Sale and Lease Long Questions Final-2

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Sale and Lease Questions
SALE AND LEASE QUESTIONS:
SALE LONG QUESTIONS:
1. Does the purchaser in a contract of sale have the same

obligations arising ex lege with regard to the thing used as a
trade in as the seller with regard to the thing sold? Discuss.
It is one of the naturalia of a contract of sale that the seller is liable for
latent defects in the thing sold. But the question is whether the same
rule applied in the case of a latent defect in a thing used as a trade-in
regarding a contract of sale. In Wastie, the buyer used his old car to
buy a new one from the seller, along with a cash price. The old traded
in car had a latent defect, which cost R120 to fix. The seller
successfully claimed the repair cost from the buyer with the actio
quanti minoris. The court held that, where part of the purchase price
consists in something other than money, the same principle that
applies to the thing sold (liability for latent defects) applies to the non-
monetary part of the purchase price. The reason being that in the
contract of exchange both parties are protected by the aedilitian
remedies against latent defects in the thing forming the subject matter
of the contract. It would thus be unfair, and illogical not to afford the
same protection to the seller in respect of the thing traded in.
This approach was rejected in Mountbatten, as the court could not find
any authority for this approach, and distinguished the facts of Wastie
from the facts of this case as this case dealt with a dictum et
promissum.
But in Janse van Rensburg, the court approved and followed the
approach in Wastie on the basis that good faith and public policy
require a balance between the rights and duties of parties to such
contracts. It would be unjust and unequitable to have the seller liable
for latent defects and misrepresentations relating to the thing sold,
while no such liability attaches to the buyer regarding the thing
traded in. this extension of the common law was also in line with the
Constitution.
2. X enters into a contract of sale with Y in regard to a TV.

The terms of the contract state that the buyer, Y, may
return the TV to X within one month after the contract if
he no longer wants it. 3 weeks after the contract, Y tells X
that he now wants to exercise this right. But, before Y is
able to return the TV to X, its destroyed by a fire in his
house, caused by lightning. What is Y’s position now? And
would it make a difference if the TV was only damaged in
the fire?
Critical Law Studies cc ©

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In order to establish Y’s legal position, one has to determine which

party bears the risk at the time of the destruction of the television set.
In other words, was the contract of sale already perfecta? The risk
falls on the purchaser as soon as the contract of sale is perfecta. This
means that the purchaser remains obliged to pay the purchase price
even though the seller cannot deliver the thing sold at all, or is able to
deliver it only in a damaged condition. The term perfecta has a specific
juristic meaning which is important for the purposes of transfer of
risk. For the purposes of transfer of risk the sale is perfects if the
following requirements have been complied with:
1) The purchase price must be determined

2) The thing sold must be ascertained
3) The agreement must be unconditional
This problem deals with requirement (3), as it is clear that a pactum

displicentiae is present. According to the pactum displicentiae, the
buyer acquires the right to return the thing to the seller within a
certain time, if he is no longer pleased with it. A pactum displicentiae
can either be interpreted suspensively or resolutively.
The question however remains: who bears the risk if the thing is
destroyed in the meantime? In Fitwell, the appellant delivered goods to
the respondent in terms of a contract of sale. The respondent refused
to face delivery on the ground that the invoiced price was higher than
the agreed price. Hereafter the goods were destroyed by a fire. In his
decision the judge concludes that it is beyond question that when the
goods were destroyed, the appellant was not prepared to reduce the
price and it follows that the appellant must have known that the
respondent’s attitude in the circumstances was that the goods had to
be taken back. Thus, the contract of sale was not perfecta and
because of this the risk remained with the appellant. It is unclear
whether the pactum displicentiae has a resolutive or suspensive effect
because insufficient facts are given. It has both a suspensive and
resolutive effect. Y has already notified X that he wants to return the
goods in terms of the pactum displicentiae. Thus, just as in the Fitwell
case, it is clear that it is Y’s intention that the television set must be
taken back.
X thus bears the risk for the destruction of the television set. Y can
rely on the pactum displicentiae in terms of which he may withdraw
from the contract. When the thing is merely damaged, the seller (X)
bears the risk for such damage. The buyer (Y) may return the thing.

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3. A squatter comes to an agreement with the owner of a farm

according to which the farmer allows the squatter to live on
the farm in return for certain services. Later, the farm is
sold and transferred to Y, who is aware of the agreement. Y
tells the squatter that he is prepared to allow him to stay
on the farm on condition that he renders the same services
he rendered to the previous owner. But the squatter refuses
to acknowledge Y as the new owner and indicates that he is
only prepared to render services to the previous owner. And
the squatter claims the right to continue living on the farm.
Discuss Y’s legal position and give reasons for your answer
and refer to case law.
To be able to ascertain the relevant principles of law, one firstly has to

establish whether a contract of lease has been concluded. Thus the
essentialia of a contract of lease are the following:
1) The lessor has to deliver a thing

2) The tenant has to be granted the use and fruits of the thing
3) The use of the thing should be placed at the disposal of the
lessee only temporarily.
4) The lessee has to give the lessor either a fixed or ascertainable
sum of money or a portion of the proceeds from the thing
leased.
However, there seems to be no sign of monetary compensation in the

given facts. Thus the fundamental question is whether the lessee’s
performance can consist in something other than the payment of a
sum of money.
In Rubin v Botha, the court accepted that there was a lease despite
that fact that, in casu, the lessee’s performance did not consist in the
payment of money. In De Jager v Sisana, the court ruled that no lease
exists. Therefore the squatter cannot rely on the ‘huur gaat voor koop’
rule. The squatter only had a right to occupation in return for his
services. This innominate contract ceases to exist by reason of the
sale of the land by the person entitled to the services. The squatter
has not shown any legal right to occupation.
Y, however, has the right to decide whether he will allow the squatter
to continue with his services, in return for the right to occupy his
land. In spite of various attempts made by Y to prove to the squatter
that he (Y) is truly the new owner of the land, the squatter still refuses
to recognise Y as the owner. Y therefore had the right to have the
squatter removed from his land. It is therefore a question of legal
policy. Except in the case of the bywoner’s contract, the rent can
consist only in money.

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4. Jesse trades in his old car on a new car at XYZ Motors. They
agree that the price for the new car is R250 000 and they
place a value on the old car as being R150 000. Jesse pays
R100 000 and drives away in the new car. Later, XYZ
Motors discovers that the gear box of the old car has to be
fixed and will cost R10 000 and that Jesse concealed the
noise a broken gear box makes by putting some oranges in
the gearbox. The value of the old car is not R150 000 but
R140 000. XYZ Motors wants to know whether they
concluded a valid contract of sale and whether they will be
able to claim the R10 000 from Jesse as a price reduction.
Discuss.
It is one of the naturalia of a contract of sale that the seller is liable for
latent defects in the thing sold. But the question is whether the same
rule applied in the case of a latent defect in a thing used as a trade-in
regarding a contract of sale. In Wastie, the buyer used his old car to
buy a new one from the seller, along with a cash price. The old traded
in car had a latent defect, which cost R120 to fix. The seller
successfully claimed the repair cost from the buyer with the actio
quanti minoris. The court held that, where part of the purchase price
consists in something other than money, the same principle that
applies to the thing sold (liability for latent defects) applies to the non-
monetary part of the purchase price. The reason being that in the
contract of exchange both parties are protected by the aedilitian
remedies against latent defects in the thing forming the subject matter
of the contract. It would thus be unfair, and illogical not to afford the
same protection to the seller in respect of the thing traded in.
This approach was rejected in Mountbatten, as the court could not find
any authority for this approach, and distinguished the facts of Wastie
from the facts of this case as this case dealt with a dictum et
promissum.
But in Janse van Rensburg, the court approved and followed the
approach in Wastie on the basis that good faith and public policy
require a balance between the rights and duties of parties to such
contracts. It would be unjust and unequitable to have the seller liable
for latent defects and misrepresentations relating to the thing sold,
while no such liability attaches to the buyer regarding the thing
traded in. this extension of the common law was also in line with the
Constitution.
Thus, according to case law, XYZ Motors would be able to use the
actio quanti minoris against Jesse to claim the R10 000.

