SECTION 3 RESIDUAL COMMON-LAW OBLIGATIONS OF THE SELLER AND THE REMDIES OF THE BUYER Flashcards
(156 cards)
1
Q
What are the residual common-law obligations of the seller and the remedies of the buyer?
A
- Seller is required to take care of the res vendita until the merx is made available.
- Seller’s duty to make the thing sold available
- Seller’s duty to transfer ownership if he has it, or can obtain it, failing which, to warrant the buyer against eviction
- Duty to make the res vendita available free from defects/diseases
2
Q
What does the obligation that ‘the seller is required to take care of the res vendita until the merx is made available’ mean?
A
Contract being perfecta does not release the seller from the responsibility for the thing sold while it remains in his possession.
3
Q
What is the general rule ito the obligation that ‘the seller must take care of the res vendita until the merx is made avaialble’?
A
The seller is under an obligation to take care of the thing until the time for performance comes, and he will be responsible for any damage caused by his fraud/negligence.
4
Q
What is the leading case for the obligation of taking care of the res vendita until the merx is made available?
A
Frumer v Maitland
5
Q
What did the court hold in Frumer v Maitland?
A
- First consider the obligations of a seller who has not yet delivered the property sold
- It is the seller’s duty to look after it as would a bonus paterfamilias
- If seller fails in that duty the purchaser would be entitled to claim damages, to repudiate the contract and to refuse to take delivery
- But, only if, the result of the seller’s neglect is that the thing sold is materially different from the thing tendered.
6
Q
What is the position if the seller is in mora in making the thing available?
A
The seller becomes liable for all loss, no matter how it comes about.
7
Q
What is the position if the buyer is in mora in taking delivery?
A
The seller’s obligation is diminished.
8
Q
What is the position if the buyer has failed to take delivery?
A
The seller will only be liable for the consequences of his gross negligence or fraud, no liability for ordinary negligenc.
9
Q
What are the buyer’s remedies when the seller has not taken due care of the res vendita (i.e. breached a tacit term of the contract?
A
- SP
- Cancellation
- Damages
10
Q
What does the type of remedies available depend on?
A
On whether the goods are specific or unascertained.
11
Q
What determines the remedy ito specific goods?
A
Whether the damage is material or not.
12
Q
What is the position in the case of specific goods, where the damage is material?
A
The buyer is entitled to refuse to accept delivery of the goods and to cancel the contract, claim damages and a refund of the price if paid.
13
Q
What is the position in the case of specific goods where the damage is not material?
A
The buyer must accept the delivery of the goods, and the main remedy is damages.
14
Q
What is the position where the sale is of unascertained goods?
A
- The buyer has greater powers to reject the goods and once again treat the seller as if there had been no delivery at all (whether the breach is major or not).
- Specific performance is usual remedy
- Damages could be claimed for delay or wasted costs.
15
Q
What are the requirements of the obligation of the seller’s duty to make the thing sold available?
A
- To make the thing available at the agreed time and place
- The thing must be made available in the condition that it was at the time of sale
- The thing must be made available in accordance with the specifications regarding size, quantity, grade or any other aspect agreed upon in the contract of sale
- The thing must be made available with all its accessories, appurtenances and fruits
- The buyer must placed in a position whereby he acquires undisturbed possession
- The seller must, at his own expense, do whatever is necessary to make thing sold available to the buyer.
16
Q
What if there is no time stipulated in the contract within which to make the thing available?
A
The res vendita must be made available immediately :
1. If performance is possible at the time of sale
2. Within a reasonable time, if performance is not possible at the time of sale.
17
Q
What are the cases for time within which to make the res vendita available?
A
- Concrete Products v Natal Leather Industries.
- Moosa v Robert Shaw & Co Ltd
18
Q
Is the seller entitled to delivery by instalments?
A
No, unless the parties agreed on that.
19
Q
What is the case for ‘place of making the thing available’?
A
Goldblatt v Merwe
20
Q
What happens if no place is agreed on?
A
- Seller must make the thing sold available at the place where the thing is if it is specific
- If the res is unascertained, the seller must make it available at his place of business or at his residence
- If the thing is ordered to be manufactured, the thing must be made available at the place of manufacture, in the absence of any agreement to the contrary.
21
Q
What is the authority for the requirement that the thing sold must be made available in the condition that it was at the time of sale?
