Exam (elaborations)
LPL4801 EXAM PACK 2024
- Course
- LPL4801 (LPL4801)
- Institution
- University Of South Africa
LPL4801 EXAM PACK 2024
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[Date]LPL4801 EXAM
PACK 2024
QUESTIONS AND ANSWERS
, 1
LPL4801
Questions and Answers
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
nonmonetary 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?
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, 2
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
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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