Chapter 14

Question 1

Define a contract of sale.

Answer 1

A contract of sale is a contract by which one party undertakes to transfer a thing or the possession thereof, to the other party in return for payment of a price.

Question 2

What are the two essentiala for a contract of sale?

Answer 2

• The agreement on the thing to be sold.
• Agreement on the price to be paid.

Question 3

What is the difference between corporeal things and incorporeal things?

Answer 3

Corporeal things are things that you can see and touch, they are tangible. While, incorporeal things are intangible such as, shares in a company.

Question 4

What are the naturalia for the contract of sale?

Answer 4

• The passing of risk and profit in the thing sold
• The passing of ownership in the thing sold
• The duties of the buyer
• The duties of the seller.

Question 5

What are the three requirements for the contract to be perfecta?

Answer 5

1) the price must be fixed
2) the property sold must be acertained
3) any suspensive condition must be fulfilled.

Question 6

Is the risk passed from the seller to the buyer after the contract becomes perfecta?

Answer 6

Yes, once the contract becomes perfecta the risk passes from the seller to the buyer. When a contract is not perfecta, the risk remains with the seller.

Question 7

When does the loss not transfer to the buyer?

Answer 7

• When the seller is in breach of contract (mora debitrosis) for delaying the delivery of the thing purchased. In this case the seller will pay the risk for the period of delay.
• When the buyer fails to accept delivery on time (mora creditoris), the seller will only be responsible for losses due to his gross negligence.
• When the normal passing of risk has been excluded by a specific clause in the agreement, the seller should bear the loss.
• When the contract is still not perfecta.
• Where is the subjected to a condition, the loss remains with the seller until the condition is satisfied.

Question 8

True or false: passing a risk and passing of ownership can occur at two different times, as two separate juristic acts?

Answer 8

True.

Question 9

What are the 4 requirements for the passing of ownership of the things sold?

Answer 9

There are four requirements:
1) The seller must be in a position to transfer ownership.
2) Both parties must have the intention that ownership should pass.
3) The purchase price must be paid or credit must have been given for payment.
4) If there is a rebuttable presumption (which means that there is evidence to show that the normal position does not apply to a particular case, then the presumption will be rebutted) when immovable property is sold then ownership will be transferred upon delivery of the movable property.

Question 10

What are the 5 duties of the seller?

Answer 10

The seller has the following duties:
• To take care of the goods until delivery
• To deliver the goods
• To give free and undisturbed possession of the goods to the buyer
• To not make false statements
• To assume responsibility for latent defects in the goods.

Question 11

What are the six different types of delivery?

Answer 11

• Actual delivery
• Symbolic delivery
• Delivery with long hand
• Delivery with short hand
• Transfer of possession
• Attornment

Question 12

Explain delivery by attornment.

Answer 12

This is an agreement between the buyer, the seller and a third-party, with the third-party will take care of the thing, or hold it, on behalf of the buyer.

Question 13

What does eviction mean? What is the procedure that the buyer must follow when a third-party threatens eviction?

Answer 13

Eviction means that a third-party with a better idea of the good soul claims those goods from the buyer.

When buyers are threatened with eviction, they can:
• Voluntarily hand the good over to the third-party and claim damages from the seller.
• Refuse to hand over the good until us to do so by law.

Question 14

What are the legal remedies available to the buyer when evicted?

Answer 14

The buyer can (1) claim the purchase price as well as (2) any additional damages suffered, for example, legal cost in any increase in the value of the goods from the time it was purchased to the date of eviction.

Question 15

What are the limitations to the warranty against eviction, i.e. When will the seller not be liable?

Answer 15

The seller won’t be liable in the following instances:
1) Eviction was caused by something that is out of the sellers control.
2) The buyer knew, at the time the contract was concluded, that the seller is not the owner of the things being sold.
3) The seller told the buyer at the time of conclusion of the contract that he’s not sure if he owns the thing.
4) The buyers claim has become prescribed – the claim is too late

Question 16

Explain the duty of the seller to assume responsibility for latent defects.

Answer 16

A seller is responsible for latent defects in the goods sold, which existed at the time of the sale, even if the seller wasn’t aware of them at that time.
1) the defect must be material, this means that it must affect the use or purpose of the thing.
2) the defect must be latent, this means that even upon reasonable inspection the defect is not visible.
The seller will not be responsible for the defect if the buyer knew of the defect and still bought the thing or when a clause is included in the contract that relieves the seller from the liability of the defects.

Question 17

What are the remedies available to buyers who have purchased a latently defective good?

Answer 17

The following remedies are available to buyers:
• Redhibition - if the defect is material, the buyer can cancel the contract and get their money back. innocent parties must be put in a position they were before entering into the contract.
• Reduction in the purchase price – if the defect is of a nature that the buyer would have still bought the thing with the defect but at a less price, in this case the buyer can claim a reduction in the price and still keep the thing.
• Aedilitian remedies and damages - these damages can be claimed by the buyer with or without cancellation of the contract of sale.

Question 18

What are the duties of the buyer?

Answer 18

The buyer has the following duties:
1) To pay the purchase price
2) To accept delivery
3) To reimburse (pay) the seller (travel) expenses.

Question 19

What are some contracts of sale that are regulated by the legislation?

Answer 19

• Sale of immovable property
• Sale in execution
• Protection of buyers in electronic transactions
• Protection of consumer buyers
• Auctions

Question 20

What are three instances in which the buyer can claim damages?

Answer 20

There are three instances in which the buyer can claim damages:
1) when the seller has specifically promised that there are no defects or that they are certain good features and these promises prove to be false.
2) seller knew about the defect and kept quite about it.
3) when the seller is the manufacturer of the good and claims that their product has some special qualities, but it turns out that it is not the case buyer suffers additional loss because of the latent defect.