Week 7: SU 3 Theme 2 + 3

Duties of the seller

Seller and buyer have to perform certain duties - “Naturalia”

Duty to protect
- From time of purchase up to time of delivery
- If seller is negligent, buyer can sue seller for damages
- Seller not liable where there is no fault
- Fault: intent, negligence

Duty of safekeeping
- Buyer does not pay purchase price = seller liable for damages caused by intentional or gross
negligence only
- Seller does not deliver goods = seller responsible for any damages whatsoever irrespective of
fault

Passing of risk
- Generally, owner is liable
- Seller (owner) bears burden for partial/total destruction while in possession
- Risk passes to buyer when sale = perfecta
- Perfecta = (1) intention to buy and sell (2) item determined (3) purchase price determined (4)
no suspensive condition

Ownership
- Concluding contract of sale does not equate to ownership
- Buyer obtains personal right against seller for delivery of item
- Real right = all requirements have been met

Ownership requirements (immovable)

- Seller must be owner of immovable property
- Seller has intention of transferring ownership + buyer has intention of obtaining ownership
- Property registered = buyer

Ownership requirements (movable)

- Seller must be the owner
- Intention = both parties must intend for ownership to pass
- Cash sale: (a) delivery to buyer + (b) payment of purchase price

Forms of delivery
- Incorporeal property
- Incorporeal moveable = cession (e.g. inheritance)
- Incorporeal immovable = registration of cession rights (e.g. rent)
 - Corporeal property
- Immovable property = registration
- Moveable property = delivery

Actual delivery
Delivery by short-hand
- Buyer already in physical possession
- Delivery through change of intention

Constitutum possessorium
- Delivery occurs through change of intention between buyer and seller
- Seller can remain in possession of item

Attornment
- Third party in possession of item
- Delivery occurs through change of intention between buyer and seller

Symbolic
- Usually occurs when item is cumbersome/inaccessible
- Buyer in possession of symbol
- Buyer gains control over item

Delivery by long hand

- Pointing out of item sold

Clavium traditio
- Delivery by handing keys of object sold to buyer

Delivery through marking

- Delivery by marking thing sold

Warranty against eviction

- Definition of eviction: Any action by a third party who has greater rights in the thing sold
than the buyer, and who deprives the buyer of the total or partial use, enjoyment and disposal
of the thing sold, constitutes eviction
- Seller can only transfer ownership if they are the true owner of the property
- Buyer does not become owner simply by concluding valid contract
- Seller warrants against eviction
- Reason for eviction must be present at conclusion of contract
- Eviction must be permanent for buyer to have cause of action

Forms of eviction
- True owner claims property from buyer
- Third party in possession of property + defective title prevents recourse
- Lessee enjoys property until lease expires
- Holder of limited real right does not equate to buyer from using property
Duties of buyer when eviction imminent
- Notification: Buyer must notify seller
- Seller can cede buyer’s rights + intervene
- Assist buyer + provide proof of title
- Join lawsuit
- Do nothing
- Buyer defense

Buyer’s right of recourse: Total eviction

- Cancellation of contract;
- Claim purchase price;
- Claim damages.
Buyer’ right of recourse: Partial eviction
- As above.
- Claim pro rata purchase price.

Warranty against latent defects

- Defect makes item unfit for intended purpose + not known + could not be readily
discovered.
- Criteria: objective
- Patent defect: noticeable
- Defect must exist = time of conclusion of contract
- Onus is on buyer to prove

Warranty by operation of law

- Implied warranty against latent defects.
- Remedies:
• Claim restitution
• Claim reduction in purchase price.
- Damages may not be claimed if these remedies used.
Contractual warranties
- nserted in a contract.
- Where seller guarantees good qualities in contract, buyer can use actio empti to cancel
contract + claim damages.

Actio empti
- Used where there is latent defect in thing sold. Particularly where item bought
for a specific purpose.
- Tacit warranty.
- Seller obliged to inform buyer of any latent defect.
- Seller must have intention to conceal defect + deceive buyer = actio empti
- Generally, seller ≠ to disclose. Except = when relevant information falls within
exclusive knowledge.
- Voetstoots ≠ where seller knew of defect @ time of conclusion of contract.
 - Dealer (seller) = liable if (a) seller acts as dealer; (b) professed expertise in thing sold
- If the seller is the manufacturer, they will be liable for the buyer's damages.
- Not necessary to profess expertise.

AEDILITION ACTIONS
- Can be instituted where: (a) the thing sold has a latent defect; (b) seller aware +
fraudulently concealed fact; (c) seller expressed good characteristics; (d) seller made
declaration of good qualities to buyer.
- Restitution (actio redhibitoria) must be justified. (to rescind the sale)
- Actio quanti minoris = buyer can claim pro rata reduction of the purchase price.
- NB: Aedilition actions does not apply to item sold in voetstoots.
Par 9.78 – 9.90

CONSUMER PROTECTION ACT

● Quality of goods s 55(2) (see par 9.92 (a)-(d);
● Irrelevant whether product latent or patent;
● Defence: where consumer is informed of specific condition or accepts goods in specific
condition through his/her conduct (eg: 2nd handgoods);
● Remedies: The 3 R’s! Consumer can choose to Replace, Repair or Refund within 6
months after delivery of goods
● Implied warranty of quality (s 56): goods comply with quality of goods set out in s 55(2)
(see par 9.92 (a) – (d));
Par 9.92 – 9.106

CONSUMER PROTECTION ACT

● Liability for damage caused by defective goods (s 61):
- Strict liability: liable without proof of negligence;
- Types of damages: death, illness, injury to any natural person, damage to property
and pure economic loss;
- Defences ito s 61(4) (see 9.104 (a)-(d)
- Perscription: 3 yrs
- Producer, importer, retailer, distributor liable jointly and severally.

Scenario A
Lerato recently ordered a new iPhone 14 pro max online via the istore. The
The recommended retail price of the iPhone 14 pro max is R30 000. Lerato pays for the
phone on 8 March 2023. Lerato received an email on the 8th of March informing her that
The phone will be delivered on Monday 13 March. On Monday, the delivery team got into
an accident on the N1 highway resulting in the total damage of the phone. The accident
was caused by the driver of the delivery team. The istore contacts Lerato and advises
her that she needs to pay an additional R30 000 because the phone she ordered got
damaged.
Advise Lerato on her remedies, if any.
Duties of the buyer

PAYMENT OF PURCHASE PRICE

- Payment of purchase price
- Payment must be in legal tender
- Buyer must receive things sold + place agreed upon delivery.
- Failure to accept delivery = breach of contract.
- Miscellaneous duties: (a) immovable property + transfer costs + transfer
duty; (b) immovable property + occupied + occupational rent (c) buyer
must deliver benefits before the contract is perfect.

Pre-emptive right
- Holder of a pre-emptive right has a personal right against the grantor.
- Decision to sell.
Option
- Holder of the option has a personal right against the person granting the option.
- Offer to sell should be open for a period for a person to accept the option.
- Grantor may not sell to anyone else.