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5. Sipho sells his residential house to Pedro for R1 000

000.00. The deed of sale, which complies with the formal
requirements of the validity of alienation of land, contains a
voetstoots clause and also provides that Pedro may take
occupation on a specified date pending transfer of the
house. Sipho informs Pedro during negotiations that the
house is structurally sound. Discuss Pedro’s legal position
in each of the following instances:
5.1 Pedro can’t take occupation of the house on the

stipulated date because tenants of Sipho still occupy
the house, although their lease has expired.
This questions deals with the duty of the seller to deliver to the buyer
– to give vacua possessio.
Regarding an immovable, the seller must admit the buyer to
possession of the thing and must give transfer to the buyer.
The seller must, at his own expense, arrange for the registration of the
property in the name of the buyer, and if there is any bond on the
property, he must cancel it.
The act of delivery means that the buyer will get undisturbed
possession of the thing by taking delivery of it – vacua possessio.
Seller of immovable property to remove from the property sold, all
movables, which aren’t included in the sale agreement – and remove
all unlawful and lawful possessors. York: when the duty to give
possession is considered = with trespassers, the mere fact of their
physical presence, if it results in deprivation of the buyer’s right to
secure the enjoyment in possession of his purchase is enough to
justify the purchaser in claiming that the seller has failed to carry out
his obligation. The seller who has transferred possession of the thing
to the buyer in accordance with the requirements has discharged his
obligation to provide undisturbed possession of the thing. The onus
rests on the seller to prove that he has complied with these
requirements. Mostert: undisturbed possession: at the time when
transfer of possession takes place, there must be no interference with
the physical possession of the buyer and that the existence of a
servitude doesn’t mean that there’s interference with the buyers
physical possession.
Such interference only takes place if the holder of the right is
exercising his right at the time possession is transferred to the buyer
= correct. Undisturbed possession is lacking when there’s a defect in
the physical possession obtained by the buyer at the time of delivery.
Here, the seller has not given the buyer vacua possessio due to the
presence of occupiers of the property upon moving in. the normal
remedies for breach of contract apply to buyer, namely specific

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performance or cancellation of the contract and damages for

patrimonial loss (positive interest).
5.2 Pedro takes occupation of the house but he cannot

take transfer because the property is registered in the
name of Fay. Fay cancelled the previous sale of the
house to Sipho because Sipho failed to timeously
deliver the required guarantees for securing the
purchase price. Fay demands that Pedro vacate the
property immediately.
This question deals with the seller’s warranty against eviction – which
is a naturalia of a contract of sale.
Its not a requirements for the validity of the sale contract that the
seller be the owner of the thing sold – if he isn’t the owner, the law
implies a warranty into the contract that no-one with a better title will
deprive the buyer of his right to possession Requirements for liability
for eviction
Before a seller is liable for eviction the following requirements must be
complied with:
1. The purchaser must have been evicted: actual confiscation of the
thing by a 3rd party who has a better title. E.g. where the true owner
claims the thing form the buyer.
The meaning of eviction has been extended to include cases involving
more than actual judicial deprivation of the possession. Lammers:
include cases where the buyer is compelled by a court order to pay a
sum of money if he wants to retain the thing.
2. Notice: Buyer must give the seller notice of the 3rd party’s claim of
possession of the thing in good time so that the seller has an
opportunity to fulfill his general obligation to protect the purchaser in
his possession so he can enter into negotiations with the true owner
or may participate in an action instituted against the buyer. If buyer
fails to give the seller notice he has no right of recourse against the
seller – unless he can prove that the 3rd parties claim is unassailable
or it’s the seller’s fault that the notice didn’t reach him in time.
3. Virilis defenso (proper and competent defence), York: nothing more
is expected of a buyer that that he should conduct his case as a
reasonable litigant - example of what the judge considered reasonable
is that the plaintiff company employ an attorney. 4. Defective title
derived from the seller.
Remedies for the buyer include rescission on the ground of eviction,

(Alpha Trust: AD held that in a case of total eviction, the buyer is
entitled to claim from the seller repayment of the purchase price and
compensation for his damage in terms of the actio empti. The effect of
the decision is that the buyer who has been totally evicted can claim
at least the purchase price from the seller.)

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Damages for eviction - general principles in breach of contract,

damages are calculated according to the buyer’s positive interest,
irrespective of whether the buyer upholds or resiles from the contract.
Thus, the buyer, who has been evicted in this question, may use these
remedies against the seller.
5.3 Pedro takes occupation and transfer of the house, but

notices that fresh deep cracks in the plaster begin to
appear virtually everywhere in the house. After
inspection by an engineer informs him that the reason
for this is that the foundations of the house are
inadequate to support the weight of the structure. The
cost of the strengthening is R150 000, which Pedro
wants to recover from Sipho. It comes to light that
Sipho sealed and painted over the existing cracks just
before he sold the house to Pedro. Briefly mention two
(of a possible 3) legal avenues available to Pedro. Its
suggested you read the original facts again before
answering this question.
Breach: Seller be sued in terms of the actio empti, as well as if his

performance is defective. The seller's performance will be defective if he
delivers a defective article after guaranteeing (expressly or tacitly) the
absence of such defects, or delivers a thing without the commendable
characteristics, which he has guaranteed (Scholtz). This non-compliance
with the terms of the agreement as regards the characteristics of the
thing is ordinary breach of contract (positive malperformance). The
purchaser has the normal remedies as regards damages, and, where
appropriate, rescission. Of course, it makes no difference whether the
guarantee has been given expressly or tacitly.
Misrepresentations: The seller is liable for misrepresentations on the
ground of delict. The misrepresentation may take the form of a false
statement about the presence of commendable qualities in the article,
or the absence of bad ones. The wrongful act is a commissio. But the
misrepresentation may be an omissio (omission),like a failure to
remove an existing misconception about the absence of bad
characteristics.
Seller commits a wrongful omission only if he was under a duty to act
in accordance accepted community standards. Duty to speak rests
upon the seller who is aware of any latent defects in the article sold
(Glaston House). The seller is also liable for misrepresentation if he
deliberately conceals poor qualities. The seller's silence was regarded
as a misrepresentation that may lead to the usual delictual remedies
(Glaston House & Dibley v Furter). Misrepresentation does not deal
with non-compliance with the provisions of the contract itself, but
with untrue representations which go before the conclusion of the
contract and which cause a party to the contract (the purchaser in

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this case) either to enter into the contract at all or to enter into it with
the existing content. A misrepresentation is thus a delict.
Remedies:
1. rescission
2. damages
3. dolus dans
4. dolus incidens
A misrepresentation can be either intentional or negligent. Bayer:
placed the remedies for intentional and negligent misrepresentation
on the same footing. The misled party has the choice either of
rescinding the contract on the ground of such misrepresentation or of
maintaining it, and that she is also entitled to damages calculated
according to his negative interest, that is, the damages must restore
her to the position in which she would have been had the
misrepresentation not taken place. Where the contract is cancelled,
the innocent party's damages will usually be the wasted costs, which
he may have incurred in connection with the conclusion and
cancellation of the contract. Where the contract is upheld, the
innocent party's damages will be assessed in one of two possible ways.
Aedilitian liability for latent defects: Seller liable if she sells a thing
with latent defects, even if she did not give an express or tacit
guarantee. Requirements for liability: Before a seller can be held
liable, the following requirements must have been complied with:
1. There must be a defect in the article: A defect is an abnormal
characteristic in a thing which makes it less useful for its normal
purpose. The defect must therefore be a defect in the thing itself and
does not depend on the particular needs of the purchaser.
2. The defect must not be insignificant: This is a consequence of
the rule de minimis non curat lex (the law does not concern itself with
trifles).
3. The purchaser must not have known of the defect: If the
purchaser knew of the existence of the defect, she cannot claim the
aedilitian remedies. This question to be assessed subjectively.
Knowledge could have been acquired in ways: the seller herself may
have told the purchaser, or a third party may have provided the
information; the purchaser herself may have discovered the defect or
the purchaser's agent may have possessed the necessary information
4. The defect must be latent: Test - objective test, whether a
reasonable person in the purchaser's position would have noticed the
defect if he had inspected the thing. If the reasonable person would
have discovered the defect, it is said that the purchaser should have
known about it (a reasonable person will conduct a far more careful
inspection, as in the case of the sale of a very old car). A reasonable
person will always notice very obvious defects.

