Norman's Law of Purchase and Sale

Publisher: LexisNexis South Africa
Format: Soft Cover, eBook
ISBN/ISSN: 9780409007220
Year Published: 2017
Authors: Judge Ralph Zulman, Advocate Henry Dicks
Price: R584.82 (incl. vat)

Norman's Law of Purchase and Sale in South Africa captures the important judicial decisions and relevant statutes which impact on this critical area of law.

For almost 100 years Norman's Law of Purchase and Sale in South Africa has guided lawyers, students and businessmen through the intricacies of our law of sale. This is a book which has a loyal following.

This book has a unique orderly and practically convenient structure with extensive extracts from judgments, which has always meant that it has been of great assistance to practitioners, students and businessmen who do not have ready access to all the law reports. It has also been, for that very reason, a useful book for practitioners, particularly those appearing in court, who have it at hand so as to be able to readily cite authority.

The authors' approach is to not merely cite the cases but incorporate extensive extracts from the leading judgments in the text, in that way stating the law as far as possible in the words of the judges themselves. The Sixth Edition covers leading reported cases decided up to 31 December 2016. A new chapter has been added covering the Consumer Protection Act 68 of 2008. There is also a dedicated chapter on the formalities in respect of the Alienation of Land Act 68 of 1981. This book should be useful to busy practitioners who are in search of practical answers.

CONTENTS

CHAPTER 1 - The nature of the contract

1. Definitions of sale
2. Essentials of formation of contract of sale
3. Obligations arising out of the agreement of sale
4. When an agreement of sale becomes binding on the parties
5. Agreement of sale not in itself a transfer of dominium (ownership)
6. Presumption of intention to pass ownership
7. Sale of the property of a third party
8. Double sales
9. Disguised transactions
10. Sale or exchange
11. Sale and donation
12. Sale and locatio conductio
13. Invitation to enter into a contract of sale
14. Guarantee
15. Sale or pledge
16. Sale on approval or sale or return
17. Sale and agency
18. Sale and loan

CHAPTER 2 - The parties to the contract

1. Introduction
2. Insanity as affecting contractual capacity
3. Intoxication as affecting contractual capacity
4. Contracts of minors
5. Contracts of married women
6. Purchases by persons in a fiduciary capacity
7. Contractual capacity of an insolvent
8. Capacity of artificial persons
9. Nomination of another purchaser

CHAPTER 3 - The subject matter of the contract

1. Introduction
2. The seashore
3. Sale of specific and unascertained goods
4. Sales of future goods
5. Sale of incorporeal things
6. Restrictions on the sale of certain goods
7. Fiduciary property
8. Sale of an article to be made or manufactured by the seller
9. Purchase of one's own property
10. Sale of things burdened with fideicommissa
11. Sale of res litigiosa
12. Sale of a res aliena
13. Owner's right of vindication
14. Sale of pledged property
15. Sale by auctioneers
16. Total destruction of the subject matter
17. Partial destruction of the subject matter
18. Sale of things regarded as a unit
19. Typical commodities sale contract
20. Sale of a res alienna
21. Non-disclosure in relation to the sale of shares
22. Fraudulent transfer of immovable property

CHAPTER 4 - The price

1. Introduction
2. The price must be in current money
3. The price must be certain or ascertainable
4. The price must be real, not nominal, and there must be an intention of exacting it
5. Control of prices by legislation
6. Agreements
7. Pledge or mortgage
8. In duplum rule

CHAPTER 5 - Mutual assent

1. Introduction
2. Mutual agreement inter se praesentes
3. Contracts entered into through the post
4. Contracts entered into by telegram
5. Contracts made by telephone, telefacsimile, telex and e-mail
6. Place where the contract is entered into
7. Indication of a mode of acceptance
8. Fraud and its effect on consent
9. Innocent misrepresentation
10. The effect of duress, force or fear (metus or dwang) Undue influence

CHAPTER 6 - Options and pre-emptions

1. Introduction
2. Requisites of a valid option
3. Option: Right of pre-emption or first refusal
4. Requisites of a valid right of pre-emption or of first refusal
5. Sale to a third party by the grantor of an option or right of pre-emption
6. Cession or sale of option
7. Death of the grantor

CHAPTER 7 - Formalities of the contract (excluding sale of land)

