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Department of Private LawLPL4801
Law of Lease
Study Guide 1
Prof Luanda Hawthorne
Mrs Helen Trytsman
Prof Tomas Floyd
University of South Africa, Pretoria
,© 2016 University of South Africa
All rights reserved
Printed and published by the
University of South Africa
Muckleneuk, Pretoria
LPL4801/1/2017–2019
70506892
InDesign
HSY_Style
, CONTENTS
Page
MODULE OVERVIEW iv
Study unit 1: The relationship between the naturalia and the essentialia of contracts 1
Study unit 2: Definition and essential elements 5
Study unit 3: The influence of the Consumer Protection Act 68 of 2008 (“the CPA”), the
National Credit Act 34 of 2005 (“the NCA”), the Rental Housing Act 50 of
1999 (“the RHA”) and other legislation on the common law of lease 10
Study unit 4: Legality of contracts of lease 15
Study unit 5: The obligations of the lessor 18
Study unit 6: The lessor must deliver the thing 20
Study unit 7: The lessor may not disturb the tenant in his/her
possession – the duty to give undisturbed use and enjoyment (commodus
usus) 23
Study unit 8: The lessor must deliver the thing in a specific condition
and maintain it as such 27
Study unit 9: The landlord must guarantee the tenant against eviction 33
Study unit 10: The tenant’s real right 36
Study unit 11: Remission of rent 41
Study unit 12: Compensation for improvements 45
Study unit 13: The tenant’s duties 51
Study unit 14: The tenant must pay the rent 52
Study unit 15: The lessor’s tacit hypothec to secure the rent 58
Study unit 16: The tenant must take proper care of the property and not use it for a
purpose other than that for which it was let 65
Study unit 17: Subletting, cession, delegation and assignation 69
Study unit 18: The termination of a lease 74
Study unit 19: The Rental Housing Act 50 of 1999 81
BIBLIOGRAPHY 93
HSY3704/1 (iii)
, MODULE OVERVIEW
In this module (comprising study guides 1–3), we will briefly discuss contracts of
lease and sale and the statutory provisions pertaining to lease and sale.
MODULE OBJECTIVES
In this module we cover specific advanced subjects in the law of contract and, more
specifically, in the law of lease and sale, as well as legislation pertaining to these
contracts. The subjects covered in this module are regulated by the common law
and by statutes and will, therefore, also require you to demonstrate skills related to
the study of the positive law and statutory interpretation. As this course is aimed
at fourth-year students, it has been structured to build on the knowledge and skills
you have already attained and to solve practical problems in the field of the law of
contract. You will benefit by revising the general principles of the law of contract
and property law in so far as they relate to this module.
This module will be helpful to you in any field of law that you choose to practise.
Every lawyer, no matter what his/her field of expertise, should have a sound
foundation in the law of contract and, more specifically, the law of lease and
sale.
If you work through the study guides (which contain instructions on how to study
the module) properly, including completing all the activities and answering all the
questions at the end of each study unit, you should acquire all the skills (as set out
in the learning outcomes below) that you require to succeed in this module.
We hope that you will find this module interesting and useful for your future career.
LEARNING OUTCOMES FOR THE MODULE
The learning outcomes for this module are as follows:
• Contextualising the common-law principles applicable to contracts of
lease and sale
After you have mastered this module, you should firstly be able to recognise the
role of contracts of lease and sale, as well as credit agreements, in everyday life.
This requires a basic understanding of the historical development of sale, lease and
credit agreements. You should also be able to describe how the general principles
of the law of contract interact with the common-law rules applicable to the specific
contracts of sale and lease. Finally, you should be able to describe the common-law
obligations of both the parties to contracts of lease and sale.
• Describing the statutory measures and their impact on the common law
You should have a clear understanding and working knowledge of the statutory
provisions that apply to this field of law, as well as when they are applicable. You
should also be able to interpret the provisions of the various pieces of legislation
and understand how they interact with the common law. We cannot emphasise this
learning outcome enough. Legislation changes the common law to a great extent,
and you should be able to integrate the common law with the applicable legislation.
Study guide 3 is dedicated to the statutory regulation of the law of sale and lease,
which you should study in conjunction with study guides 1 and 2, as further indicated.
(iv)
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