A
Frumer v Maitland, “no material differences in the thing in which it was at the date of the contract”.
22
Q
What are the two facets regarding the requirement that the thing must be made available in accordance with specifications agreed upon in the contract of sale?
A
- Sales concluded by sample, the contract contains an express warranty that the bulk of the goods will conform to the sample.
- Seller may not make available more or less than the amount stated in the contract, nor the contract goods mixed with others of a different description.
23
Q
What happens if the final consignment does not comply w the sample in a sale concluded by sale contract?
A
Warranty is breached, buyer has an actio empti and other contractual remedies.
24
Q
What happens if the sale is by description and the goods do not measure up?
A
Remedies are for misrepresentation or breach if the description was made a term of the contract.
25
What cases deal with the remedies of a buyer if the seller makes available more/less than the amount stated in the contract or the contract goods mix with others of a different description?
1. Cedarmount STore v Webster & Co
2. Mannix v Osborn
3. Wepener v Bremer
26
Which section of the CPA deals with the remedies available to a buyer if the seller makes more/less available than the amount stated in the contract and the contract goods mix with others of a different description?
Section 19(8)
27
What does section 19(8) of the CPA hold?
If the supplier delivers to the consumer some of the goods the supplier agreed to supply mixed with goods of a different description not contemplated in the agreement, the consumer may-
(a) accept delivery of the goods that are in accordance with the agreement and reject the rest; or
(b) reject all of the delivered goods.”
28
What are accessories?
Things which, though capable in the abstract of separate conception, in fact form an integral portion of the principal thing, and lose their individual existence.
29
What are appurtenances?
Things which are naturally adapted to serve and augment permanently the utility of the principal thing.
30
What is the rule regarding fruits ito obligations?
The seller must make the thing sold available with any fruits which have accrued to it since the sale was perfecta.
31
What is the case for making the fruits available?
De Kock and Another v Fincham.
32
What does the obligation of placing the buyer in a position whereby he acquires undisturbed possession mean?
1. The seller must make thing available in such a manner that no one is alleging any immediate right of possession over the res
2. Buyer acquires free and undisturbed possession, at the time the thing is made available.
33
What is the case for seller's duty to ensure buyer acquires free and undisturbed possession?
Abdulla v Long
34
What are the duties of the obligation that the seller must do whatever is necessary to make the thing sold available to the buyer?
1. Unsascertained goods, seller must appropriate the goods to the contract and ensure that the quantity and description and quality of the goods thus are appropriated in accordance with the terms of the contract.
2. If anything has to be done to the res vendita to put it ina deliverable state, the seller is responsible for doing so at his own expense.
35
What is the case for the seller's duty to put the res vendita ina deliverable state at his own expense.
Stephen Fraser v Clydesdale Collieries.
36
What are the buyers remedies if the seller fails to do his duties i.e, breach?
1. SP
2. Cancellation
3. Damages
37
When is SP available to a buyer?
When a buyer rejects the tender of goods as being inappropriate.
38
What is the case for cancellation?
Landau v City Auction Mart.
39
What did the court state in Landau v City Auction Mart?
"I can find nothing in Roman-Dutch law which stands in the way of an order being made in favour of a purchaser for cancellation of a contract of sale and repayment of the price by reason of a refusal by the defendant to deliver the property sold."
40
What are the facts of Concrete Products v Natal Leather Industries?
1. Concrete Products v Natal Leather Industries entered into a sale agreement for a large number of steel corners for suitcases in different sizes, with several thousand of each sze to be delivered every week
2. Order for small corners were urgent
3. No time for the commencement of delivery was fixed
41
What was the holding in Concrete Products v Natal Leather Industries?
The contract being an ordinary commercial one, time was of its essence, and in the absence of an agreed date for the commencement of delivery, delivery must occur within a reasonable period.
42
What are the facts of Moosa v Robert Shaw?
1. Parties entered into a sale agreement for two consignments of 100 hair-nets at specified prices
2. 50 for day use, 50 for night wear
3. The consignments were to be delivered at separate times
4. In each case, Moosa refused to accept delivery or to meet the bills drawn for the purchase price and the charges
5. 2nd consignment was invoiced at a higher price than the one originally set out in the order
6. The contract did not provide for delivery to be made by instalments.
43
What are the facts of Goldblatt v Merwe?