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5. The defect must have existed at the time the contract was
entered into: This is a question of fact: did the defect exist when the
agreement was entered into, or did it develop later? If it developed
after the conclusion of the contract, the prejudice is naturally that of
the purchaser. However, it will sometimes be difficult to prove that the
defect was present at the time the contract was entered into. The onus
of proving this fact rests on the purchaser. If she proves that the
defect existed shortly after the agreement was entered into, this may
contribute to the discharge of the onus. Actio redhibitoria: The actio
redhibitoria is available if the purchaser can prove that a reasonable
person would not have bought the article had she been aware of the
defects. The buyer can set the contract aside and claim restitution,
under the actio redhibitoria. Seller to then repay the (a) purchase
price (b) with interest and (c) compensate for all reasonable expenses
incurred in connection with the thing from the time of its receipt, (d)
any improvements. For her part, the purchaser must return the thing,
unless it has been destroyed through no fault of her own. If it is her
own fault that the thing has been destroyed or materially damaged,
the action is not available. Actio quanti minoris: The actio quanti
minoris is intended for less serious cases, like where a reasonable
person would still have bought the thing, but would merely have paid
less for it had she been aware of the defect. It is also available when
the actio redhibitoria cannot be instituted because the purchaser has
neglected the article, or because she has waived her right to resile. In
the case of the actio quanti minoris, reduction in price is claimed in
terms of the agreement. The amount which may be recovered is the
difference in value between the purchase price and the true value of
the defective article. Not only may the purchaser positively enforce her
claim for restitution or a reduction in price by way of the action
redhibitoria or quanti minoris, but she may also enforce it negatively
by relying on the guarantee as a defence when she is sued for the
purchase price. If she relies on restitution as a defence, she will
naturally have to return the article. The voetstoots clause wont avail
the seller, as he made a fraudulent misrep and thus he wont be
protected by the clause (van der Merwe v Meades). The buyer in our
question may use any of these remedies, but preferably
misrepresentation as this gives him a claim for damages.

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6. S a sailing boat dealer sells a new Enterprise yacht to P on 1

March for R80 000. The parties agree that delivery of the
yacht and payment of the price has to take place on 10
March. On 5 March all the boats in S’s boat yard are
destroyed by fire caused by Lightning. Discuss whether S’s
claim for R80 000 will succeed where S has marked one on
the Enterprise yachts as “Sold to P” and informed P of this
as well as the position where S has failed to mark a boat
and inform P of the fact.
This question deals with the passing of risk.

The consequences of the risk rule: Once the contract of sale is
perfecta, the risk of any accident rests on the buyer – buyer obliged to
pay the price even though the seller can’t deliver the thing or can only
deliver it in a damaged condition.
A contract becomes perfecta before delivery.
The risk rule is AN EXCEPTION TO RULE OF supervening
impossibility – in the case of mutual agreements; the supervening
impossibility of one performance has the effect of extinguishing the
obligation to counter perform.
In the case of a sale – this doesn’t happen and it’s only the seller
who’s freed from his obligation to deliver by supervening impossibility,
while the buyer is still liable for payment. If misfortune befalls the
thing for which the seller can’t be held liable – buyer suffers the
damage. The nature of the misfortune is irrelevant (floods,
earthquake, burring down house– BUT latent defects aren’t included.
The may also be some benefit after the contract is perfecta = goes to
the buyer. Van Deventer: the court held that the seller of a house isn’t
obliged to pay over to the buyer insurance money received after the
house had already been sold had burnt down.
Requirements for the contract to become perfecta:
1. The purchase price must be determined (capable of being

determined) by simple calculation:
While the price is uncertain the seller bears the risk of destruction of
the article and the buyer the risk of depreciation.
A sale as mensuram: sale of a group of things per unit (R500

per 100 bricks) mustn’t be confused with sale per aversionem,
where a thing is sold in a whole lump sum = in such a case the
price has already been ascertained and the risk passes.
2. The thing sold must be ascertained:
the thing must be capable of being pointed out as the subject of
the sale.

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In the case of sale in the alternative: the thing is indefinite until

he person who must point out the thing does so or until one
remains after the others have been destroyed:
Voet: where both alternatives are destroyed, the buyer bears the
risk for the one thing and must pay the price. Generic sale – the
thing is indefinite – object of sale is only ascertainable when
individualization has taken place = seller sets aside 100 bags of
mealies.
3. The agreement must be unconditional:
a condition in the contract, which renders the operation of the
obligations dependent on the occurrence of an uncertain future
event – suspensive and resolutive.
Suspensive condition: if the sale is subject to a suspensive

condition which isn’t fulfilled, the seller bears the risk of
accidental destruction and he can’t recover the price from the
buyer. If the condition is fulfilled the seller braes the risk of
accidental destruction until fulfillment of the condition then risk
passes.
Resolutive condition: if the condition isn’t fulfilled, the risk of
both accidental destruction of and damage to the thing passes
to the buyer immediately on conclusion of the contract = seller
is entitled to the full price.
If the condition is fulfilled the buyer bears the risk of destruction of
the thing until the moment of fulfillment then risk reverts to the
seller. If the condition is fulfilled, the risk of accidental damage to
the thing is borne by the seller from the moment of conclusion of the
contract, which means that the buyer can return the thing in its
damaged condition and is entitled to repayment of the full purchase
price.
The boat, in the question, had been marked by the seller and thus
“separated” and the risk of accidental loss/ damage passed to the
buyer the second seller marked the boat “sold to P”. the loss / damage
to the boat was a vis major (accidental loss / damage) and the risk
was with the buyer. Thus S’s claim will succeed. If he had not marked
the boat, and left the boat in amongst the other boats, the risk stayed
with seller, and his claim for R80 000 would fail.

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8. John sells his motor-cycle to Tom for R5000 on 1 August

1997. John delivers the motor-cycle to Tom the same day.
Tom pays by means of a cheque post-dated for 1 September
1997. The cheque Tom gives John is dishonoured.
a) John is furious and wants to know whether Tom has

become the owner of the motor-cycle. Advise John
fully.
b) Would it make a difference to your advice if the
cheque were not post-dated, but still dishonoured?
Discuss.
a) It is clear that a valid contract of sale of a moveable has been

concluded between John and Tom. In order to determine whether Tom is
the owner of the motor-cycle, first determine whether John and Tom
intend to transfer ownership to Tom. This depends on whether they
intend the sale to be for cash or credit. If they intend the sale to be for
cash, then delivery and payment of the purchase price occur
simultaneously and at that moment ownership is transferred. However, if
payment does not occur, then ownership is not transferred. If John
intends to give Tom credit, then delivery precedes payment, and
ownership is transferred at the moment delivery takes place. Subsequent
dishonouring of the cheque does not lead to a termination of the
ownership.
The intention of the patries now determines whether the sale in this
question was for cash or credit. To determine the intention of the parties
a presumption that all transactions are cash transactions exists. This
presumption is rebuttable if there is an express or tacit agreement to give
credit, provided that the intention of the parties is clear. There appears to
be no express agreement to that effect that credit has been given. We
must determine whether a tacit credit agreement has been concluded.
Determine the tacit intention of the parties, and because it is difficult to
determine what is going on in someone else’s mind, we have to rely on
the visible conduct of the parties. Various pointers are present in our
problem, namely:
1) The fact that delivery takes place before payment of the purchase
price
2) The fact that payment takes the form of a negotiable instrument
which is not payable on demand.
These pointers on their own do not prove conclusively that credit was
given. They merely serve as aids to determine the true tacit intention of
John and Tom as far as giving credit is concerned. In the absence of any

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other indication to the contrary, it seems reasonable to conclude on a

balance of probability that John gave Tom credit and that, upon delivery,
Tom became the owner of the motor-cycle.
b) The only pointer indicating that the parties intend to conclude a

credit dale is the payment of the purchase price with a cheque, but his
pointer does not on its own justify the inference that credit has been
given. The presumption that they intend to concluded a cash sale
therefore applies. Payment by cheque is usually payment subject to a
resolutive condition. If the cheque is not paid out, it means that payment
is never made and ownership does not pass to Tom. It is possible that
the parties regard payment by cheque as unconditional with the result
that ownership passes to Tom on delivery. It is not clear from the stated
facts of this question what the intention of the parties is.
9. Terry sells his house to Lucy for R300 000. The written
contract of sale identifies Terry as the seller and Lucy as
the purchaser. Lucy signs the contract at the end with
her full signature, but Terry only initials the contract at
the end. The parties are correctly identified as the
purchaser and seller respectively. The purchase price is
incorrectly reflected in the written contract as R290
000. The house is simply described as Terry's house.
There is only one house registered in Terry's name. The
written contract refers to the purchaser's “cooling-off'”
right. The written contract contains no further terms,
although the parties have orally agreed on the date on
which Tomas has to give Luanda occupation.
(a) Does a valid contract of sale come into being?

