Duties of the seller Flashcards
What are the duties of the seller?
To take care of and the object from the time conclusion of the contract until the object is delivered to the buyer
What are the duties of the seller?
To take care of and the object from the time conclusion of the contract until the object is delivered to the buyer
Can a buyer claim damages from a seller for any damages caused by the seller’s intentional or negligent conduct?
They may
Can the parties change the duty of safe keeping through agreement?
They may
How is the culpable conduct of the seller resulting in the damage or destruction of the object can be divided?
A) intentional acts, where the seller intended the specific consequences of his act
B) negligent acts, there are two forms carelessness ang gross negligence
How is the culpable conduct of the seller resulting in the damage or destruction of the object can be divided?
A) intentional acts, where the seller intended the specific consequences of his act
B) negligent acts, there are two forms carelessness ang gross negligence
Discuss factors that influence the duty of safe keeping
The mora debitoris or mora creditoris of the buyer and the debitoris of the seller influence the duty of safe-keeping.
Discuss factors that influence the duty of safe keeping
The mora debitoris or mora creditoris of the buyer and the debitoris of the seller influence the duty of safe-keeping.
When is the seller held liable for damages caused by his intentional or grossly negligent conduct?
Where the buyer is in mora debitoris or mora creditoris (he fails yo pay the price or fails to receive the object sold)
When is the seller held responsible for any damages, even in the absence of fault on his part?
Where the seller is in mora debitoris (fails to deliver the object sold). Mora creditoris of the seller ( he fails to receive payment) has no influence on the duty of safe-keeping
What doctrine determines whether the seller or the buyer bears the risk where accidential damage is caused to the object either by coincidence or by acts of God, and not by the culpable conduct of either party?
Passing of risk
What is the general rule of passing of risk?
The owner suffers the loss when his property is destroyed. They would bear the burden of the total or partial destruction of the object, without being able to claim the purchase price from the buyer
When is a contract a perfecta?
A) the buyer and the seller have the intention of buying and selling
B) the object to be sold is determined :
- an emptio rei speratae, the object sold is fixed after being measured or weighed
- a generic sale, the object sold is fixed after individualism
- an emptio spei, the object sold is fixed as soon as the contract is concluded
C) the purchase price is determined
D) the contract is not subject to a suspensive condition
What risk does the buyer bears?
If the object is damaged or destroyed through coincidence or an act of God.
What risk does the buyer bears?
If the object is damaged or destroyed through coincidence or an act of God.
Is the buyer liable to pay the purchase price even where the seller has not yet delivered the object to him?
Yes
W
When is object of sale bome by either the seller or buyer?
When damage is caused my natural disasters ( God’s will)
What does advantage derived from the object sold after conclusion of the contract but before delivery consist of ?
Natural accrual (accessory accrual) of the object of sale. Those benefits ( substitutive advantages) form an inherent part of the object sold
Discuss the influence of the consumer protection act on risk
Consumer Protection Act 68 of 2008, states in the absence of an express agreement to the contrarys, goods to be delivery, remain at the supplier’s risks until consumer has accepted delivery.
When is delivery deemed accepted?
When a consumer expressly or implicitly communicates to a supplier that he or she has accepted delivery of such goods, or if a consumer does anything in relation to the goods that is inconsistent with the supplier’s ownership, or if a consumer keeps goods for an unreasonable time without informing the supplier that they does not want it .
Explain passing of ownership
Conclusion of a contract of sale does not transfer ownership to the buyer. Only obtains personal rights against the seller for delivery of the object sold.
Is it the duty of the seller to transfer ownership to the buyer?
No, ownership is one of the requirements for a valid and binding contract
Name the requirements for passing of ownership for immovable property. (buyer will obtain ownership when)
A) the seller is the owner of the object sold
B) the seller has the intention of transferring ownership and the buyer has the intention to obtain the ownership
C) the property is registered in the name of the buyer
Name the requirements for passing of ownership for movable property. (buyer will obtain ownership when)
A) the seller is the owner of the object sold
B) the seller has the intention of transferring ownership and the buyer has the intention to obtain the ownership
C) where it is a cash sale
- the seller must deliver the object to the buyer
- the buyer must pay the purchase price
D) where it is a credit, delivery of the object to the buyer. Prices does not have to be paid to transfer ownership. Parties can agree for transfer of ownership after price is paid
Discuss cash sales
1) Both parties intend effecting delivery and payment at same time or at least on same day
2) ASSUMPTION: Sale = cash sale unless agreement that it’s a credit sale
3) Seller entitled to reclaim thing if buyer fails to pay within reasonable time
When tacit granting of credit approved?
1) Seller accepts security
2) Parties agree on interest rate
3) Credit deduced from previous transactions
4)Customary for commercial transaction to be concluded on credit
5) Seller accepts post dated cheque as payment
6)Seller does not insist on immediate payment or does not reclaim thing sold within
reasonable period
Can a seller refuse cheque payments?
Yes, unless agreed upon parties.
Explain conditional payment?
Payment by cheque. The conditions is that the amount presented by cheque is actually paid to the seller.
Is payment by cheque constitute either payment or granting of credit?
Neither
In which terms is immovable corporeal property registered?
The registration of deeds act 47 f 1937
Discuss movable corporeal property
Delivery can be affected in many different ways. Literal delivery symbolic delivery change of intentions marking or painting out
Explain delivery through change of intentions
The parties already possesses the object and will continue to do so after delivery there of
Explain symbolic delivery
Where something is delivered to the buyer to enable him to use the object sold
Discuss actual delivery
The object sold is handed physically by the seller to the buyer
Discuss delivery with the short hand ( traditio brevi manu)
The buyer is already physically in possession of the object sold and delivery takes place by the change of intention of the parties.
Explain constitutum possessorium
Takes place through the change of intention of the parties, but the seller remains, after the contract has been concluded, physically in possession of the object sold
What is attornment?
The object sold physically in the possession of the third party and delivery takes place through a change of intention of the buyer and seller