1. Introduction
2. Sale or transfer of businesses
3. Sale of motor vehicles
4. Sales under the Second-Hand Goods Act 23 of 1955
5. Sales under the National Credit Act 34 of 2005
6. Sales of stock
7. Sales of a petroleum fueling station

CHAPTER 8 - Formalities of the contract of sale of land or interest in land

1. Sale of land or interest in land must be in writing
2. Statutory regulation of the sale of land 8.3 - Deed of alienation
3. When Alienation of Land Act 68 of 1981 not applicable?
4. Time for performance
5. Transfer by order of the court following a divorce or separation
6. Requirements for sales of land and residential land
7. Issues raised in case law

CHAPTER 9 - Terms and conditions in contracts of sale

1. Conditions and terms contrasted
2. Suspensive conditions
3. Resolutive conditions
4. The Corondimas principle
5. Conditional sales
6. The effects of sale under a suspensive condition
7. Sales under a resolutive condition
8. Effect of death of contracting parties on conditional sales
9. When conditional sales are deemed absolute
10. Pacta adiecta
11. The addictio in diem
12. The lex commissoria
13. The effects of a lex commissoria
14. The pactum displicentiae
15. The pactum de retrovendendo
16. The pactum de retro emendo
17. Instalment sale agreements under the common law
18. Restrictive conditions attached to a contract for the sale of stands or erven in a township or in a defined area

CHAPTER 10 - The Consumer Protection Act 68 of 2008

CHAPTER 11 - Credit legislation

1. The Credit Agreements Act 75 of 1980
2. The National Credit Act 34 of 2005

CHAPTER 12 - The incidence of the risk

1. General
2. The unilateral appropriation of goods to the contract
3. Risk in goods sold subject to a test
4. Risk in a sale of things sold subject to a resolutive condition
5. Risk in regard to the sale of immovables
6. Risk of things sold in the alternative
7. Risk where the vendor sells the same article to two persons in succession and it is destroyed before delivery to either
8. Damage to or destruction of one of several things forming a unity
9. Risk between completion of contract and delivery
10. The onus of proving loss by accident
11. Effects of mora on risk
12. Injury to the goods by an act of a third party while at the purchaser's risk
13. Risk in sales where the vendor undertakes the duty of delivery at a place other than that of sale or manufacture
14. The profit of the thing sold

CHAPTER 13 - The obligations or duties of the parties to the contract of sale

1. Introduction
2. Exeptio non adimpleti contractus
3. Onus of proof
4. Obligation of parties
5. The seller's duty to deliver the res vendita
6. Payment of the price
7. The purchaser's duty to take delivery of the res vendita
8. Delivery in instalments
9. Acceptance or rejection of part of the res vendita
10. Receipt and acceptance of the goods in excess of the quantity purchased
11. Acceptance
12. The purchaser's duty to pay necessary and useful expenses
13. The parties' duty to carry out any other obligations under the contract
14. No duty on the purchaser to return goods to the vendor after rejection

CHAPTER 14 - Delivery and its effects

1. Introduction
2. What is delivery?
3. Conditions of delivery
4. Nature of delivery
5. Deliver of an immovable
6. Delivery of an incorporeal
7. Delivery of movables
8. Sale without delivery: Rights of purchaser
9. Sales for cash
10. Sales on credit
11. Sale of land for cash against transfer
12. Stipulations for payment or performance at a future date
13. Provisions of the Insolvency Act 24 of 1936 with regard to the sale of land
14. Provisions of the Insolvency Act 24 of 1936 with regard to the sale of movable property
15. Delivery to a carrier

CHAPTER 15 - The obligations of the vendor arising from particular terms in the contract

1. Particular terms
2. Delivery free on board
3. Delivery free on rail
4. Sale of goods cost, insurance, freight
5. Vis major or force majeur or casus fortuitus
6. Effect of contracting to deliver by instalments
7. Delivery during a period "seller's option"
8. Delivery of goods "to be railed to buyer's instructions"
9. Sales ad corpus or ad quantitatem
10. Delivery of lesser or more than the quantity contracted for
11. The effect of the qualifying words ”about” or ”more or less”
12. Tender to deliver mixed goods
13. Special terms in the contract in regard to quality

CHAPTER 16 - Duty to guarantee the purchaser against eviction

1. Undisturbed possession
2. The nature of the eviction
3. Who can sue on account of eviction?
4. Guaranteeing the purchaser against eviction when the action on the guarantee arises
5. Cases in which the vendor incurs no liability on account of eviction
6. Duties of the purchaser
7. Measure of damages for breach of warranty against eviction
8. Measure of damages for partial eviction