This question deals with the two formalities required by the
Alienation of Land Act. The first is the requirement of writing.
The parties are correctly identified in the written contract as seller
and purchaser. The essentialia are both in the written contract.
Although the price is stated in the contract, it is incorrect.
By identifying the thing sold as Terry's house, the parties have
identified the thing sold with an objectively determinable relation-
ship between the land and the seller.
If Terry owned more than one house, no such relationship would have
existed and we would have had to resort to the parties’ agreement to
determine which house they meant. Both signatures are acceptable.
Both approaches to the question as to whether a term should be
regarded as material would consider the date of occupation as
material. The contract thus does not comply with the requirement of
writing. The contract complies with the second requirement, namely
that it should refer to the purchaser's “cooling-off” right.

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(b) Can Terry apply to have the contract rectified so as to reflect

the correct price the parties agreed upon and the date on which
Terry has to give Lucy occupation?
Rectification is possible if the contract is prima facie valid.
The contract contains the essentialia, correctly identifies the
purchaser and seller and is signed by both parties.
The contract is thus prima facie valid and can be rectified.
10. Susan sells her house to Peter for R250 000. Their
contract is not reduced to writing. Peter undertakes
to pay Susan R100 000 immediately and the rest of
the purchase price on the date of registration. Peter
pays Susan the R100 000 and immediately takes
occupation of the house. Before the sale, Susan let her
house for R2 000 per month. The roof of the house
leaks terribly and Peter pays a builder R10 000 to fix
the roof. Susan avers that the oral contract of sale is
invalid and institutes a claim against Peter to evict
him from the house. Advise Peter.
The contract of sale is void, because it is neither in writing nor has

any “party” performed fully.
Susan can therefore evict Peter and claim reasonable compensation
from Peter for the occupation of the house by him.
The rent, which Susan got is a good indication of such compensation.
Peter may claim reasonable compensation from Susan for the repair
of the roof, because it is a necessary expense.
He can also claim interest on the R100 000 from Susan.
11. T sells his farm to Z. There are 80 old, unmarked

graves on the farm. Tom is unaware of the existence of
the graves during the conclusion of the contract. Z finds
out about the existence of the graves after conclusion of
the contract. Z is unwilling to stay on the farm, because
she finds the presence of the graves scary. You may
assume that a valid contract of sale is concluded and
that the contract complies with the required formalities.
(a) Does Z have a claim against T?

No. This problem deals with the seller's liability for latent defects.
The only requirement for liability for latent defects that requires
further discussion is the requirement that there must be a defect in
the thing sold, because all the other requirements for liability are
present. A defect is an abnormal characteristic in a thing which
makes it less useful for its normal purpose.
In this question, the possibility does not exist that the purchaser
bought the farm for a particular purpose and that the seller knew

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CLS cc
about it. The facts of this question are very similar to the facts of
Dibley v Furter, in this case, the court found that unmarked graves do
not constitute a defect, as they do not render the farm less useful for
its normal purpose as a farm and residence.
(b) Would it make any difference to your answer to question (a) if

T knew at the time of conclusion of the contract of the existence
of the graves?
Yes it would. There is now an additional basis of liability: negligent
misrepresentation (a delict).
A misrepresentation is an untrue representation which pre-cedes the
conclusion of the contract and which causes a party to the contract
either to enter into the contract at all or to enter into it with the
existing content.
In our problem, the seller fails to disclose a fact, which causes the
purchaser to purchase.
The facts of this problem are very similar, but are not identical to
those of Dibley v Furter , where the court held that the seller was
obliged to disclose the presence of the graves because of the number
of graves, the smallness of the farm, the fact that the majority of
people did not want to live on such a farm, and the fact that the
presence of the graves affected the price of the farm.
The court made the following factual findings:
(1) the seller knew of the presence of the graves;
(2) he failed to disclose the presence of the graves because he
thought that, if the purchaser knew about them, he would
not buy;
(3) the purchaser would not have bought if he knew of the
graves. It then held that the seller had made a fraudulent
misrepresentation.
From the facts of the stated problem it is clear that the factual
finding, (2), is absent in our problem.
It can therefore be negligent misrepresentation, which gives rise to
the same remedies as intentional misrepresentation.
Our problem is a case of dolus dans, as it is clear that the purchaser
would never have bought if she knew of the graves.
She can therefore claim cancellation of the contract and damages, or
uphold the contract and claim damages.
In both instances, she can claim her negative interest, that is, the
damages that would place her in the position she would have been in
had no misrepresentation taken place.
(c) Would it make any difference to your answer to question (a) if

T guaranteed in the contract that there were no graves on the
farm?
Yes it would. The seller now undertakes in a term of the contract that
there are no graves, and he breaches this undertaking.
The normal remedies for breach of contract will now apply.

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(d) Would it make any difference to your answers to questions (a)

and (b) if there was a voetstoots clause in the contract of sale?
No, It would make no difference.
The seller's liability for latent defects is one of the naturalia of the
contract of sale and the parties may therefore exclude this liability
with a voetstoots clause.
As we have concluded in question (a) that a latent defect is not
present, a voetstoots clause will make no difference.
Van der Merwe v Meades can only be applicable if we concluded in
question (a) that a latent defect is present.
With regard to question (b), a voetstoots clause cannot afford a seller
any protection against intentional, negligent or innocent
misrepresentation.
LEASE LONG QUESTIONS:
1. Discuss whether the subject of a lease can be both corporeal

or incorporeal. Substantiate your answer.
The thing subject to the lease can be either corporeal or incorporeal or

an object still to come into existence incorporeal thing can be object of
lease
As in the case of contracts of sale, we find that the concept ``thing''
includes incorporeal things too, with the result that rights may also be
leased. For example, it is contended that a usufructuary can hire out
his or her usufruct, and in Young it was argued, on the strength of
Graham that there is no doubt that an incorporeal thing can form the
subject of a lease.
In this case the matter arose from granting the tenant the power to
conduct a business on a particular piece of land. In this context the
court said: “What was let is not corporeal property but the incorporeal
right to trade.”
In contrast to this case, the view had been taken in a series of
previous decisions that the granting of an exclusive right to do
business on certain premises is not the lease of a thing, but an
innominate contract for the granting of something similar to a
personal servitude.
Unisa's opinion
The view that incorporeal things, that is rights, can be let and hired, is
unconvincing.
In all the abovementioned cases it is obvious that corporeal things
were being let, even though the lessee's powers of use and enjoyment
may be very much restricted by the contract.
In the case of a usufructuary, it is clearly the thing which is the object
of the usufruct which is being let.