1. Goldblatt undertook to supply Merwe with 30 000 cigarette boxes
2. Merwe took delivery of some at the place of manufacture
3. After some delay on the part of Goldblatt in supplying the remaining boxes
4. Merwe demanded delivery of them at his own residence
5. Goldblatt offered to make the gods available at the place of manufacture
44
What is the holding in Goldblatt v Merwe?
1. In the case of a sale of specific goods, in the absence of agreement as to the place of delivery, they must be delivered at the place where they were at the time of the sale
2. If the goods are ordered to be manufactured, they must be delivered at the place of manufacture
3. If a local custom is relied upon as taking a case out of the general rule, there must be clear proof of such custom.
45
What are the facts of Cedarmont Store v Webster?
1. Cedarmont Store sold to Webster 400 bags of grade 2 white hickory maize
2. Webster rejected the consignment because a large proprotion of the consignment was bad and could not be regarded as grade 2
3. Some maize experts were of the opinion that at least 10% of the consignment was bad and could not be graded as no.2
4. Maize was gree and mouldy due to being exposed to water or damp.
46
What did the court in Cedarmont Store v Webster hold regarding remedy?
1. Actio quanti minoris presupposes that the contract has been fulfilled, but not to the full extent
2. If there has not been substantial performance, the right of election lies with the purchaser
3. Election of the purchaser is to refuse to accept the goods and rely either on the actio ex empto (based on the purchase) to reject or on the Aediliation Edict.
47
What are the facts of Mannix v Osborn?
1. Mannix purchased from Osborn 100 bags of grade 6 mielies which on inspection by the Gov, 19 bags were found to be grade 4 and 13 grade 8
2. Osborn admitted that the Government grading was correct
3. Mannix purchased the mealies for resale to Selbowitz
without informing Osborn
48
What is the remedy applied by the court in Mannix v Osborn?
Actio Redhibitoria
49
What is the Actio Redhibitoria?
Action to cancel a sale on consequence of defects in the thing sold, allows for restitutio in integrum.
50
What are the facts of Wepener v Bremer?
1. Wepener sold Bremer bags of wheat which arrived later, Bremer took delivery nonetheless and deposite the wheat in their stores
2. On subsequent examination, it was found that some of the bags in the consignments did not answer to the contract description and quality and were musty
3. Bremer ordered 1200 bags, 728 of the bags were delivered.
4. 294 of the 728 were non-compliant
5. Wepener offered to replace the 294 bags, but the offer was refused, the bags were then sold to a 3rd party
6. Bremer cancelled the conrtact and refused to accept the balance of the 1200 bags on the ground that the wheat already railed was not ito the contract and on the ground that time for railing had expired.
51
What did the court hold in Bremer v Webster?
There is a right to replace defective goods during the currency of the contract i.e. the date for delivery has been fixed by demand.
52
What are the facts of De Kock v Fincham?
1. De Kock was the agent for both the buyer and seller and collected the rents from the sold property
2. Francis is the seller and Fincham is the buyer
3. De Kock handed over the rent money to Francis
53
What is the rule in De Kock v Fincham?
Where IP is sold on terms of payment on transfer, the purchaser is entitled to recover the rents.
54
What are the facts of Abdulla v Long?
1. Abdulla bought property from Long in ignorance of the hypothec which was fraudulently concealed from him by Long
2. Ito an Ordinance, the hypothec attaches to the property an Abdulla is liable for it.
3. Abdulla claims an order on Long to redeem certain land from a hypothec in favour of Wynberg Municipality.
55
What is the rule in Abdulla v Long?
Seller's duty in general is to give vacuo possession and that enjoins the duty of delivering the property free from any burdens not specifically stated at the time of the sale.
56
What are the facts of Stephen Fraser v Clydesdale Transvaal Collieries?
1. Stephen Fraser Co and Clydesdale Transvaal Collieries had entered into a sale agreement for 600 bales of grain bags
2. Bags to be delivered to Springs Station
3. 600 bales had been duly delivered ito the contract of sale but CTC had refused to pay the purchase price owing on 90 of the 600 bales
3. Contract showed that SFC had undertaken to deliver the goods free of all charges at Springs Station
4. Trucks with the 90 bales arrived at Springs Station but station-master refused to make delivery on the ground that the duty had not been paid.
