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Normans Law of Purchase and Sale in South Africa

Norman's Law of Purchase and Sale in South Africa captures the important judicial decisions and relevant statutes.

Publication Language: English
Online
R1,088.26
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ISBN/ISSN: 9780409062571

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Norman's Law of Purchase and Sale in South Africa captures the important judicial decisions and relevant statutes.

The authors have adopted the practice of not merely citing cases but of incorporating extensive extracts from the leading judgments in the text, thus stating the law as far as possible in the words of the judges themselves.

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Table of contents

The nature of the contract

Definitions of sale

Essentials of formation of contract of sale

Obligations arising out of the agreement of sale

When an agreement of sale becomes binding on the parties

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

Presumption of intention to pass ownership

Sale of the property of a third party

Disguised transactions

Sale or exchange

Sale and donation

Sale and "locatio conductio

Invitation to enter into a contract of sale

Guarantee

Sale or pledge

"Sale on approval" or "sale or return"

Sale and agency

Sale and loan

The parties to the contract

Introduction

Insanity as affecting contractual capacity

Intoxication as affecting contractual capacity

Contracts of minors

Contracts of married women

Purchases by persons in a fiduciary capacity

Contractual capacity of an insolvent

Capacity of artificial persons

The subject matter of the contract

Sale of specific and unascertained goods

Sales of future goods

Sale of incorporeal things

Restrictions on the sale of certain goods

Fiduciary property

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

Purchase of one's own property

Sale of things burdened with "fideicommissa"

Sale of res litigiosa

Sale of a res aliena

Owner's right of vindication

Sale of pledged property

Sale by auctioneers

Total destruction of the subject matter

Partial destruction of the subject matter

Sale of things regarded as a unit

The price

Introduction

The price must be in current money

The price must be certain or ascertainable

The price must be real, not nominal, and there must be the intention of exacting it

Control of prices by legislation

Mutual assent

Introduction

Mutual agreement inter se praesentes

Contracts entered into through the post

Contracts entered into by telegram

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

Place where the contract is entered into

Indication of a mode of acceptance

Fraud and its effect on consent

Innocent misrepresentation

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

Undue influence

Options and pre-emptions

Introduction

Requisites of a valid option

Option: Right of pre-emption or first refusal

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

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

Cession or sale of option

Death of grantor

Formalities of the contract

Introduction

Sale of land or interest in land must be in writing

Sale or transfer of businesses

Sale of motor vehicles

Sales under the Second-hand Goods Act

Sales under the Credit Agreements Act 75 of 1980

Sales of stock

Terms and conditions in contracts of sale

Conditional sales

The effects of sale under a suspensive condition

Sales under a resolutive condition

Effect of death of contracting parties on conditional sales

When conditional sales are deemed absolutePacta adiecta

The effects of a lex commissoria

Instalment sale agreements under the common law

The pactum displicentiae

The pactum de retrovendendo

The pactum de retro emendo

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

The Credit Agreements Act 75 of 1980

The incidence of the risk

The unilateral appropriation of goods to the contract

Risk in goods sold subject to a test

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

Risk in regard to the sale of immovables

Risk of things sold in the alternative

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

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

Risk between completion of contract and delivery

The onus of proving loss by accident

Effects of mora on risk

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

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

The profit of the thing sold

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

The seller's duty to deliver the res vendita

Payment of the price

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

Delivery in instalments

Acceptance or rejection of part of the res vendita

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

Acceptance

The purchaser's duty to pay necessary and useful expenses

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

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

Delivery and its effects

Delivery of an immovable

Delivery of an incorporeal

Delivery of movables

Sale without delivery: Rights of purchaser

Sales for cash

Sales on credit

Sale of land for cash against transfer

Stipulations for payment or performance at a future date

Provisions of the Insolvency Act in regard to sale of land

Provisions of the Insolvency Act in regard to sale of movable property

Delivery to a carrier

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

Particular terms

Delivery F.O.B.

Delivery F.O.R

Sale of goods C.I.F.

Vis major or force majeur or casus fortuitus

Effect of contracting to delivery by instalments

Delivery during a period "at seller's option"

Delivery of goods "to be railed to buyer's instructions"

Sales ad corpus or ad quantitatem

Delivery of loss or more than the quantity contracted for

The effect of the qualifying words "about" or "more or less"

Tender to deliver mixed goods

Special terms in the contract in regard to quality

The duty of guaranteeing the purchaser against eviction

Undisturbed possession

The nature of the "eviction"

Who can sue on account of eviction?

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

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

Duties of the purchaser

Measure of damages for breach of warranty against eviction

Measure of damages for partial eviction

The duty of delivering theres vendita free from burdens not specifically mentioned at the time of the sale

Introduction

Knowledge by purchaser of a servitude over land sold

Registered servitudes

Sale of leased property

Sale of mortgaged property

Sale of pledged property

Purchaser's remedies on discovering servitudes not disclosed

The implied warranty against latent defect

Introduction

The vendor's guarantee against secret or concealed defects

Definition of redhibitory defect

The action for redhibition (actio redhibitoria)

Redhibition (rescission) where several things are sold together

Theactio quanti minoris

Alternative claims

Where the redhibitory action is not available to the purchaser

Other circumstances where rescission is not available

Redhibitory action as a defence

Redhibitory actions can only be brought against the seller

Theactio ex empto in relation to the redhibitory actions

Introduction

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

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

Actio ex empto for breach of express warranty

Redhibitory action and theactio exempto after delivery of the res vendita

Meaning of fraud in relation to the actio ex empto

Innocent misrepresentation

Implied knowledge of latent defects in theres vendita imputed to artificer or merchant seller

The manufacturer's warranty

Measure of damages byactio ex empto for fraud or implied fraud

Measure of damages for breach of express warranty

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

Actio ex empto as a defence

The purchaser's remedies under the redhibitory action

Introduction

The rescission of the sale

The restoration of the purchase price

The return of expenses

No consequential damages claimable in the redhibitory action

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

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

Reduction of the purchase price by the actio quanti minoris

Warranties

Introduction

Distinction between a warranty and a representation

Distinction between warranties and puffery

Distinction between warranty and an expression of honest opinion

Test for a warranty

Warranty in regard to animals

When is an article new?

Sales by sample

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

Sales by sample and description

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

Warranty that goods must be merchantable

Meaning of "merchantable"

Measure of damages for breach of warranty

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

Introduction

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

Claim for specific performance by either party

Enforcement of a decree of specific performance

Damages in addition to specific performance

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

Specific performance and damages claimed in the same action

Damages for non-essential breach

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

Effects of rescission of the contract

Where there has been repudiation before the date for performance

Rescission of an instalment contract

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

Acceptance

Other rights of the purchaser

Rights of parties on mutual cancellation of contract of sale

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

Purchase and sale by agents

Introduction

Brokers

Other agents employed to sell

Sales by auction

Sale to an agent or trustee of company to be formed

Damages

General principles

General damages

Special damages

The Conventional Penalties Act 15 of 1962, as amended ("the Act")

Electronic transactions

Introduction

The Electronic Communications and Transactions Act 25 of 2002 ("the Act")

Contracts of sale by telephone

Contracts of sale by telex

Contracts of sale by telefacsimile

Contracts of sale via network-linked computers and electronic mail

Contracts of sale via short message and related services

Transactions in "STRATE"