BER310 Explanatory notes

Mr S Makhubu
Study unit 2. Duties of the seller
2.1 Duty of safe keeping
Outline of the study unit

• Introduction
• Duties of the seller
• General rule of the duty of safe keeping
• Passing of risk
• Influence of the CPA on the passing of risk
 Introduction
Where parties conclude a contract of sale, they will have duties to
fulfil.
The following duties of the seller are imposed by the law
(naturalia) to the contract of sale.
They are:
• Duty to keep safe the thing sold.
• Delivery of the thing.
• Warranties against eviction
• Warranty against latent defects
In this unit we will discuss the DUTY OF SAFE KEEPING THE
OBJECT OF SALE.
GENERAL RULE OF THE DUTY OF SAFE KEEPING:
e.g A concludes a contract with B. In the contract A undertakes to sell and
deliver his blue BMW 3 Series, registration number ABC 567 GP, 2017 model
to B for R 197 000 and B undertakes to pay an amount of R 197 000 to A as
the purchase price of the car.
• A has the duty to take care of the car from the conclusion of the contract until
delivery.
• B can claim damages from A, if A intentionally destroys the car or allows the car to
be destroyed. In other words, where A directs his will towards destroying the car, B
can claim.
• B can claim damages from A, if A negligently destroys the car or negligently allows
something bad to happen to the car. In other words, if he fails to act reasonably in
protecting the car.
• Vis major (Acts of God or nature) is not relevant in these instances.
• The parties may exclude these duties with incidentialia.
Factors that influence the duty of safe keeping
• Where the seller is in mora debitoris (fails to deliver), he will be
liable for damage to the car even if the damage is not due to his
fault. (Where damage is due to the acts of nature/vis major).
• Where the buyer is in mora debitoris or creditoris (fails to pay or
accept delivery), the seller will only be liable for damage caused
intentionally or due to gross negligence only (mere
carelessness is not applicable).
• Where damage is due to acts of nature, he will not be liable.
• Mora creditoris (fails to accept the money) of the seller does not
affect the duty of safe keeping.
PASSING OF RISK
e.g A concludes a contract with B. In the contract A
undertakes to sell and deliver his blue BMW 3
Series, registration number ABC 567 GP, 2017
model to B for R 197 000 and B undertakes to pay
an amount of R 197 000 to A as the purchase price
of the car. Payment and delivery will take place at
the end of the month.
PASSING OF RISK CONTINUES
• The general rule is that the owner (A) bears the risk while in
possession of the car. In other words, prior to transfer of
ownership, A bears the risk.

• However, RISK will pass to B the buyer when the contract is

perfecta between A and B.
Passing of risk continues:
• This means that in our contract above, B the buyer will bear the
risk of accidental damage due to acts of nature or of God as
soon the contract is concluded. This is because the contract is
perfecta (complete).
• The buyer will be liable to pay the purchase price of the car even
if the car is not yet delivered.
• Parties may exclude this naturalia by agreement. (They will be
including an Incidentialia in their contract.)
 Damages and advantages
o Damages due to the acts of nature refer to lighting, fires, floods
etc. These are damages not due to the fault of the seller or buyer.
o Advantages on the thing sold pass like the risk. If A sell his 10
chickens to B and after the contract is perfecta (completed) but
before delivery and payment, the chickens lay eggs, then the
eggs belong to B. (Accessory accrual)
o If C kills the chickens while they are in A’s possession after the
contract is perfecta, then B has right to claim damages from C.
• (Substitutive accrual)
THE INFLUENCE OF CPA IN THE PASSING OF RISK
• According to the CPA, the seller or supplier bears the risk
of goods to be delivered until they are delivered, unless
the consumer (buyer) accepts delivery or does what is
deemed to be acceptance of delivery. See the
textbook.
Practice question:

Lebo sold exotic chocolate. On 1 April 2024, Lebo and Koketso entered into a contract of purchase
and sale in terms of which Koketso bought ten kilograms of chocolate for R5 000. The ten kilograms
of chocolate were all that was left of a shipment of chocolate that Lebo had imported from France in
March 2024. Delivery and payment of the chocolate were scheduled to take place simultaneously on
1 May 2024. On 15 April 2024, a heatwave hit the city of Pretoria. All the chocolate in Lebo’s
warehouse melted because Lebo forgot to turn on the air conditioning when the Weather Service
warned everyone about the heatwave. Your advice to Koketso in this regard would include the
following statements (choose 2 options):
a. Because Lebo was negligent, she failed in her duty of safekeeping.

b. Koketso has a claim against Lebo for damages.

c. Because Lebo was still the owner of the chocolate on 15 April 2024, she cannot claim the purchase
price from Koketso in terms of the common law doctrine of passing of risk.

d. Even though Lebo was still the owner of the chocolate, she can claim the purchase price from
Koketso notwithstanding that the chocolate had been destroyed because the contract was perfecta
when the heatwave occurred.
e. Because the heatwave was vis major, Lebo has not breached her duty of safekeeping and Koketso
therefore does not have a claim against her for damages.

f. Because the heatwave was not vis major, Lebo has not breached her duty of safekeeping and
Koketso therefore does not have a claim against her for damages.

g. Lebo has a common law claim for damages against Koketso.

Lebo has a statutory claim for damages against Koketso.