57
What is the holding in Stephen Fraser Co v Clydesdale Transvaal Collieries?
Where a vendor undertakes to make delivery of the goods he has sold at a distant place, the carrier is the agent of the vendor to deliver, not of the purchaser to receive the goods.
58
What happens if a seller mala fide fails to transfer ownership?
The buyer will have an actio ex empto for transfer of ownership as soon as he or she discovers the true position
59
What is the warranty against eviction?
The warranty requires of the seller that he must do whatever is legally possible to protect the buyer in his possession of the res vendita.
60
What happens if the seller does not do whatever is legally possible to protect the buyer in his possession of the res vendita?
The seller will be rendered liable under the warranty against eviction
61
In which legislative provision does the warranty against eviction appear?
Section 44(1)(d) of the CPAA.
62
What are the three basic requirements that must be met before the seller will become liable on the buyer's eviction?
1. Eviction
2. Notice
3. Buyer is required to put up a determined defence (virilis defensio) against the claim of the 3rd party
63
What are the buyer's remedies in the event that they are evicted?
1. A buyer claiming under the warranty is entitled to repayment of the purchase price or whatever portion has been paid, and if loss over and above the amount can be shown, compensation for such loss- by way of action empti
2. Buyer as bona fide possessor can claim for any improvements made to the property from true owner
3. Where eviction is partial only, and not sufficient to entitle the buyer to claim rescission, he is entitled to claim the difference between the value of the property at eviction and the value of what is left to him
64
Which provisions of the CPA exclude the warranty of eviction?
Section 51(b)(i)-(iii).
65
What is the case transfer of ownership?
Kleynhans Brothers v Wessels' Trustee
66
What is eviction?
1. Any lawful interference with vacua possessio by seller or third party.
2. Anything which weakens the purchaser's right to the whole or a portion of the thing sold
3. Anything which constitutes a menace to his right of having free and undisturbed possession
67
What is eviction according to Norman's Purchase and Sale?
1. A demand on the part of a 3rd person to hand over the property sold to him if the purchaser is unable to resist such a claim
2. Refusal of the person in possession of the property to relinquish it to the purchaser
3. Demand for payment of a sum of money by the purchaser in order to retain the whole/portion of the res vendita
4. Existence of a concealed servitude over the property which interferes with the use and possession of the property
68
Is the seller liable for any unlawful interference with the buyer's possession?
No
69
When will the seller be liable for unlawful interference with the buyer's possession?
1. If the interference is the result of a flaw in the seller's title
2. Flaw must have existed at the time of sale
3. If it arose subsequently to the sale, due to the seller's own act
70
When is the buyer required to give the seller notice of the 3rd party's claim to possession of the thing?
As soon as eviction is threatened
70
What are the cases for successive sales?
1. Westeel Engineering v Sydney Clow
2. Concordiant Trading v Daimler Chrysler Financial Services
70
What does not count as eviction?
1. Where the sale is set aside by the court
2. If the property is attached by the seller's creditors before ownership is passed
71
When does eviction begin to operate?
When buyer's vacuo possessio is threatened.
72
What is the seller's obligation against the warranty?
To protect the buyer's possession.
73
What are the seller's duties under the warranty?
1. To intervene in the action and take up the defence against the other party claiming the title
2. To relieve the buyer of the risks and costs of court action
74
What are the requirements of notice?
1. The buyer is required to give the seller notice of the third party's claim to possession of the thing as soon as eviction is threatened.
2. Seller has to be given adequate notice to fulfil his obligation to protect the buyer's possession
75
What happens if the buyer fails to give the necessary notice?
They will have no recourse against the seller unless they can prove the third party's right is incontestable or it is the seller's fault the notice did not reach him in time.
76
When is the buyer relieved of the duty to give notice?
1. Where the title of third party claiming the thing is legally unassailable
2. Where the parties have expressly agreed notice will not be required
3. Where notice is not given owing to the seller's own fault
4. Where the seller has sold property mala fide (action ex empto)
77
When is the warranty against eviction applicable?
Where the seller believes in good faith that ownership was passed but it has not.
78
When must the buyer put up a determined defence of his possession?
When the seller has failed to assist the buyer because he cannot be found or because of refusal.
79
What are the cases for 'a determined defence'?