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CLS cc
The fact that the lessor is the usufructuary of the thing merely means
that the lessor is able, by virtue of his or her legally valid title, to
protect the lessee in his or her possession of the thing.
Likewise where the lessor empowers the lessee to do business on
certain premises, the premises are let with the understanding that the
tenant will only have a certain proportion of the use and enjoyment
thereof.
That the lessee's powers may be very limited in a particular case,
indicates that the contract is a lease rather than anything else.
It is, after all, one of the essentialia of a lease that the lessee will not
enjoy all the powers of the ownership.
2. X is the owner of a luxury guest-house. Y is desperate to

start a brothel in an upmarket area. X sees an opportunity
to make money by exploiting the fact that he knows about
the brothel but will keep quiet on condition that he is paid
double the normal rent. X offers his house to Y for R30 000
per month for a period of two years. After 18 months, Y is
very short of money and decides to approach you for legal
advice since he of the opinion that he may not only be
entitled to have the rent reduced to a reasonable amount
but may be able to institute a claim for the amount by
which he has overpaid X for the past six months.
(a) Is Y bound by the lease contract, which he knowingly signed?
The fact that the contract was concluded contrary to Act 23 of 1957,
which prohibits the running of a brothel, has the effect that the
contract is unlawful and therefore void. Y is not bound by the contract
(b) Would Y succeed in a claim for the amount, which he has paid
in excess of the amount which is reasonably being charged as
rent in the area?
The contract is void which means that there is no contract upon

which Y may base his claim. Y will have to find an alternative ground
for his claim. Because there is no contract, Y has been making
payment to X for no reason.
Y will have to rely on unjustified enrichment in order to reclaim his
money.
However, unjustified enrichment is qualified by another rule in our
law, known as the in pari delicto rule (ie where both parties are guilty
the one who is in possession is in the strongest position).
Y will be entitled to reclaim his money if performance by him was not
disgraceful.
Whether Y's payment of the rent was disgraceful is a question of
public interest.

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CLS cc
If it is not in the public interest to enforce the in pari delicto rule, Y

will be allowed to succeed in his claim
3. Discuss Sishen Hotel (Edms) Bpk v Yskor Bpk 1987 (2) 932
(A) and Sweets from heaven (Pty) Ltd v Ster Kinekor Films
(Pty) Ltd 1999 (1) SA 796 (W) with specific reference to the
lessor’s obligation to provide the lessee with commodus
usus and to what is understood under commodus usus after
this decision.
Lessor to give the lessee COMMODUS IUSUS (CU) – cant disturb the
lessee unless lawfully, like to effect repairs.
SISHEN HOTEL: AD extended the CU rule by interpreting the lessee’s
right against the lessor to include a restraint on him to stop direct /
indirect conduct which negatively affects profitability of the thing.
A entered into lease agreement with S for 20 years for lease of a hotel.
The hotel was next to a national road, which increased custom to the
hotel. Eight years after lease contract, lessor, at own expense, diverted
the national road, in order to extend mining operations in the area.
Thus, hotels’ profits declined and eventually became losses. 3 years
later, hotel closed down. Lessee instituted action against lessor for
payment of damages due to breach of his duty not to disturb use and
enjoyment . this claim was dismissed a quo. On appeal, the court
extended the meaning of CU. IN THIS CASE, CU included the idea of
profit where the lessee ran a business from the leased premises. BUT
this seems to amount to a tacit term implied within the circumstances
of that case as opposed to a term which would apply in all cases of a
similar nature (naturalia).
Thus this created the exception and not the general rule.
SWEETS FROM HEAVEN CASE (SFH): the extension of CU was
challenged. Question was whether profitability was a naturalia of a
commercial lease or whether the lessee has to rely on a tacit term.
Ster Kinekor (SK) lessee of entertainment centre, and sublet a space to
SFH. They then sub-let to another sweet shop, selling similar
products to SFH.
Court a quo granted SFH an interum interdict to prohibit SK from
leasing to the other sweet shop. SFH used failure of SK to give free
and undisturbed use and enjoyment (CU) by allowing the other sweet
shop to compete.
Judge on appeal said SK did not breach an obligation and for SFH to
succeed, the contract would have to tacitly or otherwise prohibit SK
from letting premises to competitors. Thus SK was allowed to let the
premises to the other sweet shop.
Thus the extension in Sishen was not a naturalia just an exception
applied to Sishen on the facts of that case.

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CLS cc
4. Tanya leases her apartment in Durban to Trevor. Trevor has

very good taste and furnishes the apartment beautifully
with furniture bought on credit from a very expensive shop
in Durban. Unfortunately, Trevor loses his job and falls in
arrears in the payment of his rent to Tanya for a period of
four months. During this period Thabo had to vacate the
apartment for two weeks when the building had to be
fumigated to get rid of an infestation of cockroaches. Can
Tanya attach the furniture in the flat to secure payment of
the full outstanding four months rents? Discuss fully.
As soon as rent is in arrears the lessor gets a personal right to attach

all movable property on the premises – this exists without the parties
having to agree to it = naturalia of the contract.
The right to attach such property: personal right, so the lessor can’t
pursue it in the hands of a 3rd party, even when it has been removed
from the premises.
The hypothec automatically gives preference in the event of
sequestration of the lessee’s estate.
The hypothec is transferred into a real right after the property has
been attached.The goods must be on the premises and they
distinguish between goods, which belong to the lessee, and goods
belonging to 3rd parties.
All movable (invecta et illata) brought onto the property may be held
as security by the lessor.Tenant: all goods of the tenant are subject to
the hypothec unless they are brought onto the property for temporary
use. There must be some degree of permanency.
4 factors are taken into account when considering if the goods of a 3rd
party are subject to the hypothec:
1. Provided the lessor is aware the goods on the property belong to
a 3rd party, those goods aren’t subject to the hypothec
2. If the 3rd party is aware that the goods are being held on leased
property and he was given permission that they remain there =
subject to the hypothec = the 3rd party creates the impression
that the lessee is the owner of those goods – if the 3rd party
wants to prevent the lessor from being misled by the impression
created, he must ensure that the lessor gets notice that the
goods don’t belong to the lessee – if he fails to do so = must
accept the fact that the goods are subject to the hypothec
3. If the goods of the 3rd party are merely temporarily on the leased
property but are brought there for the indefinite use of the
lessee, they are subject to the hypothec
4. Goods of a 3rd party will only be subject to the hypothec if they
are brought on the property for the use of the lessee.
The hypothec only secures rent.

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CLS cc
The legal effect of a hypothec: in the absence of attachment of the

goods, the hypothec is of little value – it doesn’t give the lessor a real
right to the goods – he can’t pursue the goods if they are removed
from the premises nor can he remove the goods or realize them
himself. This can be remedied by an attachment order.
The tacit hypothec doesn't give the lessor real rights to the goods =
should the lessee remove them and store them in another place, the
lessor can’t seize them.
Also the lessor can’t pursue the goods once they are in the possession
of a 3rd party.
The lessor’s real right only exists once he has confiscated the goods,
which are on the leased property, or if the goods have been removed,
before they reach their new destination. The hypothec is applicable
only if the lessee owes the lessor rent, if no rent is owing no hypothec
can exist over the goods of the lessee.
The contents of Trevor’s flat were bought on credit, and belong to the
credit provider, thus the rules above regarding attachment of property
belonging to a 3rd party are applicable.
5. Discuss the lessee’s right to compensation where he has

suffered damages as a result of a defect in the leased
object?
The lessor’s most important duty is to provide the lessee with the joy
and use of the leased object. As contracts of lease creates continuous
obligations for the lessor, there rests on the lessor, over and above his
duty to deliver the object, the duty to maintain the leased object so
that it serves the purpose for which it was leased. This is a common
law duty and a naturalia of the contract of lease. The rule applicable
to the lease of things is therefore caveat locator. The lessor carries the
risk at all times. The lessor is, however, not responsible for defects in
the leased object or damages caused by the lessee or persons for
whom the latter is responsible. The reason for this is that the lessee
also has a duty regarding the thing.
Furthermore, the lessee can undertake to maintain the leased object,

in which event the lessor will be ‘freed’ from his duty. This does not,
however, mean that the lessor is exempted from his original duty to
deliver the thing free from any defects. A further instance in which the
lessor could be exempted from his duty for damages is where the
lessee inspected the object of the lease before delivery, noting the
defects, and is prepared to repair the object or accept the object as is.
There rests no common law duty on the lessee to inspect the articles
and mere inspection by the lessee does not automatically exempt the
lessor from his duty.

