Duties of the seller Flashcards
List the duties of a seller
- safe keeping of thing sold
- passing of ownership
- delivery of thing sold
- warranty against eviction
- warranty against latent defects in thing sold
Duties of seller: Safe keeping of thing sold
- 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
- intentional acts or,
- negligent acts (careless/gross)
Factors that influence duty of safekeeping
- mora debitoris/creditoris of buyer
- more debitoris of seller
Factors that influence safekeeping duty: Mora debitoris/creditoris of buyer
- 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
Factors that influence safekeeping duty: Mora debitoris of seller
- where seller fails to deliver thing sold
- in this case seller is responsible for all damages even if they were not in fault
Factors that influence safekeeping duty: Mora creditoris of seller
- where seller does not receive payment for thing sold
- this has NO INFLUENCE on safe keeping of thing sold
What are the requirements for passing on ownership? : Immovable property
- 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)
What are the requirements for passing on ownership? : Movable property
- seller is owner of thing sold
- mutual intention to pass ownership from seller to buyer
- where it is a cash sale
- seller must deliver thing sold
- buyer must pay purchase price
- where it is a credit sale
- delivery of thing sold is only requirement
Cash sale
where both parties intend to effect delivery and pay purchase price on the same date
What are the different ways in which moveable corporeal may be delivered?
- actual delivery
- delivery with the short hand
- constitutum possessorium
- attornment
- symbolic delivery
- delivery through marking
- delivery with the long hand
- clavium traditio
Actual delivery
when item is handed over to buyer by seller physically
Delivery with the shorthand
where buyer was already in possession of the thing sold
Constitutum possessorium
- opposite of delivery with shorthand
- where seller remains in possession of thing sold even after the transfer of ownership
Attornment
where the thing sold remains in possession of third party before selling and after selling
Symbolic delivery
where seller places buyer in possession of symbol by means of which the buyer gains control over object sold
Delivery through marking
delivery takes place by marking of thing bought or sold
Delivery through the longhand
when seller points out the thing sold to purchaser with the intention of passing ownership
Clavium traditio
- delivery by handing over keys of the thing sold to the buyer
- if there are duplicate keys then delivery is deficient
Warranty against eviction
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
Duties of buyer when eviction is imminent
- buyer must not surrender thing sold to someone who is threatening them with eviction
- buyer must notify seller about threat of eviction
Buyer’s right of recourse: Total eviction
buyer is entitled to:
- cancel contract of sale
- claim repayment of total PURCHASE PRICE
- claim damages
Buyer right of recourse: Partial eviction
- 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
When does the buyer have no or limited right of recourse?
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)
What is a latent defect
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