1. Lammers v Giovannoni
2. Gobel Franchises v Kawda
80
What is the case for repayment of purchase price?
Alpha Trust v Van der Watt
81
What is the case for contracting out of the warranty against eviction?
Vrystaat Motors v Henry Blignaut.
82
What does section 44(1)(d) of the CPA hold?
Every consumer has the right to assume that a supplier guarantees that the consumer is to have and enjoy quiet possession of the goods.
83
What is Kleynhans v Wessels' Trustees?
Fraud by agent of seller.
84
What was the legal issue in Kleynhans v Wessels' Trustee?
Whether an obligation to transfer ownership if the seller has ot, or can obtain is exist
85
What did Wessels hold?
1. A contract of sale does not result in transfer of ownership
2. Contract of sale results in an obligation to give vacua possessio with the further legal consequence of a warranty against eviction.
86
What are the facts of Westeel Engineering v Sidney Clow?
1. A sold a car to M on hire-purchase, there was a resrvation of ownership clause
2. M still owed money to A but he sold the car to Westeel etc, the cycle continues until a 6th purchasr
3. None of the successive purchasers were aware that A had not been paid in full
4. Sidney (owner no.4) issued summons to Westeel alleging that it had paid the original owner of the car the value of the car at the time, to protect the undisturbed possession of its successor as it was 'entitled to do'
5. Summons claimed refund of the purchase price from Westeel or as the amount of damages suffered bc of Westeel's breach of warranty against eviction
87
What was the rule in Westeel v Sidney?
A bona fide purchaser of the property of a 3rd person who resells it without knowledge of the defective title, is not liable to account to the true owner either for the value of the proeprty or for the profits of the resale.
88
What are the facts of Cordiant Trading v Daimler Chrysler?
1. DC sold vehicles to a Maxine Motors with a reservation of ownership clause until payment of the full purchase price
2. Maxine Motors sold the vehicles to Cordiant Trading who sold them to other dealers
3. Dealers sold vehicles to members of the public
4. 3 years later DC issued a notice that Maxine Motors failed to pay the purchase price and bc of the reservation of ownership, it demanded the return of the vehicles from persons in whose persons they were at the time of the notice.
5. Cordiant Trading applied for an interdict
89
What was the legal issue in Cordiant Trading v Daimler Chrysler?
Whether a seller of goods which were resold to 3rd parties in successive sales has locus standi to seek a declaration against the original vendor who had sold them to the person from whom the applicant had purchased the goods.
90
What was the legal rule in Cordiant Trading v Daimler Chrysler?
A seller's liability to his purchaser depends upon proof of a breach of the warranty against eviction an the warranty binds a seller only to the purchaser to whom he had sold.
91
What was the holding in Cordiant Trading v Daimler Chrysler?
Threat of eviction is not directed at Cordiant's purchaser, so they do not have locus standi to restrain from vindicating the vehicles.
92
What are the buyer's remedies?
1. Claim under warranty= entitlement to repayment of the purchase price or what has been paid
2. Compensation for loss over and above the amount (actio empti)
3. Bona fide possessor= claim for improvements
4. Partial eviction and insufficient to entitle buyer to claim rescission= difference
93
What are the cases for virilis defensio?
1. Lammers and Lammers v Giovannoni
2. Gobel Franchises v Kawda
94
When must a buyer raise the virilis defensio?
When faced with eviction.
95
Which case deals with repayment of the purchase and compensation for loss suffered for a buyer claiming under the warranty?
1. Alpha Trust v Van der Watt
2.
96
What kind of claim is the claim for repayment of the purchase price and compensation of loss suffered for a buyer claiming under the warranty?
A contractual action sued by means of the actio empti.
97
Which case deals contracting out of the warranty in a common-law contract?
Vrystaat Motors v Henry Blignaut.
98
What happens if the seller makes the thing available with a defect?
A number of considerations will determine the extent and nature of the remedy available to the buyer.
99
What are the two critical things that need to be considered in a defect case?
1. Nature of the defect
2. Nature of the remedy
100
What are patent defects?
Defects which are obvious to the naked eye; which are easily discoverable by the buyer at the time the goods are received.
101
What remedies are available in the case of a defect?
Contractual and aedilitian.
102
Which remedial action entitles the buyer to consequential damages?
Contract.
103
When may a seller be sued for breach of contract for defective performance for patent defects?
