the contract of sale commercial law. definition: the seller (vendor) promises to deliver a thing...
TRANSCRIPT
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The contract of Sale
Commercial Law
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Definition:
The seller (vendor) promises to deliver a thing (merx) to another person known as the buyer(emptor) for payment of a certain price (pretium)
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The parties to the contract
Seller (who sells)Purchaser (who buys)
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Formalities
Generally no formalities – but:Parties may agree that no sale unless
certain formalities complied with
Some Statutes require formalities
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(Some) Statutory Formalities
Sale of land – signed & in writingCredit agreements – in writing &
signed by both buyer & sellerSale of business – sale to be
advertisedLabelling of goods
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The essential elements of sale
Agreement to deliver
Agreement on the thing sold
Agreement on the sale pricePrice must be ascertainable & in money
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Agreement to deliver
The seller must give control of the merx to the buyer
Generally, deliver immediately, otherwise within a reasonable time
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Delivery
Actual deliveryConstructive delivery
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Types of constructive delivery
Symbolic delivery – keysLong hand (longa manu) – pointing
outShort hand (brevi manu) – buyer
already hasConstitutum possessorium – seller
keepsAttornment – gallery keeps
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The merx
Buyer and seller must agreeCan sell anything unless law
forbidsThing may not yet exist
Hope or spes
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Thing sold (object of the sale)
MovablesImmovablesSpecific thingsGeneric thingsCorporeals and IncorporealsThings in existence now or in the
future
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Price
Price must be agreed uponMust be in moneyPrice must be fixed or
ascertainable
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Sale of 3rd party goods
You can sell something that is not yours!
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Sale of 3rd party goods
Seller does not have to own goods
Sale creates a personal right to delivery
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Examples
Sale of generic goods you expect to acquire
Sale of specific item you expect to acquire
Fraudulent sale of another's propertySale of goods bought under credit
agreement where ownership reserved
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Rei vindicatio
Action available to true owner of goods for recovery
Only needs to proveIs true ownerDefendant in possession
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Conditional contracts
Suspensive conditionResolutive condition
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Suspensive Condition
The operation of the obligation (performance of rights & duties) is suspended or delayed until the uncertain future event (condition) takes place
Eg: A agrees to buy B’s car if she can get a loan
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Resolutive Condition
The obligation comes into operation immediately (performance takes place) but if the uncertain future event (condition) is fulfilled the obligation will immediately terminate
◦ Eg: A agrees that B may use his car until he finds employment. Once B is employed he must hand back the car to A
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Rights of the Purchaser
To receive delivery of the merx
Does not mean seller must deliver, but must make available
Preservation of the merx pending delivery
Seller must look after goods until delivery. Risk passes on sale being perfecta but seller liable for negligent loss or damage
Purchaser to be protected against eviction
Sellers warranty against eviction
Purchaser entitled to merx free from latent defects
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Duties of the Buyer
To pay the purchase price
General rule – pay in legal tender upon delivery
To pay the seller’s necessary expenses
Costs of caring between sale & delivery, transfer costs
To accept delivery of the merx
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The Passing of Risk
General RuleThe risk passes from the
seller to the purchaser as soon as the sale is perfecta.
The parties may agree to change this, for example, for risk to pass on delivery
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When is the sale perfecta?
Agreement on priceMerx identifiedAny suspensive conditions
fulfilled
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Did you get that?
Examples
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OwnershipPassing of ownership
Seller must be owner at delivery
Seller intends to pass ownership
Buyer intends to acquire ownership
Seller must deliver to purchaser
Purchase price paid or credit granted
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Transfer of ownership
Immovable property – on registration of transfer
Incorporeal property – on cession
Movable property – on delivery If cash sale – price paid & delivery
If credit sale – on delivery
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Cession
Transfer of a personal rightCedent transfers to the
Cessionary
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Requirements for cession
Cedent must hold the right being transferred
Must be a personal rightParties must intend to transferObject of cession must be
identifiedMust be lawful
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Warranties
May be express or implied
A contract of sale always implies the following warranties: Warranty against eviction
Warranty against latent defects
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Latent defects
Defect existing at time of sale but unknown to ordinary buyer even if apparent to an expert
There is an implied warranty that goods are fit for the purpose for which sold
If latent defect - entitled to remedy unless: Voetstoots or “as is” sale (parties agree to exclude)
No defect at time of sale
Buyer aware of defect and accepted
Prescription
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Requirements for claim of latent defect
There is or was a material defect in the goods
The defect was present when the sale was concluded
The defect was latent (not easily noticable on inspection)
Purchaser was unaware of the defect at the time of purchase
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The Aedilitian Remedies
Actio redhibitoria
Available if latent defect renders goods useless or if purchaser would not have purchased the goods if aware of defect
Purchaser tenders return of merx & claims purchase price plus interest & costs of maintaining merx and cost of any improvement to merx
No compensation
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The Aedilitian Remedies
Actio quanti minoris
If defect not so material as to render goods useless or if purchaser would still have purchased goods (but maybe at lesser price)
Buyer sues for reduction in purchase price
No compensation
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The Aedilitian Remedies
Actio ex empti
Allows buyer to claim compensation in certain cases:
If seller fraudulent
Seller a manufacturer, expert or professes skill
Seller has given an express warranty
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NB
The Consumer Protection Act prohibits the use of a voetstoots clause This only applies to contracts covered by the Act
Other specific legislation relating to certain types of sale Share Blocks
Sectional Title etc