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CLS cc
If the lessee suffers damages as the result of a defect in the leased

object, the lessor commits breach of contract as he does not fulfil his
duty to maintain the leased object.
According to our legal practice, a lessor is considered liable for

damages on the grounds of breach of contract only if he had actual
knowledge of the defect or was supposed to have knowledge thereof.
Where the lessor had no knowledge and was not required to have any,
the lessee is entitled to remission of rent only. The implication of this
doctrine is that an onus rests on the lessee to prove that the lessor
was aware of the defect or should have been aware of it before he will
succeed in his claim for damages. Actual knowledge is regarded as
implying that the lessee must inform the lessor of a defect in the
leased object, or must complain to the lessor about such defect, or
that the lessor must become aware of such defect himself. Implied
knowledge, on the other hand, means that the lessor is liable for
damages if he is supposed to have been aware of the defect. The
lessor’s failure to repair implies negligence or guilt on the lessor’s
part. Therefore, if the lessee suffers damages as the result of a defect
in the leased thing, the lessor commits breach of contract in the form
of positive malperformance. The SA legal point of view is that guilt is
not a requirement for positive malperformance, in the sense that the
innocent party must prove the guilt of the party which commits
positive malperformance.
6. Peter rents a flat in Sea Point from John. Peter is very

creative and has decorated the flat with some of the most
expensive furniture available in the Cape. Unfortunately
Peter did not pay cash but bought everything on credit.
Peter is retrenched and cannot find alternative
employment. Peter fails to pay the rent for four months.
(a) Can John, who hears of Peter's predicament, rush over to the
flat and remove some furniture in lieu of arrear rent?
Substantiate your answer.
In the absence of an attachment of the goods, the landlord's hypothec

is of little practical value. It does not give the lessor a real right to the
goods with no further ado.
Thus he or she cannot pursue the goods if they are removed from the
premises, nor can he or she remove the goods or realise them himself.
This state of affairs can, however, be easily remedied by an
attachment order.
Moreover, the hypothec confers a valuable preference in insolvency.
Section 85(1) of the Insolvency Act 24 of 1936 provides ... a landlord's

legal hypothec shall confer a preference with regard to any article

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CLS cc
subject to that hypothec for any rent calculated in respect of any

period immediately prior to and up to the date of sequestration but
not exceeding:
o three months, if the rent is payable monthly or at shorter
intervals than one month;
o six months, if the rent is payable at intervals exceeding
one month but not exceeding three months;
o nine months, if the rent is payable at intervals exceeding
three months but not exceeding six months;
o fifteen months in any other case.
The lessor may also give effect to the hypothec by asking for an
interdict restraining the lessee from removing the goods from the
premises. If the amount of the rent in arrears does not exceed the
magistrate's court jurisdiction, the matter is very simple indeed, for
section 31(1) of the Magistrates' Courts Act of 1944 provides for an
automatic rent interdict. That is, a notice is inserted in the summons
prohibiting any person, under severe pain and penalties, from
removing the goods (subject to the hypothec) from the premises,
pending decision of the action. In the Supreme Court where the
common-law procedure applies, either an interdict or an attachment
may be obtained. The effect of such an interdict or attachment is that
the landlord does not lose his or her hypothec if the goods are
removed from the premises. If the lessee is solvent, the lessor can
obtain judgment for the rent and sell the goods in execution; if the
lessee goes insolvent, the lessor is a privileged creditor in respect of
the goods.
An attachment therefore gives the necessary practical effect to the
hypothec. The tacit hypothec does not, without further ado, give the
lessor a real right to the goods which are subject to the hypothec.
Thus should the lessee remove the goods from the leased property
and store them in another place, the lessor will not be entitled to
seize them. Furthermore, the lessor may not pursue the goods once
they are in the possession of a third person. The lessor's real right
exists only once he or she has confiscated the goods which are on the
leased property or, if the goods have been removed, before they have
reached their new destination.
(b) Peter decides to leave Cape Town to make a new start in

Johannesburg. The furniture removal van is on its way to
Johannesburg when someone notifies John that Peter is in
the process of moving. Would John be able to stop the van and
remove some of the furniture in lieu of the arrear rent? You
may assume for purposes of this question that John did not
know that Peter's furniture had been purchased on credit.
Substantiate your answer.

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CLS cc
The doctrine of “quick pursuit” relates to when an attachment will be

granted. Once the goods have been removed from the premises, the
lessor loses his hypothec and attachment may no longer be granted.
The problem is that the lessor may not forcibly restrain the lessee
from removing the goods to defeat the hypothec before an attachment
can be obtained. The lessor is therefore in the unenviable position of
losing his hypothec. Hence the law allows the lessor to carry out a
“quick pursuit”. The lessor may apply to the court for an attachment
order while the goods are in process of being removed or are in
transit.
He or she may also apply for an interdict to prohibit the lessee from
removing the goods from the leased property.
The doctrine of quick pursuit, has been adopted by our courts.
There is only one instance where our courts have had the opportunity
of applying the rule affirmatively.
In Webster, the Appellate Division, while recognising the principle of
quick pursuit, refused an attachment order, since the removal of the
goods had been completed at the time the court was approached,
though within a short time after completion of the removal.
7. John concludes a contract of lease with Peter in terms of

which John leases from Peter 10 large stands for a period of
25 years. He proposes to use these stands to establish a
riding school. John undertakes to pay a monthly rental of
R2 000. After six years, the state expropriates half the
stands in order to build a primary school. In consequence,
John's riding school will not be able to operate to its full
extent. You may assume that the contract of lease was a
valid long-term lease.
What effect does the expropriation have on the lease

agreement and what remedy does John have? Discuss.
Remission of rent is a doctrine, which our law inherited from Roman

law. According to this doctrine, the lessee is wholly or partially
released from his obligation to pay the rent if he or she is prevented
by vis maior from having the full use and enjoyment of the thing De
Wet and Van Wyk 366 are of the view that the rule is nothing but ``an
expression of the principles of supervening impossibility of
performance''.
Where circumstances beyond the control of the parties make it
impossible for the lessee to have the full use and enjoyment of the
thing, they hold that it is really the lessor's performance which has
become impossible.
The lessee will consequently be released wholly or in part from his or
her own performance, that is to pay the rent, on the ground of the
reciprocal nature of the obligations in a contract of lease.

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CLS cc
It must be conceded that in some cases where the doctrine is applied,

it can indeed be said that the lessor's performance has become
impossible. After all, the lessor must deliver the property in such a
condition that it is suitable for the purpose for which it has been let,
and he or she must, moreover, maintain it in that condition.
Now, if the thing becomes unsuitable for that purpose as a result of
vis maior ensuing after the conclusion of the agreement, the lessor's
performance becomes impossible.
Apart from the above instance, there are other cases which come
under the rule in question but where nothing is amiss with the
condition of the property rented (eg where droughts or locusts have
destroyed the lessee's crops).
Only if it is the lessor's duty not only to deliver and maintain the
property in a specific condition, but also to ensure that the lessee can
use the property in a profitable manner, would there be any question
of supervening impossibility of performance.
However, is this not too much to expect of a landlord? If it is, then the
abolition of the doctrine is the obvious step to take, so that only the
principles of supervening impossibility may effect any remission of
rent in these circumstances.
The explanation given for the rule that a lessee who is deprived
through vis maior or casus fortuitus of the use and enjoyment of the
property let to him is entitled to remission of rent, is that it is an
example of supervening impossibility of performance which
extinguishes the contract wholly or partially, as the case may be.
However it is submitted that a distinction should be drawn between
(1) cases of total destruction
(2) cases where the lessee does not have the use and enjoyment of the
Property case of (1), the contract would obviously be extinguished as
a result of supervening impossibility, but it is difficult to accept that
in the case of situation (2) this would also be the so.
In the last-mentioned instance, the lessor is not being prevented from
performing. The lessee remains in occupation of the property.
It is submitted that the reason why, in situation (2), the lessee is
entitled to remission of rent is that the continuous full beneficial use
and enjoyment of the property was a supposition upon which the
parties contracted and, therefore, on failure of their supposition, the
lessee is entitled to claim remission of rent.
This view is acceptable provided that ``supposition'' is interpreted as
meaning simply a tacit stipulation (and not necessarily an
assumption).
Thus, according to the previously stated principles, the lessee need
not pay the full rent, or need pay no rent at all, where circumstances
beyond the control of the parties lead to his or her being unable to
have full or partial use of the thing for the purpose intended by the
lease. The lessee will thus be entitled to demand remission of rent,
and in some cases even absolution, if the loss has been caused by vis
maior.

