General Introduction to the Law of Purchase and Sale: Chapter 8 Flashcards
(10 cards)
What is the relevance of the law of purchase and sale in contract law?
It governs the legal rules applied to contracts of sale, which are the most prevalent contracts encountered in legal practice.
What was the origin of the contract of sale in Roman law?
It evolved from the Roman law contract of exchange or barter into an independent nominated contract of sale.
How did Roman-Dutch law influence the South African law of sale?
Roman-Dutch law closely followed and expanded Roman law principles, many of which remain applicable in South African law today.
On what legal foundation is South African sale law based?
South African law of sale is based on the common law, incorporating Roman and Roman-Dutch legal principles.
Define a contract of sale in South African law.
It is a specific, nominated, reciprocal agreement to buy and sell, where the seller intends to deliver a determined or determinable thing, together with all his/her rights in the thing undisturbed, to the buyer, and the buyer intends to pay a determined or determinable price.
What general contract requirements apply to contracts of sale?
The general prerequisites for all contracts — consensus, contractual capacity, legality, physical possibility, and formalities — apply.
What distinguishes a contract of sale from other contracts?
Consensus must be reached on the essentialia of the sale contract, namely: (a) the intention to buy and sell (the nature of the contract), (b) the thing sold, and (c) the purchase price.
Is ownership by the seller required for a valid sale contract?
No, the seller need not be the owner, but must transfer all his/her rights in the thing to the buyer without interference or disturbance.
What is the effect of a clause stating the buyer will never receive ownership?
Such a clause invalidates the contract as a sale, because the intention to sell — an essential element — is absent.
Does the conclusion of a sale contract transfer ownership?
No. It only creates a personal right for the buyer against the seller. Ownership transfers only when additional requirements (like delivery and/or payment) are met.