Where specific goods are identified or unascertained goods are appropriated by the seller to the contract and the goods suffer from a patent defect.
104
What is the case that deals with a patent defect in respect of contract?
Kroomer v Hess & Co.
105
When is the seller not liable for a patent defect?
When the buyer has inspected the res vendita at or before the time of the sale and the inspection ought to have disclosed a defect and the buyer accepts the goods without objection.
106
What are the exceptions to the seller's non-liability?
1. Warranty of the absence of the defect
2. Fraudulent concealment,
107
Which case deals with the seller's non-liability for the patent defect?
Muller v Hobbs.
108
Which case defines a latent defect?
Holmdene v Roberts Construction.
109
What is a latent defect according to Holmdene v Roberts Construction?
An abnormal quality or attribute which destroys or substantially impairs the utility or effectiveness of the res vendita for the purpose for which it was sold or for which it is commonly used...Such a defect is latent when it is one which is not visible or discoverable upon inspection of the res vendita.
110
What happens if the seller makes the thing sold available and it is discovered that the thing has a latent defect?
The seller will be liable in four circumstances:
1. Where the seller has acted fraudulently or mala fide.
2. Where the seller has warranted the absence of a latent defect.
3. Defect and the seller falls under the spondet peritiam artist rule.
4. Where the aedilitian actions are available.
111
What are the circumstances in which a buyer's right to seek a remedy for a defect is terminated?
1. Use of article in such a way as to make it impossible to return to the seller
2. Material destruction or damage due to the buyer's negligence
3. Failure to discover the defect and to return the thing within a reasonable time after the discovery of the defect.
4. Knowledge of the defect and exercise of rights of ownership over the article.
112
Which case deals with the remedy where the seller has acted fraudulently or mala fide?
Glaston House v Inag.
113
Which case deals with where the seller has warranted the absence of a latent defect?
Minister van Landbou-Techniese v Scholtz.
114
What is the spondet peritiam artis rule?
A rule that classifies certain types of sellers as having a high duty and also means that a seller implicitly guarantees that the goods sold will conform to the quality and performance standards expected from a professional in that trade or profession.
115
Who are the sellers falling under the spondet peritiam artis rule?
1. Master craftspersons
2. Manufacturers/sellers
3. Merchant sellers professing expert knowledge or skill in the goods sold
116
What are the cases for the seller who is a master craftsperson?
1. Holmdene Brickworks
2. D&H Piping Systems v Trans Hex Group.
117
What are the cases for merchant sellers professing expert knowledge or skill in the goods sold?
1. Kroonstad v Botha
2. Langeberg v Sarculum Boerdery.
118
When are aedilitian actions available in the case of defects?
1. If at the time of the sale, the thing suffers from a defect/disease
2. If it was sold in contravention of the edict in that there was no disclosure of the defect/disease.
119
What is a disease in the law of sale?
An unnatural physical condition whereby the usefulness of the body is impaired from the perspective of its natural health.
120
Which cases deal with aedilitian remedies in the cases of defects and diseases?
1. Seboko v Soll
2. Witon Chemicals v Rebuff.
121
What are the two aedilitian actions?
1. Actio redhibitoria
2. Actio minoris.
122
What is the actio redhibitoria?
An action for the cancellation of the contract and restitution and it involves the restoration of the parties to their original positions as far as this is possible.
123
What case deals with the actio redhibitoria?
Van Zyl v Credit Corporation of SA.
124
What kind of test is the test for redhibition?
Objective.
125
Which case sets out the test for redhibition?
Reid v Brothers v Bosch.
126
What is the test for redhibition?
1. A buyer is entitled to rescission of the contract if the defect is of such a nature as to render the article completely unfit for the purpose for which it was bought
2. That reasonable buyer would not have bought it at all had he known of the defect.
127
In which case did a defect not justify a rescission?
Dibley v Furter.
128
What determines whether a buyer is entitled to redhibitory or quanti minoris relief?
The seriousness of the defect.
129
What justifies a complete redhibition?
A defect that is materially hindering the usefulness of the thing.
130
What happens if redhibition is applicable?
The buyer will be entitled to a refund of the purchase price, plus interest and reimbursement for useful or necessary improvements made to the thing. However, buyer is obliged to inform the seller of the defect and to tender a return of the thing with its accessories, appurtenances and fruits.
