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BER210 - SU3: Purchase and Sale > Duties of the seller > Flashcards

Duties of the seller Flashcards

1
Q

List the duties of a seller

A
  • safe keeping of thing sold
  • passing of ownership
  • delivery of thing sold
  • warranty against eviction
  • warranty against latent defects in thing sold
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2
Q

Duties of seller: Safe keeping of thing sold

A
  • seller has duty to protect and take care of the thing sold until it is delivered to buyer
  • reasons for damaged goods by buyer are
    1. intentional acts or,
    2. negligent acts (careless/gross)
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3
Q

Factors that influence duty of safekeeping

A
  • mora debitoris/creditoris of buyer

- more debitoris of seller

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4
Q

Factors that influence safekeeping duty: Mora debitoris/creditoris of buyer

A
  • where the buyer fails to pay price/receive thing sold (respectively)
  • in this case seller will be held liable for damages if they were a result of gross negligence or it was intentional
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5
Q

Factors that influence safekeeping duty: Mora debitoris of seller

A
  • where seller fails to deliver thing sold

- in this case seller is responsible for all damages even if they were not in fault

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6
Q

Factors that influence safekeeping duty: Mora creditoris of seller

A
  • where seller does not receive payment for thing sold

- this has NO INFLUENCE on safe keeping of thing sold

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7
Q

What are the requirements for passing on ownership? : Immovable property

A
  • seller must be true owner
  • seller must have the true intention to transfer ownership to the buyer AND buyer has intention of obtaining the ownership
  • property must be registered to the buyer

(payment is NOT a requirement)

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8
Q

What are the requirements for passing on ownership? : Movable property

A
  • seller is owner of thing sold
  • mutual intention to pass ownership from seller to buyer
  • where it is a cash sale
    1. seller must deliver thing sold
    2. buyer must pay purchase price
  • where it is a credit sale
    1. delivery of thing sold is only requirement
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9
Q

Cash sale

A

where both parties intend to effect delivery and pay purchase price on the same date

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10
Q

What are the different ways in which moveable corporeal may be delivered?

A
  • actual delivery
  • delivery with the short hand
  • constitutum possessorium
  • attornment
  • symbolic delivery
  • delivery through marking
  • delivery with the long hand
  • clavium traditio
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11
Q

Actual delivery

A

when item is handed over to buyer by seller physically

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12
Q

Delivery with the shorthand

A

where buyer was already in possession of the thing sold

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13
Q

Constitutum possessorium

A
  • opposite of delivery with shorthand

- where seller remains in possession of thing sold even after the transfer of ownership

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14
Q

Attornment

A

where the thing sold remains in possession of third party before selling and after selling

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15
Q

Symbolic delivery

A

where seller places buyer in possession of symbol by means of which the buyer gains control over object sold

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16
Q

Delivery through marking

A

delivery takes place by marking of thing bought or sold

17
Q

Delivery through the longhand

A

when seller points out the thing sold to purchaser with the intention of passing ownership

18
Q

Clavium traditio

A
  • delivery by handing over keys of the thing sold to the buyer
  • if there are duplicate keys then delivery is deficient
19
Q

Warranty against eviction

A

when a third party who has greater rights over the thing sold prevents the buyer from partial or full enjoyment, use or disposal of the thing sold

20
Q

Duties of buyer when eviction is imminent

A
  • buyer must not surrender thing sold to someone who is threatening them with eviction
  • buyer must notify seller about threat of eviction
21
Q

Buyer’s right of recourse: Total eviction

A

buyer is entitled to:

  • cancel contract of sale
  • claim repayment of total PURCHASE PRICE
  • claim damages
22
Q

Buyer right of recourse: Partial eviction

A
  • where portion a very large portion of the thing sold is evicted and buyer is left with small remainder, buyer may
    • -> cancel contract, claim for damages or claim repayment of purchase price
  • where evicted portion is small and buyer still has useful part of the remainder of things sold:
    –> buyer may retain remains and
    –> claim pro rata repayment of purchase price and
    damages
23
Q

When does the buyer have no or limited right of recourse?

A

when:
- seller is liable in terms of warranty where reason of
eviction already existed at time of conclusion of
contract or after (because of seller’s fault)
- buyer was aware that seller was not true owner of
thing sold at the time contract was concluded
- seller was unsure of whether they were the true
owner and made buyer aware of this
- buyers claim against seller is overdue (time limit has
passed)
- eviction was caused by force majeure (vis maior)

24
Q

What is a latent defect

A

a defect that renders the thing sold unfit for its intended use that was not known to buyer at conclusion of contract and could not be uncovered before a reasonable examination

25
Q

Latent vs Patent defect

A
  • latent defect –> inability to be readily noticed by a diligent person
  • patent defect –> can be readily noticed by a diligent person
26
Q

Warranties against latent effects: Warranty by operation of law

A
  • applies automatically (unless specifically excluded by voetstoots clause)
27
Q

Warranties against latent defects: Contractual warranties

A

seller may give express/tacit contractual warranties against latent defects

note: tacit warranties NOT EQUAL TO warranties by operation of law

28
Q

Aedilitian actions under warranties by operation of law

A
  • claim restitution
  • claim reduction in purchase price

note: buyer CANNOT claim damages

29
Q

Influence of Consumer Protection Act on warranty against latent defects

A

p 139 (textbook) and p 148 (pdf)

BER210 - SU3: Purchase and Sale (3 decks)

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