CHAPTER 17 - Duty to deliver the res vendita free from burdens not specifically mentioned at the time of the sale

1. Introduction
2. Knowledge by purchaser of a servitude over land sold
3. Registered servitudes
4. Sale of leased property
5. Sale of mortgaged property
6. Sale of pledged property
7. Purchaser's remedies on discovering servitudes not disclosed

CHAPTER 18 - The implied warranty against latent defects

1. Introduction
2. The vendor's guarantee against secret or concealed defects
3. Definition of redhibitory defect 18.4 - The action for redhibition (actio redhibitoria)
4. Redhibition (rescission) where several things are sold together
5. The actio quanti minoris
6. Alternative claims
7. Where the redhibitory action is not available to the purchaser
8. Other circumstances where rescission is not available
9. Redhibitory action as a defence
10. Redhibitory actions can only be brought against the seller

CHAPTER 19 - The actio ex empto in relation to the redhibitory actions

1. Introduction
2. Remedies for fraud or breach of express warranty on the part of the seller
3. Period of prescription when rescission and damages claimed against the seller with implied knowledge
4. Actio ex empto for breach of express warranty
5. Redhibitory action and the actio exempto after delivery of the res vendita
6. Meaning of fraud in relation to the actio ex empto
7. Innocent misrepresentation
8. Implied knowledge of latent defects in the res vendita imputed to artificer or merchant seller
9. The manufacturer's warranty
10. Measure of damages by actio ex empto for fraud or implied fraud
11. Measure of damages for breach of express warranty
12. Actio ex empto for fraud or innocent misrepresentation can be brought against a cessionary
13. Actio ex empto as a defence

CHAPTER 20 - The purchaser's remedies under the redhibitory action

1. Introduction
2. The rescission of the sale
3. The restoration of the purchase price
4. The return of expenses
5. No consequential damages claimable in the redhibitory action
6. The difference between the position of the buyer and seller with regard to the redhibitory action where there are joint purchasers or vendors
7. What must the purchaser restore to the vendor in the redhibitory action?
8. Reduction of the purchase price by the actio quanti minoris

CHAPTER 21 – Warranties

1. Introduction
2. Distinction between a warranty and a representation
3. Distinction between warranties and puffery
4. Distinction between warranty and an expression of honest opinion
5. Test for a warranty
6. Warranty in regard to animals
7. When is an article new?
8. Sales by sample
9. The exhibition of a sample does not necessarily make it a term of the contract
10. Sales by sample and description
11. Remedy of the purchaser where the bulk of the goods is not in accordance with the sample
12. Warranty that goods must be merchantable
13. Meaning of “merchantable”
14. Measure of damages for breach of warranty

CHAPTER 22 - A party's rights and remedies where the other party fails to fulfil his obligations

1. Introduction
2. Nature of the actio ex empto, also called the actio empti
3. Claim for specific performance by either party
4. Enforcement of a decree of specific performance
5. Damages in addition to specific performance
6. The claim for specific performance or in the alternative for cancellation of the contract and damages
7. Specific performance and damages claimed in the same action
8. Damages for non-essential breach
9. Rescission of the contract by the injured party for breach of an essential term
10. Effects of rescission of the contract
11. Where there has been repudiation before the date for performance
12. Rescission of an instalment contract
13. The injured party need not claim rescission even when entitled to do so
14. Acceptance
15. Other rights of the purchaser
16. Rights of parties on mutual cancellation of contract of sale
17. Remedies of the seller where the purchaser fails to fulfil his obligations

CHAPTER 23 - Purchase and sale by agents

1. Introduction
2. Brokers
3. Other agents employed to sell
4. Sales by auction
5. Sale to an agent or trustee of company to be formed

CHAPTER 24 - Damages

1. General principles
2. General damages
3. Special damages
4. The Conventional Penalties Act 15 of 1962

CHAPTER 25 - Electronic transactions

1. Introduction
2. The Electronic Communications and Transactions Act 25 of 2002
3. Contracts of sale by telephone
4. Contracts of sale by telex
5. Contracts of sale by telefacsimile
6. Contracts of sale via network-linked computers and electronic mail
7. Contracts of sale via short message and related services
8. Transactions in STRATE

TABLE OF CASES

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