nAmIB I A U n IVERS I TY OF SCIEnCE AnD TECH n 0 LOGY

FACULTY OF HUMAN SCIENCES

DEPARTMENT OF SOCIAL SCIENCES

QUALIFICATION: COMMERCIAL ADVANCEMENT TRAINING SCHEME (CATS 1}

QUALIFICATION CODE: 21CABM LEVEL: 5

COURSE NAME: COMMERCIAL LAW lB COURSE CODE: CLL112S

DATE: JULY 2016 SESSION: 2"ct OPPORTUNITY

DURATION: 2 HOURS MARKS: 100

SUPPLEMENTARY/ SECOND OPPORTUNITY EXAMINATION QUESTION PAPER

EXAMINER(S} H. von ALTEN

MODERATOR: E. WABOMBA

INSTRUCTIONS 1. Answer ALL the questions.

2. Write clearly and neatly.

3. Number the answers clearly.

PERMISSIBLE MATERIALS

NONE

THIS QUESTION PAPER CONSISTS OF 6 PAGES {Excluding this front page)

QUESTION 1

Choose the correct answer from the given options in each of the following questions. There is only ONE correct answer for each question. Negative marking will not be applied but answers to questions will not be marked where more than one answer has been given.

1.1 Carla agrees to purchase Joe's motor vehicle for a purchase price of N$ 50 000.00. The vehicle is already in Carla's possession in terms of a previous rental agreement between the parties. Ownership passes as soon as the parties have the intention to transfer and acquire ownership. This form of delivery is known as:

A B c D E

By Short Hand By Long Hand Actual delivery Constitutum possessorium Cession

1.2 Delivery of a copyright is effected by means of:

A B c D E

Cession Registration Symbolic delivery Constitutum possessorium Actual delivery

1.3 Choose the correct statement in terms of the Credit Agreements Act :

A B c D E

All goods can be sold under the said Act. Immovable property can be sold under the said Act. Perishables may be sold under the said Act. Movables declared by the Minister can be sold under the said Act. All of the above.

(2)

(2)

(2)

1.4 An employee who is required to perform night work will receive the following additional payment for the hours of night work performed:

A Normal remuneration. B 6% additional remuneration on hours worked. C 6% additional basic wage fore very hour worked. D Double his normal basic wage or 1 Yz time his normal basic wage plus time off in succeeding

week. E Double his normal remuneration or 1 Yz time his normal remuneration plus time off in

succeeding week. (2)

1.5 Copyright is protected for a limited period only. The duration of protection of copyright lasts:

A For the life time of the author. B For 50 years after the copyright has come into existence. C For the lifetime of the author plus 50 years from the end of the year in which the author

dies. D For the lifetime of the author plus 50 years from the moment of his death.

E For the lifetime of the author and/or 50 years whichever is the longest. (2)

1.6 Which one of the following statements about independent contractors is true?

A They always have to do the work themselves. B Their contract terminates on death of an employee. C The object of the contract is the performance of certain specified work or the production of a

certain specified result. D They are employees. E They are under the full control of their employers. (2)

1.7 Choose the statement where Cathy does not qualify as a holder:

A Andrew draws a cheque on Commercial Bank in favour of Cathy or bearer and delivers the cheque to her

B Andrew draws a cheque on Commercial Bank payable to cash or bearer and delivers the cheque to Cathy

C Danny has a cheque which reads: "Pay Danny N$ 1 000.00". Danny delivers the cheque to Cathy

D Danny is the holder of a cheque which reads: "Pay Danny or bearer N$ 5 000.00". Danny delivers the cheque to Cathy

E Danny is the holder of a cheque which reads: "Pay Danny N$ 150.00". Danny signs his name on the back and delivers it to Cathy (2)

1.8 A purchaser will not be protected by the guarantee against eviction if:

A B c D E

He does not hand over the merx to the person posing the threat He notifies to seller of the ensuing threat Was aware of the defect in title of the seller at the conclusion of the contract He conducts a strong defence in protecting the merx None of the above

1.9 Section 13 of the Credit Agreements Act 75 of 1980, as amended, entails:

(2)

A That the credit receiver can recover goods within 30 days in the event that the credit grantor takes matters in his own hands and repossesses any goods by any other means than a court order

B That the credit grantor must first give notice to the credit receiver by registered mail to remedy his/her failure within a period of not less than 30 days

C The right of the credit grantor to cancel the agreement when the credit receiver breaches the agreement, if there is a cancellation clause in the agreement or if the breach is material

D That the credit receiver is afforded a period of 5 days to reconsider the agreement in the event of the agreement being entered into at the initiation of the credit grantor and concluded at any other place than the business premises of the credit grantor

E None of the above (2)

1.10 In terms of the Labour Act 11 of 2007 an employee is entitled to the following days of sick leave in a 3 year cycle if he works 6 days a week:

A 24 consecutive days B 30 calendar days C 36 working days D 40 calendar days

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E None of the above (2)

1.11 The Credit Agreements Act will not apply to one of the following transactions:

A Where the Minister declared the goods that are sold or leased to fall within the application of the Act

B The purchase price is to be paid in installments at a fixed or determinable date in the future C When the agreement is concluded for more than 3 months D When the goods are sold or leased with the sole objective of selling or leasing the goods to

others E None of the above (2)

1.12 When a seller delivers the merx sold to the purchaser, he undertakes to give the purchaser:

A B c D E

An absolute guarantee against eviction Ownership Possession A personal right None of the above (2)

1.13 When a latent defect is discovered in the merx which defect renders to article still useable the purchaser has the following remedy available:

