Reduction of the purchase price by the actio quanti minoris

CHAPTER_21 - Warranties

21.1 - Introduction

21.2 - Distinction between a warranty and a representation

21.3 - Distinction between warranties and puffery

21.4 - Distinction between warranty and an expression of honest opinion

21.5 - Test for a warranty

21.6 - Warranty in regard to animals

21.7 - When is an article new?

21.8 - Sales by sample

21.9 - The exhibition of a sample does not necessarily make it a term of the contract

21.10 - Sales by sample and description

21.11 - Remedy of the purchaser where the bulk of the goods is not in accordance with the sample

21.12 - Warranty that goods must be merchantable

21.13 - Meaning of “merchantable�

21.14 - Measure of damages for breach of warranty

CHAPTER_22 - A party's rights and remedies where the other party fails to fulfil his obligations

22.1 - Introduction

22.2 - Nature of the actio ex empto, also called the actio empti

22.3 - Claim for specific performance by either party

22.4 - Enforcement of a decree of specific performance

22.5 - Damages in addition to specific performance

22.6 - The claim for specific performance or in the alternative for cancellation of the contract and damages

22.7 - Specific performance and damages claimed in the same action

22.8 - Damages for non-essential breach

22.9 - Rescission of the contract by the injured party for breach of an essential term

22.10 - Effects of rescission of the contract

22.11 - Where there has been repudiation before the date for performance

22.12 - Rescission of an instalment contract

22.13 - The injured party need not claim rescission even when entitled to do so

22.14 - Acceptance

12.15 - Other rights of the purchaser

12.16 - Rights of parties on mutual cancellation of contract of sale

12.17 - Remedies of the seller where the purchaser fails to fulfil his obligations

CHAPTER_23 - Purchase and sale by agents

23.1 - Introduction

23.2 - Brokers

23.3 - Other agents employed to sell

23.4 - Sales by auction

23.5 - Sale to an agent or trustee of company to be formed

CHAPTER_24 - Damages

24.1 - General principles

24.2 - General damages

24.3 - Special damages

24.4 - The Conventional Penalties Act 15 of 1962

CHAPTER_25 - Electronic transactions

25.1 - Introduction

25.2 - The Electronic Communications and Transactions Act 25 of 2002

25.3 - Contracts of sale by telephone

25.4 - Contracts of sale by telex

25.5 - Contracts of sale by telefacsimile

25.6 - Contracts of sale via network-linked computers and electronic mail

25.7 - Contracts of sale via short message and related services

25.8 - Transactions in “STRATE

Table of cases