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CLS cc
Vis maior refers to a superior power of force which cannot be resisted

or controlled.
Casus fortuitus (a species of vis maior) is an exceptional or
extraordinary occurrence not reasonably foreseeable.
Thus to be vis maior or casus fortuitus the occurrence must be
uncontrollable and unforeseen.
Examples of vis maior are lightning, floods and earthquakes and, in
some cases, human actions, for example expropriation determined by
legislation
The principle of remission of rent is applicable to business leases as
well.
But the form of vis maior is usually of another variety. So, for
instance, the lessee will be able to claim a remission of rent where the
government forbids the sale of liquor on premises expressly let for
such a purpose.
However, as we have stated above, a foreseeable occurrence is

deemed to have been in the contemplation of the parties and is
therefore not a ground for remission.
Hence a refusal of a liquor licence is no ground for remission
Where loss is caused by vis maior the lessee may either claim
remission or abandon the property (where the loss is so serious that
the leased property becomes useless).
An abandonment of the property may be justifiable even though the
loss is only imminent. So, for instance, the approach of an enemy
force justifies the lessee's abandoning the property.
Where a tenant justifiably abandons the property he or she is,
naturally, only liable for rent for his period of occupation.
Whether a release or remission is granted depends on whether the
thing has become unfit for the purpose for which it was let
The amount of remission is within the court's discretion, Where the
lessee has paid in advance, he may of course recover from the lessor.
8. X leases a farm. During the lease period and with the

lessor's consent, X effects the changes listed below. When
the term of the lease expires, X institutes a claim for
compensation for each of the changes.
(1) Discuss whether X would be successful in each case and

substantiate your answers. X
(a) erected security fences
(b) raised a dam wall
(c) planted trees to provide shelter from the wind
(d) cleared and plowed a piece of ground and
planted mealies

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CLS cc
Article 13 reads: That in future no one shall be liable to pay to

tenants, or their heirs, any compensation for any plantings,
plantations or orchards unless the tenant can legally prove that they
had an instruction or command, from the owners, in which case, and
not otherwise, the owner shall pay compensation to the lessee at the
price the trees cost at the time of the planting and no more.
In other words, in the absence of an agreement for compensation the
lessee does not get any compensation for the planting of trees.
And where the lessor merely promises to pay, without fixing the
amount, the lessee gets only the price of the trees at the time of
planting.
The lessee may therefore recover compensation for ploughing and
sowing even though the lessor did not expressly give his consent.
Where the improvements do not consist in annexures, no
compensation is payable.
It is also conceivable that some soil erosion work may, for instance,
not consist in annexures, with the result that it would not carry
compensation. Article 12 reads: And if any structure is erected
without the consent of the owner, the lessee
shall be bound before the expiration of the lease to actually break
down and remove the materials from the ground, under penalty that
whatever shall be found thereon after the prescribed time, shall come
to and remain for the benefit of the owner.
Article 10 provides that the lessor must compensate the lessee for
such annexures, but further provides that the lessee of rural land
cannot remain in occupation until such improvements have been
paid for Necessary improvements something necessary for the
preservation of the property.
Although the placaats are silent on the subject of necessary
improvements, the very fact that the placaats do not make special
provision for necessary improvements raises a strong presumption
that no distinction should be made between necessary and useful
improvements in the case of agricultural leases.
the De Beer case there is a dictum of Lord de Villiers to the effect that
the placaats should not be applied in the case of necessary
improvements and that in such a case the lessee is entitled to
compensation as if he were a negotiorum gestor.
This view was followed in Bayley v Harwood 1954 (3) SA 498 (A).
Therefore it seems as if this part of the placaats is rejected by our
courts. If the lessee does not remove his or her property, the lessor
must pay compensation for necessary and useful improvements, but
not for luxurious improvements (ie improvements made by the lessee
for his or her own personal requirements, to suit his or her own
taste).
The scale of compensation is, of course, the measure by which the
value of the property is enhanced, unless the improvements actually
cost less, in which case the lessor must pay this lesser amount.

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CLS cc
In this case the consent of the lessor to the improvements is not

necessary for the recovery of compensation, for the placaats do not
apply. lessee may remain in occupation until compensated
(2) Would X have been in a better position had the improvements

been effected on urban land?
placaats apply only to leases of land today placaats apply to rural
land and tenants may claim compensation only after vacating
property
In the judgement of Rand Airport Holdings (Pty) the court held that
article 10 does not apply to urban property but only to rural leases.
Consequently, a tenant has an enrichment lien entitling it to remain
in occupation of the leased property after the lease had ended, until
the amount of its claim for the improvements it had made to the
property had been determined and paid.
9. G hired a shop premises from P for the purposes of carrying

on an antique dealer’s business. The roof of the shop was
found to have leaks. When it rained, small pools formed in
the shop. The leaks mainly affected the front section of the
shop. G informed P of the leaking roof but P failed to repair
the roof. On one occasion, a precious bench became wet and
could not be sold. During the rainy season and especially at
night and during the weekends, G, the lessee, had to move
his Persian rugs and antiques to the back of the shop. He
was thus deprived of his advertising advantage in his shop
window. Does G have any remedy against P? Advise G fully.
According to Poynton v Cran: the condition in which the thing is

delivered must be in accordance with the provisions (express or tacit)
of the agreement
If there is no express agreement: the lessor must deliver the thing in
the condition in which it was when the contract was entered into in
accordance with any implied agreement. So where the thing has been
let for a specific purpose it must be delivered in such a condition so
it’s fit for that purpose. Where there’s an express agreement about the
condition of a thing – lessor must comply.At the moment of delivery
there must be no defects in the article, which are contrary to the
contract. Should the defects have occurred after the contract was
entered into but during the subsistence of the contract = the lessor is
compelled to effect repairs to eliminate the defects provided there are
no stipulations to the contrary.
Lessor need not carry out repairs due to wear and tear and
deterioration through use, which are laid to the charge of the lessee.
BUT as soon as wear and tear reach such a stage that the property is
no longer fit for the purpose of lease – lessor is compelled to carry out

28
CLS cc
repairs so to comply with the contractual obligation to keep the

property in a fit state.
The lessor is liable for breach only if he has fault – when he is
unaware of the fact that the defect has occurred after the contract has
been concluded, he cant be blamed if he fails to effect repairs – our
law: lessee should notify the lessor of a defect, unless the lessor was
aware or should have been aware of such a defect.
Repair: landlord is liable for repairs don’t necessarily mean that he
must make structural improvements (except if necessary in view of
the purpose served by the rented property) he must merely repair
structural defects.
If the duty to deliver the thing in a specific condition and maintain it
involved ordinary duties, the lessor isn’t liable for damages arising
from the fact that the thing wasn’t at any time in the required
condition, of which fact the lessor was either unaware, or ought not to
have been aware or if he had taken all reasonable precautions against
it. The reason for the distinction is that fault is normally required for
liability by reason of breach. Fault isn’t required for liability by virtue
of breach of warranty. With an ex lege warranty in a lease contract =
the fact that he was unaware of the reputed defect and that it wasn’t
possible for him to have been reasonable aware of it, or he had taken
all precautions won’t avail the lessor.
Remedies: cancellation; specific performance (Marais: obligation to
repair is vague so the court can’t supervise an order of specific
performance, remission of rent: If the lessor fails to comply with his
requirement for repairs, the lessee may continue to suffer the
inconvenience and may then claim remission of rent in accordance
with the degree of inconvenience suffered (damages) and damages.
Remission of rent is a doctrine, and part of our law, from Roman
Law. This doctrine states that a lessee is wholly / partially released
from his obligation to pay rent if he is prevented by vis major from
having the full use and enjoyment of the thing.
Vis major means a superior power or force which cannot be resisted /
controlled.
Casus fortuitus – a part of vis major – is an exceptional or
extraordinary occurrence not reasonably foreseeable. Thus to qualify
as one of these, the occurrence must be uncontrollable or unforeseen.
Authors are of the view that the rule is nothing but an expression of
the principles of supervening impossibility of performance. Where
circumstances beyond the control of the parties make it impossible for
the lessee to have full use and enjoyment of the thing, they feel that
it’s the lessor’s performance that becomes impossible. The lessee will
thus be released wholly / in part from his own performance then,
which is the payment of rent (this due to the fact that lease is
reciprocal).
A distinction must be drawn between:
a) cases of total destruction and