A B c D E

Actio empti Actio quanti minoris Actio redhibitoria Specific performance None of the above

1.14 The risk which passes to the buyer when the contract is perfecta is the risk of:

A B c D E

Negligent damages or lossess Accidental damages or losses Loss or damages caused by the seller Loss or damages caused by the purchaser None of the above

(2)

(2)

1.15 When a seller delivers the merx sold to the purchaser, the purchaser is protected against disturbance in his possession by virtue of the:

A B c D E

Guarantee against latent defects Passing of the risk rule Actio empti Guarantee against eviction None of the above (2)

1.16 If a contract of purchase and sale is subject to a resolutive condition the risk passes to the buyer when:

A The merx is delivered to the purchaser B The condition is fulfilled C The purchase price and merx is fix or ascertainable D The merx is damaged due to an accident

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E None of the above

1.17 The two types of crossings are:

A B c D E

"Not Negotiable" and "Not Transferable" "Account Payee Only" and "Commercial Bank" "And Company" and "Not Negotiable" General and special crossing None of the above

1.18 Section 11 of the Credit Agreements Act 75 of 1980, as amended, protects the purchaser when:

A The credit grantor summary cancels the credit agreement

(2)

(2)

B The contract is signed at the home of the purchaser as a result of the initiatives of the seller C The goods bought in terms of the credit agreement is repossessed without a court order D The seller has called the purchaser to come in and view the articles on sale E None of the above (2)

1.19 One of the following is not an obligation of the employee:

A B c D E

To make his/her services available To be subordinate to supervisors To follow unlawful instructions of the employer To be obedient to supervisors None of the above

1.20 If a credit agreement is not reduced to writing the contract is:

A B c D E

QUESTION 2

Valid Void Voidable Valid but results in a criminal offence None of the above

(2)

(2) [40]

2.1 Benny, without the authority to do so, buys a new Ford Bantam pick-up vehicle at a price to N$200,000 in the name of John. On agreement with the seller Robert, Benny admits that he has no authority, but that John would possibly ratify the contract. Before John can ratify, Robert sends a letter to Benny, informing him that there is a price increase from N$200 000 to N$21 0 000. John would like to know whether his ratification will bind him to a contract for the purchase price of N$200 000 or N4 210 000.

2.2

Advise John with specific reference to the requirements for ratification. (8)

Define a Power of Attorney. (2) [1 0]

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QUESTION 3

3.1 Anthony agrees to purchase the entire load of timber in the warehouse of Julius. Julius agrees to sell the timber to Anthony at N$ 20.00 per ton. Was a valid price determined? Motivate your answer. (3)

3.2 On the 2nd of November 2015 Erastus entered into a contract of purchase and sale with Claudia in terms of which he purchased her 2 bedroom house situated in Windhoek North, for the purchase price of N$ 350 000.00. In terms of the contract of purchase and sale the parties agreed that the sale is subject to the condition that Erastus obtains a mortgage bond from a financial institution in Windhoek, in order to finance the purchase price of the property, on or before for 12th of November 2015, failing which the contract of purchase and sale will be cancelled.

Prior to obtaining a mortgage bond from a financial institution, the house burns down as a result of lightening during a severe thunderstorm. What is the legal position of the parties and in particular does Claudia have a claim against Erastus in respect of the contract of purchase and sale? (6)

3.3 Edwin agrees to buy all the calves born to John's cows during the period of the 1st of September 2015 to the 1st of November 2015 for a purchase price of N$ 15 000.00. During the aforesaid period only 1 calve was born on John's farm. Discuss the legal concept arising from the given facts. (5)

3.4 Name the instances when the guarantee against eviction does not protect the purchaser. (3)

3.5 What remedies are available to the purchaser in the event of a latent defect being present in the merx? (3) [20]

QUESTION 4

4.1 Mark has his own catering business, "Exclusive Cuisine", and has a total of three chefs working for him on a full time basis. The Namibian University of Science and Technology (NUST) has a contract with Mark in terms of which they agreed to make use of Mark's services on occasions when they need to entertain guests from outside Namibia, as Mark has a variety of specialities to offer. Answer the following questions in relation to the given facts:

4.2

4.3

a) NUST contracts Mark to cater for 250 visitors at a gala event to thank local and international donors for funding the new resource center. One of Mark's chefs accidentally dropped red wine on a visitor's expensive mink coat and damaged it irreparably. Does the visitor have a claim against Mark for the actions of his chef? (5)

b) Mark would like to summarily dismiss the chef due to the embarrassment Mark was put into. Advise Mark as to whether or not he is entitled to do so. (3)

Discuss the different types of leave days as stipulated in terms of the Labour Act 11 of 2007.

When is an employer obliged to provide the employee with work?

(8)

(4) [20]

QUESTION 5

5.1 Steve owns a second-hand car dealing business, "Steve's Automobiles". On the 6th of November 2015 he concludes a credit agreement with Saul in terms of the Credit Agreements Act 75 of 1980, as

5

amended, for the purchase of a 2002 VW Golf 1.6 at a purchase price of N$ 50 000.00. Answer the following questions with a brief motivation for your answer.

a) Is Steve responsible for patent defects in the goods that he sells? (2) b) May Saul guarantee that the credit agreement has been signed at the business premises of

Steve? (2) c) Steve requests that they exclude the guarantee against eviction in the contract. Is Steve

entitled to request Saul to do so? (2)

5.2 Discuss briefly the rights and duties of the credit grantor in respect of a credit agreement in terms of the Credit Agreements Act 75 of 1980, as amended. (4)

[10] TOTAL MARKS: 100

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