131
What is the actio quanti minoris?
An action for the return of a portion of the purchase price.
132
Which case illustrates the actio quanti minoris?
Davenport Corner Tearoom v Joubert.
133
In what two circumstances may the actio quanti minoris be sought as a remedy?
1. Where they satisfy the requirements of the actio quanti minoris and wherever such circumstances are present which justify complete redhibition, in which case the buyer has an election to choose whichever of the two actions he prefers, if he has this choice, he may:
a. restore the thing and claim the price paid
b. retain the thing and reclaim part of the purchase price
2. Where the defect is of such character that it is not material enough to give rise to a redhibitory action, in which case the buyer may claim a reduction of the purchase price if he would still have entered into the contract but at a lower price.
134
What happens if the actio quanti minoris is utilised?
The buyer, if successful, is entitled to the return of a portion of the purchase price.
135
Which case deals with the buyer returning a portion of the purchase price?
Douglas v Dersley.
136
What are the aedilitian remedies as defences?
1. Exceptio redhibitoria
2. Exceptio quanti minoris
137
What is the exceptio redhibitoria?
A legal remedy that allows the buyer to cancel the sale and return the defective goods to the seller, in exchange for a refund of the purchase price.
138
When is the exceptio redhibitoria applicable?
When the defect is so serious that it renders the goods unfit for the purpose for which they were bought or significantly reduces their usefulness to the buyer.
139
What is the exceptio quanti minoris?
A remedy that allows the buyer to retain the defective goods but claim a reduction in the purchase price, proportional to the extent of the defect.
140
When is the exceptio quanti minoris suitable?
When the defect is less severe and does not render the goods entirely unusable but diminishes their value.
141
What is the requirement for contracting out of a voetstoots clause?
It must be express.
142
What is the meaning of selling some thing voetstoots?
Sold with all its faults.
143
What are the leading cases on fraud in the context of voetstoots clauses?
1. VDM v Meades
2. Odendaal v Ferraris
3. Banda v Van Der Spuy
144
What is a dictum et promissum according to Hall v Milner?
A statement or undertaking or promise by the seller which was intended to be acted upon by the parties.
145
When aedilitian remedies available?
1. If the res vendita suffered from a latent defect at the time of the sale
2. If the seller made a dictum et promissum to the buyer on the faith of which the buyer entered into the contract or agreed to the price in question; and it turned out to be unfounded.
146
What factual foundation is required for an innocent misrepresentation to entitle a buyer to a reduction of the purchase price under the actio quanti minoris?
Relevant considerations could be had to the following:
1. Whether the statement was made in answer to a question from the buyer
2. It materiality to the known purpose for which the buyer was interested in purchasing
3. Whether the statement was one of fact or of personal opinion
4. Whether it would be obvious even to the gullible that the seller was merely singing the praises of his wares, as sellers do.
147
What is a dictum et promissum?
A material statement made by the seller to buyer during the negotiations, bearing on the quality of the res vendita and going beyond mere praise and commendation.
148
What are the residual obligations of the buyer?
1. Payment of the purchase price
2. To remove the thing or if it is brought to him, to receive it
3. To reimburse the seller's necessary expenses
149
What is the manner of payment?
The buyer is required to pay the purchase price in the manner agreed upon in the contract.
150
What is the time of payment in cash sales?
In the absence of agreement to the contrary, the thing must be delivered at the same time as the payment of the purchase price. (Breytenbach v Van Wyk)
151
What is the time for payment in credit sales?
1. A particular day may be agreed upon for payment, or if not, payment must be made within a reasonable time.
2. Where delivery by instalments is agreed upon, the buyer is prima facie required to pay the correct portion of the price on delivery of each instalment.
152
Where is the place of payment?
The buyer is required to pay the price at the place fixed in the contract. Where no place has been fixed, the buyer is required to ensure that payment reaches the creditor on or before the due date.
153
What will happen if the buyer fails to remove the thing or receive it timeously?
Placed in mora, which has implications for the burden of the risk and entitles the seller to reimbursement for necessary expenditure in the upkeep and storage of the res vendita.
154
What is the duty to reimburse the seller's necessary expenses?
Duty of the buyer to reimburse expense that they necessarily incurred in caring for the res vendita between the date of sale and making the thing available.