29
CLS cc
b) cases where the lessee does not have the use and enjoyment of
the property.
In the case of (a) the contract would be extinguished due to SIP.
In (b) the lessor is not being prevented from performing. The lessee
remains in occupation. Thus, in (b) the lessee is entitled to remission
of rent – this is because the continuous full beneficial use and
enjoyment of the property was a supposition upon which the parties
contracted and thus failure of their supposition means the lessee may
claim remission of rent.
Thus, P should claim remission of rent as he did request the lessor to
repair the roof and has incurred a loss from the lack of lessor’s
interest in fixing the roof. Thus G may claim remission of rent,
damages for losses incurred and could fix the roof himself and claim
the cost from the lessor.
10. Tito rents premises in a shopping mall from Lisa and

runs a small coffee shop. The shop does very well because
many customers pass on the way to do shopping at the
Clicks store and stop for a quick coffee and cake. But,
Clicks wants to expand their premises but to do so, Lisa
diverts the passage to Clicks so that its customers must
enter via another passage. Tito’s shop is now located at a
dead end passage. Soon, Tito’s coffee shop begins to run at
a loss as no customers walk past now. Does Tito have any
remedy against Lisa? Discuss with reference to case law.
The duty of the lessor in this contract of lease is that the lessor
mustn’t disturb the lessee in his possession. This is a duty of the
lessor which flows from the agreement entered into between a lessor
and a lessee.
Once the property is delivered to the lessee – the lessor can’t disturb
his use and enjoyment thereof, except lawfully: where he reasonably
required such right to inspect the property or effect repairs.
In the case of Sishen Hotel: AD extended this rule by interpreting the

lessee’s right against the lessor to include a restraint on him to refrain
from direct or indirect conduct, which negatively affects the
profitability of the leased thing.
Facts: the parties concluded a 20 year lease on a hotel – the hotel was
next to a national road, which increased custom – 8years after
concluding the lease, the national road was diverted on application
and at the expanse of the lessor, to expand his mining operations in
the area = the result was that the hotels profits declined and
eventually turned to losses. 3 years later the hotel closed down and
the lessee instituted action against the respondent for the payment of
damages for breach of contract = the claim was dismissed by the court
a quo.

30
CLS cc
The appellant raised the argument that the contract had an implied
term that the respondent wouldn’t take any steps to interfere with the
access to the hotel and prevent the flow of custom to the hotel.
The judge: Commodus usus could include the idea of profit where the
lessee runs a business from the leased premises.
The judge found that because the lessee conducted business to make
a profit, closing or diverting the road indirectly infringed with his use.
This extension of the meaning of commodus usus was challenged in

Sweets from Heaven v Ster Kinekor:
Q: whether profitability was one of the naturalia of a commercial lease
or whether the lessee has to rely on a tacit term.
SK was the lessee of an entertainment center and sub-lets the

premises to 3rd parties.
A franchise of SFH occupied the premises through the 1st appellant
with the consent of SK.
They then sublet to another sweet shop situated next door to SFH –
they both sold similar products.
Court a quo: granted the interim interdict to prohibit SK from giving

the 2nd respondent occupation of the premises.
The applicants based their claim on the respondent’s failure to ensure
free and undisturbed use and enjoyment (commodus usus) of the
property in allowing the 2nd respondent to compete.
The judge found that the lessor hadn’t breached its obligations and of
the lessee to succeed the lease contract would have to tacitly or
otherwise prohibit the lessor from such conduct.
It was held that the lessor was entitled to let the business premises to
competitors;
i.e. the extension in Sishen wasn’t regarded as a naturalia of the lease
contract.
The remedies available to the lessee include an interdict, cancellation
and damages.
Remission of rent isn’t claimable.

11. X is the owner of a house situated on the beach. Y
leases the house from X for 3 years. The rent is payable
monthly. During a storm the house is damages to such an
extent that Y can no longer live in it. Nonetheless, X still
claims the rent. Discuss Y’s defence and give reasons for
your answer.
Remission of rent is a doctrine, and part of our law, from Roman Law.
This doctrine states that a lessee is wholly / partially released from
his obligation to pay rent if he is prevented by vis major from having
the full use and enjoyment of the thing.

31
CLS cc
Vis major means a superior power or force which cannot be resisted /

controlled.
Casus fortuitus – a part of vis major – is an exceptional or
extraordinary occurrence not reasonably foreseeable. Thus to qualify
as one of these, the occurrence must be uncontrollable or unforeseen.
Authors are of the view that the rule is nothing but an expression of
the principles of supervening impossibility of performance. Where
circumstances beyond the control of the parties make it impossible for
the lessee to have full use and enjoyment of the thing, they feel that
it’s the lessor’s performance that becomes impossible. The lessee will
thus be released wholly / in part from his own performance then,
which is the payment of rent (this due to the fact that lease is
reciprocal).
A distinction must be drawn between:

a) cases of total destruction and
b) cases where the lessee does not have the use and enjoyment of
the property.
In the case of (a) the contract would be extinguished due to SIP.
In (b) the lessor is not being prevented from performing. The lessee
remains in occupation. Thus, in (b) the lessee is entitled to remission
of rent – this is because the continuous full beneficial use and
enjoyment of the property was a supposition upon which the parties
contracted and thus failure of their supposition means the lessee may
claim remission of rent.
Y is thus no longer able to live in the house at all due to its complete
destruction and therefore the contractual obligations are extinguished
by SIP.


32
CLS cc

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SALE AND LEASE QUESTIONS:

SALE LONG QUESTIONS:

1. Does the purchaser in a contract of sale have the same

2. X enters into a contract of sale with Y in regard to a TV.

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In order to establish Y’s legal position, one has to determine which

1) The purchase price must be determined

This problem deals with requirement (3), as it is clear that a pactum

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3. A squatter comes to an agreement with the owner of a farm

To be able to ascertain the relevant principles of law, one firstly has to

1) The lessor has to deliver a thing

However, there seems to be no sign of monetary compensation in the

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5. Sipho sells his residential house to Pedro for R1 000

5.1 Pedro can’t take occupation of the house on the

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performance or cancellation of the contract and damages for

5.2 Pedro takes occupation of the house but he cannot

Remedies for the buyer include rescission on the ground of eviction,

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Damages for eviction - general principles in breach of contract,

5.3 Pedro takes occupation and transfer of the house, but

Breach: Seller be sued in terms of the actio empti, as well as if his

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6. S a sailing boat dealer sells a new Enterprise yacht to P on 1

This question deals with the passing of risk.

Requirements for the contract to become perfecta:

1. The purchase price must be determined (capable of being

A sale as mensuram: sale of a group of things per unit (R500

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In the case of sale in the alternative: the thing is indefinite until

Suspensive condition: if the sale is subject to a suspensive

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8. John sells his motor-cycle to Tom for R5000 on 1 August

a) John is furious and wants to know whether Tom has

a) It is clear that a valid contract of sale of a moveable has been

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other indication to the contrary, it seems reasonable to conclude on a

b) The only pointer indicating that the parties intend to conclude a

(a) Does a valid contract of sale come into being?

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(b) Can Terry apply to have the contract rectified so as to reflect

The contract of sale is void, because it is neither in writing nor has

11. T sells his farm to Z. There are 80 old, unmarked

(a) Does Z have a claim against T?

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(b) Would it make any difference to your answer to question (a) if

(c) Would it make any difference to your answer to question (a) if

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(d) Would it make any difference to your answers to questions (a)

LEASE LONG QUESTIONS:

1. Discuss whether the subject of a lease can be both corporeal